Australia Ploughing Ahead With TPP Negotiations Even Though It Has Never Checked If Any Previous Trade Agreement Was Beneficial

from the who-cares-if-it-was-beneficial,-it-passed,-didn't-it? dept

As Techdirt has noted many times, one of the things that makes it hard to engage sensibly with so-called "trade negotiations" like TPP and TAFTA/TTIP is the secrecy surrounding them. Aside from the odd leak and any crumbs of information that drop from the negotiating table, one of the few things that are made public is the predicted benefit of participating in these agreements. To hear the politicians tell it, the models employed for this purpose prove that a country would be crazy not to sign up to whatever deal they are currently pushing. Given the central role played by these econometric models, you'd think more would be done to refine them and check whether they get it right. Here's what has happened on this front in Australia, as reported by the Sydney Morning Herald:

On the eve of negotiations expected to finalise a giant trans-Pacific free trade agreement with 11 of Australia's neighbours, the Department of Foreign Affairs has revealed that none of Australia's existing agreements has been subjected to an independent analysis to work out whether the claims made for it have stacked up.

That's rather strange, since Australia signed its Closer Economic Relations agreement with New Zealand 32 years ago and its free trade agreement with the US 11 years ago, so it's not as if the government there hasn't had time to collect and analyze the numbers. For the second of those agreements, we do have an independent investigation into how predictions compared with reality:

Ahead of the US Australia Free Trade Agreement the department published modelling conducted by the Centre for International Economics that said it would boost Australia's gross domestic product by $5.7 billion. A study conducted a decade later by the Australian National University found it had boosted trade not at all.

Given that sobering fact, and research that indicates trade agreements with Mexico and South Korea turned out to be equally disastrous for the US, you have to admire the shamelessness of governments that continue to commission these obviously-flawed models and trumpet their results, only to forget about them completely once they've done the job and the relevant agreement is signed and ratified.

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Filed Under: australia, evidence, faith based policy, tpp, trade agreements

NYPD Officials Apparently Deleting Incriminating Communications Related To Alleged Illegal Summons Quotas

from the cross-cut-filing-system dept

The NYPD doesn't care for transparency. Its relationship with open records requesters ranges from "frosty" to "antagonistic." It even employs its own in-house, completely arbitrary classification system in order to prevent even more of its documents from making their way into the hands of the public.

And, despite policies specifically mandating the preservation of records, NYPD officials are apparently preemptively deleting certain communications to ensure they'll never be made public.

Attorneys for the city have failed to turn over even one email from the files of former Police Commissioner Raymond Kelly or former Chief of Department Joseph Esposito regarding summons activity over the last eight years, attorney Elinor Sutton writes in new filings in Manhattan Federal Court seeking sanctions against the city.

“It is simply not tenable that Commissioner Kelly and Chief Esposito did not — in the entire period of 2007 through the present — write or receive emails using terms” related to the word “summons,” Sutton writes.

Seven years of discussing police business and not once did Kelly or Esposito use the word "summons," one of the most common terms used when discussing police business. How can this possibly be? Well, when you're looking for evidence that NYPD bosses and supervisors instituted illegal quotas, the word "summons" would figure prominently in responsive documents... if said documents hadn't been memory-holed for the preservation of the greater good their positions.

And it's not just the top two men in the NYPD that have a "summons" hole in their communications. Searches for responsive emails/texts from three other high-ranking NYPD officials came up empty as well.

What Sutton has obtained that points to an unofficial quota system has come from whistleblowers and "other means." Sutton has copies of emails and texts -- sent using NYPD phones/email accounts -- that discuss quota-like "expectations" for officers and reprisals for failing to hit these numbers. But the NYPD's own search for these same documents has found nothing. This either means the NYPD isn't performing thorough searches or it has been destroying incriminating documents. Either way, the NYPD's lack of responsive documents looks very suspicious.

And the city itself is complicit in the "vanishing" of possibly culpatory evidence.

[C]ity lawyers didn’t advise the NYPD to preserve communications related to summonses until 2013 — three years after the suit was filed, Sutton says.

The city won't say much about the lawsuit or its police department's actions, but this contradictory set of sentences says a lot more than the city rep probably intended it to.

In a response filed last week, city attorney Qiana Smith-Williams said the alleged evidence destruction was “short on meritorious claims” and that the sides had not yet “exhausted the possibility of a settlement.”

If you believe the opposition's case is lacking in merit -- and you have an inexhaustible amount of (public) funds to fight it -- why would you be entertaining a settlement? The obvious answer is this: a settlement would allow the city to end the discovery process, maintain its secrecy, allow those involved in the quota scheme to avoid further examination/punishment. Handing out (public) money to the plaintiffs in settlement form also allows the city/NYPD to move on without having to admit wrongdoing. A payout means nothing changes. Quotas will still remain, but steps will be taken to ensure it's better hidden.

