FCC Wants Delay In Net Neutrality Trial Due To Government Shutdown, But Isn't Likely To Get It

from the good-luck-with-that dept

The FCC is requesting a delay in the opening arguments in the looming lawsuit over the agency's repeal of net neutrality rules, citing the government shutdown as justification. Oral arguments are slated to begin February 1 in the US Court of Appeals for the District of Columbia Circuit, beginning what should be a fairly insightful battle over the Ajit Pai FCC's historically unpopular move, and some of the dubious behavior it engaged in to try and downplay public opposition.

The court noted this week on its website that the trial is likely to proceed regardless of the government shutdown. The FCC quickly balked, filing a motion (pdf) requesting a delay in the trial. In the filing, the FCC cites guidance from the Department of Justice in requesting a delay out of what it suggests would be a wise "abundance of caution" as it attempts to prepare for the legal battle:

"The Commission recognizes that the Court has indicated that arguments in February will proceed as scheduled," the FCC said in its filing. "However, due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument."

Groups like Incompas, whose members have been fighting to restore the rules, issued their own motion (pdf) arguing that given the potential harms from the repeal, expediency is warranted:

"Due to the FCC's misguided and unlawful repeal of the network neutrality rules, consumers are at risk of substantial harm from Internet Service Providers ('ISPs'), which may now interfere with access to lawful Internet content without the restraint of the net neutrality rules. The repeal of the rules also threatens edge providers, as they are facing the risk of blocking, throttling, and other practices by ISPs, which may have services competing with edge provider services."

Both Incompas and consumer advocates like Public Knowledge's Harold Feld note that given that the DC Circuit has been denying numerous other deferments due to the shutdown, the FCC isn't likely to get what it's looking for:

Again, this legal fight is going to be very interesting to watch, as it's the first time the FCC will have to defend the various bizarre behaviors it engaged in during the repeal, including making up a DDOS attack (apparently to concoct an alternative explanation for the outrage-driven FCC website outage), blocking FOIA and law enforcement inquiries into those bogus comments the FCC refused to do anything about, or why its flimsy justifications for the repeal were pushed in perfect synchronicity with big telecom lobbyists.

If you were staring down the barrel of that particular gun, you'd probably want a delay too. Should the FCC lose, the agency's 2015 rules could be restored. If it wins, the FCC and its friends in the telecom sector need to find a way to prevent some future FCC or Congress from simply passing new rules, which is why they've been pushing bogus net neutrality laws even Congress hasn't been dumb enough to buy into quite yet. Get your popcorn ready.

Filed Under: court, dc circuit, doj, fcc, net neutrality, trial

Sheriff Defends Deputies' Lies In Court By Saying Officers Didn't Know They Were Supposed To Tell The Truth

from the keep-calm-and-screw-citizens dept

The Orange County (CA) District Attorney's office remains in the news. It's not often an entire prosecutors' office gets booted off a high-profile murder case, but that's what happens when misconduct occurs on a massive scale. An open-and-shut murder case with eight victims is now the DA's perpetual nightmare. Judge Thomas Goethals kicked the agency to the curb after uncovering repeated discovery violations committed by prosecutors.

But the problems go back further than this case. The office has hidden the existence of a law enforcement database from defense lawyers (and judges) for a quarter century -- a database holding all sorts of information about jailhouse snitches that may have made the difference in a number of cases.

A quarter-century of obfuscation followed by outright lying on the stand by prosecution witnesses is something you'd think would be addressed by a swift housecleaning. You'd be wrong. So far, there have been no announcements from the DA about pending investigations -- either into its own misconduct, or the repeated abuses of the jail's snitch program run by the local sheriff's office.

Add to that yet another revelation from the current criminal case: the sheriff's office shredded documents ahead of an announced investigation by the DOJ.

Sheriff's deputies doctored and shredded records after the announced launch of a U.S. Department of Justice (DOJ) probe eight years ago into suspected police corruption, according to the latest courthouse bombshell filed March 30 in what is known nationally as the Orange County Jailhouse Informant Scandal.

Revealed in a brief filed by Scott Sanders, the assistant public defender in People v. Scott Dekraai, a pending death penalty case marred by astonishing law enforcement misconduct, Deputy Michael Carrillo wrote an entry never intended for public consumption: "ADUJSTED (sic) THE DISCIPLINARY ISOLATION LOGS FOR THE DOJ TO MATCH THE LOGS FOR AD-SEG AND PC LOGS, PER SGT JOHNSON."

Those in charge of the sheriff's snitch program have been asked to testify in response to perjury allegations. They have chosen not to, with each sheriff's office witness called pleading the Fifth. This chain of events has led to the most jaw-dropping law enforcement statement I have ever read, and that includes arguments made in support of setting toddlers on fire with carelessly-tossed flashbang grenades.

Sheriff Sandra Hutchens claims the veteran officers were unaware they were required to testify honestly during prior court appearances for the death penalty case marred by astonishing degrees of government cheating.

Officers, especially veteran ones, are aware they are required to testify honestly. This is why they're sworn in before testimony. There's a promise made at that point. Not testifying honestly is called "perjury," as the officers are surely aware. High school students taking civics classes are aware of this. No one's really unclear on the whole "tell the truth in court" thing.

