Court Tells Man $172 Red Light Camera Ticket Is Actually Less Than $100 And Can't Be Challenged In Court

from the you-see,-once-you-subtract-all-the-other-money-you're-obligated-to-pay... dept

Adding to the body of evidence showing that the use of traffic cameras is purely about revenue generation is this report from The Newspaper, which points out (yet again) how these systems are designed to eliminate due process and hasten the collection of fines and fees.

In this case, part of the designed due process elimination was already in place before the red light cameras went up. Certain citations are designed to be unable to be challenged, and this one -- a red light infraction pinned on the wrong person -- is one of them.

Recipients of red light camera tickets in Delaware cannot challenge the citation in court because the $172 fine is worth less than $100 by the reckoning of the Delaware Superior Court. Judge Abigail M. LeGrow last month denied the appeal of Stanley C. Lowicki, whose car was photographed by a red light camera while allegedly traveling through a red light at the intersection of Route 72 at Kenmore Drive on May 18, 2017.

Because he was not actually behind the wheel at the time of the alleged infraction, Lowicki challenged the citation before the local Justice of the Peace Court. The justice of the peace was not interested in his arguments and imposed the full $172 fine, which Lowicki appealed to the Court of Common Pleas. That court declined to consider the case since it is only able to hear appeals for "civil penalties" that exceed $100.

If you're wondering how $172 can be less than $100, the Common Pleas courts is happy to explain it to you. In upholding the Justice of the Peace Court's decision, the Common Pleas court performs the sort of math you usually see deployed by Hollywood studio accountants. From the decision [PDF]... no, wait a second. Let's hang back a minute and savor this judicial turn of phrase:

On May 18, 2017, a car Stanley C. Lowicki owned was captured by a traffic camera disobeying a red light on Route 72 at Kenmore Drive.

Great. The traffic lights are sentient. So are the cars. Bring on Skynet etc.

OK. Here's the court's breakdown the $172 fine, which is pertinent to its finding that $172 is less than $100 and, therefore, incapable of being challenged.

At the conclusion of the hearing, the JP Court found Mr. Lowicki responsible for the violation and ordered him to pay $172.50, consisting of the following amounts:

Fine Amount: $75.00
Court Costs: $25.00
Court Security Fee: $10.00
Transportation Trust Fund: $37.50
State Police Fund: $7.50
Local Law Enforcement Fund: $7.50
Ambulance Fund: $10.00

To challenge a fine, it must be over $100. Breaking down all the fees attached to the actual "fine" shows most of the assessed fine isn't actually the fine, but a bunch of handouts to everyone involved in the scheme (except ambulances, I guess…). This keeps the supposed real "fine" under the $100 mark, which makes it unassailable in court. Drivers (or non-drivers, as it is in this case) can hope to talk the local JP into dropping the fine (and its costly appendages) but that option is rarely successful.

Lowicki argued that this breakdown of "funds" that are inseparable from the "fine" is some bullshit. He's correct. But it's the state's bullshit and it pretty clearly seems to be constructed this way to maximize revenue while reducing the state's exposure to courtroom challenges.

The court agrees with the State and its fund-packing.

The term “civil penalty” in Section 4101(d)(12) corresponds to the amount of the fine assessed by the JP Court, which falls within the “civil or administrative assessment” referenced in Section 4101(d)(3). Section 4101(d)(12) specifies that any late fees assessed under subsection (d)(3) also will be considered part of the civil penalty for determining whether there is a right to appeal. By specifically referring to only one of the amounts contained in subsection (d)(3), the legislature made clear that the other costs and fees imposed were not included within the “civil penalty.” Section 4101(d)(3) refers to those amounts as costs and fees, not assessments or penalties.

And, just like that, $172 becomes less than $100 and tickets from red light cameras become nigh invincible. There is no recourse in Delaware and Stanley Lowicki's only option appears to be [checks notes] obtaining a more obedient vehicle.

