Ridiculously Stupid: 4 State Attorneys General File Totally Bogus Lawsuit Against Internet Transition

from the make-it-stop dept

Okay, this is really dumb. What is it about state attorneys general making totally bullshit claims? It seems to happen with fairly consistent frequency. The latest is that four state AGs (from Arizona, Texas, Oklahoma and Nevada) have filed a lawsuit to stop the IANA transition. If you don't recall, we've written about this a bunch. A bunch of people are up in arms over something they don't seem to understand. The IANA transition is a good thing. It's not the US government handing over the internet to Russia and China as you may have heard. It's the Commerce Department severing an almost entirely symbolic link between it and a very specific internet governance capability concerning top level domains. And it's important to complete the transition because other countries (including Russia and China) keep pointing to this symbolic link as a reason for why they should have more say in internet governance. Getting rid of the link keeps the internet functioning as it has for decades -- and takes away a weapon from Russia and China. More importantly, going back on the transition now actually gives even more ammo to Russia and China, allowing them to point to unilateral actions by the US gov't to block a process that everyone had agreed upon earlier.

Anyway, to the actual lawsuit. It's dumb. It's really dumb. If you live in Arizona, Texas, Oklahoma or Nevada, you should be embarrassed for your Attorneys General. Elect better ones next time, please. First of all, they have no standing whatsoever to file this lawsuit. The IANA/top level domain system is not those states' property. They have no claim here other than "HEY LOOK! POLITICAL FOOTBALL THAT WE CAN GRANDSTAND OVER!" That does not give them standing. The best they can come up with for claiming standing is... uh... "hey, we have some websites." No, really.

Plaintiffs operate multiple websites, including those that use the .gov and .com generic top level domains, to conduct their business and communicate with their citizens.

Yeah. That's not enough to get standing here, buckos. Also, in filing a lawsuit they don't allege any actual harms. That's kind of a big no no when filing a lawsuit. Instead, they sorta maybe kinda speculate that maybe possibly there could (sorta, maybe) be some (possible, maybe, not really) harm in the theoretical future. Maybe.

Second, the entire crux of the lawsuit is that the authoritative root zone file and the internet domain name system itself are somehow "property" of the federal government, and that this transition is, in effect, the giving away of government property without an act of Congress, violating the Property Clause of the Constitution. Except, as we just discussed recently, the Government Accountability Office studied this issue earlier this month and came to the conclusion that "nope, it's not property." In case you missed it then:

It is unlikely that either the authoritative root zone file—the public “address book” for the top level of the Internet domain name system—or the Internet domain name system as a whole, is U.S. Government property under Article IV. We did not identify any Government-held copyrights, patents, licenses, or other traditional intellectual property interests in either the root zone file or the domain name system. It also is doubtful that either would be considered property under common law principles, because no entity appears to have a right to their exclusive possession or use.

Others have walked through some of the other charges and find them all totally lacking. A judge is set to review this request for an injunction later today, and you never know how any individual judge might rule. So it's entirely possible that this will muck up the timing of the transition, but long term, this filing is not just a joke, but it's an embarrassment and a waste of taxpayer money in those four states.

Filed Under: arizona, congress, gao, iana, iana transition, internet governance, nevada, oklahoma, property, standing, texas
Companies: icann

Houston Law Firm Sues Student With Severe Back Injuries For $200k After She Posts Negative Reviews To Yelp, Facebook

from the lead-attorney-pours-gasoline-on-own-head,-lights-match,-hurls-self-into-nearest dept

A Houston law firm has decided to make its mark on the world much in the same way a rogue house pet makes its mark on an expensive Oriental rug. The Tuan A. Khuu law firm has decided it has "no choice" but to sue a 20-year-old student suffering from two broken bones in her back following a collision with two vehicles -- one of them being the drunk driver who started the chain reaction.

The student (Lan Cai) first met representatives from the Khuu law office in her own bedroom, while still in her underwear.

Cai had never been in a major accident before, and she needed help from the attorneys while navigating insurance and proving her entitlement to damages. But when the attorneys came to her home, entered her bedroom (the attorneys maintain Cai's mother told them to go in) and then ignored her phone calls and emails in the days immediately after Cai signed the contract, she felt like hiring them was a mistake.

The hiring was a mistake. The firing was apparently also a mistake, especially after Cai headed to her Facebook page and Yelp to express her displeasure with Khuu. These negative reviews resulted in multiple calls and emails from the firm threatening legal action if she did not remove the "dispariging (sic)" review. The firm would have "no choice" but to do this, despite really having no legal or rational reason to do so.

Here's the entirety of the "dispariging" review the firm calls defamatory.

After 3 days, they didn't tell me anything about the doctor I needed to go to. I was in a lot of pain. Not only that, they didn't know where the hell my car was! And they came to my house and into my room to talk to me when I was sleeping in my underwear. Seriously, it's super unprofessional! ...I came in to the office to meet with my previous attorney, but he literally ran off.