This is R. Scott Moxley's paraphrasing of what was actually asserted by the sheriff. The paraphrasing strips the original quote of its defensive obfuscation, but the real quote is no less damning, if not as direct. (Original quote obtained from Moxley.)

[T]he OC sheriff was asked why a veteran deputy had lied about the existence of incriminating agency TRED records after swearing in open court he would tell the "whole truth" and she replied, "I believe he was unclear about what he could or couldn't say about that system."

I'm not sure what the deputy thought was unclear, other than it seemed wiser for him to lie to the court than reveal the database the sheriff's office had kept hidden from defendants for years. If there was a question about what could be said in open court, the sheriff's witnesses could have asked to discuss the specifics in camera and allow the judge to decided whether it could be discussed publicly. Denying the existence of records that exist is still perjury, no matter how the sheriff wants to spin it.

Hutchens and every "veteran officer" she's referring to should be fired immediately. Anyone who honestly believes testifying in court is subject to discretion calls by the sheriff's office about what can and can't be discussed needs to replaced with those who understands and respects the oaths they take. If they're actually stupid enough to believe being a law enforcement officer makes truth-telling under oath optional, they should be forced to tattoo "THIS END UP" on their foreheads to prevent them from making unfortunate decisions about which method of bipedal ambulation works most efficiently and have "DON'T LIE IN COURT" notes safety-pinned to their chests if they're going to be within 1000 feet of any US courthouse.

Filed Under: court, orange county, orange county da, police, sandra hutchens, testimony, truth

Court Strikes Probation Restrictions Banning Teen From Using Encryption, Accessing Internet For Personal Reasons

from the not-just-unreasonable,-also-stupid dept

The Appeals Court of California has examined a set of release restrictions imposed on a teen convicted of minor sodomy against his girlfriend. The lower court -- realizing it was being asked to step in and act as a proxy parent for the teen's internet use -- handed down a lengthy list of restrictions supposedly aimed at keeping the teen from committing further criminal acts. This included several restrictions on the teen's internet use, for reasons only apparent to the lower court. (h/t Volokh Conspiracy)

Fortunately, the Appeals Court has struck many of these restrictions, finding most of them overly-broad at best, and unreasonably (and unconstitutionally) restricting at worst. Most of these seem to have stemmed from the teen's admission that he masturbated to internet porn once a week -- something that could be said for a great many US citizens of many ages. That the court connected this to the crime committed appears to be the result of a prudish mindset: one that still believes access to pornography leads to criminal sexual acts, despite a great deal of evidence to the contrary.

Nevertheless, the lower court felt the way to righteousness led through cutting Mike H. (as the court refers to the minor) off from the internet as much as possible. The Appeals Court does some drastic pruning of the lower court's order, starting with bringing the case up to date to establish that the restrictions imposed had very little to do with the criminal act the teen was charged with. From the decision [PDF]:

Mike stated he had anal sex with C.C. because she was his girlfriend; he denied bribing her, telling her not to tell anybody, or keeping her from calling for help. There is no indication Mike used the Internet, a computer, or social media to contact or lure C.C. or otherwise plan his offense. Mike and C.C. communicated by text message, and Mike denied planning or fantasizing about the offense ahead of time.

Afterwards, Mike felt it was the "stupidest thing" he had ever done. The probation officer believed Mike was at "low risk for recidivism"; the psychologist agreed, stating Mike's "[r]isk factors for sexual acting out appear to be low." He had never committed a sex crime before and had not reoffended at the time of sentencing.

This was the "minor sodomy." Mike was 14. His girlfriend was 15. There was some question as to whether the act was wholly consensual, but Mike's plea deal reduced the charges to this single count.

Next, the court addresses the many, many stipulations put in place by the lower court at sentencing. A great many of them are either overly-broad, unconstitutional, or completely ridiculous. All of the restrictions hang on the sheerest of legal connective tissue.

The only connection between Mike's admitted offense of sodomy on a minor and computers or the Internet was Mike's admission to the probation officer he masturbated approximately once per week while viewing Internet pornography on his smartphone. Although the court acknowledged Mike's offense did not involve a computer or the Internet, it found the restrictions warranted because Mike had used his smartphone to access inappropriate websites.

Here are the first four restrictions the Appeals Court found unconstitutional.

Condition 39 prohibits Mike from knowingly accessing the Internet or any online service without supervision by a parent, legal guardian, or teacher. Condition 54 prohibits him from having a social media page or using MySpace, Facebook, or similar social media programs. Condition 58 prohibits Mike from knowingly using any electronic device (such as a computer or smartphone) "for any purpose other than school-related assignments, or legitimate work or personal purposes," as defined by the probation officer, and requires Mike's use of electronic devices to be supervised "by a responsible adult over the age of 21 who is aware that the minor is on probation, is aware of the minor's charges, and is aware of the limits on the minor's computer use." Finally, condition 59 prohibits Mike from using a computer "for any purpose other than school related assignments" and requires supervision of computer use in school and in the common area of his home.

Addressing these in bulk, the court says the restrictions are not only unconstitutional, but serve no purpose whatsoever in terms of rehabilitation and reducing recidivism.

Using a computer or the Internet is not inherently criminal, and the court acknowledged the crime did not involve a computer or the Internet. Mike did not use the Internet, social media, or a computer to communicate with C.C. or otherwise facilitate his offense.

