Court Calls Bullshit On Cop Who Claimed He Could Smell Weed In Sealed Bags In A Moving Car From His Own Moving Cruiser

from the STEAMED-HAMS-but-it's-this-cop's-story dept

It doesn't happen nearly often enough, but it's always enjoyable to watch a court lay the smackdown on a law enforcement officer's literally unbelievable assertions. And this case [PDF] -- via FourthAmendment.com -- contains a claim from a supposedly trained and experienced officer that's so ridiculous, the court has no choice but to discredit his testimony completely.

Indianapolis police officer Daniel Hiser performed a traffic stop that resulted in the discovery of marijuana and a handgun in Davon Gray's possession. But it's the events leading up to the stop that triggered the court's BS detector -- events that include Officer Hiser's apparently miraculous olfactory sense.

Officer Hiser is surprisingly humble about his superhuman gift, something that has served him well during his years as a law enforcement officer.

Though Officer Hiser has never had his sense of smell tested and does not generally consider his sense of smell extraordinary, he estimates that he smells raw marijuana at some point during approximately a quarter of the traffic stops he conducts.

But any officer with similar training ("Officer Hiser received a 'couple of hours' training on the appearance and odor of multiple [drugs]...") could be expected to smell marijuana in a stopped car with its windows down. Officer Hiser, however, can smell it in moving vehicles with their windows up located a few car lengths away from his impressive nose.

At about 3:30 p.m. on January 11, 2018, Officer Hiser was patrolling in his police cruiser in the East District when he turned south onto Arlington Avenue from 31st Street. As he moved into the left lane of Arlington Avenue behind a Dodge Stratus driven by Gray, Officer Hiser testified that he could smell the strong odor of raw marijuana. Officer Hiser believed the scent to be coming from the Stratus, so he continued southbound to try to verify that this vehicle was the source of the aroma. (Filing No. 72-1 at 5.) While cars were not "bumper to bumper," there was still some traffic present. Several blocks later, around 23rd Street, the Stratus moved into the right lane, and Officer Hiser could no longer smell the marijuana odor. Officer Hiser then switched lanes and the fragrance returned. Id. The Stratus then slowed, turning into an Express Mart at the corner of 21st Street and Arlington Avenue. Again, as the Stratus departed the lane, Officer Hiser testified that the scent vanished. At this point, Officer Hiser decided to stop the vehicle and pulled behind the parked Stratus, initiating his emergency lights and siren.

Hiser could not state with any certainty whether he had ever performed this superhuman feat of olfactory awareness prior to this stop. He also could not state with any certainty whether his cruiser's windows were down or whether Gray's windows were down. The 3.59 ounces of marijuana found in the car Hiser claimed smelled like weed was located under the front seat inside resealable plastic bags.

Yes, courts are supposed to defer a bit to "trained" and "experienced" officers and their assertions about their ability to determine whether something is reasonably suspicious or objectively innocuous. And courts far too often reward unreasonable assertions made by cops with good faith passes or denials of motions to suppress.

But the court isn't impressed by Hiser or his freak-of-olfactory-nature superpowers. You have got to be fucking kidding me, says the court.

The Court agrees with Gray that it is incredible that Officer Hiser—who self-admittedly does not have a heightened olfactory system—could smell the scent of two resealable sandwich sized plastic baggies of unburnt marijuana coming from a moving vehicle when patrolling in his cruiser. This occurrence is not only contrary to any common experiences, but is "implausible" and seemingly "contrary to the laws of nature."

Unsurprisingly, there is exactly zero precedent that supports Hiser's "if I smelt it they probably were in the process of, um, dealting it" theory of reasonable suspicion. (Emphasis in the original.)

The dearth of appellate caselaw considering—let alone upholding—Terry stops solely based on an officer smelling three ounces of raw marijuana emanating from two small ziplocked sandwich baggies located under the front seat a moving car, while he drives his own vehicle, supports a finding of incredibility of Officer Hiser's testimony as a matter of law.

In fact, it can only find precedent that quotes an officer just as full of shit as Hiser.

"The arresting officer's testimony that he observed defendant exchanging a 2-inch glass vial with a dark top, from a distance of approximately 74 feet, from a moving patrol car, after dark, is, in our view, contrary to common experience and, as such, was incredible as a matter of law and did not support the verdict."

Away goes the stop, which means away goes the evidence. And without the evidence, the government has nothing, which it has acknowledged by dismissing Gray's indictment.