Khuu attorney Keith Nguyen is the frontmouth for the firm and appears to regret nothing about suing a 20-year-old waitress who's trying to put herself through school. He claims Cai's review left out certain details and skewed others.

For example, when Cai says that her lawyer “literally ran off” when she showed up unannounced, Nguyen concedes he was on his way out the door, but took a moment to explain to her why there were liens on her insurance. The lawyers who went into her room had no idea she was in her underwear and say they were invited in, Nguyen explained. “It puts us in a bad light,” Nguyen said. “I said [to her], You can say that, but you need to add that we were invited. And she never did. She went ahead and wrote more bad things.”

It takes more than a difference in perspective to turn "bad things" into actionable defamatory statements. Nguyen is an attorney and presumably should know this. Nguyen also, presumably, is an inhabitant of this planet and partakes of the internet, so he should know what sort of effect is triggered by baseless legal bullying.

And, as part of the Khuu firm, he should also be aware that Cai isn't an anomaly. Even before the internet backlash kicked in the door of the firm's Yelp page (which now sports a warning from Yelp that it will remove positive/negative reviews that appear to be solely motivated by media coverage of the ongoing debacle), the law office wasn't exactly known for its stellar customer service. Meagan Flynn of the Houston Press points out that the Khuu law offices' Yelp pages are littered with negative reviews.

[G]ood reviews are hard to find, no matter which of the law firm's three locations you search. A guy named Han in Richardson, Texas, wrote, “Duped and filthy legal services. They trap you in their plan and dupe you out for their own goods. Stay away to protect yourself and your family.” A guy named Kevin from Austin: “They like to delay responses and make excuses for not returning calls. Incompetent and unreliable are the words I would use to describe their staff.” Charlie from Houston: “I went in for a 'free consultation' and it became a decision I would soon regret.”

In addition to the inevitable Streisanding, the Khuu law firm has also jabbed a stick into a hornet's nest of lawyers with low tolerance for bullying bullshit. So far, the law office's decision to sue a student for $200,000 has already attracted offers of assistance from Popehat's Ken White, First Amendment Badass (Texas Div.) Mark W. Bennett, and Scott Greenfield, whose undying curmudgeonliness (and undying AOL email address) are perfectly complemented by the number of fucks he gives about jabbing back at stupid attorneys. If this is just the initial response to the Khuu office legal threats, it's time to invest heavily in popcorn futures.

The immediate good news is that Lan Cai is now represented, pro bono, by Houston attorney Michael Fleming. Fleming hopes to flip this bogus lawsuit back on the Khuu law firm by using Texas' anti-SLAPP law -- the Texas Citizens Participation Act -- and extract $50,000 from the firm for the trouble it's caused. He also points out that the firm's reputation was pretty much an open sewage line well before Cai expressed her opinion, so it's unlikely the office can prove yet another negative review caused any actual damage to the firm itself.

Filed Under: anti-slapp, free speech, lan cai, reviews, texas, tuan a khuu
Companies: yelp

Texas Governor Latest To Ask For A 'Hate Crime' Law That Covers Attacks On Cops

from the red-tape-around-a-blue-line dept

Yet another politician can be added to the list of people who think police officers just don't have enough protections as is. Following in the footsteps of legislators in New Jersey and Minnesota -- along with Rep. Ken Buck (CO) -- Texas governor Greg Abbott has decided it's time to treat attacking officers as a "hate crime."

Texas Gov. Greg Abbott (R) wants the targeted killing of a police officer to be deemed a hate crime in Texas and urged lawmakers to send him such a bill to sign during next year’s legislative session.

Abbott announced Monday his plan to lobby for adding his Police Protection Act to Texas law. Along with extending hate-crime protections to law enforcement, the measure would also increase criminal penalties for any crimes in which the victim is a law enforcement officer and “create a culture of respect for law enforcement by organizing a campaign to educate young Texans on the value law enforcement officers bring to their communities,” according to a statement from Abbott’s office.

Nothing "creates a culture of respect" like handing beneficiaries of a host of "extra rights" even more protection in the form of stiffer penalties just because the victim was wearing a certain uniform. As Fault Line's JoAnne Musick points out, "hate crime" laws are generally enacted to provide greater protections for historically underprotected classes, not those already in positions of power.

Are police an otherwise vulnerable group? Is violence against an officer intended to hurt or intimidate the entire police community? Are crimes against officers underreported and in need of encouragement to prosecute them? Plain and simple, the answers are no. Police are not particularly more vulnerable. In fact, they are better trained and greater equipped to protect each other and themselves. Crimes against police are rarely underreported. They are most definitely heavily prosecuted – as they should be. So, why is there a need to create a special class?

