Federal judge sanctions Seattle officials for deleting texts

https://www.seattletimes.com/seattle-news/law-justice/judge-sanctions-city-of-seattle-for-destroying-evidence-in-chop-lawsuit-lets-claims-go-to-trial/

by Pigalowda • 3 years ago

128 101 3 years ago

seattletimes.com

mr_beans• 3 years ago

Summer of love!

Steltek• 3 years ago

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"?

pc863• 3 years ago

It's a term of art, not sure why it bothers you on such a personal level.

dylan6044• 3 years ago

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.

bell-cot2• 3 years ago

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.

pc863• 3 years ago

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.

jackmott42• 3 years ago

Everyone wants higher quality public servants. Nobody wants to pay taxes.

bell-cot2• 3 years ago

...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.

redleggedfrog• 3 years ago

I'm right there with you. The destruction of the public records themselves should be a jailable offense.

dragonwriter2• 3 years ago

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

https://apps.leg.wa.gov/rcw/default.aspx?cite=40.16.020

favaq• 3 years ago

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.

ngc248• 3 years ago

Its almost the same everywhere. 90/10 rule, 80% incompetent and 10% somewhat competent

dragonwriter2• 3 years ago

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.

rayiner• 3 years ago

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.

next_xibalba2• 3 years ago

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?

ceejayoz11• 3 years ago

To which side is it usually devastating?

To the obvious one.

"Assume there was evidence so bad they risked criminal charges to get rid of it" makes instilling doubt a lot harder.

sva_• 3 years ago

Compare that to when the president of the European Commission gets away with deleting her texts.

https://www.euronews.com/2022/01/28/von-der-leyen-text-messa...

https://www.theguardian.com/world/2022/jun/29/european-commi...

myko• 3 years ago

Similarly the trump admin/campaign deleting texts to hide from Mueller (Stone, Flynn, Bannon, etc.)

https://thehill.com/policy/national-security/454580-mueller-...

evil-olive2• 3 years ago

Zilly said that when the case goes to trial

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.

0: https://www.seattletimes.com/seattle-news/law-justice/seattl...

a_e_k• 3 years ago

"Adverse inference"

https://en.wikipedia.org/wiki/Adverse_inference

Wyoming23• 3 years ago

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.

Rimintil• 3 years ago

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?

justinclift• 3 years ago

Some countries have legislation around this. eg telecoms providers must at all times keep the latest 2 days worth of SMS messages from all subscribers

from• 3 years ago

Here is a graphic from a VICE article: https://video-images.vice.com/_uncategorized/1634930279896-r...

Actual message content is kept only for a short period of time.

chaostheory• 3 years ago

The carriers themselves likely wouldn’t do it. The government just needs a data hose

https://www.dhs.gov/fusion-center-locations-and-contact-info...

artificialLimbs• 3 years ago

Training data for machine learning. Targeted ads. Punishing your enemies.

andylynch• 3 years ago

Call taping and message archiving via the network is a somewhat popular way of handling these requirements for regulated staff.

ceejayoz11• 3 years ago

Do you want your cell phone provider keeping a history of everything you've ever texted?

rationalist• 3 years ago

No, but I would be surprised if they weren't.

dubcanada• 3 years ago

You're implying they don't already, when that has been largely proved to be in fact true, they do keep history of every text message.

the_doctah• 3 years ago

If I was murdered and it would help the investigation, absolutely.

Manuel_D• 3 years ago

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.

bombcar• 3 years ago

I could certainly see it being a regulated option for government officials.

I already operate on the assumption that all text messages (like all emails) are scanned and stored somewhere to my detriment.

degrees572• 3 years ago

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."

Spooky23• 3 years ago

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.

WaitWaitWha• 3 years ago

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.

In EU similar patchwork.

(source: me half century in field)

chasil• 3 years ago

They are certainly able to do so.

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.

https://silence.im

uxp100• 3 years ago

This happened a month ago. The case settled, afaik.

lesuorac4• 3 years ago

It settled literally 2 days ago! That's pretty recent.

https://www.courtlistener.com/docket/17292181/hunters-capita...

Jacobinski• 3 years ago

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?

lesuorac4• 3 years ago

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).

degrees572• 3 years ago

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.

tssva• 3 years ago

Buried near the bottom of the article is the fact that one of the main plaintiffs purposely deleted texts and was also sanctioned.

cxf12• 3 years ago

"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?

lesuorac4• 3 years ago

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 ...

[1] https://www.courtlistener.com/docket/17292181/166/hunters-ca...

layer8• 3 years ago

That one bit seems unlikely though:

the former chief apparently deleted more than 27,000 of those text messages by hand.

therealdrag0• 3 years ago

Can you see what’s been deleted by hand or not?

zephrx1111• 3 years ago

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.

qikInNdOutReply• 3 years ago

they learned from the bast....

water-your-self• 3 years ago

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.

buildbot• 3 years ago

It was extremely intentional - she is a prosecutor and would know exactly what she was doing.

evil-olive2• 3 years ago

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.

and she committed a white-collar cybercrime.

0: https://www.bizjournals.com/seattle/print-edition/2015/11/20...

1: https://www.justice.gov/usao-wdwa/pr/us-attorney-jenny-durka...

mrandish• 3 years ago

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.

colpabar• 3 years ago

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?

aaronbrethorst• 3 years ago

This article is out of date. CHS has a more up-to-date article on the status of the lawsuit: https://www.capitolhillseattle.com/2023/02/city-settles-chop...

Jun8• 3 years ago

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/

Interesting fact about Bowles that’s relevant to HN: Years ago she did a profile of Jessica Livingston that ticked pg off: https://www.vox.com/platform/amp/2014/8/21/11630108/ycs-jess...

lumpit• 3 years ago

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.

Federal judge sanctions Seattle officials for deleting texts

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