The Difficulty In Holding The Gov't Accountable When It Breaks The Law

from the incredibly-difficult dept

We've discussed in the past how the US government likes to use claims of sovereign immunity or national security to avoid being held accountable (and/or to hide the details). This opens the system up to widespread abuse, and it's hard not to imagine that's happening. Even if the vast majority of government workers are good and honest people, the system is structured with so little recourse, that it's impossible not to expect massive abuses of power.

In one recent case, we wrote about an EPA agent who pretty much made up an entire case against a guy, Hubert Vidrine, mostly because it allowed the EPA agent to spend more time with his mistress, with whom he was working on the case. While that's one rare example of the government being held accountable (it had to pay the guy), Vidrine's lawyer wants the world to know that the legal system is basically set up to stymie every effort by folks like Vidrine to respond to bogus criminal charges by the government. The lawyer, Gary Cornwell, was kind enough to pass along a letter he recently sent to Senator Rand Paul, following the Vidrine verdict. That letter is embedded below, but there are a few highlights.

First, he points out that while the facts of the case are certainly unusual, it's unfair to say that such abuses aren't common. The fact is, we just don't know, and the system makes it extremely difficult for anyone like Vidrine to fight back, even when there has clearly been a completely arbitrary and malicious prosecution:

I write principally to convey to you my disagreement with the suggestion of David Uhlmann, former chief of the environmental crimes section at the Justice Department, as reported in the New York Times on October 4, 2011, that "fortunately, this is an isolated situation." This probably is an unusual case; but not because it reflects an isolated problem. More probably, it is an unusual case because the Federal Tort Claims Act discourages lawyers from filing malicious prosecution cases.

When Mr. Vidrine came to me in September, 2005, I filed an administrative claim with the Department of Justice, as required by the Federal Tort Claim Act. By July, 2007, DOJ had failed (for nearly two years) to take any action on the claim, so I filed the civil suit in federal court in Lafayette, LA. I then fought with the government for over 3 ½ more years to get access to the EPA/FBI files documenting the perjury and other acts used by government agents to secure an indictment in December, 1999, and to get truthful deposition testimony uncovering how and why they had kept the prosecution going for nearly four more years (until September, 2003), when all charges were finally dismissed because there had never been a shred of evidence that any crime had been committed. I then tried the case in June, 2011.

Cornwell is hoping that Senator Paul will consider changing the law to make it easier for people to take the government to court if they're similarly wronged:

Plainly, what happened in this case just should not happen in our country, and to minimize the number of times it happens again the FTCA should be strengthened to make it a more effective form of relief for those injured by government misconduct. Most victims of governmental abuse of power simply cannot afford to pay a lawyer to pursue malicious prosecution cases, because the standard of liability (which requires proof of the lack of “probable cause”) is high, and because malicious prosecution cases (like this one) are often complex and involve many witnesses and thousands of documents. (The government produced over 15,000 documents in this case and then argued that their extensive investigation proved that they did have probable cause and were not acting maliciously.)

Given those realities, the Federal Tort Claim Act would better serve our country’s historical interests in preserving our freedom by preventing abuses of power (1) if it allowed the Court to award punitive damages (as the Federal Court noted in its opinion in this case, stating on page 142 that “. . . given the egregious conduct displayed by an agent of the government and the devastation wrought on otherwise law-abiding citizens, had punitive damages been allowable, this Court would have awarded punitive damages in the hope of deterring such reckless and damaging conduct and abuse of power in the future;” (2) if it allowed the Court to compensate Plaintiffs for the attorneys fees they incur in prosecuting the action, (3) if it did not cap attorney fees at 25% of the Plaintiff’s recovery, and (4) if – at least in those cases which are brought solely against the United States (and not against any prosecutor personally) – it expressly allowed “malicious prosecution” claims to be based on the acts of “prosecutors.”

Of course, for the most part, it appears that the government has been trying to move in the other direction, to shield itself from the very laws it passes and requires others to follow.