Filed Under: abigail legrow, bureaucracy, delaware, due process, fees, red light cameras, stanley lowicki

State Court Says Cop Posing As A Facebook Friend To Snag Criminal Evidence Isn't A 4th Amendment Violation

from the of-course-it-isn't dept

Getting roped in by your public Facebook posts isn't a Fourth Amendment violation -- not even if the viewing "public" contains undercover cops. The Delaware Supreme Court [PDF] got to wrestle with an interesting question, but the public nature of conversations prevents the Fourth Amendment from being much of an issue. [h/t Eric Goldman]

Here, the defendant-appellant, Terrance Everett (“Everett”), accepted the friend request from a detective who was using a fictitious profile. The detective then used information gained from such monitoring to obtain a search warrant for Everett’s house, where officers discovered evidence that prosecutors subsequently used to convict him.

Everett posted pictures of cash and weapons. As a convicted felon, he certainly wasn't supposed to be in possession of the latter. There's a discussion of privacy settings in the court's decision, but it only shows nothing conclusive was determined by the lower court. Apparently, Everett did set his account to "Friends-only" at some point, but that most likely did not occur until after the photos used to obtain a search warrant had already been viewed.

Ultimately, the court decides the privacy settings don't really matter -- at least not as far as Everett extended them. It would have still allowed the detective to see the photos Everett posted, given that the law enforcement officer was already a Facebook friend.

Attempting to claim his privacy was violated by the three-year subterfuge, Everett's challenge partially hinged on a key omission from the detective's warrant affidavit. The detective never informed the judge he had spent three years pretending to be Everett's friend to gather probable cause for a search. If nothing else, this seems like a waste of law enforcement resources, given the only charge Everett was convicted for was firearms possession. Then again, surveillance through a Facebook account is a largely passive enterprise.

The lower court found the omission did not affect the warrant's validity and the state Supreme Court agrees. Then it moves on to address the larger issue: is a fake friend a privacy violation?

We reject Everett’s contentions because Everett did not have a reasonable expectation that the Facebook posts that he voluntarily shared with Detective Landis’s fake profile and other “friends” would not be disclosed. We observe that Detective Landis did not request or access the Photo directly from Facebook, the third-party service provider— a scenario that we need not address here. Rather, Everett made the Photo accessible to his “friends” and, by doing so, he assumed the risk that one of them might be a government officer or share his information with law enforcement.

This is true across all communications platforms, including personal conversations and snail mail. The expectation of privacy the sender might have can be "violated" at any time by the recipient of the communications. Even if the recipient is a cop pretending to be a Facebook friend, the privacy of communications is only as solid as the other participant.

The court also notes this isn't even comparable to wiretapping. The detective did not intercept private communications or otherwise place himself between Everett and message recipients. Everything gathered to support the warrant was visible to Everett's Facebook friends. Any one of them could have turned the photo over to police without violating Everett's privacy. The detective's passive monitoring of a Facebook account doesn't change the equation much.

One cannot reasonably believe that such “false friends” will not disclose incriminating statements or information to law enforcement—and acts under the risk that one such person might actually be an undercover government agent. And thus, one does not have a reasonable expectation of privacy in incriminating information shared with them because that is not an expectation that the United States Supreme Court has said that society is prepared to recognize as reasonable.

[...]

If one allows others to have access to his or her information that contains evidence of criminal wrongdoing, then that person assumes the risk that they might expose that information to law enforcement—or they might be undercover officers themselves. As the United States Supreme Court has put it, “[t]he risk of being . . . betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society” and “is the kind of risk we necessarily assume whenever we speak.”

That's how it works. Communications are public, to a certain extent. The government can't access certain conversations you have with others without a warrant, but nothing says it can't pretend to be another person to be invited into incriminating conversations. Posting photos to Facebook isn't a private act, even if the settings only allow "friends" to view them. The subterfuge deployed makes it seem like more of a privacy violation than it actually is. What this should be is a cautionary tale, rather than an indictment of the Fourth Amendment's limitations. If someone doesn't want evidence of criminal activity used against them, they should probably keep that information to themselves, rather than post it on social media sites.

