More Prosecutors Refuse To Accept Guilty Pleas Based On Faulty $2 Field Drug Tests

from the at-long-last,-some-forward-momentum dept

Thanks to ProPublica's research -- and a high-profile article in the New York Times -- prosecutors in Oregon will no longer accept guilty pleas based solely on the results of often-inaccurate field drug tests.

Last July, shortly after ProPublica and The New York Times Magazine published an article detailing that the kits are prone to error and years earlier had helped account for roughly 300 wrongful convictions in Houston, the Multnomah County District Attorney’s Office in Portland decided to change the way it secured guilty pleas in drug possession cases. Today, when a defendant pleads guilty before the lab analysis is performed, prosecutors must still have the field test results double-checked.

J. Russell Ratto, the head of conviction integrity at the district attorney’s office, had asked his colleagues whether it might be wise to change the policy after the article’s publication.

“Our DDAs [deputy district attorneys] are always looking to make sure we’re using the very best practices,” said J.R. Ujifusa, the deputy district attorney who oversees drug prosecutions.

It's a good start. The $2 drug tests are great for law enforcement drug warriors, but not much good for anyone else. The cheap tests, performed in the field by officers, have been known to call everything from baking soda to donut glaze illegal substances. This is often good enough for government work, especially when the government work involves obtaining convictions.

Harris County, Texas -- where the 300 wrongful convictions were uncovered -- is also no longer accepting pleas based on field test results. But that only solves part of the problem. The other problem is what to do with those accused of drug possession. Treating the tests as fallible helps prevent wrongful convictions, but those facing drug charges remain locked up while waiting for lab test results.

Thomas Johnson of Fault Lines points out that the Portland DA's office has its head and heart in the right place, but it won't do much for people picked up by cops utilizing $2 field drug tests, not until the rest of the system is overhauled.

You have to give up what the court orders for bail. You can post a percentage of the bail, but it’s the judge who decides the bail amount. This bail amount can vary depending on the type of drug you’re suspected of possessing and your past record. For instance, if you have a violent incident on your record, it will increase the bail for your new charge. The same goes for a previous drug conviction.

Oregon doesn't allow independent bail bondsmen so the bond must be paid directly to the state. Ten percent of the bail is the usual security amount, but even that percentage can be unaffordable.

Bail can vary from the $10,000 on a charge of unlawful meth possession, for example, to $75,000 for someone accused of sex abuse.

If someone can't come up with $1,000, they're stuck in jail while awaiting lab results. They can't plead guilty but they can't be proven innocent either. They're in limbo -- the sort of limbo that can ruin someone's life before they even have a chance to be exonerated.

As of 2015, the goal at the state crime lab was to have evidence tested within 30 days, but the average turnaround was 65 days. For many defendants, if you can’t afford bail, you are already living hand to mouth and 65 days in jail will effectively finish you off. You’ll be starting from scratch once you hit the street.

Fault Line's Johnson suggests another solution: if the DA's office is conceding that these drug tests are often inaccurate, it should follow this assumption to its logical conclusion and work on changing this part of the system as well. If it's really interested in not ruining people's lives over a $2 drug test, it needs to push for greatly-reduced bail or no bail at all in cases where the only evidence at the time of booking is subject to a mandatory second pass.

Filed Under: accuracy, field drug tests, oregon

State Supreme Court Rolls Back Decision That Would Have Made Violating Company Computer Policies A Crime

from the penalties-range-from-'written-reprimand'-to-'years-in-prison' dept

The Oregon Supreme Court has handed down a ruling that should help prevent the state's computer crime laws from turning into a local level CFAA -- something that can be easily abused by prosecutors to, say, toss someone in jail for two years for 40 minutes of headline altering at a news website.

Caryn Nascimento was arrested for theft after using a convenience store's lottery machine to print off thousands of dollars of tickets she never paid for. But rather than settle for the theft charges, the state chose to charge her with unauthorized use under Oregon's broadly-interpreted computer crimes statute.

The state appeals court upheld the conviction, prompting the EFF to intervene in her case when it headed to the state supreme court. The EFF pointed out that the appeals court decision would criminalize a lot of behavior normally only subject to companies' internal disciplinary processes.

[T]he Court of Appeals’ decision transforms millions of unsuspecting individuals into criminals on the basis of innocuous, everyday behavior—such as checking personal email or playing solitaire on a work computer. Such restrictions, frequently included in employers’ computer policies, are no different than the restriction imposed on Nascimento. They're ultimately all computer use, not access, restrictions. Upholding Nascimento’s conviction on the basis of a violation of a computer use restriction expands Oregon’s computer crime statute to criminalize violations of any computer use restriction.

The Supreme Court has found that, contrary to the lower court's decision, Nascimento did not exceed her authorization when she printed out lottery tickets she never paid for. She did steal, but she was fully authorized to perform every step up to the point of not paying for the tickets.

It is difficult to square the state’s position with the text of ORS 164.377(4). The text establishes a binary division between those who are "authorized" to access or use a computer and those who are not. The text does not distinguish between use that is authorized for certain purposes (such as those permitted by employer policies) and use that otherwise would be authorized but that is inconsistent with those policies. Indeed, subsection (4) of the statute does not focus on the purpose or manner of use at all, but only on whether the access or use is "authorized."

[...]