[...]

Here, as in J.B. and Erica R., there is no relationship between the minor's admitted conduct of sodomy of a minor and his use of the Internet or electronic devices. There is little reason to believe broad Internet and electronics use restrictions like the ones imposed here will serve a rehabilitative function by deterring Mike from future criminal activity.

It calls out Condition 59 in particular for being completely unreasonable.

Condition 59 is even more extreme. A blanket restriction forbidding Mike from using a computer for anything other than school-related assignments precludes his extracurricular use of a computer to write letters, create art, use software to learn a foreign language, read the news, check sports scores or movie times, research medical information, and obtain other legitimate information wholly unrelated to his criminal conduct in this case. Such a broad restriction is not narrowly tailored or reasonably related to the state's interest in rehabilitating Mike.

The court also strikes the condition forbidding Mike H. from accessing internet pornography. It notes this imposition plays hell with the First Amendment if not narrowly-crafted. This restriction isn't, so away it goes.

We conclude restrictions on pornography and sexually explicit content are not reasonably related to the state's interest in rehabilitating Mike. There is no apparent connection between the crime and Mike's viewing of Internet pornography or sexually explicit material.

The most ridiculous restriction handed down comes paired with banning Mike H. from creating anonymous social media accounts. The Appeals Court finds the anti-stalking/harassment probation stipulation somewhat justifies preventing Mike H. from obscuring his online identity. But it goes too far when it forbids him from using encryption. As the Appeals Court points out, not only is this stipulation overly-broad, but it's impossible to comply with given the current state of internet-based communications.

Given the ubiquity of encryption technology, condition 45 is overbroad as formulated. As Mike notes, "encryption is standard-issue on every iPhone and Mac, with Google requiring new Android phones to be encrypted; every web page that begins 'https' uses encryption, including, for instance, every page on Netflix.com, every page on Wikipedia, and every page created by the federal government." [...] In recent years, Apple, Google, Facebook, WhatsApp, and Blackberry have all "announced plans to implement end-to-end encryption on a default basis. This means that encryption is applied automatically without a user needing to switch it on."

The Appeals Court points out that banning someone from using encryption is pretty much the same thing as banning them from using the internet… or a smartphone.

Here, the juvenile court may have reasonably sought to prevent Mike from concealing his online activity or electronic communications through encrypted programs or applications. However, as formulated, condition 45 effectively prohibits Mike from using the Internet or a smartphone. By virtue of accessing certain websites or even turning his smartphone on, he would risk violating the condition. As drafted, condition 45 is therefore unconstitutionally overbroad. It is also impermissibly vague, given other probation conditions allowing Internet and smartphone use.

This is the sort of thing that happens when judges (and prosecutors making probation recommendations) don't understand the technology they're dealing with. It only gets worse when the stipulations are predicated on the ridiculous presumption that viewing porn leads to criminal sexual acts. Fortunately, the Appeals Court has eliminated many of the worst probation conditions. What's left in place won't make it much fun to be Mike H. for the next few years, but that's kinda the point. What won't fly are restrictions that stomp all over a person's civil liberties and basically forbid them from accessing the internet.

Filed Under: california, court, encryption, internet, probation, teens

Court Stays FTC's LabMD Injunction; No Deterrent In Punishing A Company It Helped Kill

from the killing-a-horse-just-to-beat-it dept

Despite turning LabMD into a stone -- based on some suspect data breach allegations by a data protection company engaged in shady sales tactics -- the FTC is still seeking to extract as much blood as possible. Thanks to the FTC's ongoing efforts against LabMD, the company has been closed, has less than $5000 to its name, and is fighting back against the commission with pro bono help.

The FTC wants to punish LabMD for a patient file that ended up file sharing services thanks to an employee's use of Limewire at work. (The file was in folder that end up being "shared" by default Limewire settings [My Documents].) Tiversa, a company that prowled file sharing services for sensitive documents in hopes of leveraging these into data security contracts, took this info to the FTC when LabMD refused to purchase its offerings.

Since that point, the FTC has bankrupted LabMD by forcing it to defend itself against a supposed breach that never resulted in the misuse of patient data. Tiversa has seen its own fortunes diminish, culminating in an FBI raid of its offices in March of this year.

The FTC overturned an Administrative Law Judge's (ALJ) decision in July, giving itself permission to restore its charges against LabMD for the breach -- ones the ALJ had dismissed. The FTC claims LabMD "left" the mistakenly-shared file out somewhere in the internet, as if the company actually had any way to "retrieve" it once it had been uploaded.

Seemingly unconcerned that LabMD is now a defunct company, the FTC still wants it to implement a series of expensive steps to ensure the data it won't be collecting in the future is better protected.

Having found that LabMD violated the FTC Act, the Commission’s Final Order will ensure that LabMD reasonably protects the security and confidentiality of the personal consumer information in its possession by requiring LabMD to establish a comprehensive information security program. It also requires LabMD to obtain periodic independent, third-party assessments regarding the implementation of the information security program, and to notify those consumers whose personal information was exposed on the P2P network about the unauthorized disclosure of their personal information and about how they can protect themselves from identity theft or related harms.