Filed Under: deleting, evidence, nypd, transparency

State Court: Nothing 'Stale' About Evidence Nearly A Quarter-Century Old

from the kind-of-puts-a-new-wrinkle-in-'evidence-preservation'-obligations dept

The digital era has redefined evidence "staleness." The evidence that law enforcement often claims needs to be grabbed quickly (and, often, violently) to save it from destruction is the same evidence that could conceivably live on forever if never subjected to a concerted destruction effort.

Back in 2012, Judge Posner detailed this shift in inadvertent evidence preservation in the US v. Sevier decision:

“Staleness” is highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but rarely relevant when it is a computer file. Computers and computer equipment are “not the type of evidence that rapidly dissipates or degrades.” United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010). Because of overwriting, it is possible that the deleted file will no longer be recoverable from the computer’s hard drive. And it is also possible that the computer will have been sold or physically destroyed. And the longer the interval between the uploading of the material sought as evidence and the search of the computer, the greater these possibilities. But rarely will they be so probable as to destroy probable cause to believe that a search of the computer will turn up the evidence sought[.]

How long is too long? The answer is entirely open-ended. A recent decision from a California appeals court says a 23-year gap between the crime and the search warrant doesn't render the evidence "stale." A reopened "cold case" investigation into the apparent murder of a Los Angeles police officer resulted in the issuance of warrant in 2009 to search the defendant's current possessions, including the computer she didn't own (if she even had one) back in 1986.

The defendant moved to suppress the evidence, but the court said her "staleness" argument didn't apply. (But the "good faith exception" did... [It almost always does.]) Both warrants were extremely broad.

The first permitted authorities to search appellant’s residence and several vehicles registered to her. It sought electronically and digitally stored material, documents, and records related to the homicide, Rasmussen or Ruetten, including “letters, diaries, journals, writings, newspaper articles, books, correspondence, [or] greeting cards”; photographs of Ruetten and Rasmussen; items that may have belonged to Ruetten or Rasmussen; information identifying persons “who may have associated with or [may] have known” Ruetten, Rasmussen or appellant; medical or dental records tending to establish whether appellant received treatment for injuries after February 24, 1986; “bills, receipts, papers, reports or forms” from 1986 generally; and all .38/.357 caliber firearms in appellant’s possession.

The second warrant, issued by a different magistrate, gave permission to search the “computers, storage media, computer hardware and digital evidence” seized pursuant to the first warrant, including “[email], internet browsing histories, cached information, partially deleted files, records, receipts, screen captures, photographs, logs, [and] printouts.”

The lower court had some issues with the breadth of the warrants, but managed to talk itself out of its queasier feelings.

The court agreed there was a plausible argument for overbreadth in the requests to search for “bills, receipts, paper or reports or forms from 1986” and for the names of all “people who may have associated with” Rasmussen, Ruetten or appellant. The court was “uncomfortable” with the request to search appellant’s computers because they were unlikely to have been in existence at the time of the crime.

It also suggested it had no business telling magistrate judges how to do their jobs.

However, the court concluded that warrants should not be read in a hypertechnical way and that it was up to the issuing magistrates to tell the detective to “‘tighten [the] language’” or “beef it up.”

The defendant argued that there was no "nexus" between the original crime and her current residence, not to mention the fact she had no computer back in 1986, so any search of her current computers was predicated on an unsupported assumption that these would contain evidence related to the 1986 murder.

The appeals court didn't find either argument persuasive. It pointed out that, while both warrants were broad, they were supported by probable cause. And, more importantly, the lack of a "bright line" measurement for "staleness" -- along with the common use of computers as "permanent" storage of copies of physical items -- allowed for this sort of search, despite the length of time elapsed since the initial investigation.

With respect to her contention that her move from one residence to another precluded a finding of a nexus between her current home and the evidence sought, the warrants specifically sought photographs, journals and diaries. A person does not normally discard such items, even after several moves.

That handles the physical "nexus" argument. Here's the court on the digital end of it:

Appellant claims that the warrant was overbroad in granting permission to search her computers, as there was no evidence she owned any of them at the time of the homicide. The fact that she may not have owned those computers at the time of the crime did not preclude the possibility that she had transferred information or records -- particularly photographs -- to computers owned at the time of the search. (Cf. Arkansas Chronicle v. Easley (E.D. Va. 2004) 321 F.Supp.2d 776, 795 [recognizing that photographs and video preserved in computer format are “easily transferrable”]; U.S. v. Christie (10th Cir. 2013) 717 F.3d 1156, 1164 [observing that personal computers often hold “diaries, calendars, files, and correspondence”].)

Now that the near-permanence of digital evidence is ensured by long-lasting storage and even longer-lasting cloud service backups, "staleness" is no longer an issue. But while that may give law enforcement a pass of serve search warrants years after alleged criminal activity occurred, it should also factor into discussions about warrantless searches based on exigent circumstances.