Viewed in that light, the text supports defendant’s assertion that her use of the lottery terminal to print Keno tickets—as she was trained and permitted by her employer to do—was "authorized" use. The fact that she printed the tickets for her own use and did not pay for them may have violated company policies and other parts of the computer crime statute (in addition to the theft statute), but her use was not "without authorization" as that term is used in ORS 164.377(4).

Nascimento was not allowed to print out tickets for herself or do so without paying, but those were violations of company policy, not state law. The theft of funds -- via the unpaid-for lottery tickets -- was a criminal act, but the acquisition of the tickets via a machine she was authorized to use was not.

The court points out [PDF] that reading the state statute in the way prosecutors (and the lower court) interpreted it means adding words that aren't there to the existing law.

As noted, “access” is defined in the computer crime statute as “retriev[ing] data” or “mak[ing] use of any resource on a computer.” ORS 164.377(1)(a). If a person is “empowered” or “permitted”—the dictionary synonyms of “authorized”—by the appropriate authority to “retrieve data” or “make use” of the computer, then that use is “authorized.” Applying those words in their ordinary senses, it is a stretch to suggest that an employee who uses her work computer to send a private email during the work day— or check Facebook or buy a movie ticket—contrary to her employer’s policy against personal use, has “accessed” or “used” the computer “without authorization,” although she may have violated her employer’s policy. Nothing in the text of the statute suggests that the legislature intended such a result. As defendant argues, the state’s interpretation would criminalize not only “unauthorized” use of a computer, but also “authorized use for an impermissible purpose.” Such an interpretation would require adding words to the text of the statute that the legislature did not use. See ORS 174.010 (court may not add words to statute).

It's a good decision that rolls back the lower court's unfortunate expansion of a law already prone to abusive interpretation. This should keep people from being saddled with extra charges just because their criminal activities were committed on a computer.

Filed Under: caryn nascimento, cfaa, hacking, lottery tickets, oregon

Oregon DOJ Encourages Surveillance Of First Amendment Activities; Acts Surprised When Agents Do Exactly That

from the stop-reading-so-much-into-our-heavy-handed-innuendo dept

According to documents released to the ACLU, the Oregon DOJ has problems complying with both state and federal laws. Law enforcement agencies are forbidden from conducting surveillance of First Amendment-protected activities unless they can demonstrate beforehand that there is evidence of criminal activity tied to it.

But the DOJ's own presentations suggest agents should perform surveillance first and fix it in post. According to its instructions, agents should be "creative" when looking for justification for surveillance of First Amendment-protected activities. Literally, "any crime will do."

Any crime will do -
But look for…
Trespassing
Criminal mischief
Disorderly conduct
Harassment
Tax crimes
Explosives
Weapons offenses
and…
RICO

Most of these "crimes" are misdemeanors that would hardly justify the manpower needed for surveillance. But when the surveillance is an automatic social media dragnet, the opportunity costs go down. This presentation is the front-end of the problem. The back end is officers looking for "suspects" using search terms that would almost exclusively return hits based on First Amendment-protected activity.

In the one case cited by the internal report, #blacklivesmatter was used as a search term, triggering a wrongful investigation with no criminal nexus. Although the bogus hunt was later called off by DOJ officials, evidence exists that similar searches were performed by others. Because the agency was only using a trial version of its social media monitoring software (Digital Stakeout), the other searches were not saved and could not be verified by investigators. The DOJ's report calls the one it does have information on an "isolated incident," but appears to only be doing so because it was unable to recover more information on similar searches admitted to by agents with access to the software.

But the disturbing part isn't so much the bogus surveillance as it is the DOJ's encouragement of this activity. Another slide from the same presentation make it clear the standard m.o. is to surveill first and justify later. This slide refers to the statute forbidding the same surveillance the DOJ is telling officers to engage in.

Summary of 181.575

If the information you are collecting involves a religious, social or political view, activity or association, you MUST have reasonable suspicion of a crime related to the subject.

Use creativity and articulate your reasonable suspicion in some way.

Think of a wide variety of crimes to form the basis of collecting the information you need.

In other words, make something up using the most tenuous of "criminal" connections to justify the surveillance you want to engage in. In the case cited by the report, an agent used Digital Stakeout to disappear down a First Amendment-violating rabbit hole.

On September 30, 2015, Agent [redacted] used Digital Stakeout to conduct a search on the keyword search term “#blacklivesmatter” combined with “#fuckthepolice” (“the search”). He focused his search on Salem, Oregon, which yielded results that included Twitter posts by Erious Johnson, Jr. [Redacted] believed that some of Mr. Johnson’s posts were threatening to the police and he verbally shared his concerns with Special Agent in Charge David Kirby.

Mr. Kirby verbally described the concerning posts to Mr. Tweedt, and based on the description, Mr. Tweedt recommended to Deputy Attorney General Fred Boss that prepare a report on his search and the findings. Mr. Boss approved this recommendation and was then directed to write the report.

On October 1, 2015, [redacted] prepared and presented to Mr. Kirby a report he referenced as “Possible threats towards law enforcement by DOJ employee.” This report was a single page memo with an attachment that included several pages of posts that printed directly from Mr. Johnson’s Twitter feed rather than from Digital Stakeout. See Ex. F.

On October 8, 2015, Mr. Kirby delivered the report to Deputy Chief Counsel Stephanie Tuttle. In an email to Mr. Tweedt, Mr. Kirby reiterated his concerns about the crosshairs image and gave Mr. Tweedt a detailed description of the image and the accompanying language. Upon reading Mr. Kirby's detailed description, Mr. Tweedt emailed Mr. Kirby that the image was actually the logo for the “rap group” Public Enemy. See Ex. G.