Filed Under: accountability, government

Sprint Revealed GPS Data To Authorities 8 Million Times In The Last Year [Updated]

from the yowzers dept

This seems too insane to be true, but the EFF points us to a report, based on a Freedom of Information Act request, that claims Sprint provided law enforcement with GPS location data a staggering 8 million times in the last year. Sprint apparently set up some sort of portal that made such requests easier, and it sounds like law enforcement took advantage of that in a major way. The report also notes that this information should have been disclosed to Congress, under a 1999 law, but the Justice Department has ignored the law for the past five years. The rest of the report also looks at some other concerning factors, such as the fact that the government seems to regularly get all sorts of info from service providers, with little oversight. On top of that, it explains why so many service providers agree to it: they charge the government for such info, and it's quite lucrative. As such, they actually have the incentive to encourage the government to ask for more information and to deliver it to them as quickly and efficiently as possible. However, you have to wonder how so many requests are being made with such little oversight -- and how often this means the process is abused to spy on individuals with no legal basis. Update: Sprint is now trying to explain this by saying that the numbers represent number of "pings" and that can include thousands of pings per a single investigation. In a single investigation, once law enforcement has a court order, it can check someone's location every 3 minutes for up to 60 days -- and that's what made the number so inflated.

Filed Under: accountability, gps data, oversight, wiretaps
Companies: sprint

ES&S E-Voting Machines Gave Votes To A Totally Different Election

from the i'd-say-that's-a-whoops dept

You may recall last year that when we had a series of posts about the fact that e-voting companies refused to let independent security experts review their machines, we had a representative from e-voting firm ES&S show up in the comments and repeatedly berate us for not knowing what we were talking about. That individual insisted that the machines were perfectly well tested. He also insisted that elections using e-voting machines were "extremely scrutinized and very reliable." Of course, we haven't heard from that individual lately -- not since an independent review of ES&S's machines found that security was seriously lacking leading various states to quickly decertify many ES&S machines. Oops.

Reader Jose Luis Campanello writes in to point out a story we missed from last week, about how some ES&S machines used in a state primary in Arkansas didn't just screw up counting the votes, it assigned votes to a totally different election -- and those "lost" votes changed the result of the election. No one seems to have any idea how this is even possible, let alone how it happened. Somehow, I get the feeling that no representatives from ES&S will show up this time to tell us how their machines are perfectly reliable and don't need any kind of independent review. Luckily, in this case there was a voter-verified paper trail (which some insist are a bad thing), which allowed election officials to backtrack and figure out what had happened and correct the mistake. Without the paper trail, there would have been no way to have even realized this mistake happened.

Filed Under: accountability, arkansas, e-voting, reliability
Companies: es&s

'YouTube Moments' Hold Politicians Accountable

from the power-to-the-people dept

Virginia Postrel points out a great story on the way YouTube is changing the dynamics of political debate. It points out that when Bill Clinton was first running for president in 1992, the media landscape had relatively few mechanisms for holding politicians accountable for misstatements. There was only room for so many stories on the nightly news, and so when politicians told white lies, reporters tended to move on before anybody could check the claims for accuracy. But now that anyone can create a blog post or a YouTube video, politicians' fibs and gaffes can take on a life of their own, whether it's Hillary Clinton's sniper fire, Barack Obama's "bitter" Pennsylvanians, or John McCain's "100 years in Iraq." The nightly news doesn't always cover these kinds of comments when they happen, but someone in the blogosphere almost always catches them and they then get endlessly reported, debunked, and hashed out online. And once a clip has generated a lot of heat among bloggers, it can often become a big enough story that mainstream media outlets pick it up again. While some of these attacks can be nit-picky or taken out of context, on the whole it's a definite improvement in the quality of democratic debate. With video cameras everywhere and bloggers ready to pounce on any misstatement, politicians have a stronger incentive to tell the truth, and not to talk out of both sides of their mouth.

Meanwhile, USA Today reports that the presidential candidates are raising eye-popping sums of money in small increments via the Internet. In the first quarter of 2008, Barack Obama led the pack with $129 million in small donations, followed by Hillary Clinton at $65 million and John McCain at $37 million. Even John McCain's fundraising would have been considered a major accomplishment four years ago -- Howard Dean made headlines with $15 million in online donations in the third quarter of 2003, much of it from small donors. If the trend lasts -- and there are good reasons to think it will -- it will also have a democratizing effect on the political process. Presidential candidates will be more inclined to pay attention to the priorities of grassroots activists, and comparatively less worried about pleasing insiders capable of raising money in $2300 increments.

