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The Nerve of Law Enforcement

For most of the ten years that I’ve practiced criminal defense as a private attorney, about fifty percent of my practice would typically be juvenile delinquency cases. I had many opportunities to see the ways in which the juvenile court system ignores the law. I even had a hand in changing some of that—particularly when it came to the illegal shackling of juvenile clients.

Well, it appears that I may have discovered another way—and possibly even more alarming—that juvenile laws in the State of California are being ignored. And this one may have long-lasting effects on the lives of our children.

Welfare and Institutions Code (WIC) section 827 is meant to protect the privacy rights of juveniles who get into trouble with the law. This isn’t because of some namby-pamby desire to coddle children, although coddling children is not a bad thing in and of itself.[1] The idea is that maintaining the confidentiality of children’s records enhances rehabilitation efforts. In fact, WIC 831, which addresses children whose immigration status may be in question, states that “Confidentiality is integral to the operation of the juvenile justice system in order to avoid stigma and promote rehabilitation for all youth….” This emphasis on rehabilitation aims to protect the best interests of the children. “[T]he best interests of the minors…obviously is [the courts’] primary concern at all times in the juvenile proceeding.”[2] In protecting privacy rights,

The juvenile court must recognize the general policy of confidentiality and hold paramount the best interests of the minor.[3]

The case from which I took those quotes, In re Keisha T., was about whether a procedure a juvenile court had set up for determining which juvenile court records could be released to the press was proper. The juvenile court, trying to alleviate the added burden on the court from requests by the press for records, adopted a procedure that allowed a temporary judge to make the decision about what information to release, without input from advocates for the children, and without performing the “proper balancing”[4] of the best interests of the child against the freedom of the press. The appellate court recognized that the requirements placed upon the court by WIC 827 “may be cumbersome and time consuming for the juvenile court.”[5] But the court said this could be a factor to consider in deciding whether to disclose records; not a basis for avoiding the requirements of WIC 827; in other words, the court could refuse to release the information, but it could not develop a procedure to streamline things that bypassed the law.

WIC 827 limits the release of “court records” to a certain set of people. I’ll talk about which people are allowed, and not allowed, in a minute. But the reference to “court records” is important, because I anticipate an argument that what I’m going to be complaining about here are not “court records,” but police records. And the 2002 case of People v. Espinosa, 95 Cal. App. 4th 1287, 1315 speaks to that point:

At the commencement of its discussion of the appropriate procedures under section 827, the Court of Appeal noted that section 827 applied to “agency records relating to juvenile contacts as well as police reports.” (Lorenz P. at p. 610.) The court did not discuss any issues regarding the scope of section 827, nor did it suggest that section 827 applied to anything other than CPS records and police reports regarding juveniles. In T.N.G. v. Superior Court (1971) 4 Cal.3d 767 [94 Cal.Rptr. 813, 484 P.2d 981], the California Supreme Court held that police and probation department records of detentions of juveniles were juvenile court records within the meaning of section 827 that could not be revealed to “third parties” without a juvenile court order. (T.N.G., at p. 780.) In Wescott v. County of Yuba (1980) 104 Cal.App.3d 103 [163 Cal.Rptr. 385], the court, relying on T.N.G., held that a police report regarding several juveniles who were not detained was subject to section 827 and therefore could not be released in its totality to the parent of one of the juveniles without a juvenile court order. (Wescott, at pp. 105-110.)[6]

The T.N.G. case referenced by the Espinosa Court additionally expressly states:

Welfare and Institutions Code section 827 reposes in the juvenile court control of juvenile records and requires the permission of the court before any information about juveniles is disclosed to third parties by any law enforcement official. The police department of initial contact may clearly retain the information that it obtains from the youths’ detention, but it must receive the permission of the juvenile court pursuant to section 827 in order to release that information to any third party, including state agencies. Police records in this regard become equivalents to court records and remain within the control of the juvenile court.[7]

You can imagine my surprise, then, when I was retained to defend a juvenile, and the District Attorney told me that I needed to log on to Evidence.com to download discovery.

Evidence.com is an SaaS solution, owned and operated by Axon. For those who don’t know, “Taser International is now Axon.”[8]

And neither Evidence.com, nor Axon—not even in its prior incarnation as “Taser International,” for that matter—are listed in WIC 827 as lawfully able to receive, or disseminate, juvenile records. No corporation is.

As near as I can tell, there is no law, anywhere—but particularly in the laws of the State of California, which matter most for this particular situation—that allows any law enforcement agency, or the District Attorney, to release juvenile records to Axon.

In fact, the closest that anything comes is WIC 827.1, which allows a “city, county, or city and county” to establish a computerized database system within the city, county, or city and county. It does not say that the city, county, or city and county, are authorized to outsource that task to a third party. It does not say that it may turn over the data to a corporation to store in the cloud. And it requires the city, county, or city and county, to

develop security procedures by which unauthorized personnel cannot access data contained in the system as well as procedures or devices to secure data from unauthorized access or disclosure. The right of access granted shall not include the right to add, delete, or alter data without the written permission of the agency holding the data.

Such unauthorized personnel would include employees of corporations, like Axon. Plus, as in the case of Evidence.com, Axon would be “holding the data,” this would indicate that no one could add, delete, or alter that data without the written permission of Axon.

And, indeed, there are questions about the way that Evidence.com has been used to manipulate the data uploaded to it by law enforcement. An Albuquerque detective, Christopher Whigham, noted,

If I change the setting in Evidence.com to allow offline mode this will give the officer the ability to manage their videos…

Unsurprisingly, Albuquerque police, who have been the subject of numerous articles (which I won’t take the time to hunt down and link here: Google is your friend as well as mine) involving police shootings where video was mysteriously absent, or corrupted, are alleged to have taken advantage of just such abilities for years. Evidence.com’s capabilities aren’t limited to deletion, however. They include the ability to delete, to change the resolution (or graininess), to blur images, and to edit out portions.