On October 8, 2015, Ms. Tuttle left report on Mr. Tweedt’s office chair.

On October 12, 2015, upon his return from out of town travel, Mr. Tweedt reviewed the report.

On October 13, 2015, Mr. Tweedt gave the report to Mr. Boss, who at some point thereafter gave the report to Attorney General Ellen Rosenblum.

On October 20, 2015, the Attorney General called Mr. Tweedt into a meeting with herself and Mr. Boss, during which she expressed her extreme displeasure over the report by because she believed he had engaged in racial profiling. She instructed Mr. Tweedt to find anti-racial profiling training for the Special Agents, and ordered that all SMMS use be immediately discontinued.

Further details from the report show that there was no reasonable suspicion of criminal activity, but lots of resentment over the general tone of the posts the search turned up.

He interpreted what he saw to be a threat toward law enforcement, so he clicked on the image, and then found an assortment of other pictures that he considered threats toward law enforcement. When he looked at the name associated with these images, he thought it was Mr. Johnson, the Director of Civil Rights who worked in the building, and he could not imagine him posting “all this hate stuff and especially anti-law enforcement stuff since he worked with us.” He showed the posts, which included Mr. Johnson’s photograph, to [redacted] who confirmed it was Mr. Johnson. and encouraged to show the results to Mr. Kirby.

[Redacted] stated that other images on Mr. Johnson’s Twitter page depicted cartoons showing law enforcement to be “complete jerks”; that a political cartoon showing white police officers shooting at a statue of Martin Luther King “makes it appear that law enforcement hate everything that Martin Luther King stood for”; and that his posts were “making all white people appear to be racist.” [Redacted] thinks that anyone who came across Mr. Johnson’s name in a search would hold the same opinion. He felt that Mr. Johnson’s posts showed a lot of hate. [Redacted] was also disturbed by Mr. Johnson’s August 24 post, which depicts what thinks is an image of rap group N.W.A.’s album cover that he remembers seeing when he was approximately 16 years old. He described the image as showing a beat up and bloodied police officer being held in a headlock while the city burns in the background, with the caption, “Three Cheers for Gentrification.”

Because the agent involved was so certain that law enforcement officers were being targeted for violent acts, he allowed his imagination to run wild. The Public Enemy logo seen in one post was somehow interpreted to be a state trooper in crosshairs.

[Redacted] (and many others) made this assumption. I recognized the image as the logo for the hip hop group Public Enemy and the silhouette in the image as an individual wearing a hat that was popular urban fashion in the rap music industry. Note that Mr. Tweedt also recognized the logo after Mr. Kirby described it in an email. See October 8, 2015 email string attached as Ex. G. Public Enemy member and creator of the logo Chuck D has explained, “The crosshairs logo symbolized the black man in America …. A lot of people thought it was a state trooper because of the hat, but the hat is one of the ones that Run-DMC wore. The B-Boy stance and the silhouette was more like the black man on the target.”

And the supposed "N.W.A. cover" supposedly inciting violence towards police officers was nothing of the sort. From the DOJ investigator:

I am unaware of any such N.W.A. album cover. The image is actually a photograph of a painting that hangs in the Know bar on Alberta Street in Portland, Oregon. The neighborhood where the Know is located is widely recognized as a gentrified neighborhood, and the bar is a punk/rock bar. It appears that rather than a post meant to celebrate violence directed at police officers, Mr. Johnson’s caption, “Three Cheers for Gentrification,” may have been intended as an ironic comment about the content of the art work hanging in a punk bar located in a gentrified Portland neighborhood. [Redacted] comments about this post, the crosshairs post and other of Mr. Johnson’s posts demonstrates a possible lack of cultural awareness that may have affected his perception and led him to experience a heightened sense of concern.

The DOJ's unofficial policy of "search first, justify later" fed into the circle-the-wagons mindset of the agent performing this search, resulting in him seeing criminal conspiracies where there were none and -- more disturbingly -- treating criminally-focused hate groups and non-criminally-focused activists as equals in terms of law enforcement surveillance.

It is concerning that [redacted] sees no distinction in this regard between Volksfront, a group founded on the premise of white supremacy and a reported goal to “repatriate minorites”; OMGs, which are known to engage in drug trafficking, crime rings, theft, gang violence, etc.; and #blacklivesmatter, which is a self-described, “online forum intended to build connections between Black people and our allies to fight anti-Black racism, to spark dialogue among Black people, and to facilitate the types of connections necessary to encourage social action and engagement.”

Well, the DOJ seems to see "no distinction" between criminal activity and stuff it just wants to keep tabs on, even if said stuff is protected activity, so it's hardly surprising someone in its employ felt the lines were blurred enough to justify a social media search for a hashtag linked to activism -- and who after the fact used his "creativity" to create an aura of danger around a bunch of controversial, but certainly not threatening, posts.

Filed Under: doj, first amendment, free speech, oregon, surveillance
Companies: aclu

Comcast Nabs Huge Oregon Tax Break Thanks To Loophole Intended For Google Fiber

from the unintended-consequences dept

For a few years now, the city of Portland and the state of Oregon have been jumping through hoops to try and make Portland as attractive as possible for Google Fiber. That has involved rewriting city ordinances so that Google can place its utility cabinets along public rights of way, something previously banned in the city.