The Dallas shooting that left five officers dead is the only reason this call for legislation even exists. It's a kneejerk reaction that shifts even more power to the powerful. It's sure to gather support from legislators because who could possibly be opposed to punishing cop killers? Add to that the further consolidation of power it represents and there's very little chance someone won't run this up the legislative flagpole. After all, the governor himself is calling for legislation, so it's guaranteed to become law if it hits his desk. That's an easy win -- something legislators like almost as much as jingoism and "tough on crime" posturing.

Rather than address the issues that have led to this (seeming) flashpoint (despite the recent murders of police officers, numbers are still on track for another "normal" year in on-duty officer deaths), politicians like Abbott have decided to give law enforcement yet another tool to use to significantly harm anyone who doesn't immediately comply with their commands. And this is in a state that already adds years to sentences if the crime victim is a police officer.

[A] simple assault is a class A misdemeanor carrying a punishment of up to one year in jail; however a simple assault against a police officer is a third degree felony punishable up to 10 years in prison.

That's the current law. Abbott wants something above and beyond this. Simple assault, under current Texas law, includes simply threatening someone or "provocatively" making physical contact. Push back when being arrested? That's assault. Accidentally bump an officer's elbow while attempting to comply with a frisk? Assault. The law already encourages prosecutors to pile on. This would make it even worse.

The underlying issues, which have prompted a horrifically violent reaction, aren't going to be mitigated by giving law enforcement and prosecutors even more leverage. Greg Prickett -- a 20-year veteran of law enforcement -- points out that the current miserable state of affairs can't be blamed on anything other than law enforcement's own actions over the past few decades. According to Prickett, this is what's prompted the shooting of law enforcement officers.

It’s simple, really. It is militarization of the police coupled with a lack of accountability for their actions.

Law enforcement has shifted away from being an integral part of the communities they serve and opted instead to view themselves as an occupying force in a war zone. The weapons and vehicles are repurposed military gear. Officers' training goes heavy on force deployment. Very rarely are tactics like de-escalation or actual community-oriented policing given any priority. While there's no condoning the actions of people who kill cops, the reality is that law enforcement itself has shown over the years that its preferred method of communication is violence. It's the only thing it truly understands.

Governor Abbott may think he can reverse this course by throwing more prison time at certain criminals, but it's not going to stop people from killing cops. All it's really going to do is give officers and prosecutors a way to inflict maximum pain for the most minimal injury or perceived slight.

Filed Under: cops, greg abbott, hate crime, police shootings, texas

Court Says There's No Remedy For Person Whose Vehicle Was Subjected To Civil Forfeiture After An Illegal Search

from the 4th-Amendment-meets-local-statutes-and-no-one-wins-but-the-government dept

A bizarre case comes out of the Texas court system -- landing squarely in the middle of a legal Bermuda Triangle where illegal searches meet civil asset forfeiture… and everything is still somehow perfectly legal. (via FourthAmendment.com)

The facts of the case: police officers arrested Miguel Herrera and seized his 2004 Lincoln Navigator. An inventory search of the vehicle uncovered drugs and the state moved to seize the vehicle itself as "contraband" using civil (rather than criminal -- this is important) asset forfeiture. Herrera argued that the stop itself was illegal and anything resulting from it -- the drugs and the civil seizure of the vehicle -- should be suppressed.

The Supreme Court of Texas examines the facts of the case, along with the applicable statutes, and -- after discarding a US Supreme Court decision that would have found in Herrera's favor -- decides there's nothing he can do to challenge the seizure. He can't even move to suppress the evidence uncovered following the illegal stop -- the same search that led to the state seizing his vehicle under civil forfeiture statutes.

The presiding judges spend several pages (including two concurrences) discussing the aspects [PDF] of this case in detail, but cannot bring themselves to exclude the evidence obtained from the illegal search, much less return Herrera's vehicle to him.

First, the court decides that the deterrent effect of suppressing the evidence is outweighed by the cost to society.

In this case… the exclusion of admittedly relevant evidence imposes a substantial social cost. Here, the vehicle and the evidence found within it are indisputably relevant—if the state shows by a preponderance of the evidence that the vehicle was “used or intended to be used in the commission of” a felony under the Controlled Substances Act, then it is “contraband.” If it qualifies as contraband under Chapter 59, then it “is subject to seizure and forfeiture.”

[...]

Additionally, applying the exclusionary rule here ostensibly results in returning a vehicle “used or intended to be used” in the commission of drug crimes to its owner. See CODE CRIM. PROC. art. 59.01(2)(B)(i). Applying the rule to Chapter 59, therefore, would likely have the undesirable effect of politely handing such vehicles—or computers, money, weapons, or whatever else—back to those who might put them to criminal use.