But let’s set aside, for the moment, the tools that Axon, via Evidence.com, has at its disposal—and the disposal of law enforcement officers, or others, who might be authorized by the system—any system, including one established by a city, county, or city and county, might suffer these same weaknesses. And, to be fair about things, Evidence.com allegedly maintains an audit trail that would supposedly prevent this being done without anyone potentially being held responsible.

Set that aside, as I said. The fact of the matter remains that nothing in the laws of the State of California allows for Axon to have juvenile court records provided to it by the police.

This is problematic not just because it means that law enforcement officers, and complicit District Attorney Offices—and, by the way, defense attorneys who signed up for the service, and thereby not only acquiesced, but agreed to give up certain rights regarding their clients’ data, too—have ignored the law. It is also problematic because, so far as I know, the courts are unaware of this. At least, I hope the courts are unaware of this, because if they areaware of this, that means that the courts have also sanctioned ignoring the laws of the State of California as pertains to juveniles.

Why does this matter? After all, WIC 827.1 already allows a city, county, or city and county, to set up a database for exchange of (arguably) this type of data. Why can’t the city, county, or city and county outsource that task to a corporation, like Axon—the people who support law enforcement’s war on its citizens?

It matters just because Axon is a private corporation. Set aside—my god! let’s set aside every bit of the law!—the fact that WIC 827.1 expressly states that the city, county, or city and county should be in charge of this data, and should be responsible for who is given access to it. The decision as to who is granted access to the system should come from the city, county, or city and county: not from Axon.

But in the case of Evidence.com, such access does come from Axon. In fact, I have so far been prevented from obtaining the discovery in my juvenile case. Why? Because I refused to sign the license agreement with Axon to obtain access to their—not the city, county, or city and county’s, but Axon’s—website.

Why did I do that? Because, among other things, The “Evidence.com Terms of Use” require me to promise certain things I will not promise. I can’t find a link to the Terms of Use online—there are links to a Master Agreement that apparently whoever purchases the use of the system signs, and to some kind of user manual (which I haven’t yet read)—so I saved the Evidence.com Terms of Use I was asked to sign here.

The first thing that draws one up abruptly (again, aside from the fact that law enforcement is ignoring the law by disseminating juvenile records to Axon in the first place) is this:

You consent to Axon’s access and use of the Account Content in order to….improve Axon’s Products and Services. In addition, for content that is covered by intellectual property rights, like photos and videos (“IP Content”), you specifically give us the following permission: you grant us a non-exclusive, transferable, irrevocable, royalty-free, sub-licensable, worldwide license to use any IP Content that you post on or in connection with the Services (IP License).

Wow.

Well, at least it’s non-exclusive, right? If I want to violate California law, in addition to uploading videos of juveniles allegedly committing crimes for the transferable, irrevocable, sub-licensable, worldwide licensing of Axon, at least I can still also provide that video to other parties.

It doesn’t stop there, though. Suppose that someone (like me) complains about the illegality of this arrangement. So maybe the right people hear about this blog article, and decide “OMG! We did not realize California law was being abrogated this way!” The accounts that the District Attorney has with law enforcements nervous system—Axon—are shut down. Axon promises that

[W]e will use reasonable care to store and provide the ability to retrieve your Account Content at our sole discretion for a period of 90 days.

Can you spell Trombetta-Youngblood?

Meh, maybe the case will be saved by the court’s determination that the District Attorney’s refusal to follow the laws of the State of California was not done in bad faith.

Remember that irrevocable license that was given to Axon?

California Welfare and Institutions Code section 781 (to name just one such code) provides additional protections to children who end up in the so-called “justice” system. This code section provides a procedure by which

Each agency, entity, and official [named in a court order] shall seal the records in its custody as directed by the order, shall advise the court of its compliance, and thereupon shall seal the copy of the court’s order for sealing of records that the agency, entity, or official received.

Does that include Axon? If so, what of their “irrevocable” license? And, if not, how is that enforced? What of any parties to whom Axon may have transferred their transferable, irrevocable, and royalty-free license?

Frankly, I see no way that this arrangement is legal under the laws of the State of California. But I don’t know that I really blame Axon for this. After all, they aim only to make money. What small point is it that—like prisons for profit—they make their money off the latest incarnation of Jim Crow?

But California law enforcement, and California District Attorneys, and defense attorneys who have not spoken out about this before?

They’ve got a lot of axons nerve.



Footnotes
  1. If most delinquents received more coddling, fewer of them would grow up to be adult criminals. Children should be coddled. 
  2. In re Keisha T., 38 Cal.App.4th 220, 239 (1995). 
  3. Id. at 240. 
  4. I put scare quotes around this because this is a bogus concept. The Constitution never mentions balancing rights. If the press can, by itself, get its hands on information, let them publish. There is no requirement that someone’s private information be coughed up whenever the press wants it. 
  5. Id. at 241. 
  6. Bold-facing added. 
  7. Wescott v. Cty. of Yuba, 104 Cal. App. 3d 103, 107, 163 Cal. Rptr. 385, 388-89 (1980), quoting T.N.G
  8. How quaint is that? An “axon” is “the long threadlike part of a nerve cell along which impulses are conducted from the cell body to other cells.” It’s fair to say, particularly with Evidence.com, that Axon aims to be the nerve center of the law enforcement community, while also being the company that produces weapons that disrupt the nervous systems of ordinary citizens. 
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