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March 1st, 2023:

Abortion funds’ lawsuit against the “sanctuary cities” guy tossed by SCOTx

Unfortunate.

The Texas Supreme Court upheld the right of an anti-abortion activist to call abortion advocacy groups criminal enterprises and emphasized the state’s 1921 law criminalizing abortion is in force.

In the majority and the concurring opinions issued Feb. 24, the Supreme Court took on three abortion advocacy groups that hoped to proceed with defamation claims in state trial courts against anti-abortion activist Mark Lee Dickson and his organization Right to Life East Texas.

Two courts of appeals came to different conclusions, with the Seventh District finding the defendants’ statements protected political speech and the Fifth District finding Dickson’s statements inconsistent with the Penal Code and permitting the defamation suit to continue.

Justice Jane Bland, writing for the court, held the statements “are protected opinion about abortion law made in pursuit of changing that law, placing them at the heart of protected speech under the United States and Texas Constitutions.”

Dickson, during the course of a “Sanctuary City for the Unborn” campaign meant to get local municipalities in Texas to pass resolutions declaring themselves sanctuary cities, used promotional materials and social media that included statements such as abortion groups were criminal organizations and murderers.

During oral argument last October, Jennifer Ecklund of Thompson Coburn, the attorney for Lilith Fund for Reproductive Equity, Texas Equal Access Fund and Afiya Center, said, “People are afraid to express their view for fear that they will also be called literal criminals who might be prosecuted, based on things that they believe were totally constitutional based on this court’s pronouncements and the U.S. Supreme Court’s pronouncements.”

Bland noted the statements were made before Roe v. Wade was overturned and amid decades of fervent debate regarding the morality and legality of abortion.
“Equally apparent is that such statements reflect an opinion about morality, society, and the law,” Bland wrote. “The collective impression is not that Dickson was disseminating facts about particular conduct, but rather advocacy and opinion responding to that conduct. Dickson invited the reasonable reader to take political action.”

[…]

The majority opinion affirmed the Seventh District appeals court ruling and reversed the Fifth District’s ruling, remanding both to their respective trial courts for entry of dismissal orders.

See here and here for the background. I was obviously way too optimistic about this one. I can see the Court’s reasoning but I think they got it wrong. Not much else to say. Bloomberg Law has more.

DPS victimized by credential stuffing attack

That’s the technical term for this.

The Texas Department of Public Safety was duped into shipping at least 3,000 Texas driver’s licenses to a Chinese organized crime group that targeted Asian Texans, DPS Director Steve McCraw told a Texas House committee on Monday.

The crime group worked through the state’s government portal, Texas.gov. The agency, which discovered the security breach in December, will begin notifying victims in letters to be sent out this week, the DPS chief said. More victims are still being identified, he said.

“We’re not happy at all, I can tell you that, one bit,” McCraw said in testimony to a House Appropriations subcommittee. “They should have had — controls should have been in place, and they never should have happened.”

The crime organization, which McCraw did not name, was able to get its hands on the Texas driver’s licenses by first pulling personal data on individuals with Asian surnames from the “dark web” and other underground data-trading portals.

That info, including previous addresses and family names, allowed thieves to correctly answer password security questions on the Texas.gov site and use stolen credit cards to order duplicate copies of active licenses — such as those ordered by people who misplace their licenses or report them stolen. A replacement license costs $11.

The state-run Texas.gov site is the central portal for Texans wanting to renew licenses, obtain driving records and registration, and obtain birth and death certificates, among other things.

The investigation into the stolen driver’s licenses spans at least four states and also involves fraudulent licenses duplicated from victims in other states as well as Texas. The FBI and the Department of Homeland Security are also investigating, according to the DPS letter to lawmakers.

House Appropriations Vice Chair Mary González, an El Paso Democrat, blasted DPS agency chiefs for letting so much time lapse while Texans were unaware that their identities were being used fraudulently.

“Somebody could be going around as Mary González right now for two months, and nobody’s been notified, I [wouldn’t have been] notified,” González said.

DPS officials are not calling the incident a “data breach” because they say no hacking was involved and vast amounts of data were not being stolen. Instead, the crime group used data obtained from underground sources to bypass a simple password security system — laying bare a security vulnerability that “should never have happened,” McCraw said.

Texas.gov is operated not by DPS, but by the Texas Department of Information Resources.

DPS officials declined to provide details about the security loophole that left the site open to fraud but told lawmakers that it had been closed.

DIR spokesperson Brittney Booth Paylor dismissed the notion that the incident was a cybersecurity breach, calling it “a case of fraudulent criminal activity based on factors unrelated to state systems.”

[…]

The problem was first detected in December when a third-party Texas.gov payment vendor “alerted DPS to an increase in customers challenging credit card charges for online transactions,” according to a February letter sent to lawmakers from the DPS. The credit cards used to buy the fraudulent copies were also stolen, authorities said.

Before investigators shut down the operation, McCraw said, the license thieves were able to use the site, billed as “the official website of the State of Texas,” to obtain driver’s licenses that are “Real ID compliant” — not cheap copies, McCraw said.

These stolen licenses can pass verification methods and be used fraudulently all over the country because they are real driver’s licenses being used by people who can pass for the photo on the original card, McCraw said.