The government argued in the Riley case that the omnipresent "threat" of evidence destruction necessitated instant, warrantless access to arrested suspects' cellphones. (This was presented to the court without any supporting evidence that automated wiping or other uncontrollable evidence destruction had occurred with any frequency). But the opposite actually seems closer to reality: whatever is on a cellphone (or someone's computer) will last almost indefinitely unless a person makes active, time-consuming efforts to thwart evidence recovery.

From Posner's 2012 opinion:

When you delete a file, it goes into a “trash” folder, and when you direct the computer to “empty” the trash folder the contents of the folder, including the deleted file, disappear. But the file hasn’t left the computer. The trash folder is a waste paper basket; it has no drainage pipe to the outside. The file seems to have vanished only because the computer has removed it from the user interface and so the user can’t “see” it any more.

Most people never make it past "Empty Recycling." Even though plenty of options exist for common users to ensure deleted files are actually deleted (read: overwritten), Posner points out that "use of such software is surprisingly rare." This coincides with the very low number of incidents where law enforcement has run into the use of automated tools to destroy digital evidence. And yet, the government insisted the possibility of evidence destruction should allow it to warrantlessly search cellphones and other devices at the time of arrest.

But it really shouldn't get to have it both ways. Either there's a good chance the evidence sought is intact -- and will be for possibly decades to come -- or it's all vanishing before it can get its hands on it, in which case the argument for "staleness" must be addressed in more detail.

Fortunately, the Supreme Court has put an end to law enforcement's insistence it must have access right now. That's good news, especially when combined with the unavoidable conclusions courts will reach when dealing with storage options that preserve evidence for years. The government can't be allowed to claim there's no time to get a warrant when it's readily apparent they have all the time in the world.

Filed Under: evidence, stale, stephanie lazarus

MPAA Argues That Sony Emails Shouldn't Be Used As Evidence In Google Lawsuit

from the oh-really? dept

We've already covered some of the details coming out in the flurry of legal filings in the dispute between Google and Mississippi Attorney General Jim Hood (helped along by the MPAA which financed and ran Hood's investigation). However, there is one little tidbit mentioned towards the end in one of the MPAA's many filings resisting subpoenas from Google to turn over internal documents. The MPAA's lawyers at Jenner & Block not only argue that much of the material being requested is "privileged," and thus allowing the requests will lead to lawsuits over the legality of those requests, but further argues that the emails in the Sony hack are similarly privileged and should not be available for use in lawsuits:

Quite apart from the policy concerns that arise if lawyers are allowed to use confidential documents first obtained by hackers, the fact that some privileged documents were published in the wake of the Sony hack will trigger subsequent litigation over privilege assertions. Privileged documents obtained by hackers and later published nevertheless remain privileged. Presumably, given Google’s apparent interest in the documents, Google will contest the privilege assertions.

This seems like a pretty longshot legal argument. It's pretty typical in business settings that once documents are out there in the public, any legal restrictions on them vanish. The idea that these documents, widely discussed publicly and in the press, would magically be banned from use in a legal case that was brought on because of those revelations is a huge stretch.

Filed Under: evidence, jim hood, mississippi, privileged information, sony hack
Companies: digital citizen's alliance, google, jenner & block, mpaa

Lawsuit Filed After Export-Import Bank Official Swears He 'Accidentally' Deleted All Of His Responsive Text Messages

from the New-Year's-Resolution:-1.-Delete-incriminating-texts dept

Sure, Freedom of Information laws are great, but they have their downsides. For one thing, they clearly signal to agencies which records are being sought. It's unavoidable. To answer a request, an agency needs to know what it's looking for. Once the request is out in the open, efforts can begin in earnest to excise information anyone affected doesn't want made public.

I'm not saying anyone did anything wrong, but it very definitely looks like someone did something deliberately wrong.

A top official at a controversial U.S. export finance agency deleted text messages sent within days of the 2014 midterm elections after a watchdog group filed an open records request for the messages, the agency admitted recently.

The watchdog group -- Cause of Action -- sought "text messages, Blackberry messenger chats and SMS messages sent or received by top officials during the period of days between November 2, 2014 and November 8, 2014." These would be texts fired back and forth during the mid-term elections by officials of the controversial US Export-Import Bank, which was facing the reality of having its funding halted by House Republicans.

Cause of Action got most of what it sought… several months later. It filed the request on November 20, 2014 but didn't receive a response until May 12, 2015. That response brought with it the following bad news:

[T]he messages for Scott P. Schloegel were accidently deleted on approximately January 1, 2015. Enclosed is signed declaration from Mr. Schloegel attesting to the deletion.

And sure enough, there's Schloegel's attestation that he did, indeed, nearly 45 days after the request was received, "accidentally" delete the relevant text messages. This violation of duties to preserve public records wasn't reported to Cause of Action until its very belated response from the agency itself, four months after the deletion took place.