The court moves on to dismiss the Supreme Court's 1965 decision (One 1958 Plymouth Sedan v. Pennsylvania), suggesting not only that things have changed too much over the past 50 years to consider it relevant, but also -- unbelievably -- that the seizure of a person's assets via civil forfeiture is not a form of punishment.

[T]he legal and jurisprudential landscapes have changed significantly since Plymouth Sedan was decided in 1965, weakening some of the opinion’s underpinnings. For one thing, Plymouth Sedan was decided at “a time when [the Supreme Court’s] exclusionary-rule cases were not nearly so discriminating in their approach to the doctrine,” yet more recently the Court has “abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” Thus, the Court’s more recent jurisprudence, and its now well-established cost-benefit analysis, controls our analysis. And, as discussed, the “deterrences against [illegal searches] are substantial—incomparably greater than the factors deterring warrantless entries when Mapp [and Plymouth Sedan] [were] decided.”

Finally, in Plymouth Sedan, the forfeiture proceeding’s “object, like a criminal proceeding, [was] to penalize for the commission of an offense against the law.” See 380 U.S. at 700. Chapter 59 forfeitures, on the other hand, are expressly civil and non-punitive; indeed, “[i]t is the intention of the legislature that asset forfeiture is remedial in nature and not a form of punishment.”

It's hard to see how civil asset forfeiture isn't a form of punishment. Without having to prove an asset was illegally obtained or used in criminal activity, the state can simply take cars, money, houses, etc. away from citizens simply by providing a limited amount of evidence suggesting these might have been related to criminal activity. And if the state is wrong, it's still a long, uphill battle for anyone seeking to have their property returned. This is even admitted by the court in the same paragraph.

While this provision certainly relates to criminal activity, it does not require any proof that a person committed a crime—it only requires that the state prove by a preponderance of the evidence that the property is contraband.

The court then concludes that neither the Fourth Amendment nor the state's civil forfeiture statutes provide a remedy for Herrera -- at least not one the court is willing to grant.

Even if the state is not statutorily empowered to unlawfully seize contraband, (and it is not), what is the remedy for failure to comply with article 59.03(b)? Herrera argued in his motion to suppress—and argues now—that the remedy is exclusion. Yet what is the source of this exclusionary remedy? As discussed above, it is not the Fourth Amendment. The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs, and that is not the case here. Nor does Chapter 59 provide for exclusion. To start, article 59.03(b) deals with seizure of the property to be forfeited; it does not concern itself with other evidence that might be used to prove property is subject to forfeiture. Thus, we reject Herrera’s argument that evidence found during the seizure should be excluded under article 59.03(b).

Moreover, while article 59.03 appears to limit officer conduct as to seizure of property subject to forfeiture, it does not provide a remedy—much less exclusion—for a violation of that apparent limitation. Articles 59.03(a) and (b) provide for how property subject to forfeiture may be seized. Article 59.03(c) requires the peace officer who seized the property to provide the attorney representing the state with a sworn statement including, among other things, “a list of the officer’s reasons for the seizure.” In the forfeiture proceeding, that attorney must then “attach to the notice [of seizure and intended forfeiture] the peace officer’s sworn statement.” See CODE CRIM. PROC. art. 59.04(b). Yet, despite providing fairly detailed notice requirements such as these, Chapter 59 never mentions excluding or suppressing property subject to forfeiture, even if such property is unlawfully seized…

By finding no remedy workable or worthwhile in the face of societal cost, the Texas Supreme Court has given law enforcement another way to salvage evidence obtained by illegal searches: simply seize the "container" (house, car, boat, etc.) the evidence was discovered in.

As defense attorney John Wesley Hall notes in his post on the case, this decision will also encourage more questionable asset forfeitures because the court here has declared it's unwilling to entertain notions of deterrence when dealing with "non-punitive" civil seizures.

I disagree with the lack of deterrence because the seizure for forfeiture is immediate, before booking, and it’s part and parcel of the police arsenal to punish the defendant before trial; that along with a high bail. Besides, the police help finance their drug enforcement operations with forfeitures, even when there’s no prosecution. It’s contingent fee law enforcement.

It's a state Supreme Court decision, so it's precedential. That's the bad news. The (potentially) good news is that it touched on an issue previously handled by the US Supreme Court, so it could be pushed up the judicial ladder back in the direction the ignored decision emanated from. Of course, this Supreme Court has been very inconsistent on Fourth Amendment issues and seems particularly willing to punt on issues it would rather not address directly.

Filed Under: 4th amendment, civil forfeiture, illegal search, miguel herrera, remedies, texas

Texas Judge Indicted For Making Secret 10-Year Deal With Red Light Camera Company

from the perverts-and-their-incentives dept

The market for red light cameras obviously can't sustain itself, even with certain legislators drooling over the prospect of installing these revenue generators at every intersection.