But the state of Oregon also notably reworked state tax law to provide Google with significant tax breaks. But the effort turned into a comedy of errors after initial rewrites technically disqualified Google Fiber (the revision said companies only qualified for tax breaks if they offered broadband speeds of at least 1 Gbps, while Google offers speeds "up to" 1 Gbps). But after several years of back and forth, the state this week moved to finalize the changes and craft a special Google Fiber loophole:

"An unusual Oregon tax may be the major factor that delayed the company's Portland rollout. The Oregon Supreme Court ruled in 2014 that cable TV and Internet companies are subject to "central assessment," a rare practice dating to the 19th Century that levies property taxes based partly on the value of certain companies' brands. Applying the tax to Google would have added millions of dollars – perhaps tens of millions of dollars – to its annual operating costs, and the company threatened to drop its Portland plans if Oregon lawmakers didn't exempt it from the tax."

But while Google Fiber has yet to even start construction, Comcast has already rushed in to nab the tax incentives. You see, Comcast offers something it calls "Gigabit Pro," a two gigabit per second service it has been offering to select areas since last year. The service promises 2 Gbps fiber to housing developments and other easy-to-wire locations, though the availability of the offering has been murkily defined at best. It's also aggressively expensive: in contrast to Google's $70 1 Gbps offering, Comcast's Gigabit Pro costs $300 a month, plus $1000 in installation and activation fees (and a $1000 ETF for good measure).

Ironically, Comcast has been trying to get out of paying Oregon's central assessment tax for years, only to be defeated before the Oregon Supreme Court in 2014. But thanks to the city and state tripping over themselves to please Google Fiber, Comcast gets a major tax break while the state takes a notable income hit:

"If the application is approved, schools, libraries and local governments across the state would receive significantly less revenue," wrote Mary Beth Henry, director of Portland's Office of Community Technology, in a letter to state regulators. "This application was not the kind anticipated by the Legislature."

Comcast, in other words, is now enjoying rich new tax breaks despite offering a service four times more expensive than Google Fiber -- which few people in Oregon will actually be able to afford. And while few people actually like Comcast or its business practices, it's hard to fully fault the company for simply taking advantage of law rewrites the state of Oregon apparently didn't fully think through.

Filed Under: broadband, competition, fiber, oregon, tax breaks
Companies: comcast, google

Federal Judge MAY Set Up Pro Bono Legal Assistance For Defendants Sued By Voltage Pictures/Carl Crowell [UPDATED]

from the it-couldn't-happen-to-a-lousier-person dept

[Update: as has been pointed out by Ars Technica's Joe Mullin, Judge Mosman is not a chief judge yet and could not have signed those orders. As was correctly noted by Fight Copyright Trolls [and in the part I quoted!], these are only drafts. So, these have not been implemented at this point, but appear to be in the works. My apologies for raising the hopes of those on the receiving end of Crowell's tactics and for failing to note that these were drafts in my post.]

It looks like Voltage Pictures' hired gun, Carl Crowell, may soon need to find another state to ply his copyright trolling wares. Crowell has already established a reputation as being both shady and willfully obtuse. That reputation appears to have finally reached the federal court system.

Crowell, if you'll recall, thought Oregon would be accommodating to his brand of trolling. Not content to simply sue dozens of Does for alleged copyright infringement, Crowell tried to take advantage of the state's trademark law to pursue pirates. This hinged on the dubious claim that torrents of Dallas Buyers Club somehow veered into the production of counterfeit products. That seems to have gone nowhere, as has Crowell's other legal pursuits.

Crowell also claimed simply being in possession of Popcorn Time (a torrent-based, entirely unauthorized streaming service) was a criminal act -- calling it a "burglar's tool." Conflating theft and copyright infringement is nothing new for copyright trolls -- but claiming the software was roughly analogous to… I don't know, a ski mask and a bag with "$$$" printed on it -- was novel. Of course, judges are rarely enamored with novel legal theories and Crowell's assertion did little to win him powerful friends where he needed them most.

Now, it appears Crowell has made an enemy in the federal court system. Unfortunately for him, this enemy is presiding over most of his Doe lawsuits. Fight Copyright Trolls reports federal judge Michael W. Mosman has set up Default Judgment Roadblock, Esq. in response to Crowell's tactics.

Out of [Crowell's] recent sleazes, the most disturbing is the practice of deposing putative defendants prior to amending the complaint (replacing “John Doe” with an actual name). Since the majority of the targeted are laypeople of modest means, they tend not to spend money on attorneys, so they make a grave mistake of agreeing to be deposed without a lawyer. I don’t think it makes sense to explain why it is a real problem...

Apparently, the judges are not deaf and blind, and they are increasingly concerned with both the sheer volume of docket-clogging lawsuits, and the troll lawyers’ overreach. Chief Judge Michael Mosman recently drafted a standing order urging putative defendants to seek legal help.

Mosman's order, if implemented, has would set up a panel of lawyers who will provide up to three hours of pro bono assistance to anyone accused of copyright infringement by Crowell. That should be enough time to generate the small amount of friction needed to convince the trolling entities to drop the case. Trolling is built on easy wins, not actual courtroom battles.