For what it's worth, there's a sworn statement that says Schloegel didn't do this on purpose. I'm not sure how much culpability that alleviates, but I suppose it's better than a sworn statement claiming Schloegel did this deliberately and what are you going to do about it? But the end result is the same. The messages sought won't be making their way to the requesting entity.

And for what it's worth, Cause of Action is now suing the Export-Import Bank, demanding that the DOJ and/or Congress commence an investigation and work toward the recovery of the deleted messages. Whether or not this will prompt any action remains to be seen, but Cause of Action is still working hard to audit government agencies' FOIA response efforts. This particular request is part of a larger effort, as noted in the lawsuit:

In part due to this concern, Cause of Action has been conducting an investigation into whether federal agencies comply with their obligation to preserve text messages for a period of time. As a part of this investigation, Cause of Action lawfully requested that Ex-Im Bank produce the text message records of five high-ranking agency officials for a one week period in which text messaging likely would have been used to conduct agency business (November 2-8, 2014, or election week).

Because so much official communication now travels on more ethereal channels, the effort it takes to simply make possibly embarrassing documents vanish is practically nil. Any failure to follow up on accusations like these -- or even purportedly innocent "deletions" -- will signal to government agencies that carelessness with the public's information is acceptable. There's really no reason government agencies aren't working with redundant systems at this point. It takes little-to-no effort to ensure pertinent files housed on issued electronics are backed up elsewhere, thus ensuring that this sort of sworn "accident" doesn't result in the permanent removal of requested information.

Filed Under: deleted, evidence, foia, scott schloegel
Companies: cause of action

Judge Looking Into Alleged Destruction Of Exculpatory Evidence By Pentagon In Thomas Drake Prosecution

from the but,-but-he-broke-the-rules!-[breaks-doc-destruction-rules] dept

More government malfeasance is being alleged in the all-over-but-the-Genius-Bar-employment prosecution of whistleblower Thomas Drake. Documents directly related to his whistleblowing efforts -- ones that would possibly have helped him fight the administration's efforts to punish him for supposedly-protected activities -- were allegedly destroyed by the Department of Defense.

Two government watchdog agencies are investigating whether the Pentagon inspector general destroyed evidence improperly during the high-profile leak investigation of former National Security Agency senior official Thomas Drake.

“DOD OIG’s handling of documents . . . is within the scope of an ongoing inquiry by the Office of Special Counsel (OSC),” Raymond Hulser, the chief of the Justice Department’s Public Integrity Section, wrote to U.S. Magistrate Judge Stephanie Gallagher in a letter dated June 11. “In the event that OSC finds evidence of criminal conduct during the course of its work, it will refer that evidence to the Department of Justice for appropriate action.”

Succinctly put, the "proper channels" for whistleblowing were used by Thomas Drake, who was prosecuted under the Espionage Act. The missing files are related to his attempt to utilize those proper channels. Obviously, following procedures can't really be considered "espionage." The government's case against Drake fell apart, resulting in Drake pleading guilty to a single "unauthorized computer use" charge. But the case went on long enough that it drained Drake's personal savings and his revoked security clearance pretty much barred him from further government employment, leading to his current position as an employee of an Apple store.

The government’s handling of documents first became an issue during the evidence-gathering stage of Drake’s prosecution, when his criminal defense lawyers sought records related to his whistleblower cooperation with the Pentagon inspector general’s office in order to defend him.

At the time, the Justice Department told the judge that most of the “hard copy documents” related to the Pentagon inspector general’s office audit that Drake had cooperated with couldn’t be provided to the defense because they’d been destroyed “pursuant to a standard document destruction policy.”

Drake’s current lawyers, who didn’t represent him in the criminal case, told the court in a letter in April that they learned otherwise while representing Drake in his recent whistleblower claim against the NSA.

Drake’s lawyers wrote that the Pentagon inspector general’s office destroyed the documents “outside of normal policy and to impede . . . the criminal case.”

Even if these documents do somehow materialize, there's not much they can do other than vindicate Drake's actions. It won't rebuild his personal finances or return him to his former government position. In fact, even if evidence of wrongdoing is uncovered, it's likely to result in no meaningful actions. The court itself can't do much more than refer the findings to the Department of Justice, which has already noted that it is looking into these allegations. But to what end? Proof of deliberate destruction of evidence is the sort thing routinely wrist-slapped by the DOJ and the administration, both of which will probably allow the DOD to investigate itself and offer various plans to prevent future malfeasance, should it somehow manage not to clear itself of any wrongdoing.

If evidence of document destruction comes to light, the only practical purpose it will serve is to further illustrate how rigged the "justice" card game is -- what with prosecutors playing with incomplete, marked decks provided to them by "victims" of government whistleblowing.