Part of the problem is the technology is still incredibly fallible. Cameras have issued tickets to walls, parked vehicles, and many, many drivers obeying all traffic laws. Millions of dollars of refunds have been paid out by municipalities who once thought they'd have to do nothing more than sit back and let the cash roll in.

Citizens aren't fans, so legislators have often pushed these through with a minimum of discussion. Major players in the traffic cam industry lobby hard for placement of their products -- sometimes going as far as to engage in good old analog bribery and corruption.

Officials, both public and private, have been indicted (and convicted) for their participation in the proliferation of traffic cams. Not that the cameras themselves were necessarily illegal, but because the only thing better than an uptick in public funds is an uptick in private funds.

Out in Texas, a judge is facing charges for sneaking ATS (American Traffic Solutions) in through the back door.

A Texas judge arrested for making a secret deal committing his county to a 10-year contract with a red-light camera company was suspended Tuesday for allegedly blowing right past the state's Sunshine Laws.

Judge Joel Patrick Baker of Smith County was arrested last week, after an activist group complained his 2014 meeting with American Traffic Solutions officials violated the Texas Open Meetings Act. Baker was charged with three misdemeanor counts of violating the act.

Baker allegedly hooked ATS with an exclusive 10-year deal to install its cameras in Smith County -- despite the technology being banned in Texas municipalities, despite county residents being deeply opposed to the cameras, and despite never consulting with county commissioners.

Now, Baker is suspended and facing three counts of violating the state's open records law. ATS did not comment so presumably its illegally-approved cameras are still in use -- even if it's now apparent that the tickets issued by the company will have approximately zero legal weight.

When an industry's market starts drying up, it will often turn to legislators in hopes of propping its business model up. In this case, ATS skipped most of the legislative process and found a judge willing to bypass local statutes on its behalf. If an industry can't support itself, it needs to stagger off in the direction of the graveyard, not seek assistance in screwing taxpayers in increasingly creative ways.

Filed Under: corruption, joel patrick baker, red light cameras, texas
Companies: ats

As Austin Struggles To Understand Life Without Uber & Lyft, DUI Arrests On The Rise

from the not-cool dept

A month ago, folks in Austin Texas voted against a proposition that Uber and Lyft supported, concerning a number of new rules that would be put on ride hailing operations. Given that, both companies immediately shut down operations in Austin -- a city with over a million residents and only 900 cabs. In response, people are so desperate for rides that they're seriously trying to recreate the Lyft/Uber experience by using a Facebook group where people can post their location, negotiate a fee, and have someone pick them up (something that seems a lot more dangerous than typical Uber/Lyft).

DUI (driving under the influence) arrests have gone up by 7.5% compared to the previous year.

This does not mean that Uber/Lyft leaving is absolutely the cause, as there may be lots of other factors. But the anecdotal evidence certainly suggests it's having an impact. From the Vocative story linked above:

“The first Friday and Saturday after Uber was gone, we were joking that it was like the zombie apocalypse of drunk people,” Cooper said.

People were so desperate for rides, she said, that she’d pull up to a corner and pedestrians would offer to hop in her car as soon as they spotted her old Uber and Lyft emblems in the windshield. “They don’t even know who I am,” she chuckled in amazement.

Even more troubling than the late-night pedestrian concern is Austin’s rampant drunk driving problem—last year the city had more than 5,800 DWI arrests, according to police data. Back in December the city’s Police Chief Art Acevedo expressed concern for how an Uberless Austin would affect the road safety. “If we take away the (ride-hailing firms) here and in other cities, it definitely will impact DWI,” he said. “There’s no doubt about it.”

No matter what you think of Lyft or Uber, it's pretty clear that they're very, very useful services for lots of people -- and that includes drunk people who no one should want behind the wheel themselves. Putting in place regulations to limit those services seems to be backfiring, and hopefully it doesn't lead to loss of life either through drunk driving or less safe drivers making use of the informal Facebook groups.

Filed Under: austin, dui, dwi, innovation, ride hailing, ride sharing, texas
Companies: lyft, uber

Texas Trademark Spat Full Of Crap?

from the moron-in-a-hurry-to-a-bathroom dept

We've seen plenty of strange, even laughable, trademark spats around here. What can get lost in the kind of ownership culture we've collectively created is that trademark is chiefly built around the concept of avoiding customer confusion. With that noble goal in mind, businesses are allowed to reserve the right to use specific marks that act as identifiers for their brands. One of the tests that's commonly referenced to determine whether there is the potential for customer confusion is: would a moron in a hurry be confused by a given use between two competing companies?

Except nobody ever bothers to tell us to where that moron is hurrying. Given the trademark battle between two portable toilet companies, however, the answer may be: to the bathroom.