LabMD has asked for a stay of this injunction pending its appeal. That stay has been granted by the Eleventh Circuit Appeals Court. (via the Office of Inadequate Security)

The appeals court points out [PDF] several things about the stay the FTC is contesting, not the least of which is the company's inability to actually follow the injunction if granted, much less have any reason to do so, given its current situation.

The costs of complying with the FTC’s Order would cause LabMD irreparable harm in light of its current financial situation. [...] The costs associated with these measures are hotly debated by the parties. LabMD says the costs will exceed $250,000. The FTC does not offer its own estimate, but disputes the $250,000 figure. Regardless, it is clear that the postage for the notice requirements alone would be more than $4,000. Certainly the costs of all the other measures would add to that amount.

LabMD is no longer an operational business. It has no personnel and no revenue. It now has less than $5,000 cash on hand. It reported a loss of $310,243 last fiscal year, and has a pending $1 million judgment against it on account of its early termination of its lease. LabMD cannot even afford legal representation, and is relying on pro bono services for this appeal.

Given the company's financial ruin, the injunction would serve no possible deterrent purpose. There's nothing left to destroy and, unfortunately, nothing to be gained by LabMD, even if it ultimately prevails.

Ordinary compliance costs are typically insufficient to render harm irreparable. But given LabMD’s bleak outlook, the costs of compliance pending appeal would constitute an irreparable harm. This is especially so because if LabMD is ultimately successful on appeal, the costs would not be recoverable in light of the FTC’s sovereign immunity.

Furthermore, the court feels there's absolutely no risk to the further exposure of patients' data, even with the file still supposedly in the wild. The company has its own copy, residing on a computer that is never connected to the internet. If a customer requests data, LabMD hooks it up to printer and mails or faxes them a hard copy.

As for the FTC's claim that a file that has been in the wild since 2005 would result in future breaches of patient confidentiality, the court is rather skeptical.

For those patients whose personal information was in the 1718 file, there is no evidence of a current risk to them. Specifically, there is no evidence that any consumer ever for nefarious purposes before this appeal terminates. suffered any tangible harm, or that anyone other than Tiversa, LabMD, or the FTC has seen the 1718 file. Although the FTC’s Order denying LabMD’s stay application says there remains a potential risk of harm to consumers whose information was in this file, we think it improbable that a party downloaded this information now years ago, has not used it for several years, but may yet use it for nefarious reasons before this appeal terminates.

Finally, the court has a few choice words for the FTC's dictionary attack -- used to shore up its weak claims of future harm from the escaped file.

[I]t is not clear that the FTC reasonably interpreted “likely to cause” as that term is used in § 45(n). The FTC held that “likely to cause” does not mean “probable.” Instead, it interpreted “likely to cause” to mean “significant risk,” explaining that “a practice may be unfair if the magnitude of the potential injury is large, even if likelihood of the injury occurring is low.” The FTC looked to different dictionaries and found different definitions of “likely.” It is through this approach that it argues its construction is correct, considering the statute’s context as a whole.

Even respecting this process, our reading of the same dictionaries leads us to a different result. The FTC looked to dictionary definitions that say “likely” means “probable” or “reasonably expected.”Reliance on these dictionaries can reasonably allow the FTC to reject the meaning of “likely” advocated by LabMD, that is, a “high probability of occurring.” However, we read both “probable” and “reasonably expected,” to require a higher threshold than that set by the FTC. In other words, we do not read the word “likely” to include something that has a low likelihood. We do not believe an interpretation that does this is reasonable.

The sick thing is that even if LabMD ultimately prevails, it won't matter. It cannot recover any of its expenses and the company has been gutted by its fight against the FTC. That the whole situation appears to have stemmed from a data protection company's shady sales pitch is even worse. Tiversa not only was uncooperative during the FTC's investigation of LabMD, but it has also drawn the attention of the House Oversight Committee, which was unimpressed by the Tiversa's tactics both before and after the FTC's investigation of LabMD.

Filed Under: court, data breach, file sharing, ftc, injunction
Companies: labmd, tiversa

DOJ To Court: Hey, Can We Postpone Tomorrow's Hearing? We Want To See If We Can Use This New Hole To Hack In

from the oh-really-now? dept

So, this morning we wrote about a new flaw found in the encryption in Apple's iMessage system -- though it was noted that this wouldn't really have impacted what the FBI was trying to do to get into Syed Farook's work iPhone. However, just a little while ago, the Justice Department asked the court to delay the big hearing planned for tomorrow afternoon, because of this newly disclosed vulnerability:

Since the attacks in San Bernardino on December 2, 2015, the Federal Bureau of Investigation (“FBI”) has continued to pursue all avenues available to discover all relevant evidence related to the attacks.

Specifically, since recovering Farook’s iPhone on December 3, 2015, the FBI has continued to research methods to gain access to the data stored on it. The FBI did not cease its efforts after this litigation began. As the FBI continued to conduct its own research, and as a result of the worldwide publicity and attention on this case, others outside the U.S. government have continued to contact the U.S. government offering avenues of possible research.

On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone. Testing is required to determine whether it is a viable method that will not compromise data on Farook’s iPhone. If the method is viable, it should eliminate the need for the assistance from Apple Inc. (“Apple”) set forth in the All Writs Act Order in this case.

Accordingly, to provide time for testing the method, the government hereby requests that the hearing set for March 22, 2016 be vacated. The government proposes filing a status report with the Court by April 5, 2016.