On top of that, Judge Mosman isn't going to may not let Crowell file lawsuits against single plaintiffs en masse in hopes of increasing his default rate. Not only will this funnel Crowell's lawsuits into Mosman's courtroom, but it will force Crowell and the company he represents to inform defendants of the free legal assistance being provided by the state. The draft order also requires any communications to defendants be put on the record. Crowell will have to file copies of any contact made with defendants, as well as submit proof that these communications were received.

Considering the hurdles Mosman is considering forcing Crowell to leap, it wouldn't be too much of a surprise to find him exiting the trolling business… at least in Oregon.

Filed Under: carl crowell, copyright troll, oregon, pro bono
Companies: voltage pictures

Movie Studio & Copyright Troll Claim 'Mere Possession' Of Popcorn Time Is Illegal And Could Result In A Year In Jail

from the nutty-copyright-trolling-theories dept

Meet Carl Crowell. Willamette Week recently ran a profile on his copyright trolling practice, based out of Oregon. Unlike copyright trolls like Malibu Media and Prenda Law, who focused on porn, Crowell has tried to cultivate a copyright trolling client list straight out of Hollywood -- which is how he ended up as the copyright trolling lawyer working for Voltage Pictures on the Dallas Buyers Club trolling efforts in Oregon. You may remember those, because he was the apparent mastermind behind the attempt to abuse trademark law to go after people in Oregon. As we noted at the time, the trademark claims were ridiculous, and clearly seemed to be an attempt to look for a more friendly state court, rather than having to go into federal court with the copyright claims.

Crowell, it appears, has other bizarre legal theories in his copyright trolling bag of tricks -- and now he's testing them out on Popcorn Time users. As you may have heard, a few weeks ago, the makers of the total flop movie, The Cobbler, with Adam Sandler (9% fresh rating on Rotten Tomatoes -- sample reviews include "grindingly dull" and "ill-conceived curio"), decided to sue a bunch of Popcorn Time users for watching the film. And, you may have heard that a very similar lawsuit was filed this week, targeting Popcorn Time users for watching another flop of a film, Survivor, starring Pierce Brosnan (8% fresh rating on Rotten Tomatoes -- with one review stating "there's a reason you probably never heard of it.").

Crowell is the lawyer behind both lawsuits, and while everyone is pretty much focused on the "ooh, they're suing Popcorn Time users" aspect of it, the lawsuits have some absolutely insanely ridiculous claims, beyond just copyright infringement -- including trying to argue that mere possession of Popcorn Time is a criminal act under an Oregon state law barring the possession of "burglary tools." From the lawsuit:

The mere possession of a software program like Popcorn Time is the type of conduct that the State of Oregon has criminalized in ORS 164.235, which reads in part:

164.235 Possession of a burglary tool or theft device. (1) A person commits the crime of possession of a burglary tool or theft device if the person possesses a burglary tool or theft device and the person:

(a) Intends to use the tool or device to commit or facilitate … a theft by a physical taking; or
(b) Knows that another person intends to use the tool or device to commit or facilitate a … theft by a physical taking.

(2) For purposes of this section, “burglary tool or theft device” means … [any] instrument or other article adapted or designed for committing or facilitating a … theft by a physical taking.
(3) Possession of a burglary tool or theft device is a Class A misdemeanor.

It is acknowledged that the transfer of data, storing of the physical data locally on a hard drive and facilitation and redistribution of the stolen data to others may or may not be a “physical taking” under Oregon law.

Whether or not the mere possession and use of Popcorn Time is a Class A misdemeanor under Oregon Law and punishable by up to one year in jail (ORS 161.615(1)) and a fine of $6,250.00 (ORS 161.635(1)(a)) may be argued.

It's one thing to bury this deep within your legal filing (even though the actual claim for relief is only on copyright infringement). It's another to scream this bit of simply wrong legal theory in a press release. But, that's apparently what Dimiter Nikolov of the studio behind the total flop of a movie, Survivor, is announcing in the press release, reiterating the wacky legal theory Crowell shoved into the end of both of the Popcorn Time lawsuits filed so far:

"The mere possession of a software program like Popcorn Time is akin to the type of conduct that the State of Oregon has criminalized in ORS 164.235, which deems the possession and/or use of a burglary tool or theft device as a Class A misdemeanor," says Dimiter Nikolov, Vice President of Business & Legal Affairs at Nu Image, Inc. "It is our belief that the transfer of data, storing of physical data locally on a hard drive and facilitation and redistribution of stolen data to others should be considered a 'physical taking' under Oregon law and we felt compelled to take this opportunity to fight back and ensure that those who choose to engage in this type of behavior face real repercussions, just as a person would if they shoplifted a DVD or other physical consumer product from a retailer."

In case you're wondering, this "legal theory" is completely bullshit. First of all, copyright infringement is not theft (even if the lawsuits pretend the two are interchangeable). So the Oregon law doesn't even come close to applying. Second, even if, in some twisted way a judge considered copyright infringement to be theft, it still wouldn't matter, because 17 USC 301, which defines copyright preemption, makes it clear that federal copyright law "preempts" any state law attempts to create state level copyright laws.

Given that, and the fact that the actual claims in the lawsuit focus solely on the federal copyright claims, it makes you wonder what game Crowell and Nu Image are playing with this completely laughable legal theory. Do they really think that lying about the law will magically get people to pay for their crappy movies? Maybe, instead of inventing bogus legal theories, they should invest in making better movies.