It's already impossible to believe cops smell as much marijuana as they do -- something that handily allows them to start tossing vehicles and patting down vehicle occupants without troubling themselves with a warrant. This cop just took the lie too far.

Filed Under: 4th amendment, daniel hiser, davon gray, smell, traffic stop, warrantless search

The Key To Lowering Drug Prices Is Improving Patent Quality

from the patent-quality-week dept

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.

Patents are increasingly a hot topic in drug price policy conversations. So much so, that one might wonder if this newfound attention is deserved. For example, a recent Senate Judiciary Subcommittee hearing examining anticompetitive conduct in prescription drug markets ended up focusing heavily on Pharma’s blatant abuse of U.S. patent laws. Indeed, it seemed at times that patent thicketing had eclipsed the many other anticompetitive “shenanigans” that Pharma uses to delay competition.

So why is there such a growing spotlight on patents?

First, it’s important to realize just how big the drug price problem is. Prescription drug spending remains a critical issue in the United States as millions of American patients and the U.S. healthcare system struggle to keep pace with the growing price tag for medical innovations with limited financial reprieve from low-cost alternatives. In 2020, the total US drug spending was estimated at $358.7 billion and the Centers for Medicare & Medicaid Services (CMS) projects national spending on healthcare to reach $6.2 trillion by 2028 – the bulk of the cost resting on shoulders of the federal government and American households (mainly through taxes and insurance premiums).

One of the key drivers of these rising costs are the habit of drug makers of blocking competition on older drugs that have proven themselves to be blockbusters. And the best modern strategy for doing that is creating a patent thicket. As Committee Chairman Senator Dick Durbin (D-IL) pointed out, “[T]he top-12 best-selling drugs in America each have an average of 71 patents and 78 percent of all new patents are for drugs that are already on the market.”

The reason behind this is two-fold. Older tactics have had successful antitrust cases filed against them, but patent thicketing is somewhat protected by the Noerr-Pennington Doctrine which states that (except for some limitations) people can petition their government even for anticompetitive reasons. That means it is up to the government to resist anticompetitive gaming of its regulations. The second reason is that the patent office is failing at just that. Dr. Rachel Moodie, vice president for Biosimilars Patents and Legal for Fresenius Kabi, a leading health care company, gave testimony stating, “[W]e see the U.S. Patent system as being an outlier now compared to other systems around the world… the way that the patent system is working right now is that it’s easy to circumvent certain rules that allow you to repetitively claim a similar invention over and over again.”

What is the result of this patent thicketing?

Drug manufacturer AbbVie has filed over 240 patent applications for a single drug, Humira, and received over 130 granted patents.  This patent thicket has allowed Humira to control the marketplace in the U.S., leading to Humira claiming the number 1 spot as the world’s bestseller since 2012 – while other countries have had access to more affordable biosimilars. AbbVie itself has had to cut prices by 80% in some markets due to competition.

AbbVie isn’t alone. A study by I-MAK found the practice of patent thicketing pervasive among the top 12 best selling drugs by revenue.

Just how big of a deal is patent thicketing?

The 2020 US revenues of just three drugs – Humira, Enbrel and Revlimid – represent 8.2% of total drug spending in that year. All three of these drugs should be facing competition now or be close to the end of their monopoly terms. They were approved in 2002, 1999, and 2005 respectively. Patent terms only extend 20 years and drugs have historically averaged a little over 14 years of protection on the market due to the length of the approval process (this includes patent term restoration passed by Congress to give some of this time back). Humira has a deal with biosimilar manufacturers that allows them to come to market in 2023, but Enbrel and Revlimid’s final patents don’t expire until 2029 and 2036. Add Imbruvica, a drug we could have seen competition this decade but won’t, and just those four drugs represent almost 10% of all US drug spending.

Competition, on the other hand, works when allowed to. A list by Fierce Pharma of the top 20 drugs by worldwide sales in 2020 indicates just how well competition works to lower the price of some of Big Pharma’s most sought after drugs. As competition from biosimilars and generics hits the marketplace, sales of the industry’s top performing drugs correspondingly drop. For example, as competition emerged against Johnson & Johnson’s ulcerative colitis drug, Stelara, the company had to cut its prices to remain competitive. The same report by Fierce Pharma also anticipates the number two drug, Keytruda, soon taking over the number one spot as Humira’s patent is expiring in 2023, opening it up to competition by biosimilars.

What does this have to do with patent quality?