This could mean a variety of different things... including that the DOJ is looking for a way "out" of this case without setting the precedent it doesn't want, after discovering that the case and public opinion didn't seem to be going the way the DOJ had hoped it was going to go when it first brought it last month. Either way, there's never a dull moment in this case...

Update: And the judge has accepted the request, meaning the hearing is off. The DOJ put out a statement trying to spin this as being about how they're just really interested in getting into this one phone and not about setting a precedent:

Our top priority has always been gaining access into the phone used by the terrorist in San Bernardino. With this goal in mind, the FBI has continued in its efforts to gain access to the phone without Apple's assistance, even during a month-long period of litigation with the company. As a result of these efforts, an outside party demonstrated to the FBI this past weekend a possible method for unlocking the phone. We must first test this method to ensure that it doesn't destroy the data on the phone, but we remain cautiously optimistic. That is why we asked the court to give us some time to explore this option. If this solution works, it will allow us to search the phone and continue our investigation into the terrorist attack that killed 14 people and wounded 22 people.

Of course, that statement is more misleading bullshit from the DOJ. It's pretty clear that the DOJ is just trying to get out of this case as it's realized that the original plan completely backfired, and they were likely to lose.

Update 2: Okay, the court has officially posted its decision to grant the DOJ's request. You can see it below as well.

Filed Under: all writs act, court, doj, encryption, fbi, going dark, hacking, syed farook, vulnerability
Companies: apple

Judge Insists His Own Lost Luggage Is A 'Key' Issue In Massive Lawsuit He's Overseeing Against British Airways

from the so-that-happened dept

Apparently, British Airways has been involved for years in a big case in Europe concerning alleged price fixing for air cargo. In a somewhat bizarre turn of events, the judge in the UK who has been dealing with the case for years, Justice Peter Smith, took a short vacation with his wife, in which he flew British Airways. On the return trip, apparently there were some issues with the flight and his luggage. I'll let the judge explain the story himself:

On 30 April, I booked a return ticket to Florence with the first defendant. On 6 July, I flew to Florence, together with my wife, due to return on 10 July. On 10 July, as I have set out in my emails, the flight was delayed for two hours without any explanation. Six people were then summoned to the departure desk and were told that they were bumped off the flight. It turns out that they were the lucky ones, because they got their luggage back then, unlike anybody else in the flight.

The rest of us were then rushed to the aeroplane. Somewhat intriguingly, as I have said in my email, we were sitting right next to the plane while it was refuelling for 20 minutes. It might be a standard practice in Florence, I don't know. It might be a standard practice for the accompanying fire tender to arrive after the refuelling is completed. Anyway, we were then put on the plane and the pilot said that they had been moved to another runway and the load had had to be adjusted because of the crosswinds, and that was it.

We arrived at Gatwick, hung around in the baggage claim, as people do at Gatwick, for 45 minutes and then we were told to go to Global Recoveries, where we were told for the first time that the entire flight's luggage had been left behind. No explanation, no representative, nothing. Nothing from BA. Nothing from Vueling who provided the flight.

I saw the distress that lots of people suffered as a result of that; and I contacted BA customer relations, who simply said: it was a Vueling flight, you will have to take it up with Vueling. That is all they said.

Vueling were no better. In fact, they were worse, for the reasons I have said in argument. Vueling refused to acknowledge my communicating with them until a computerised individual number went onto their system. As I said earlier, it never did. The luggage arrived spontaneously and without warning on Wednesday last week.

Losing your luggage sucks, no doubt about that. Airplane service tends to also suck. Especially when they lose your luggage. But what do you do if you're a judge in a massive case concerning British Airways and its cargo and the airline loses your luggage. You suddenly bring your own issue into the courtroom. Apparently after exhausting his communications with customer service, the judge reached out to the lawyers in the case and the CEO of British Airways to ask what happened to his own luggage. Not surprisingly, BA and its lawyers felt this was somewhat inappropriate. They felt the same about this exchange that happened in court soon after:

Mr Justice Peter Smith: Right, Mr Turner, here is a question for you. What happened to [the] luggage?

Jon Turner: My Lord, the position remains that set out in the letter from Slaughter and May of 15 July, that we are not dealing with that as parties in these proceedings.

PS: I am asking you: what has happened to the luggage?

JT: My Lord, so far as the parties to these proceedings … are concerned, we have said, and we maintain, that we are not getting involved because we trust that that will be dealt with expeditiously, in the ordinary course of events.

PS: In that case, do you want me to order your chief executive to appear before me today?

JT: I do not wish your Lordship to do that; and I would say, if your Lordship will permit me to develop my submissions, that that would be an inappropriate mixture of a personal dispute ...

PS: What is inappropriate is the continued failure of your clients to explain a simple question, namely, what happened to the luggage? It has been two weeks since that happened now....

JT: Our position, my Lord, is that where your Lordship initiates a personal dispute with British Airways…

PS: I didn’t initiate a personal dispute. BA’s associated company retained my luggage. It is not my fault that that happened. I am the victim. I read the whole of your correspondence. The more I read it, I got the impression that BA was trying to portray itself of the victim of this case and being oppressed by wicked Mr Justice Peter Smith. It is just ridiculous...