Two portable toilet vendors are engaged in a trademark dispute over using the state's outline and Lone Star to adorn their outdoor loos. Texas Outhouse of Houston, which trademarked its version of Texas-and-star earlier this year, has sued rival Texas Waste, claiming the Alvin company's use of similar images has diluted Texas Outhouse's "iconic" brand, making it difficult for users to distinguish portable toilets and suggesting that the al fresco powder rooms are the same.

This certainly conjures a strange image in the mind, one in which a person squeezing back nature rushes to a portable toilet and takes the time to concern him or herself as to which company's receptacle they are about defile. This is likely not the argument that Texas Outhouse will make in court, however. After all, the customer in this case is not the user of the mobile bathroom, but is rather whoever is contracting their use, such as event planners, municipalities or outdoor concert venues. They're the customer, not the folks with the full bladders.

It's worth noting that logos involving Texas' state outline and the star have in the past found to be not deserving of trademark protection.

Texas Outhouse v. Texas Waste is not the first tussle over the use of the Lone Star in company logos, said Jane Langdell Robinson, who handles copyright issues at Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing in Houston. In 2010, in a case involving two self-storage companies, the U.S. Court of Appeals ruled that the iconic image of Texas is not inherently distinctive and can't be legally protected as a trademark. She said she expects the courts would have a similar view of using an outline of state.

Which only makes sense. Regional companies doing business can choose to adopt the state outline and state symbols as their logos, but it would be strange to suggest that other regional companies would be prohibited from that same use. You're all Texans, after all, and the state image and star are wonderful identifiers of the region a company calls home, but are less clear in acting as identifiers for the company itself. So the question in this suit will likely come down to the actual customers' chances of being confused between the two companies and whether the logo in question should be protected by trademark at all, in the first place, with the latter potentially cancelling out the need to answer the former.

Jacqueline Lipton, a law professor and codirector of the Institute for Intellectual Property and Information Law at the University of Houston Law Center said the case will come down to two issues: Whether there a protected trademark and whether customers are likely to be confused by the similarities of the logos. As she delved into the doctrines of intellectual property law, she stopped herself for a moment: "I can't believe I'm talking about outhouses."

No shit.

Filed Under: lone star, porta potties, portable toilets, texas, trademark
Companies: texas outhouse, texas waste

Company Sues Customer For $1 Million, Claiming Yelp Review Was 'Defamatory,' Violated Non-Disparagement Clause

from the wrong-on-both-counts dept

A Dallas pet-sitting company had a small problem. HAD. But it approached it badly and now it has a much larger one.

It tried to enforce a "non-disparagement" clause to silence an unhappy customer. Copied nearly word-for-word from what is now known as "KlearGear boilerplate," the clause forbade customers from uttering a discouraging word under pain of whatever Prestigious Pets might come up with (including wholly made-up damages on top of legal fees, etc.), and awarded itself "sole discretion" to determine what words/actions would trigger the clause.

An unhappy couple posted a review to Yelp with some mild criticisms of the company -- the worst of it being that the "independent contractor" the company provided had not taken care of the customer's fish particularly well and that Prestigious Pets was difficult to get ahold of.

First, the company's legal rep sent a letter to the customers disputing every claim made in the Yelp review and informing them that their refusal to discuss the issues with Prestigious Pets "violated the spirit" of its bogus non-disparagement clause.

Then it filed a claim for $6,766 against the couple in small claims court, listing everything from "lost work opportunities" to "libelous and slandurous [sic] harm" to violation of the non-disparagement clause. This action produced completely predictable results. The couple aired their grievances even more publicly as the story of Prestigious Pets' clause and retaliatory legal actions began to make its way from local news stations to nationally-read websites.

The couple retained counsel to file an anti-SLAPP motion against the company's claims. But Prestigious Pets, stung by the backlash to its attempted enforcement of its clause, withdrew its small claims court filing (instantly mooting the anti-SLAPP motion) and filed a million dollar lawsuit instead.

Its new lawsuit may contain more detail than its small claims court filing, but it's not any more valid than its earlier effort. And its reasons for filing a "larger" lawsuit are questionable, as Paul Alan Levy of Public Citizen (who is assisting in the legal battle against Prestigious Pets) points out.

The company claims that the relief in its new lawsuit is justified because its business dried up in the face of the publicity about its lawsuit, and it brought new claims against Robert Duchouquette because he had appeared in media interviews where he objected to having been sued in the first place.   But at this point, the Duchouquettes were not only defendants in a lawsuit for a potentially bankrupting amount of damages, but they had to consider the significant up-front expense of having to pay their lawyers for the hourly expense of defending themselves against a SLAPP suit – the small claims suit alone had subjected them to a ten thousand dollar legal bill.