Filed Under: defense department, evidence, nsa, thomas drake

According To The Government, Clearing Your Browser History Is A Felony

from the obligated-to-hold-onto-everything-just-in-case-government-wants-to-see-it dept

The "do something" resulting from the Enron scandal was Sarbanes-Oxley. To date, the law has done very little to curb corporate fraud -- its intended target. But it has become a handy tool for prosecutors looking to stack charges against defendants far removed from the financial world.

We've discussed this at length before. One of the stipulations of Sarbanes-Oxley is the preservation of evidence. Failing to do so, or purposefully destroying records, can result in felony criminal charges. This, unfortunately, doesn't even have to be willful destruction. The law forbids the destruction of evidence, regardless of personal knowledge of ongoing investigations, or even if no investigation has even commenced.

In a hypothetical posed recently (containing a real-world example), finding yourself in possession of child pornography poses a serious dilemma. Possession is a crime, but so is destruction of evidence. Sarbanes-Oxley demands the preservation of evidence in "foreseeable" investigations, and child porn possession is one of those crimes no law enforcement agency ignores.

This aspect of Sarbanes-Oxley is being used again, this time in relation to the Boston Marathon bombing. A cab driver who was friends with the Tsarnaev brothers is now facing multiple charges, including lying to investigators about his relationship with the Tsarnaevs, as well as destruction of records under Sarbanes-Oxley, the latter of which carries a 20-year prison sentence of its own.

Khairullozhon Matanov is a 24-year-old former cab driver from Quincy, Massachusetts. The night of the Boston Marathon bombings, he ate dinner with Tamerlan and Dhzokhar Tsarnaev at a kebob restaurant in Somerville. Four days later Matanov saw photographs of his friends listed as suspects in the bombings on the CNN and FBI websites. Later that day he went to the local police. He told them that he knew the Tsarnaev brothers and that they'd had dinner together that week, but he lied about whose idea it was to have dinner, lied about when exactly he had looked at the Tsarnaevs' photos on the Internet, lied about whether Tamerlan lived with his wife and daughter, and lied about when he and Tamerlan had last prayed together. Matanov likely lied to distance himself from the brothers or to cover up his own jihadist sympathies—or maybe he was just confused.

Then Matanov went home and cleared his Internet browser history.

The last sentence is a criminal act, despite being something millions of people do every day. Some even utilize built-in options in their browsers that dump history and/or clear the cache upon exit. And yet, the law states that this is illegal, should a person ever end up under investigation for anything. That's how broadly the law is written.

It was used to bring additional charges against David Kernell, who hacked into Sarah Palin's email account. The actual hacking resulted in misdemeanor charges. The cleanup processes deployed by Kernell (clearing browser cache, running a disk defragmenter, deleting downloaded photos) were treated as felony obstruction of justice under Sarbanes-Oxley. When these actions occurred, Kernell wasn't under investigation. At best, it could only be assumed that an investigation would result once the hacking attempt was discovered.

Some may feel this interpretation of the law is perfectly acceptable. People who engage in questionable and/or illegal activity shouldn't be allowed to "cover up" their actions in this fashion. But this defense of Sarbanes-Oxley's abused data retention stipulations suggests something very unpleasant about the government's view of who serves who.

Hanni Fakhoury, a senior staff attorney at the Electronic Frontier Foundation, says the feds' broad interpretation of Sarbanes-Oxley in the digital age is part of a wider trend: federal agents' feeling "entitled" to digital data.

Under this law -- and given the prevailing law enforcement/prosecutorial mindset -- US citizens are almost expected to hold onto everything, just in case. The government feels it has the right to dig into your hard drive, browser history, etc. at whatever point it opens an investigation. And if you've "destroyed" any data prior to the examination of your electronic devices, you could face felony charges for performing simple computer maintenance.

As more and more data are stored online, the government wants and believes it deserves access to that data for policing purposes. But Fakhoury disagrees.

"The idea that you have to create a record of where you've gone or open all your cupboards all the time and leave your front door unlocked and available for law enforcement inspection at any time is not the country we have established for ourselves more than 200 years ago."

This law has been on the books for thirteen years now. It hasn't managed to rein in corporate malfeasance, but it's proving to be having a negative effect on citizens who've never scammed a shareholder in their lives.

Filed Under: clearing your browser, destruction of evidence, evidence, khairullozhon matanov, sarbanes-oxley

Copyrights & Patents Have Become A Religion; All Data Will Be Ignored

from the I-WANT-TO-BELIEVE dept

If you've read Techdirt for any length of time, you'll have noticed that intellectual property laws have been decoupled from logic for several years now. Because the entities heavily-reliant on IP protections (and who mostly serve as gatekeepers and middlemen, rather than perform any creative work of their own) have trouble producing evidence that extended copyright terms or increased enforcement efforts are actually instrumental to the creation of future artistic works, they have tended to fall back on assertions that various governments have a "duty" to protect their interests.