Drug patent thickets are largely made up of low quality patents whose applications were only filed because of the benefit they provide in keeping competition away from top selling drugs. This means that any patent quality efforts are also efforts to reduce drug prices. For example, the USPTO’s inter partes review process (IPR) has been instrumental in cancelling low-quality patents and allowing new drug competition. This is one of the best tools created by the America Invents Act to cut through these dense patent thickets. IPRs were substantially weakened under the last administration, but a Congress that cares about drug pricing could restore and strengthen this tool to great effect.

Matthew Lane is the executive director of the Coalition Against Patent Abuse

Filed Under: drug prices, patent quality, patent quality week, patents

Senator Amy Klobuchar Says She Has A Bill To Hold Facebook Responsible For Vaccine Disinfo; But What Would The Cause Of Action Be?

from the that's-not-how-any-of-this-works dept

Earlier this week, appearing on The View, Senator Amy Klobuchar was asked about COVID disinformation, and gave a pretty bizarre answer. Responding to a question about how fighting COVID has been politicized by Fox News, Klobuchar said we should make Facebook responsible. It's really quite an incredible disconnect. The question specifically highlighted how Fox News was the main vector of COVID misinformation, and Klobuchar said this:

And at the same time, the misinformation on the internet, which is something I'm personally taking on is outrageous. These are the biggest richest companies in the world that control these platforms, and they've got to take this crap off. We're in a public health crisis -- we still are -- we've seen major improvement thanks to the vaccines, the ingenuity of people, Biden administration getting this out, but this is holding us back. Two thirds of the people that are not vaccinated believe something that they read on the internet. That's all the facts I need. That's from a Kaiser Foundation Report.

So I'm going to introduce a bill to limit the misinformation on vaccines by saying you guys are liable if you don't take it off your platforms.

The next speaker then joked that Facebook is "more likely to remove a breastfeeding shot than some misinformation" which... um... is not even remotely true. It may have been true a decade ago but old talking points are obsolete.

But, the larger point here is make Facebook liable for what exactly? Whether we like it or not, vaccine misinformation is still protected speech under the 1st Amendment. And no bill that Klobuchar can introduce can change the 1st Amendment. So, if you make them "liable," there still is no cause of action because the misinformation itself does not (and cannot) violate any law in the US.

And, as has been pointed out over and over again, it's not as easy as everyone makes it out to be for these sites to just snap their fingers and make such misinformation disappear. Everyone thinks it is because they've never had to do it themselves, especially not at the scale of a Facebook. First, you need clear, easily understood definitions of what qualifies as vaccine misinformation that are easily explained to tens of thousands of human moderators. Then you need to train them how to recognize what is actually misinformation -- and not someone just commenting about vaccines (including by people who might not be experts, and might get some small things wrong). Then you need to set parameters for what kinds of misinformation should actually lead to what responses. Do you shut down accounts entirely? Do you give people warnings? Do you make them delete specific content? Then you have to deal with levels of misinformation. How do you deal with someone who presents something that is technically factual, but placed in a warped context, such that it implies something false? How about someone who presents incomplete information? Or someone who presents factual information, but their interpretation of it is incorrect? How do you know who is doing it deliberately and who is just unclear?

Then you have to deal with the false positives (of which there will be many -- including people trying to spread counter-info to respond to those spreading disinformation). Then you have to recognize how disinformation strategies will continue to evolve over time, and how those with a vested interest in spreading such information will change their tactics, so whatever worked yesterday won't work tomorrow. Then you have to recognize that you're still going to miss a massive amount of the content, because you have 2.8 billion users around the globe, and no company, no matter how big, and with however many AI bots and human content moderators, can ever possibly review all of it... and you're putting companies in an impossible position.

Demanding the impossible is not good policy.

Can Facebook do a better job of all of this? Of course. Has the company been flippant and silly in the past in responding to controversies over content moderation. Absolutely. But demanding the impossible and threatening unconstitutional regulatory responses for failing seems... counterproductive?

Filed Under: 1st amendment, amy klobuchar, cause of action, content moderation, disinformation, section 230, vaccine disinformation
Companies: facebook

Seventh Circuit Says (Reluctantly) That 18 Months Of Pole-Mounted Camera Surveillance Isn't Unconstitutional

from the Fourth-Amendment-rights-slightly-down-on-active-trading dept

The Seventh Circuit Court of Appeals has issued a very well-written and thoughtful decision [PDF] on the Constitutionality of long-term surveillance via pole-mounted cameras.