Filed Under: 4th amendment, delaware, drug dealers, fake friends, social media, terrance everett, undercover

Police Department With Eight Full-Time Officers Acquired 31 Military Vehicles Thru DoD's Surplus Program

from the closing-in-on-a-half-million-in-military-surplus-per-officer dept

The Defense Department's 1033 program has allowed law enforcement to muddy the water on the distinction between police force and military force. Given the right reasoning (most commonly cited: Wars on Terror/Drugs), police departments are allowed to pick up surplus military gear, often for free (utilizing DHS grants) and start pretending they're an occupying force, rather than public servants.

This came to a head following protests in Ferguson, Missouri, where viewers around the world were treated to the sight of local law enforcement rolling up on residents in mine-resistant vehicles while clad in gear that made officers look far more like soldiers than cops. This prompted a rollback of the 1033 program by Obama, limiting the sort of gear police departments could obtain to more innocuous surplus, like computers and furniture.

That has since changed. President Trump, showing his support for all things law enforcement, rolled back Obama's rollback, giving police departments access to assault vehicles and military weapons. With this comes a rollback in trust, as it has been shown giving military gear to cops makes them believe they're soldiers in a war zone, rather than public servants in a community.

Not everyone abuses this program, but those that do, do so spectacularly. An 11-member police force for a Delaware town with 400 residents has availed itself of more than $3 million in 1033 gear over the last five years. This first came to light late last year when documents obtained by Muckrock prompted town officials to wonder why they hadn't been notified of the department's stockpile.

When asked if the Dewey PD could account for all of the items by providing the physical location of items in their possession and paper trails for items sold, Sgt. Cliff Dempsey said, “We’re not going to comment on that matter at this time.”

On the agenda for a Nov. 11 Dewey Beach commissioners’ meeting is the discussion of three options for to the 1033 program:

1. require the DBPD to provide complete accounting for property received through any federal or surplus property program,

2. accept a recommendation from the town’s audit committee to utilize the town’s auditors, or

3. hire an independent consultant to conduct a more comprehensive review.

Some of the military equipment can be located. A recent report by the Milford Beacon contains a photo showing five military trucks and two ATVs parked in the department's storage lot. But that is only a small part of the Dewey PD's total holdings.

[A]mong hundreds of line items turned over between March 2013 and December 2017, the police acquired a total of 12 ATVs, 51 jackets or parkas and 13 space heaters, and 19 trucks of all kinds.

Dewey’s department has just eight full-time and three part-time officers, the town population is less than 400 people and the town itself is a just mile long and two blocks wide.

This includes a mine-resistant armored car and an armored Humvee -- all to oversee 400 people residing in a one-mile, two-block stretch. The justifications for even the more innocuous acquisitions are questionable, if not downright laughable. As the Beacon points out, the Dewey PD requested boats for water rescues, something already handled by a separate beach patrol and the Coast Guard. ATVs were supposedly handed to the department for something termed "homeland security patrols."

Many items were obtained to support the PD's private shooting range, including multiple tractors to shore up backstop berms and parkas to wear on colder days. The location of the range is kept secret by the department and the town was not (knowingly) involved in financing its construction. This secret range is mentioned more than 50 times in the PD's 1033 requests.

Despite this news surfacing last November, town commissioners have yet to receive any answers from the department it apparently can't oversee.

At their Feb. 10 meeting, Commissioner Gary Persinger lamented, “We’re three months down the road and we don’t have information in response to that request.”

As of March 1, [Mayor T.J.] Redefer said had not yet been privy to the departmental justifications of need.