It's not an assertion borne of data or extensive research. It's a statement of faith. Record labels and movie studios spend millions every year issuing takedowns and lobbying for favorable laws. And every year, they fail to point out where these efforts have added to the bottom line. When confronted with this lack of evidence, they'll often declare this is only because we're not doing the things that aren't working hard enough or often enough or with enough severity.

Mark Lemley, whose work -- especially that focused on the broken patent system -- has been featured here before, has just published a paper examining this thought process: Faith-based Intellectual Property.

Lemley opens by noting that we supposedly live in an "age of reason," with a wealth of information and powerful data tools at our fingertips. But when the data fails to produce the desired evidence for increased IP protections, reason is swiftly abandoned and replaced with nothing more than unfounded beliefs.

This isn't just a post-file sharing phenomenon. This dates back more than a half-century.

Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify creating one, but since we had one the evidence didn’t justify abolishing it.

There's more evidence available now than there was 60 years ago, but nothing's improved.

The upshot of all this evidence is something rather less than a complete vindication of the theory of IP regulation... This doesn’t mean that we are no better off than we were in Fritz Machlup’s day. The problem isn’t that we don’t have enough evidence, or the right kind of evidence. The problem is that the picture the evidence paints is a complicated one. The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy... Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so.

Despite the lack of clear indicators that strengthened IP laws result in more creativity, or at least, more profitability for industries which rely heavily on IP protections, the push for expanded terms and more draconian IP-enforcement penalties hasn't let up. When the available data doesn't support held beliefs, there are options.

Shoot the messenger:

A lesson I learned early in my academic career is that while people will dispute, ignore, or shrug off policy arguments they disagree with, they get really incensed when the data disagrees with them. And one way they can justify ignoring that data is to persuade themselves that the source of that data must be biased in some way and so their numbers cannot be trusted. The most vitriolic attacks I have experienced in more than twenty years as a law professor were directed at the most innocuous-seeming papers—papers that presented data that revealed some uncomfortable facts about the status quo.

Someone can be paid to produce data that agrees with held views.

A second reaction to data you don’t like is to try to go out and buy some of your own. Companies with a vested interest in a system that empirical evidence calls into question have been spending a great deal of money to fund studies written (sometimes preposterously) to lead to the conclusion they support.

Or, you know, 'find God," as it were...

Participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all. That is, their response to evidence that doesn’t accord with their beliefs is not to question their beliefs, or even to question the evidence, but to retreat to a belief system that doesn’t require evidence at all.

Lemley quotes Berkely's Rob Merges, a leading patent scholar -- one who turned to faith when the data didn't support his predispositions.

After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”

With adherents like these, who needs evidence? What were once a limited rights, granted for the betterment of all, are now an expansive rights, benefitting only a select few. Any lack of supporting evidence is no longer germane to the argument. IP rights are now being controlled by those who "feel" or "believe" in the fundamental "rightness" of their arguments. Data need not apply.

The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself—that IP is some kind of prepolitical right to which inventors and creators are entitled.

There's a reason why religions and governments shouldn't be allowed to intermingle. This adherence to the "moral" rights of creators plays hell with the system.

It intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.

When the faithful guide the creation of legislation, bad things happen -- things that undermine the societal benefits of limited rights for a limited amount of time. Those limits are no longer in place, and supposed protections like "fair use" give more value to intellectual property than freedom of expression. The system is broken and those exploiting it the most don't want it fixed.

Trademark rights extend to prevent uses that would happily have coexisted fifty years ago. We have added a slew of new copyright statutes, expanding the term as well as the scope of protection, increasing penalties, and reaching conduct further and further removed from actual infringers. We issued six times as many patents in 2014 as we did three decades before, and most of the patent suits filed are brought by patent trolls, a category of plaintiffs that didn’t even exist forty years ago and that one might think has a weaker moral claim on IP than people who actually make products.

Unfortunately, Lemley realizes the ultimate futility of his research. While small factual misconceptions can often be corrected, adherents to any form of faith-based system (whether they be pro- or anti-IP) are almost impervious to arguments that run contrary to their beliefs -- no matter how much data is provided.

If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.

This where we are today: subject to laws written to accommodate true believers. The faithful that have been indulged in their expansion efforts even while a whole host of supposed "industry killers" have risen and fallen with little to no discernible damage done to entrenched IP-reliant industries.

Filed Under: belief, copyrights, evidence, faith-based, mark lemley, patents, religion, research, trademark

What Do You Do When Preserving Evidence Is Labeled 'Possession' And Destroying It Is A Felony?

from the overcriminalization dept

Have fun with this hypothetical. A shared computer is found to contain child porn. What do you do?