The tricky thing is the "expectation of privacy." For years, it has often been decided that anything the public can view has no expectation of privacy. A person's front door -- easily observable by passersby and neighbors -- has no expectation of privacy. The location data collected by cellphone towers? No expectation of privacy, since these records have been "seen" by service providers. License plate numbers/vehicle location data, even when gathered millions of times a day around the nation? No expectation of privacy.

In recent years, the tide inadvertently created by the Supreme Court's 1967 Katz decision has started to recede a bit. As always-on surveillance (including the steady stream of useful information generated by smartphones) increases, courts have tried to rein in this unprecedented expansion of surveillance capability by defining "reasonable" as things police officers could actually do without the aid of all this new tech. If it's impossible for a cop to watch the same front door 24/7 for weeks on end (and provide specific recall of comings and goings days or weeks after they occurred), then there's perhaps some expectation of privacy even in public places.

The Supreme Court's Carpenter decision placed some limits on the gathering of records stored by third parties, ruling that these too contain some inherent expectation of privacy.

Into the mix comes the Seventh Circuit's decision, which seems a bit at odds with current case law on the subject of long-term surveillance. But it opens with a pretty accurate projection of the near future: something that will continue to wreak havoc on long-held notions about personal privacy, as well as long-lasting precedent that found nothing wrong with the government gazing steadily at people's yards and doorsteps.

One day, in a not-so-distant future, millions of Americans may well wake up in a smart-home-dotted nation. As they walk out their front doors, cameras installed on nearby doorbells, vehicles, and municipal traffic lights will sense and record their movements, documenting their departure times, catching glimpses of their phone screens, and taking note of the people that accompany them.

These future Americans will traverse their communities under the perpetual gaze of cameras. Camera-studded streets, highways, and transit networks will generate precise information about each vehicle and its passengers, for example, recording peoples’ everyday routes and deviations therefrom. Upon arrival at their workplaces, schools, and appointments, cameras on buildings will observe their attire and belongings while body cameras donned on the vests of police and security officers will record snippets of face-to-face or phone conversations. That same network of cameras will continue to capture Americans from many angles as they run errands and rendezvous to various social gatherings. By the end of the day, millions of unblinking eyes will have discerned Americans’ occupations and daily routines, the people and groups with whom they associate, the businesses they frequent, their recreational activities, and much more.

The court says the Katz ruling has created circular reasoning that largely benefits the government, rather than the people whose rights the government is entrusted to protect.

Despite its best intentions, this expectations-based Katz test has paved the way for a perilous circularity for new technology. Specifically, our current formulation of a Fourth Amendment search often turns on whether a used technology becomes widespread. Stated differently, as society’s uptake of a new technology waxes—cars, GPS devices, cameras, and the Internet come to mind—expectations of privacy in those technologies wane. In today’s interconnected, globalized, and increasingly digital world, for example, Americans largely accept that cell phones will track their locations, their Internet usage will leave digital footprints, and ever-watching fixed cameras will monitor their movements. These evolving expectations thus continually undermine themselves.

As long as the government moves discreetly with the times, its use of advanced technologies will likely not breach society’s reconstituted (non)expectations of privacy. The upshot: the Katz test as currently interpreted may eventually afford the government ever-wider latitude over the most sophisticated, intrusive, and all-knowing technologies with lessening constitutional constraints.

At the center of this case is eighteen months of continuous surveillance by three cameras installed near Travis Tuggle's property. Two kept constant watch on Tuggle's home and an adjoining parking area. The third was aimed mainly at a nearby shed owned by Tuggle's co-defendant, Joshua Vaultonburg. The cameras could be controlled remotely and recordings could be accessed at any time at a nearby FBI office, where the recordings were stored. This led to recordings of nearly 100 suspected deliveries of meth, which soon led to a raid of the premises and the arrest of Tuggle.

Tuggle challenged the Constitutionality of this surveillance. He raised two arguments. First, he argued each individual camera was a violation of his privacy rights. The court disagrees, pointing out Tuggle took no steps to prevent these areas from being observed by members of the public or law enforcement, such as erecting fences around the surveilled areas. Given these facts, the court says this argument fails.

In this case, Tuggle knowingly exposed the areas captured by the three cameras. Namely, the outside of his house and his driveway were plainly visible to the public. He therefore did not have an expectation of privacy that society would be willing to accept as reasonable in what happened in front of his home. See Evans, 27 F.3d at 1228. The Fourth Amendment accordingly did not require officers to “shield their eyes” (or their cameras) when passing by Tuggle’s “home on public thoroughfares.” See Ciraolo, 476 U.S. at 213.