The statement made by the Duchouquettes that seems to most offend the pet sitting company deals with simple facts. The allegations by Prestigious Pets contain phrases never used by the Duchouquettes ("[T]he Duchouquettes have made it an ongoing campaign to tell the world that Prestigious Pets and Kalle almost killed their fish or at least potentially harmed it (without any evidence to support such a claim)...") and indisputable facts: there was excess food on the bottom of the aquarium, the water was cloudy, and overfeeding is almost always bad for fish, no matter what breed.

The couple's motion to dismiss [PDF] attacks Prestigious Pets' use of a non-disparagement clause that gives the company the "right" to severely limit its customers' speech.

Prestigious Pets’ standard contract—which includes a non-disparagement clause—is shockingly one-sided. It strips consumers of their fundamental rights of free speech, arguably going so far as to even bar consumer actions protected by law such as filing a lawsuit in response to egregious wrongdoing by the company. It provides for the recovery of attorneys’ fees—only against the consumer. It sets Prestigious Pets up as the sole judge and jury to determine whether the non-disparagement clause has been violated. Perhaps worst of all, the contract even goes beyond simply barring speech that injures Prestigious Pets, and actually seeks to bar “any action” that in any way—in Prestigious Pets’ sole estimation—harms the company.

What's really bizarre about this entire debacle is that Prestigious Pets tried to distance itself from this non-disparagement clause by claiming it was inserted by "professionals" who assisted with crafting the company's service agreement. This bizarre post-blowup stiffarm attempts to imply the company is somehow blameless, if not entirely powerless to halt the events set in motion by a service agreement the company apparently had no direct input in compiling. Having such a clause in a service agreement is just stupid. Trying to enforce it to shut up critics is suicide. And, as is noted by Levy, Prestigious Pets has already tried to use the clause against another unhappy customer.

There appears to be almost no chance this lawsuit will survive a motion to dismiss. But if anyone's going to learn what needs to be learned from this experience, the anti-SLAPP motion will also need to be granted, along with a fee shift that compensates these customers for enduring a particularly inept defamation suit.

Filed Under: anti-slapp, dallas, non-disparagement, pet sitting, pets, robert duchouquette, slapp, texas
Companies: prestigious pets, yelp

City Council Using Open Records Requests To See What Members Are Saying About Them Behind Their Backs

from the all-hail-the-new-transparency dept

El Paso's (TX) government keeps screwing around with local public records laws… and for some truly unexpected reasons.

First, the normal stuff. A city council member seems to be toying with the idea of limiting public access to records, starting out with those many members the public might agree shouldn't be allowed to do much of anything.

The El Paso City Council stepped back from a hot and slick slope Tuesday afternoon, killing a proposal to deny open records to people with a felony or a single kind of misdemeanor conviction.

Most convicts already have diminished rights, depending on their convictions. Denying open records to ex-cons or those in prison denies them access to justice. It doesn't happen often, but prisoners have been able to have their cases reheard by uncovering prosecutorial misconduct through FOIA requests. And let's not forget that a man imprisoned for tax fraud blew the lid off law enforcement's use of Stingray devices while still behind bars, thanks to incessant FOIA requests.

The step back from the slope was one of pure capitulation: council member Emma Acosta never tabled the motion. Apparently she was well-aware the discriminatory suggestion wouldn't survive a challenge. She instead proposed that telephone numbers of city employees should be redacted and her "no criminals allowed" suggestion was removed from the agenda.

As Watchdog.org points out, this new public records activity follows an outside investigation into the city's withholding of documents requested by the El Paso Times.

An outside investigator found it "problematic" that the city's public information officer determined which documents should have been released to the El Paso Times under an open records request the newspaper filed last year.

The public information officer, Juli Lozano, withheld two documents that other city officials had said were responsive to a Times request for records related to projects that were requested by City Council members, according to a report from Austin attorney Ross Fischer that was made public Wednesday.

But the best action of all occurred late last fall. Acosta, who proposed the questionable ban on convicted criminals requesting public records, managed to pass a measure that forces any public official making public records request to publicly disclose what was requested and how much it cost for the city to fulfill. This only sounds like a step towards greater accountability.

While Acosta insisted her measure was designed to increase transparency, opponents said it was designed to inhibit city officials from doing records checks on one another in a toxic climate of internal politics.

The internal toxicity surfaced last month with council members calling one another liars and making records requests to read the text messages between rival council members.

This was solved in the most self-serving fashion, which, coincidentally, also worked out best for the public.

The council decided, unanimously, to solve the problem by prohibiting the mayor and one another from using all electronic devices, including cell phones, during council meetings.

Now, if only they would agree to stop using them at all to conduct official business. The use of personal devices and accounts to keep records from the public is a government favorite. It doesn't always work, but it does make searching for records more difficult and almost always ensures a lawsuit (or an investigation) will be part of the extremely-protracted request fulfillment.