Houston criminal defense lawyer Mark Bennett considered this hypothetical from a defense lawyer's standpoint. At this point, there is (possibly) no investigation already in progress (at least none the client or lawyer are aware of) and there's no way to say definitively who's responsible for the images. What do you tell your client?

It's illegal for him to continue possessing the images. So you can't advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

This isn't entirely a hypothetical situation. Scott Greenfield's blog details a 2007 case involving exactly this sort of situation.

[Connecticut attorney Philip] Russell’s client, the Greenwich Christ Church (not a bad client, I would say), did what any self-respecting church would do when it found child pornography on its church computer: It turned to its lawyer for help. No fed was knocking on the church door. There was no hint of an investigation. There was no reason to believe that anyone would ever know that some sick, disgusting human being using this computer purchased with monies from the tithing of its congregants (I’m making this part up, since I have no idea where the money came from to buy the computer and in Greenwich, they could just as easily live off the interest from the Church’s trust fund), would download photographs that would sicken any normal human being.

So Russell finds himself in the position of having to decide what to do with this computer. The Church no doubt wants its computer back, since it wouldn’t have gotten the computer if it didn’t have any need for it, But the Church does not want this pics on it. Russell, in the meantime, knows of the photos as a result of confidential communications (no argument from any source about whether this was as confidential as it comes) and has to decide what to do about it. He can’t keep the kiddie porn pics, for then he would be violating the law.

So Philip Russell does the only reasonable thing possible. He deletes the horrific photos. BAM, he’s indicted for obstruction, having destroyed evidence.

Back to Bennett, who notes that under Texas law, this is a felony only if the destruction of evidence is done with knowledge of a "pending or in progress" investigation. The problem is that -- in cases involving child porn -- federal law prevails. But not a federal law dealing with child porn possession (which would apply if the offending files remained intact) but rather a law crafted to deal with companies' financial impropriety: Sarbanes-Oxley. This law says that destruction of evidence -- with or without knowledge of a pending/ongoing investigation -- is a federal crime.

Damned if you do. Damned if you don't. The only stipulation is that an investigation is "foreseeable." And child porn on a hard drive pretty much makes an investigation "foreseeable." Turn it in to the cops, and you can guarantee an investigation will start immediately. Depending on how the files were obtained, it's entirely possible that the IP address is already on investigators' radar. Throwing the computer into the nearest dump or off a bridge just to rid yourself of someone else's wrongdoing makes you a felon.

Now, whether the child porn is the client's own, or something he/she discovered (purchased a second-hand computer/shared one with with other household residents), the client needs help. But what help can any lawyer provide? There's no answer that allows for the avoidance of felony charges.

This tainted hard drive is, in and of itself, lawbreaking. So is the deletion of the files. So is simply removing it from your possession. A lawyer really has only one course of action, thanks to Sarbanes-Oxley.

You could, of course, instruct your client on certain aspects of the law: possession of child pornography is a crime; tampering with evidence is a crime; without the hard drive the government is likely to have a hard time proving that you tampered with evidence or that you possessed child pornography; if the government gets its hands on the hard drive they won't have a hard time proving that you possessed child pornography, which will certainly land you in prison; don't talk to anyone about the contents of the hard drive.

There will be those that argue that anything involving child porn shouldn't have an easy out, even if it's a law supposedly targeting financial wrongdoing that's running around locking down all of the escape routes. But there are situations in which an innocent person could find themselves in this position and have no option but to choose the least personally destructive outcome.

And because the theoretical involves child porn (instead of less universally-reviled subject matter), there will always be other "easy" solutions presented.

Some will respond to this dilemma with the facile, “so don’t download porn and you won’t have this problem.” Aside from the fact that this isn’t just a porn problem, people are allowed to enjoy porn. Just not kiddie porn. Plus, people make mistakes, sometimes inadvertent, without any evil intent. Plus, people do stuff with evil intent, which they thereupon regret and seek to undo. Is it not societally beneficial for people who make a mistake to foster regret and the chance to make things right?

There is no "out." The government makes every investigation "foreseeable." The inadvertent discovery of illegal images doesn't take away this possibility. A lawyer can't (or shouldn't) encourage someone to break the law, but in cases like this, the only option is to mitigate the damage. The safest bet for anyone -- innocent or not -- is to destroy the evidence. But what sucks is that the innocent face charges for possessing something they never wanted and will often resort to destroying it in hopes of not being branded sexual offenders for the rest of their lives.

And it doesn't have to be child porn. It could be anything illegal. The government isn't here to help, much less not indulge in messenger-shooting. Case in point, the Iowa man who called the cops about a backpack he found containing drug paraphernalia. Just keeping it meant being in possession of illegal items. Throwing it out (which never occurred to the finder) would destroy evidence. And calling the cops did nothing more for him than turn his house into a meth lab in the eyes of the DEA. The police repaid his good deed by listing his house on the National Clandestine Laboratory Register. Being a good citizen meant virtual condemnation of his home because drug paraphernalia had been "found" on the premises.