Filed Under: burglary tools, carl crowell, cobbler, copyright, copyright preemption, copyright trolling, oregon, popcorn time, survivor
Companies: nu image

Court Reminds Police That Refusing A Search Isn't Inherently Suspicious Behavior

from the only-criminals-exercise-their-rights? dept

It really shouldn't take a judge's order to make this clear to law enforcement officers: a citizen invoking their rights isn't doing anything illegal, suspicious or otherwise signalling an involvement in criminal activity. These are simply their rights and they can choose to assert (or waive) them as they see fit.

But that's what it takes, because almost anything that isn't an immediate capitulation to a law enforcement officer's demands is often met with dubious actions, arrests and deployment of force.

Deborah Barker was arrested for methamphetamine possession after an Oregon police officer performed a warrantless search of the contents of her purse. Her motion to suppress was denied by a lower court, but the state appeals court found otherwise.

From the ruling:

Defendant was a passenger in a truck driven by her husband, which was stopped by Oregon State Police Trooper Ratliff on suspicion of driving while intoxicated. Ratliff noticed that defendant’s husband was “overly nervous” and that there was a bottle of alcohol on the seat, as well as many knives, lighters, and trash in the truck.

We'll stop right here and discuss a couple of things.

First, officers regularly declare people they stop to be "nervous" and use that as the "reasonable suspicion" they need to prolong the stop and start fishing for criminal charges. This is obviously a very handy "tool," because almost every citizen is more nervous than usual when speaking to people who are not only armed, but possess incredible amounts of power.

Judges, fortunately, are pushing back on this assertion more frequently. Just recently, the Tenth Circuit Court pointed out that "nervousness" does not equal reasonable suspicion, although the totality of other elements (rented car in another's name, inconsistent travel plans) certainly did. Another told the DEA that nervousness -- even when combined with three cellphones and a past criminal history -- did not automatically rise to the level of reasonable suspicion. But it still must work often enough, because "nervousness = reasonable suspicion" doesn't seem to be going away.

Second, the condition of the vehicle's interior is also cited as "reasonable suspicion" -- namely that it had trash and lighters in it. Paradoxically, law enforcement almost simultaneously claims that the absence of drug paraphernalia/trash is inherently suspicious. Here it is arguing that a clean car is a drug trafficker's car in a Seventh Circuit Court decision from earlier this month:

A ten-minute search turned up nothing, save for two cell phones. The interior of the car was “spotless” and had no other personal effects, which the officers believed was suggestive of the car being a “trap car” used for drug trafficking.

You can't win. But you can try to even the odds.

Defendant was wearing a dress, and Ratliff did not believe she had any weapons in her pockets. Ratliff asked defendant if she had any weapons in her purse, and defendant replied, “I don’t want you to search my purse.”

The officer asked her to place the purse on the hood of the vehicle for "safety" reasons. (Not completely unreasonable, considering Barker hadn't answered one way or the other on the question about whether the purse held a weapon.) It fell open a little, exposing a small, gray scale. This led to the assumption of the probable cause needed to effect an arrest of Barker, combined with Barker's appearance ("leathery") and "drug history."

All well and good, but the officer then decided to search the purse without a warrant, ultimately discovering a small amount of meth hidden in a wallet. And that's where it ran into problems. First, Officer Ratliff made this assertion, which basically states that "innocent" people don't force cops to respect their rights.

Ratliff went on to note that the “innocent motoring public doesn’t generally have those indicators. They don’t get out of the vehicle and tuck their purse tightly with them and immediately refuse search.”

The lower court bought Ratliff's arguments and refused to suppress the fruits of the warrantless search. The appeals court, however, looked at each element the state claimed added up to permission to warrantlessly search Barker's purse and found them all wanting -- those being Barker's history of drug use, the vehicle's appearance, Barker's appearance ("leathery," clenched teeth), dilated pupils, in possession of a small scale and refusing to allow an officer to search her purse.

As we have previously held, the mere fact that a defendant has a history of drug use does not provide an officer with reasonable suspicion to stop a defendant, let alone probable cause to search or arrest.

[...]

For similar reasons, defendant’s inability to remain still and dilated pupils also contribute little to establishing probable cause.

[...]

[T]he record in this case lacks evidence to support an objectively reasonable inference that, even if the scale was used in connection with controlled substances, it was more likely than not that defendant was in current possession of controlled substances, as residue on the scale or otherwise.

Finally, it addresses the claim that Barker's control of her purse was yet another factor contributing to her apparent guilt.

The state argues that “[t]he strongest indicator that defendant was in possession of drugs was her conduct towards her purse.”

But that's completely wrong, according to the court. It's not a "strong indicator." It's an assertion of rights.

When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, “[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.” State v. Brown, 110…

Although furtive behavior may contribute to probable cause, asserting a constitutionally protected privacy right cannot. Defendant’s protective behavior to safeguard the privacy of her purse and her statement that she did not want it searched are not properly considered as part of the totality of the circumstances and may not contribute to probable cause.

In short (and as summed up in a footnote), police cannot use someone's constitutionally-protected right to refuse a search as probable cause to justify a search. The ruling is reversed and remanded and the police are now in the same position they were before they performed the warrantless search: looking at someone they want to arrest but without the probable cause to do so. And now it's so much worse because the officer knows Barker was in possession of a controlled substance but can't do anything about it. With the evidence suppressed, the single possession charge resulting from this arrest no longer exists.