And for that, society bears part of the blame.

We likewise conclude that, under a straightforward application of Kyllo, the isolated use of pole cameras here did not run afoul of Fourth Amendment protections. Today, cameras are in “general public use.” Kyllo, 533 U.S. at 40. Now more than ever, cameras are ubiquitous, found in the hands and pockets of virtually all Americans, on the doorbells and entrances of homes, and on the walls and ceilings of businesses.

[...]

In sum, the government used a commonplace technology, located where officers were lawfully entitled to be, and captured events observable to any ordinary passerby. The government did not invade an expectation of privacy that society would be prepared to accept as reasonable. Accordingly, the isolated use of pole cameras here did not constitute a Fourth Amendment search.

Tuggle also raised a "mosaic" argument, claiming the combined eighteen months of footage from three cameras intruded on reasonable expectations of privacy. Unfortunately, the Seventh Circuit can't find any Supreme Court precedent to overrule Katz, much less something that would turn a continuous series of Constitutional non-violations (the individual cameras and their approximation of a police officer's eye) into a prolonged Constitutional violation. While there are decisions at lower levels in both state and federal courts, there's no precedent at the appellate level stating that long-term surveillance via camera is a Fourth Amendment violation, with the exception of the Fifth Circuit (surprise surprise!), which held that anything over 30 consecutive days requires a warrant.

Faced with these depressing facts, the Seventh Circuit says it has no choice but to give the government a pass on long-term surveillance. Unlike more comprehensive surveillance (like cell site location data), this monitoring may have allowed the government to draw some conclusions about who came and went from the house, but didn't delve deeply enough into Tuggle's own movement to create a Constitutional violation.

Unlike those technologies, the cameras here exposed no details about where Tuggle traveled, what businesses he frequented, with whom he interacted in public, or whose homes he visited, among many other intimate details of his life. If anything, far from capturing the “whole of his physical movements,” id. at 2219, or his “public movements,” Jones, 565 U.S. at 415 (Sotomayor, J., concurring), the cameras only highlighted Tuggle’s lack of movement, surveying only the time he spent at home and thus not illuminating what occurred when he moved from his home.

The final decision from the Appeals Court is reluctant.

Although we now hold that the pole camera surveillance of the exterior of Tuggle’s home did not constitute a Fourth Amendment search, we are not without unease about the implications of that surveillance for future cases. The eighteen-month duration of the government’s pole camera surveillance—roughly four and twenty times the duration of the data collection in Carpenter and Jones, respectively—is concerning, even if permissible.

It backstops this reluctant conclusion by saying the courts and the nation's lawmakers will need to do more to protect citizens from increasing surveillance as technology continues to advance and high-powered surveillance tools not only become ubiquitous, but deployed by citizens themselves for their own use.

Barring a transformation in governing law, we expect this chronicle of cameras to repeat itself again and again with the evolution of far more invasive technologies. Today’s pole cameras will be tomorrow’s body cameras, “protracted location tracking using [automatic license plate readers],” drones, facial recognition, Internet-of-Things and smart devices, and so much more that we cannot even begin to envision. New technologies of this sort will not disappear, nor will the complicated Fourth Amendment problems that accompany them. If anything, we should expect technology to continue to grow exponentially. And if current technologies are any indication, that technological growth will predictably have an inverse and inimical relationship with individual privacy from government intrusion, presenting serious concerns for Fourth Amendment protections.

And it's probably time for the Supreme Court to rethink the conclusions of Katz, should the opportunity arrive. What was once impossible is now mundane.

Indeed, almost four decades ago, when considering a respondent’s argument that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision,” the Court reserved judgement because, “if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Knotts, 460 U.S. at 283–84. As this case illustrates, round-the-clock surveillance for eighteen months is now unextraordinary.

This denial of Tuggle's motion to suppress is well-written and well-reasoned, even if it comes to a conclusion that does nothing to rein in extensive, prolonged surveillance by the government. While most opinions have a few highlights worth reading, the Seventh Circuit has delivered a comprehensive discussion that addresses the complicated issue without dragging the reader through the case law weeds. While it would have been nice to see the Seventh join the Fifth in prohibiting long-term surveillance without a warrant, at least this decision appears to have been handled with incredible care and raises questions Congress and other courts will need to answer sooner rather than later.