PS: As far as I am concerned, the key fact in this case is: what happened to the luggage; and your clients know what happened to the luggage and they are not telling me. And your solicitors and you are deliberately not asking...

Not surprisingly, British Airways suggested that perhaps Justice Smith should recuse himself from the case. Now, at one level, you could argue that it's a little weird that a judge who has been overseeing the case for years might get pushed off the case because of actions of British Airways in losing his luggage -- but the judge appears to have gotten somewhat obsessed about using his position in this case to find out what happened to his luggage, which had long since been returned. At one point, the judge tries to argue that the issue is really the same one as in the case, because perhaps his luggage was kept off the flight in order to carry more revenue generating cargo, but that seems like a stretch:

Of course, I do not operate airlines. There might be a logical explanation. I am surprised, if there is a logical explanation, that it hasn't been forthcoming in the last 12 days. I do not believe there is a logical explanation. I believe that the passengers' luggage was deliberately bumped off for a more profitable cargo.

The judge argued that he had little other choice but to identify himself as the judge in this case in reaching out to BA for an explanation, because if he had not made that clear, and BA later found out, then it would have demanded he recuse himself. Either way, he feels he had to make this a major issue -- apparently the "key" issue in this case:

Conversely, I do not, with respect to Mr Turner QC's valiant submissions, accept for one minute that I should not have told his team that I had a dispute. I posed the question to his solicitors, which of course they didn't answer in the correspondence, how they would have reacted if I had carried on and said nothing, and heard the CMC next week, while I was still in dispute with BA over the questions to be answered. I think you only have to say it. The first things they would have done is would have applied, (a) for me to recuse myself and, (b) undoubtedly, to set aside all the orders that I had made, because it was at a time when I was apparently biased against BA.

It is impossible to keep the two separate. That is not to say that I should ever use the litigation to try and get better treatment or better return of my luggage. I have made it clear all along to the lawyers that I was not concerned about that. I was concerned about why because of the potential similarity between claims in this litigation and the claims in respect of the luggage and the fact that the entirety of the passengers' luggage was left behind.

In the end, though, he did recuse himself, though somewhat angrily:

So the question then is: what should I do? Well, Slaughter and May wrote to me on Monday, requiring me to confirm immediately that I would recuse myself, failing which they would make an urgent application to the Court of Appeal. This litigation is complex enough, without those distractions. It is of no interest to the other parties, who have all had to come here today, to have a proper application made and a decision made. And that has a cost consequence which will probably be irrecoverable, and it is a matter of great regret to my mind that the parties have been inconvenienced for no apparently good or acceptable reason. It would not be appropriate for a recusal application to be acceded to as a result of an exchange of private correspondence.

This would lead to a waste of a lot of judicial resource time in addition to the parties it will also slow progress of the case which I have been attempting to progress. I am afraid BA are not in my view really interested in progressing the matter expeditiously for obvious reasons.

I however cannot allow my presence in the case and its difficulties to distract the parties from this case. And therefore, regretfully, I feel that I have no choice, whatever my feelings about it, but to recuse myself from the case, and that is what my decision is; not for the reasons put forward by BA, but for the reasons that I have said.

He later notes that this "regrettable but necessary decision" was "caused in my view entirely by BA's attitude." That seems like a bit of a stretch. Recognizing how frustrating lost luggage can be, I can certainly understand the temptation to use your position in a case concerning BA cargo to see if you can find out why luggage got lost, but it's hard to see how the judge's own experience should have been brought into the case at all.

Filed Under: air cargo, court, judge, lost luggage, luggage, peter smith, uk
Companies: british airways

Maryland Court Says Police Misconduct Files Can Be Withheld From The Public

from the do-whatever-you-want,-the-public's-never-going-to-find-out dept

A bad ruling has been handed down that will make it much more difficult for the Maryland citizens to find out the extent of misconduct performed by public employees. The court there is nodding to an expectation of privacy that really shouldn't exist in the public sphere and, in doing so, has provided that much more obscuring darkness for badly-behaving cops.

The Maryland appeals court has ruled that police departments' internal investigation documents are "personnel files" and thus exempt from public records requests. The decision came in response to a lawsuit filed by the ACLU on behalf of Taleta Dashiell, who was seeking a copy of documents related to her own sustained complaint against Sgt. John Maiello of the Maryland State Police.

Contributing to this bad decision is a handful of "extra rights" that have been granted to the state's law enforcement officers.

After the Court of Special Appeals determined that the Circuit Court erred by not requiring the State Police to create an index of the withheld documents and by not conducting an in camera review of the documents, the State filed a writ of certiorari asking us to consider the following question:

Did the Department of State Police properly invoke the Maryland Public Information Act’s (MPIA) exemptions for personnel records and records that are confidential under other law — here the Law Enforcement Officers’ Bill of Rights — to deny a request for the internal affairs records of an investigation into the conduct of a specifically identified state trooper?

Maryland, unfortunately, is somewhat of a pioneer in giving certain public servants more rights than other public servants, and more rights than the public itself, the latter of which has the dubious privilege of paying the salaries of these "more equal" police officers.

Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.

Among other things, the LEOBR grants police officers the "right" to have up to 10 days to respond to misconduct allegations and to be able to appoint a lawyer of their choosing to represent them in what is normally just an employer-employee interaction anywhere else in the working world.