These rights weren't granted to citizens just so the government could use any exercise of them against those availing themselves of these protections. They were supposed to safeguard citizens against governmental overreach and abuse of its powers, but default mode seems to be that only the guilty assert their rights. This mindset is so perverse -- and so pervasive -- that it has to be beaten back one court decision at a time. Law enforcement officers treat assertions of rights as, at best, an annoyance and at worst, tacit admissions of guilt. To operate under such a twisted interpretation displays an almost incomprehensible level of privilege -- where government agents are owed whatever they request and any failure to cooperate is treated with suspicion.

Filed Under: 4th amendment, court, deborah barker, oregon, police, refusing search, rights, search, suspicious behavior

EFF Asks Court To Reconsider Ruling That Would Make Violating Work Computer Policies A Criminal Act

from the surfing-on-the-clock?-that's-a-jailing dept

The EFF is asking the Oregon Supreme Court to take a look at a disturbing opinion issued by the state's appeals court -- one that could see employees face fines and prison time simply for violating company policies.

The case prompting the filing of an amicus brief on behalf of the defendant does contain an element of criminality, but the court's decision should have been limited to the end result of the defendant's actions, rather than the actions taken to reach that point.

Caryn Nascimento worked as a cashier at the deli counter of a convenience store. As part of her job, she was authorized to access a lottery terminal in the store to sell and validate lottery tickets for paying customers. Store policy prohibited employees from purchasing lottery tickets for themselves or validating their own lottery tickets while on duty. After a store manager noticed a discrepancy in the receipts from the lottery terminal, it was discovered that Nascimento had printed lottery tickets for herself without paying for them. She was ultimately convicted not only of first-degree theft, but also of computer crime on the ground that she accessed the lottery terminal “without authorization.”

Nascimento appealed the computer crime conviction. She argued that because she had permission to access the lottery terminal as part of her work duties, she did not access the terminal without authorization—as required under the Oregon's computer crime statute. Unfortunately, the Oregon Court of Appeals affirmed Nascimento’s conviction, finding she had only “limited authorization” to access the lottery terminal for purposes of printing and validating lottery tickets for paying customers, and acted without authorization when she printed them for herself.

At first glance, it almost seems like a reasonable application of the law simply because the end result was theft. But it's the specifics that make it troublesome. "Without authorization" is far too broad a term to be used in this context. With this reading of Oregon's law, the appeals court has basically criminalized a wide variety of corporate computer-related policy violations. Actions that would normally be met (in a corporate setting) with warnings and reprimands could now be viewed as criminal acts.

[T]he Court of Appeals’ decision transforms millions of unsuspecting individuals into criminals on the basis of innocuous, everyday behavior—such as checking personal email or playing solitaire on a work computer. Such restrictions, frequently included in employers’ computer policies, are no different than the restriction imposed on Nascimento. They're ultimately all computer use, not access, restrictions. Upholding Nascimento’s conviction on the basis of a violation of a computer use restriction expands Oregon’s computer crime statute to criminalize violations of any computer use restriction.

The broad reading of Oregon's criminal statute also poses potential problems outside of the work environment.

The court’s holding that a person acts “without authorization” if she violates a policy regarding the use of a computer that she is otherwise authorized to access could be extended to an Internet user who accesses a website in violation of a written terms of service. For example, Facebook’s terms of use provide that “[y]ou will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.” But as the Ninth Circuit noted en banc, “[l]ying on social media websites is common: People shave years off their age, add inches to their height and drop pounds from their weight.” Under the Court of Appeals’ expansive reading of ORS 164.377, if a user shaves a few years off her age in her profile information, asserts that she is single when she is in fact married, or seeks to obfuscate her current physical location, hometown or educational history for any number of legitimate reasons, she violates the computer crime law. The court’s decision thus opens the door to turning millions of individual Internet users—not just millions of individual employees—into criminals for typical and routine Internet activity.

The EFF points out that rolling back this "unconstitutionally vague" reading of Oregon's computer crime law doesn't leave the state without options to punish Nascimento for her actions. She still faces one count of aggravated first-degree theft -- a charge the EFF is not disputing. Pointing to previous decisions by the Fourth and Ninth Circuit courts, the EFF states that similarly broad readings of the rightfully-maligned CFAA (Computer Fraud and Abuse Act) have been rejected for potentially criminalizing violations of workplace computer use policies.

The Supreme Court should have no problem rolling back this broad reading and the attendant charge brought against Nascimento. The theft may have been facilitated by improper access that violated company policy, but this access doesn't rise to the level of a criminal act -- even if it ultimately resulted in a criminal action.

Filed Under: caryn nascimento, cfaa, company policies, computer access, computers, hacking, oregon

Politician Facing Investigation Tries To Destroy His Emails; Assistant 'Helps Out' By Emailing Order To Other Staffers

from the HOW-TO-FUCK-UP-101 dept

There are multiple ways to handle a super-sensitive situation like this one. The following is none of them. [via CJ Ciaramella]

Far too many politicians and legislators aren't happy with the fact that their emails are subject to public records requests. Some attempt to dodge this layer of accountability by using personal email accounts to handle official business. Oregon governor John Kitzhaber is one such politician.

Unfortunately for Kitzhaber and many others just like him, public records laws anticipate this endaround. In many states, personal email accounts are also FOIA-able if the emails discuss official (read: public) business. Kitzhaber, however, believed he could outsmart outbludgeon the system.

Gov. John Kitzhaber’s office last week requested state officials destroy thousands of records in the governor’s personal email accounts, according to records obtained by WWand 101.9 KINK/FM News 101 KXL.