Filed Under: 4th amendment, 7th circuit, pole-mounted cameras, privacy, surveillance

Daily Deal: CuriosityStream Unlimited HD Plan

from the good-deals-on-cool-stuff dept

CuriosityStream is the award-winning streaming and on-demand viewing destination where you can journey through our world and beyond. Its immersive experiences feature experts like David Attenborough, who will teach you about the natural world, Michio Kaku, who will broaden your perspective on space, time, and the future and other who will educate and entertain you with stunning visuals and unrivaled storytelling. With thousands of documentaries covering nature, history, science, and more, including exclusive originals, CuriosityStream brings a wealth of knowledge right to your screen, whether you're watching on TV, desktop, mobile, or tablet. Get an unlimited HD subscription for $200.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

As White House Says It's 'Reviewing 230', Biden Admits His Comments About Facebook Were Misinformation

from the of-course,-not-in-those-words dept

In the never ending stupidity saga, kicked off by the White House picking a fight with Facebook because Facebook hasn't banned 12 individuals (who were named as disinformation dozen by the Center for Countering Digital Hate), things have kicked up a notch -- and nobody involved in the debate seems to know how any of this works. First, the White House has claimed that it is "reviewing Section 230" whatever that means.

"We're reviewing that, and certainly they should be held accountable," Bedingfield told MSNBC when asked about Section 230 and whether social media companies like Facebook should be liable and open to lawsuits for publishing false information that causes Americans harm.

The problem with this, of course, is they can "review" it all they want, but if the people spreading disinformation aren't breaking the law (and, they're not), there would be no underlying cause of action against Facebook with or without Section 230. But, of course, this should be worrisome on multiple levels, not the least of which is that Biden said multiple times during his campaign for President that he wanted to repeal Section 230 entirely, explicitly because he (falsely) thought this would magically make Facebook liable for disinformation.

(As a small aside, it's kind of rich that it's Communications Director Kate Bedingfield claiming that the White House is looking at Section 230, considering in a former life she was VP for the MPAA -- and was literally the chief spokesperson for the MPAA at a time when it was running a secretive campaign to have its own lawyers act as a shadow legal team for state Attorneys General to undermine Section 230 in order to take down tech companies Hollywood disliked. Seems kind of like a conflict, but what do I know?)

Anyway, along with all of this, President Biden walked back his statement on Friday when he said directly that he believed Facebook was "killing people," by not banning certain users. This was a stupid and misleading thing to say. And on Monday, he kind of recognized that what he originally said was not accurate:

“Facebook isn’t killing people, these 12 people are out there giving misinformation,” the president said, citing an administration report last week on online coronavirus vaccine misinformation. “That’s what I meant.”

“My hope is that Facebook, instead of taking it personally … that they would do something about the misinformation, the outrageous misinformation about the vaccine,” Biden continued.

And, again, it's perfectly fair to talk about misinformation, and how the impact of it can be very real and very dangerous. But the blame for that misinformation really ought to be on the people spreading it.

Indeed, in this case, it could easily be argued that the President himself spread misinformation in saying that Facebook was killing people. Misinformation is false or inaccurate information, especially when it's intended to deceive. Biden's statement on Friday certainly could qualify. It was inaccurate to say that Facebook is killing people. It is not. It's arguably deceptive to pin the blame on Facebook rather than on the individuals spreading the disinformation -- and Biden corrected that misinformation on Monday.

And, to be clear, I do think that Facebook should be better about dealing with such misinformation on its platform -- I'm just not so naive as to think that the company can just magically snap its fingers and make misinformation disappear. Should it be doing more to stop the spread of misinformation about vaccines? Yes. Absolutely. Does it help when the White House jumps in like this? Not at all.

And, again, it's not as if there's a clear rule on what is and what is not misinformation. As I noted, it's arguable that Biden's own comments are misinformation. There are no simple rules to distinguish what is and what is not misinformation in these contexts that can easily be applied across billions of users. And the end result of more aggressive removals also likely means the removal of perfectly reasonable content, perhaps that criticizing vaccine deniers and helping to better educate people.

Everyone thinks it's easy to make disinformation go away until you actually have to make the calls yourself.

And the White House isn't doing anyone any favors by claiming that getting rid of Section 230 would actually help. If anything, it would make things way worse, by vastly cutting back on the ability of websites (including Facebook) to experiment with better approaches to actually minimizing the impact of misinformation on their platforms.