And of course, these developments are connected. The rise of blogs, YouTube, and other participatory media has gotten more people engaged and invested in the political debate, which in turn makes them more likely to open their wallets. Conversely, the fact that blog readers are often campaign contributors gives bloggers real leverage over candidates -- bloggers can punish candidates perceived as not playing fair by directing contributions to their opponents. All of which is producing a more engaged and accountable political process. Of course, things are far from perfect, but there are good reasons to think that 21st century politics will be better than politics was in the 20th century.

Filed Under: accountability, clinton, democracy, elections, mccain, obama, presidential campaigns
Companies: google, youtube

If It's On The Internet... Blame The Service Provider (Especially If It's Craigslist)

from the logical-difficulties dept

There's a jokey saying that people like to spout when they hear stories of people believing the most ridiculous things found on the internet: "If it's on the internet, it must be true." That saying certainly showed up in the story earlier this week about people ransacking and looting a house in Oregon after someone put up a post on Craigslist saying that the house had been abandoned and everything was free for the taking. When the owner came back to the house telling people to stop, they pointed to the Craigslist ad as "proof" that they could continue their looting. Hence, "if it's on the internet, it must be true."

However, in the aftermath of this event (which is actually a copycat from a similar event nearly a year ago), we're seeing a different, but perhaps equally as common, fallacy come out: If it's on the internet, blame the service provider, rather than those actually responsible (okay, it's not quite as pithy). This seems especially true when it comes to Craigslist. Remember, Craigslist has been blamed for discriminatory posts as well as many other illegal things found on the site... including child prostitution. It's not just Craigslist, of course, but for some reason it's extra common with the site. So, it should come as no surprise to already see some asking if Craigslist should be responsible.

I'm trying to figure out why so many people gravitate towards blaming the service provider, rather than whoever was actually responsible for the crime (in this case, the guy who posted the claim as well as the people who stole stuff form the guy). There are three potential thoughts that come to mind. The first is that they go after the service provider because that's easier. Fortunately, the law isn't supposed to attack the easiest target, but who's actually responsible. The second is what I like to call The Steve Dallas defense after an old, old, old Bloom County cartoon where lawyer Steve Dallas explains why he's suing Nikon after Sean Penn beat him up for taking a paparazzi photo. It can be summarized as: just blame whoever has the most money. The third option might really just be a repeat of the first, but it's that people still see the internet as new and confusing, and find that it's too complicated to parse out the nuances of the different roles of different players online. So in trying to parcel out blame, they work backwards to the first recognizable player.

People would never blame the telephone company for an extortion scam using the telephone. And they wouldn't blame Ford for making a getaway car used in a bank heist. Yet, they want to blame Craigslist for one of many postings on the site? If a crime happens on the internet... blame the service provider.

Filed Under: accountability, blame, craigslist, liability, safe harbors
Companies: craigslist

Police Accountability Is A Good Thing

from the public-scrutiny dept

Jim Lippard points out that a site called Rate My Cop is generating some controversy from Arizona police departments who apparently consider the site an invasion of officers' privacy. The site doesn't have pictures, addresses, or other personal information on the site. It only lists officers' names and the department they work for. But this is still too much for the Tempe police department. "If everybody went home everyday and you had the whole world ranking your job, we do make mistakes, but other days we do great things," said one Tempe police officer. I've have a lot more sympathy for the guy if this wasn't true of a ton of other professions. When I do a stupid blog post, you guys all leave comments saying so. Most restaurants and retail business have complaint cards so customers can complain about bad service. There are a ton of sites where consumers rate hotels, bands, restaurants, books, and a ton of other stuff -- such as rating teachers (although some people do want to make that illegal too). The big difference is that police officers have the force of law behind them, so they need to be held to a higher standard than other professions. The worst thing my blog posts can do is annoy our readers and hurt Techdirt's traffic. When a police officer screws up, the result can be innocent people being harrassed, humiliated, arrested, injured or killed. The cops who do those things are a small minority, obviously. But that's precisely why we need sites like this to help bring some public attention to the few bad apples who are out there.

Filed Under: accountability, police, ratings