Dashiell was attempting to obtain documents related to her complaint against Officer Maiello, who was captured on her voicemail referring to her (twice) as a "nigger." From that point forward, the Maryland State Police did everything it could to keep her from seeing anything related to Maiello or her complaint.

Supposedly, the state provides an exception to the personnel records exception in the case of the "person of interest" -- which should have covered Dashiell's request. Despite existence of such records being confirmed by a letter from the MSP to Dashiell, the department refused to turn over the requested files. The MSP was creative in its stonewalling of Dashiell's request, treating the retirement of the officer charged with fulfilling requests as the end of the line for this inquiry.

The MSP returned the March 2, 2010 MPIA request to the ACLU stamped “addressee unknown.” Apparently, unbeknownst to Ms. Dashiell and the ACLU at the time the MPIA request was sent, Lieutenant Colonel Fischer had retired from the MSP.

The MSP returned the MPIA request, failing to even identify the new custodian, rather than deliver it to the current custodian of records.

Dashiell sent a new request to the new custodian of records, which was denied in its entirety -- including her request for, if nothing else, an index of the records held.

The lower court granted the MSP summary judgment, claiming the files requested were exempt from disclosure, even considering Dashiell's "person of interest" status. She appealed, but the appeals court has now arrived at the same conclusion.

The court's opinion says that the law is law, no matter how stupid under these specific circumstances. The sustained complaint is treated no differently than an unsustained complaint and no matter how much information has been made public already, the officer's privacy trumps the public's interest. The court strains credulity by suggesting the release of such information would negatively affect future misconduct investigations.

The plain language of the Public Information Act, also, does not differentiate between “sustained” and “unsustained” complaints. A determination that a sustained finding requires disclosure of personnel information, though, would affect all public employees, not only the police force. Further, mandatory disclosure of personnel information related to sustained findings could chill the disciplinary process, rendering those in control less willing to sustain a finding of misconduct.

It is insane that the court would actually believe that the public has the power to actually "chill" any government action. The state's laws -- combined with the Bill of Rights extended to police officers only -- create their own chilling effect. Police officers know that it's highly unlikely any record of their misconduct will ever reach the eyes of the public, which creates an incentive for future abuse. This has a chilling effect on citizens, who know that it's highly unlikely any officer will receive significant discipline for wrongdoing, as the entire process is allowed -- by law -- to be conducted in total darkness.

The court also points out that it agrees with lower courts' findings: despite Dashiell being the one to file the complaint, she is not the "person of interest." Officer Maiello is. So if anyone is ever going to make records of police misconduct complaints public, it can only be the officer against whom the complaint was filed. Which means this will NEVER HAPPEN.

Two judges offered their dissenting opinion, pointing out that the majority expressly dodged a question crucial to the determination of whether these files should be eligible for "personnel information" protection. There's a difference between "unsustained" and "sustained," and the court has chosen bypass this delineation and defer to the law's wording instead.

This result is far different from the circumstance of permitting unsubstantiated allegations of a complaint to be made public. In sustaining a complaint against one of its officers, a law enforcement agency acknowledges the truth of the very facts that “directly pertain to employment and [the officer]’s ability to perform [his or her] job.”

In contrast to such facts, the discipline that the law enforcement agency decides to administer to the officer does not directly pertain to employment or the officer’s ability to perform his or her job. Plainly put, the officer did what the officer did, regardless of how the law enforcement agency decided to respond. The administration of the discipline is an action of—and thus reflects the judgment of—the law enforcement agency, not the officer. Thus, a record of discipline based on a sustained complaint against a law enforcement officer is not a personnel record; instead, it is among the very types of document that the Public Information Act is designed to make available to the public: a document that reflects how a public agency responds to an employee’s proven misconduct.

This is how it should be. But it isn't. The state law allows misconduct to go unexamined and grants public employees a privacy expectation in their publicly-funded employment that simply shouldn't exist. Even records related to unsustained complaints are of value in terms of accountability, but at the very least, records of sustained complaints should be excluded from the law's personnel records exemption.

Filed Under: court, maryland, police, police misconduct, public

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

Supreme Court To Dip Its Toes Cautiously Into The Electronic Age With Free Electronic Filing System

from the it's-a-step dept

The Supreme Court is notoriously technology averse. It still refuses to allow video recording of oral arguments, leading to things like John Oliver's inspired Supreme Court dog stock video footage. On New Year's Eve, Chief Justice John Roberts released his 2014 Year-End Report, which focuses mainly on the plans to finally offer an electronic filing system for the Supreme Court. Much of the report details the long history of the Supreme Court being way behind the times technologically (it even adopted the pneumatic tube way late) -- and why he thinks this late adopter strategy is the appropriate one to take. He discusses the existing CM/ECF (Case Management / Electronic Case Filing) system, as well as PACER, the tool by which the public can access many of those documents. However, these systems do not cover the Supreme Court. And while they are completely antiquated (and a total pain to use), the Supreme Court apparently recognizes that being even further behind than that is a mistake. So it will very, very, very cautiously dip its toes into the electronic filing / electronic document access world... sometime in 2016 (yes, 2016, not 2015).

The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit documents only on paper, and Court personnel will scan and upload those documents to the system for public access. The Court will provide more information about the details of the system, including the process for attorneys to register as authorized filers, in the coming months.