On top of that, as some are noting, this appears to be yet another case of the government trying to cover up its own policy failings by blaming social media.

Filed Under: content moderation, disinformation, joe biden, kate bedingfield, liability, misinformation, section 230, vaccines
Companies: facebook

Many Automakers Rely On Patents, But That Doesn't Mean All Patents Are Good For Automakers

from the patent-quality-week dept

This post is one of a series of posts we're running this week in support of Patent Quality Week, exploring how better patent quality is key to stopping efforts that hinder innovation.

The auto industry is experiencing a transformative period of innovation that will make future mobility even cleaner, safer, and smarter. Auto companies are investing billions of dollars in electrification and other fuel-saving technologies, and by 2023 the industry will have invested $250 billion toward this goal. Advanced driving assist features – such as automatic emergency braking – are already helping to improve safety. And automated vehicles can create the next big advancement in vehicle safety and expand mobility for the elderly and those with disabilities.

The auto industry is an innovation leader. As major inventors, auto companies own hundreds of thousands of patents and rely on those patents to protect their innovations, which incentivizes more developing and production of cutting-edge automotive technologies. That is why auto companies have a strong interest in ensuring that the patents are high quality and receive robust legal protections.

At the same time, auto companies are also increasingly subject to attacks from bad actors who allege patent infringement using low-quality patents that should never have been issued in the first place. In the end, courts find many of these patents invalid, but patent litigation raises costs for consumers and everyone else and is time consuming. The truth is that every moment and dollar auto companies waste on these lawsuits would have been better spent on making cleaner, safer, and smarter cars. Focused and targeted efforts to increase the overall quality of issued patents would reduce the number of low-quality patents that can be used to hamper innovation. High quality patents are a key contributor to our ability to achieve our important environmental and safety goals.

To help achieve this goal, the U.S. Patent and Trademark Office (USPTO) should institute policies to improve patent quality during the patent examination phase. For example, important reforms can be made to shift the focus at the USPTO to maximizing patent quality rather than maximizing the rate of patents issued. Other changes, such as increasing the number of hours an examiner spends reviewing a patent application, may also be necessary to increase patent quality. Not all of these changes may be possible for the USPTO to accomplish on its own, so it will be important for the next USPTO director to work with Congress to identify those reforms necessary to improve patent quality.

It is also critical that the inter partes review (IPR) process, which was created by the bipartisan America Invents Act in 2011, is protected and preserved. The IPR process has worked as Congress intended and provides a fair, efficient, and cost-effective mechanism to evaluate and reassess whether an issued patent is valid. Abolishing or otherwise limiting access to IPR would almost certainly result in increasing litigation costs, slower adjudication, and more frivolous lawsuits. That would stifle innovation and dynamism in the auto industry, harming auto manufacturers and consumers alike.

The auto industry relies heavily on the patent system, which is vital in promoting innovation and economic growth. Promoting and protecting high quality patents, while weeding out abuse in the system, will help the auto industry continue to use leading-edge innovation, constant creativity, and investments in research and development to bring the next generation of breakthrough automotive and mobility technologies to the U.S. market. Patent Quality Week brings important awareness to the value of quality and balance in patent policy. Conversations around quality and balance in patent policy are necessary in protecting innovation in the automotive industry and continuing economic growth.

John Bozzella is the president and CEO of the Alliance for Automotive Innovation, which represents 99 percent of the automotive industry.

Filed Under: automotive, inter partes review, ipr, patent quality, patent quality week, patents, uspto

Court To Cop: You Need More Than 'Odor Of Marijuana' And Inconsistent Testimony To Justify A Warrantless Search

from the how-high-were-you-when-you-wrote-your-report dept

When cops are looking to perform warrantless searches, the only thing more useful than drug dogs is officers' own noses. The invocation of the phrase "smell of marijuana" magically dissipates the protective shield of the Fourth Amendment, allowing officers to engage in searches that often seem to resemble "general rummaging."

Every so often, this Constitutional evasion scheme fails to pay off. And it's usually because the officer engaging in a warrantless search or unjustified arrest has gotten used to getting away with it and is caught off-guard when someone questions their actions or challenges their methods.

That's the case here in this Delaware Superior Court decision [PDF], coming to us via FourthAmendment.com. This suppression order is the direct result of the assertions and actions of a particularly unreliable narrator, Wilmington Police Department Detective James Wiggins.