Filed Under: city council, el paso, open records, texas

Cops Getting Free License Plate Readers In Exchange For 25% Of The 'Take' And All The Driver Data Vigilant Can Slurp

from the an-equitable-partnership dept

What happens when you lower the barriers to entry? More participants join the market. It works everywhere, even when the market is "law enforcement" and the "customers" are everyone else.

Vigilant Solutions, one of the country’s largest brokers of vehicle surveillance technology, is offering a hell of a deal to law enforcement agencies in Texas: a whole suite of automated license plate reader (ALPR) equipment and access to the company’s massive databases and analytical tools—and it won’t cost the agency a dime.

[...]

Vigilant is leveraging H.B. 121, a new Texas law passed in 2015 that allows officers to install credit and debit card readers in their patrol vehicles to take payment on the spot for unpaid court fines, also known as capias warrants. When the law passed, Texas legislators argued that not only would it help local government with their budgets, it would also benefit the public and police.

Well, we can see how this will benefit law enforcement and others on the government food chain, but it's unclear how this will benefit the public. The bill's sponsor said the law would "relieve the burden" of having their vehicles impounded or being jailed for unpaid fines. But beyond those vague perks, the benefits seem to flow mostly in one direction.

The EFF quotes legal blogger Scott Henson of Grits for Breakfast, who speculated the combination of license plate readers and credit card readers would push cops towards chasing down unpaid fines rather than enforcing traffic laws or performing more routine patrol duties. If so -- and it appears to be the case -- this is exactly the outcome Vigilant was expecting. It didn't hand out its tech for free. There may be no price tag on the plate readers at the point of purchase, but that's only because Vigilant has points on the back end.

The “warrant redemption” program works like this. The agency gets no-cost license plate readers as well as free access to LEARN-NVLS, the ALPR data system Vigilant says contains more than 2.8-billion plate scans and is growing by more than 70 million scans a month. This also includes a wide variety of analytical and predictive software tools.

The government agency in turn gives Vigilant access to information about all its outstanding court fees, which the company then turns into a hot list to feed into the free ALPR systems. As police cars patrol the city, they ping on license plates associated with the fees. The officer then pulls the driver over and offers them a devil’s bargain: go to jail, or pay the original fine with an extra 25% processing fee tacked on, all of which goes to Vigilant.

To make this relationship even more explicit, officers who issue tickets to parked vehicles rather than drivers leave a note instructing them to visit Vigilant's website to pay the fine. On top of the 25% fee, Vigilant also gets to collect massive amounts of sweet, sweet driver data, which it can then sell to other law enforcement agencies (database access licenses) and private firms (insurance companies, repo men, etc.). And, if the locals seem understaffed, Vigilant is more than happy to pick up the slack.

In early December 2015, Vigilant issued a press release bragging that Guadalupe County had used the systems to collect on more than 4,500 warrants between April and December 2015. In January 2016, the City of Kyle signed an identical deal with Vigilant. Soon after, Guadalupe County upgraded the contract to allow Vigilant to dispatch its own contractors to collect on capias warrants.

As the EFF points out, this freemium service benefits Vigilant and law enforcement, but does very little for the general public… including protect them from Vigilant's inability to perform its job competently.

During the second week of December, as part of its Warrant Redemption Program, Vigilant Solutions sent several warrant notices – on behalf of our law enforcement partners – in error to citizens across the state of Texas. A technical error caused us to send warrant notices to the wrong recipients.

These types of mistakes are not acceptable and we deeply apologize to those who received the warrant correspondence in error and to our law enforcement customers.

Apologies are nice, if of limited utility, but…

[T]he company has not disclosed the extent of the error, how many people were affected, how much money was collected that shouldn’t have been, and what it’s doing to inform and make it up to the people affected.

As has been discussed here before, turning law enforcement agencies into revenue-focused entities is a bad idea. Case in point: asset forfeiture. Further case in point: speed trap towns. Improper incentives lead to improper behavior. Agencies may like the idea of a "free" license plate reader, but the price still has to be paid by someone -- and that "someone" is going to be the general public.

As priorities shift towards ensuring ongoing use of the "free" ALPRs, other criminal activity is likely to receive less law enforcement attention. Unpaid fines and fees are in law enforcement's wheelhouse, but should never become its raison d'etre. Once it does, the whole community suffers. Anything that could be implemented to lower crime rates would also serve to lower revenue, making it far less likely to be implemented. Fewer infractions mean fewer opportunities to collect court fees. And while the legislators pushing the new law Vigilant is leveraging talked a good game about sending fewer people to overcrowded jails, the governments overseeing these agencies still have budgets to meet and law enforcement to lean on to ensure this happens. Actually achieving the bill's stated aims would mean a steady reduction in court fees, which would lead to the loss of "free" plate readers. And no one wants that, at least not on the government side of things.

Filed Under: alpr, business models, law enforcement, license plate readers, license plates, police, texas, ticketing
Companies: vigilant solutions