First, it's great that the Supreme Court is offering this -- even if it's being very cautious in its approach. Second, it's doubly great that (unlike PACER) it will be free for the public to use. PACER should be that way as well, but the court system has become too fat and happy from the fees.

Now, if we can just convince them to let cameras into the damn courtroom so the public can actually see how the Supreme Court works. To that end, at least, it appears that Congress may be gearing up to step in and force the Supreme Court to bring in the cameras, with multiple people in Congress criticizing the Court for still holding out.

Filed Under: cameras in court, court, electronic filing, pacer, supreme court, technology, video in court

The Court's Own Words: Life Without Title II Has Online Discrimination, Paid Prioritization, Exclusive Deals, And Maybe Blocking

from the it's-not-like-it's-secret dept

To hear Tom Wheeler and most of the big broadband players explain the net neutrality situation, the appeals court decision back in February laid out a "roadmap" for the FCC to continue to use Section 706 for its open internet rules. But that's not actually true. It's a clear misrepresentation of what the court actually said.

The language of the Verizon decision by the DC Circuit court is pretty clear: unless the FCC rests its rules in Title II of the Communications Act, the FCC must permit the carriers to engage in discrimination, charge access fees, cut exclusive deals, and perhaps block websites. Despite this, the FCC is proposing to use Section 706 (again), rather than Title II, and the court already ruled that Section 706 does not authorize network neutrality in January.

To begin, without Title II, the FCC cannot treat broadband providers as "common carriers."

We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers. Given the Commission's still-binding decision to classify broadband providers not as providers of “telecommunications services” [under Title II] but instead as providers of “information services,” … such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

So, what does it mean to regulate broadband providers as common carriers? It means to impose any rule against discrimination or requiring providers to charge similar prices to similarly situated parties.

“[I]f a carrier is forced to offer service indiscriminately and on general terms, then that carrier is being relegated to common carrier status.” … Given these principles, we concluded that [a specific earlier rule concerning data roaming] imposed no per se common carriage requirements because it left “substantial room for individualized bargaining and discrimination in terms.”

If the FCC must permit "substantial room for … discrimination in terms" without Title II, then it cannot ban unreasonable discrimination.

The Court also said that the FCC cannot ban paid prioritization under Section 706. That’s because, under any provisions other than Title II, the FCC cannot require the broadband providers to effectively charge websites the same price of zero not to be blocked.

[W]ith respect to broadband providers’ potential negotiations with edge providers, the [2010] Order ominously declares: “it is unlikely that pay for priority would satisfy the ‘no unreasonable discrimination’ standard.” … If the Commission will likely bar broadband providers from charging edge providers for using their service, thus forcing them to sell this service to all who ask at a price of $0, we see no room at all for “individualized bargaining.”

Remember, "substantial" room, not "no room at all," is required when imposed on a carrier not subject to Title II. Therefore, under Section 706, without Title II, the FCC cannot ban access fees imposed by cable and phone companies.

Moreover, Section 706 also requires exclusive deals.

For example, Verizon might … charge an edge provider like Netflix for high-speed, priority access while limiting all other edge providers to a more standard service. In theory, moreover, not only could Verizon negotiate separate agreements with each individual edge provider regarding the level of service provided, but it could also charge similarly-situated edge providers completely different prices for the same service. The FCC might not even be able to ban blocking under Section 706.

The Verizon decision said: "Whether the [2010] Order's anti-blocking rules, applicable to both fixed and mobile broadband providers, likewise establish per se common carrier obligations is somewhat less clear [than the anti-discrimination rule]." But it still struck down the anti-blocking rule. The decision merely stated that the FCC may have tried to defend the anti-blocking rule on other grounds, but said "whatever the merits of that view," it did not need to address it. So the anti-blocking rule may not be permissible under Section 706. The FCC called this discussion a "roadmap," when in reality it is not even what lawyers call "dicta," because the court did not have to consider the argument, and passed no judgment on it.

Yes, the court already said you can't do network neutrality under Section 706 and need Title II.

Why is the FCC still trying?

Tim Wu noticed similar facts unfolding in 2010, under the previous FCC Chairman Genachowski:

Genachowski grounded the rules in what is called—in legal jargon—the agency’s “auxiliary authority.” If the F.C.C. were a battleship, this would be the equivalent of quieting the seventeen-inch-inch guns and relying on the fire hoses.

What could possibly have convinced the agency to pursue a legal strategy that any law student could see was dubious? As in any big mistake, there were compounding errors. Members of Congress threatened to strip the F.C.C. of some of its powers if it enacted the rules with the full weight of its legal authority. (Indeed, Congress tried and failed to overturn the Open Internet Order.) A.T. & T. warned that it would cancel its ongoing effort to become a cable company, threatening to tar the agency with job losses. One senior F.C.C. staffer told me that it would have unduly affected the stock prices of the telecom firms. The agency also had a Kool-Aid-drinking problem; it started to believe its own legal arguments, however weak. Altogether, it was a cowardly reaction to empty political threats.

If the current FCC doesn't change course and pursue Title II, Wu could write the same paragraphs a few years from now about the current Chairman, Wheeler.

Filed Under: blocking, court, discrimination, fcc, net neutrality, open internet, paid prioritization, section 706, title ii, tom wheeler
Companies: verizon