See here if you want to learn a bit more about what a credential stuffing attack is. Long story short, don’t reuse your passwords and enable two-factor authentication where you can.

Putting my cybersecurity hat on for a minute, I will say that the DIR response to this is disingenuous. It’s true that there are plenty of pwned password lists available on the internet, and that it’s not Texas’ fault if people reuse passwords. But there are services that the state can subscribe to that would alert them to email addresses in their database that have been found in those pwned lists, which would then give DPS or DIR or whoever would have that responsibility the impetus to contact those address owners proactively and tell them to update their password. They could also enforce, or at least offer, a two-factor solution, and there are other proactive steps available as well. DPS/DIR isn’t “responsible” for this, but DPS/DIR absolutely could have done something to prevent or minimize it.

Rep. González’s complaint about the delay in notifying the affected users is addressed in a later Chron story. I drafted this originally Monday night, so I will do a separate post on that. Short answer, there is a legal requirement in Texas to report data breaches, but there is an exception for when there is an active law enforcement investigation, which DPS has invoked here.

Given the upsurge in violence against Asian-Americans, Rep. González also asked if this could be considered a hate crime, which McCraw avoided answering. It may not be possible to tell from what they know right now, but it is possible to try to figure it out. I’m glad DPS is in contact with the FBI and DHS about that, and I hope that leads to some action. I hope the Lege will press DPS and DIR to do better, and to share the results of the investigation when it’s over. The Lege – and the media – should also focus on McCraw’s statement about controls not being in place and demanding to know what is now being done about that. Either we learn from this or we risk having it happen again. The Chron has more.

We do need more felony courts

This is a good start.

County officials are considering adding new district courts and making more room for detainees in an effort to reduce to county’s court backlog and alleviate overcrowding at the Harris County Jail.

During Commissioners Court on Tuesday, officials considered adding six more district courts to help expedite pending cases in the county’s criminal court system.

County Judge Lina Hidalgo questioned whether focusing directly on the county’s court system would make a significant impact on the jail’s bloated population.

“How do we know that if we bring these new courts that cases will: number one, move faster, and number two, that the backlog reduction will translate into a reduction in the jail population?,” Hidalgo asked.

The number of pending criminal cases in the county has decreased by more than 20% over the last year, according to Harris County’s district court dashboard. Despite the backlog reduction, the jail’s daily population has continued to increase.

As of Wednesday, there were 9,915 people in the jail and 1,051 people outsourced to other facilities, according to the Harris County Jail dashboard. The facility’s daily population has been dangerously close to maximum capacity since June 2022.

Last year, 27 people died with in custody — the highest number in nearly two decades, according to county records and data from Texas Justice Initiative. So far, at least four people have died while in custody this year.

The county’s budget office said the additional courts would cost the county about $30 million to build. After construction, the courts would cost nearly $17 million per year to operate.

On Wednesday, Harris County District Attorney Kim Ogg said she supported adding more courts, but was concerned about the amount of time needed for the new courts to make a meaningful dent in the backlog and overcrowding in the jail.

“I would simply be concerned about the timing that we need time to ramp up,” Ogg said. “It’s not an immediate fix to the problems of the Harris County Jail. It would take time for the legislature to agree and approve, then implement, then you’d have to hire.”

One point to clarify here, Harris County cannot add more district courts to the mix. District courts are state courts, created by the Legislature. Harris County can add county courts, and has done so in recent years, but in the criminal context those are for misdemeanors. District courts are for felonies. The backlog here is in the felony courts.

District courts can also be Civil or Family, but they all come from the Legislature. Harris County has more district courts than any other county, but we are of course by far the biggest county, and we have had a total of two new district courts created here since 1984, and one of those was a Family court. Harris County is about twice as big as it was 38 years ago. District courts are numbered by creation date, so the higher the number the more recent the court. Since the 351st Criminal District Court was created, Fort Bend County and Montgomery County have each had five new district courts added. They have both grown exponentially over the past 40 years and absolutely needed those new courts, my point is that Harris needs some new ones, too. Six new district criminal courts sounds good to me, just on population growth alone.

That doesn’t mean those new courts would solve all of our problems right away – we have issues beyond the backlog, and even if we could snap our fingers and get these new courts tomorrow, it would take awhile for them to have any effect. Other issues, from mental health care at the jail to bail issues to who’s getting arrested and charged with what need to be dealt with, too. Along those lines:

Jail reform advocates say the DA’s Office should follow the recommendations of a 2020 report from the Justice Management Institute, which suggests the department dismiss “all non-violent felony cases older than nine months” in order to alleviate the number of pending cases. The report found that of all the county’s felony cases in 2019, about 57% were either dropped or deferred.

In response, Ogg said the recommendation was “an unrealistic solution.”

“Not only is it unfair, it’s basically unethical,” Ogg said. “If I were to simply dismiss cases because they were over nine months old, it would punish crime victims and it would punish innocent people who might be subjected to repeat crimes.”

Maybe dismissing them all is going too far, but we can certainly try to get our priorities in order. DA Kim Ogg was elected in 2016 in part on a platform of prioritizing violent crime over things like minor drug crimes. We could take a good look at that in deciding which of these years-old unresolved non-violent felony cases really need to be pursued and which can be safely let go. I don’t see why this should be controversial.