Rumors of possible influence peddling led to this public records request. Kitzhaber's last-minute attempt to set fire to his email legacy doesn't exactly plant a halo over his head, seeing as it came one day before the Oregon DOJ opened up an investigation into these allegations. But he might have gotten away with it if only his own executive assistant hadn't completely sabotaged the coverup.

Records show the request to destroy Kitzhaber’s emails came from Jan Murdock, Kitzhaber’s executive assistant. She wanted all emails from Kitzhaber’s personal email accounts removed from state servers.

Let that sink in for a moment.

There has been no word as to whether Kitzhaber required emergency surgery to remove his face from his palm after his assistant informed him that she had EMAILED orders to delete his EMAILS to EMAIL accounts that were subject to open records requests.

But then again, maybe Kitzhaber would have been out of luck anyway. Restoring a bit of faith in the system were the responses from staffers to this unusual request.

The prospect of deleting thousands of emails clearly made Osburn’s supervisor, Arian Turpin, uncomfortable.

“Guys, hold on processing this request until we receive approval from a higher authority,” Turpin wrote in a Feb. 5, 2015 email at 6:52 pm. “Given the unusual nature of the request, I’m reluctant to have my team move forward without the active awareness and consideration of the possibilities and a direct approval from higher levels of the action.”

Turpin kicked this up to the next level, and the next level (Turpin's supervisor, Shawn Wagoner) was similarly hesitant to be Kitzhaber's accomplice. He ordered those involved to "take no action at this time" while he kicked it up yet another level to his boss (Gary Krieger) -- who also felt there was something inherently wrong with vanishing the Governor's emails.

Krieger told his supervisor, Michael Rogers, that he would not destroy the emails.

“I am not willing to make the call to delete information out of the email archive,” Krieger wrote on Feb. 5 at 7:24 pm. “As I stated we will need to discuss.”

The lesson here is: if you want to run a successful coverup, you need to make sure you've got more than one person on board with your plan. And you need to make sure that one person won't cheerfully pitch in with "help" that only hurts.

Filed Under: email, foia, john kitzhaber, oregon, public records

Voltage Pictures Abuses Trademark Law To Go After Dallas Buyers Club Downloaders

from the of-course-they-are dept

We've discussed how Voltage Pictures, a big time Hollywood producer behind award winning films like Hurt Locker and Dallas Buyers Club, has been one of the few non-porn film entities to really embrace copyright trolling (in particular over those two named films). We've also discussed how courts have been frowning on mass copyright trolling lawsuits of late, leading some copyright trolls to seek alternative means to identifying accounts associated with particular IP addresses. For example, we noted that infamous troll Prenda Law has tried both questionable CFAA claims and a bizarre interpretation of an antiquated Florida state law, known as "pure bill of discovery" (a move that failed miserably).

It appears that Voltage and its lawyers' latest trick is to abuse Oregon's state trademark law, which is clearly designed for things like stopping counterfeit physical goods, and not to go after people sharing a movie they like. This was first noted on the Troll Defense blog written by Benjamin Justus (representing two defendants in these suits), with further reporting done by Joe Mullin at Ars Technica:

"It's a little bit puzzling to me, because they can't get damages against these people under Oregon trademark law," said Justus in an interview with Ars. "They'd have to prove they applied a counterfeit mark to a product. I have looked at the law, and this is not a slam-dunk case. My guess is that the lawyer for Voltage is trying to find a more convenient and friendly court to get his subpoenas out."

That's a good guess, because this has always just been about getting names and contact info in order to pester people. None of these cases ever go to actual trial. The legal damages are basically meaningless, because the copyright holder never intends to pursue this under the law. The reason for all these "workarounds" is exactly as claimed: seeking a "more convenient" way to get the subpoenas out to get this information. Picking random state laws is often more convenient, especially as less sophisticated state courts often have a lot less familiarity with the nature of copyright trolling and how these cases have fared at the federal level.

In fact, these filings try to make the same "joinder" case for lumping totally separate people together that has failed in so many copyright trolling cases across the country. Given that, it seems fairly clear that Voltage is basically just jurisdiction shopping for less sophisticated and less knowledgeable state courts. That really seems to be a serious abuse of the judicial process.

And, of course, the "trademark" claim itself is laughable. No one is infringing on the trademark here at all, no matter how Voltage's lawyers seek to twist the law. The lawsuit itself is full of emotional arguments -- including calling infringement "stealing," perhaps because the legal ones are not particularly compelling. Speaking to Joe Mullin at Ars Technica, Justus also noted that he gets the sense that this is "personal for the higher-ups" at Voltage. I think that was established many years ago. You may recall that when Voltage first started copyright trolling, a fan emailed Voltage's Nicolas Chartier to try to engage him in a friendly, respectful conversation about how copyright trolling probably wasn't a good way to win fans, and that there might be more appropriate ways to deal with the issue. In response, Chartier lashed out at the person, called him "a moron" and told him to "keep being stupid" and "I hope your family and your kids end up in jail one day."

So, yeah, it's pretty clear that this is an emotional thing for Voltage, and no attempt to talk sense to the company's execs is likely to do much useful. Given that, it's unsurprising that Voltage would now seek to abuse a state trademark law to continue on a path that has been failing using federal copyright law.

Filed Under: benjamin justus, dallas buyers club, nicolas chartier, oregon, trademark
Companies: voltage pictures