In light of this, it would appear that the government prefers people destroy evidence of other people's crimes, rather than be upstanding citizens. That route leads to lighter sentences and less horrendous outcomes. Sure, we need laws in place to prevent the destruction of evidence, but more than that, we need to offer better protections for those who voluntarily hand over evidence of criminal activity. But there's nothing there to delineate between preserving evidence prior to contacting authorities and a possession charge. The government plays it safe and treats both equally, just to avoid the possibility of being duped by actual criminals.

Filed Under: child porn, destroying evidence, evidence

State Attorney Won't Reopen Questionable Investigation Unless Questionable Law Enforcement Agencies Provide The Evidence

from the please-take-another-look-at-our-wrongdoing,-said-no-agency-everq dept

In May 2012, Seth Adams pulled into the parking lot of the gardening store his family owned. A few minutes later, he was dead, shot by an undercover cop who had been sitting in an unmarked vehicle in the store's parking lot. The officer, Michael Custer, claimed Adams was "drunk and belligerent" and that he "feared for his life." He also claimed Adams reached into the cab of his pickup, presumably to grab a weapon, and that's when he opened fire.

It was clear from the beginning that the ensuing investigation would be nothing more than ornamental. Adams' "guilt" and the officer's "innocence" had been predetermined.

Palm Beach County Sheriff Ric Bradshaw made it clear from the start that he had no intention of investigating the incident impartially. Referring to Adams, Bradshaw at one point told local media, “Why he decided to assault the deputy? We may never know that.” When the Florida Department of Law Enforcement (FDLE) began a state investigation, Bradshaw added that he was confident the results would “verify exactly what I thought from the beginning.”

And the Sheriff's Department began taking steps to ensure the investigation wouldn't have any other outcome. Police seized surveillance video captured by the store's cameras and then claimed no recording of the incident existed. Forensic evidence suggesting Custer's narrative was flawed was produced (a trail of blood beginning at the back of the pickup, rather than by the cab where Custer claimed Adams was reaching for a weapon), but the officer was ultimately cleared of any wrongdoing.

This led to a lawsuit filed by Adams' family. Nearly two years later, and the obstruction of justice still hasn't stopped. New evidence has been obtained by the family's lawyer, but the state's attorney isn't interested in re-opening the closed FDLE investigation The new information is a scathing Sheriff's Office review of Sgt. Michael Custer, who was deemed incapable of "making sound decisions under pressure." Despite this review, Custer was allowed to retain control of an elite tactical unit.

This review was never turned over to the FDLE by the Sheriff's office.

“An FDLE investigator even asked for Custer’s employee evaluations but was told they didn’t exist.”

The family's attorney also claims the Palm Beach Sheriff's Office ignored the contradictory blood trail evidence from the forensics investigation when performing its own investigation into the incident. This report, as potentially damning as it is, has just had its usefulness neutered by the state attorney's office.

"First thing I want to make clear on with the Seth Adams investigation is that was closed out during a prior administration," said State Attorney for the 15th Judicial Court, Dave Aronberg who was elected to the post in November, 2012.

So, there will no reopening of a flawed investigation in which the law enforcement agency being investigated hid information from investigators. That's the level of accountability State Attorney Aronberg is comfortable with. Oh, but it could be reopened, provided any new information comes from an Aronberg-approved source -- like the same agency that obstructed the original investigation.

State Attorney Aronberg and Anderson didn't say much more during the Q & A except that if new evidence comes into their office they could re-open the case.

Any new evidence would have to come from a law enforcement agency, not an attorney working a civil case.

Which, in any language, is bullshit. Aronberg will only look into things if cops ask him to, not civilians. Not for nothing has the idea been floated that the job of prosecuting police misconduct be turned over public defenders, rather than offices like Aronberg's, where the relationship might be a bit too cozy. Those that are supposed to be a key part of accountability are, in actuality, often just an escape route for abusive law enforcement officers. Whatever Aronberg thinks he's doing with this decision, it certainly can't be considered to be part of his job description.

Why isn’t the state’s attorney’s office investigating the sheriff’s department for reportedly lying about the existence of Custer’s employee evaluations? And why did FDLE investigators take the department at its word that those evaluations didn’t exist? An investigator for the Adams family was able to obtain them through an open-records request. Shouldn’t a state agency charged with investigating police shootings be a bit more skeptical of the targets of its investigations?

These are all questions Aronberg doesn't want to answer, so he's conveniently ensured he'll never be asked these questions again. And the Sheriff's Department that obstructed a state investigation will continue to employ an officer who's demonstrated he's a danger to himself and others and face no consequences for impeding an investigation by a state agency.

Filed Under: dave aronberg, evidence, florida, law enforcement, michael custer, seth adams