Detective Wiggins was roaming the streets in an unmarked car when he came across Ivan Cornelius sitting in his parked car. This soon turned into a full-blown search of Cornelius' vehicle, one that attracted the helping hands of six other officers before it concluded. The end result of the search was this:

Detective Wiggins claimed during direct examination that he found “a bunch of marijuana.” When pressed for more information during cross-examination, Detective Wiggins clarified and stated he meant a “bunch of leaves.” However, there was not enough to send to the lab for testing.

Training and experience etc.

When asked how many leaves it would take to submit the marijuana to the state lab, Detective Wiggins replied that he does not know.

That's kind of embarrassing for someone on the "Safe Streets Task Force" who's been given permission to fight crime on pretty much his own terms.

Detective Wiggins stated that it is his job “to stop things from happening before they happen” and, accordingly, to proactively stop cars and ride around looking for suspicious activity.

Wait. He wasn't finished. Here's how cross-examination went for Wiggins.

After being unable to state how many leaves are needed to send for testing, the Detective conceded that the lab is able to test even small, personal amounts of marijuana.

Mistakes were made, but at least the detective safetened the streets a bit by removing a "bunch" of drugs from circulation.

The Detective further conceded that the amount he allegedly observed was probably either less than personal use or just personal use.

What Wiggins does know is that the smell of marijuana is a pretty handy way to airgap his actions from the Constitution. As a free-roaming detective, Wiggins firmly believes this odor is all the reasonable suspicion he needs to engage in hundreds of undocumented stops and searches.

Notably, it is Detective Wiggins’s understanding that he can search the entirety of a car as long as he smells marijuana. Detective Wiggins explained that, as a standard patrol officer, he would normally have to call in a traffic stop into WILCOM if he stopped a vehicle. However, as a Task Force officer, he does not need to report to WILCOM when he stops a vehicle for a traffic stop. As Detective Wiggins puts it, if he stops a car and smells marijuana, but does not issue a ticket, there would be no record of it. Moreover, Detective Wiggins estimated that he has made around a thousand traffic stops in the four years that he has been assigned to the Task Force and that he stopped around fifty vehicles the week prior.

Completing Detective Wiggins' zero accountability loadout was the lack of recording equipment in his unmarked car and his employer being extremely slow on the body cam uptake.

All of this combined to give us the complete botchery observed above (and observed for a bit more below): a detective who doesn't seem to know much about weed making completely undocumented stops hundreds of times a year based almost solely on the unverifiable claim that he "smelled" something suspicious.

The court here isn't going to let Wiggins get away with this one. In addition to his inconsistent testimony on the amount of weed recovered during the search, the detective's narrative shifted when challenged by the defendant's lawyer.

Detective Wiggins’s initial testimony concerning his observation of the marijuana leaves and air freshener is contradicted by his later testimony. First, in response to what Detective Wiggins noticed about the car while engaging with Mr. Cornelius in the vehicle, Detective Wiggins claimed he smelled marijuana, observed marijuana leaves, and air freshener. Later, in response to Mr. Cornelius’s counsel’s statement concerning whether Detective Wiggins observed marijuana leaves before the two minutes and twenty second mark in the video, Detective Wiggins responded “I’m not sure if I’ve seen it yet or not.”

Finally, the court says the smell of marijuana alone cannot be enough to justify a stop or a warrantless search. (Emphasis in the original.)

The State argues that the smell of marijuana alone is sufficient to establish probable cause. Marijuana odors, while relevant to probable-cause determinations, does not require this Court to find that probable cause exists in every circumstance on sole basis of the odor. Probable cause determinations are made by evaluating the totality of the circumstances.

For instance, in Law v. State, the vehicle’s speed, the occupant’s extreme nervousness, and the odor of marijuana contributed to the Court’s determination that probable cause existed for the search of the car. Likewise, in Valentine v. State, the occupant’s excessive speed, the time of day, and the odor of marijuana contributed to the Court’s determination that probable cause existed.

No probable cause here. The court says the odor of marijuana likely didn't exist, the other officers at the scene positioned themselves "in a manner consistent with preparing for a search" despite there being no evidence a search was necessary, and the complete lack of normal procedures or documentation are fatal to the state's case. The detective's inability to maintain consistency during testimony and cross-examination certainly didn't help. The evidence (what little there was of it) is now gone and without it, the state has nothing left to prosecute.

Filed Under: 4th amendment, odor, police, search, suspicion, warrantless search