On top of this, the department has apparently been selling some of the surplus it has received. Certain sales are permitted by federal law, but there has been no reporting by the police department detailing the amount of money received or what is being done with the funds. The extensive list of items obtained makes it appear the Dewey PD has stocked and furnished its office at federal taxpayers' expense while avoiding any sort of local accountability.

All of this is legal under state and federal law. In Delaware, law enforcement agencies aren't required to notify local governments about 1033 acquisitions and sales. And so they don't, apparently, even though it would make more sense in the long run to be upfront about it. When details about acquired military equipment remain solely in the hands of law enforcement recipients, the general assumption is something is being abused. After all, if you've done nothing wrong, you've got nothing to hide, right? But as is so often the case, details are uncovered years after the fact and often by unrelated third parties who apparently care more about police oversight than the local governments charged with overseeing their law enforcement agencies.

Filed Under: 1033, delaware, dewey, military surplus, police

Sorry East Texas: Supreme Court Slams The Door On Patent Jurisdiction Shopping

from the no-more-bulls dept

Another Supreme Court case on patents, and another complete smackdown of the Court of Appeals for the Federal Circuit (CAFC), the court that is supposed to be the "expert" on patent cases. This morning the ruling on the TC Heartland case came out, and it could help put an end to jurisdiction shopping for patent cases. As you've probably heard, for years now patent trolls and other aggressive patent litigants have been filing their cases in East Texas, as it's become a jurisdiction that is ridiculous friendly to patent holders. The towns of Marshall and Tyler, Texas have practically built up industries around the fact that they are "patent friendly" jurisdictions. In the past few years, a second favored jurisdiction has popped up: Delaware, after a few academic studies showed that the courts there may have been even more friendly than East Texas. The TC Heartland case was about a case filed in Delaware, and raised the issue of whether or not this kind of patent forum shopping was okay. CAFC, in its usual CAFC manner, said "sure, that's great, we love jurisdiction shopping and have since our 1990 ruling in VE Holding v. Johnson Gas. This was kind of ironic, as one of the key justifications given for setting up CAFC in the first place was to put an end to jurisdiction shopping in patent cases.

Either way, CAFC once again blessed the ability of patent holders to sue in plaintiff friendly locations, and the Supreme Court -- which has spent the past decade reteaching patent law to CAFC every chance it gets -- has done so again. Once again, the decision was unanimous, with the court voting 8 - 0 that trolls can't just file over and over again in East Texas (Gorsuch, having just joined the court after the case was heard, did not take part). The opinion, written by Justice Thomas, goes through the history of jurisdiction issues related to where one can bring lawsuits, noting that historically, where a company was incorporated was the proper jurisdiction.

While most of the ruling is deep in the weeds about definitions in the law, and whether or not Congress intended to change certain definitions, here's a simplified version of what happened: some have interpreted patent law to mean that a patent holder can sue an alleged infringer anywhere that a product is sold/available. In the age of the internet, this generally means "anywhere." Thus, as long as your product was available in Texas or Delaware, trolls could sue in those locations -- even if the company was nowhere near those locations. Here, however, the Court has said that the lawsuits are supposed to be filed where the company "resides," which it says is the state where the company is incorporated. This is a huge win for companies who are targeted by patent trolls. Rather than being dragged across the country to courts like East Texas or Delaware, which have built up large practices and reputations for supporting patent trolls over actual innovators, now cases will need to be filed where the alleged infringer is actually incorporated.

Expect to see the usual whining from patent trolls and their supporters about this -- but just remember: if they have a serious case of infringement, they should be fine filing it wherever the defendants actually are. Their concern is not about how this is somehow bad for patent owners. It's really about how certain courts were biased in their favor and they can no longer take advantage of that. Of course, this might mean that the ice rink in Marshall, Texas needs to find a new sponsor.

Filed Under: cafc, delaware, east texas, jurisdiction shopping, patents, scotus, supreme court, venue
Companies: tc heartland

Court: Unsupported Assertions And Broad Language Aren't Enough To Support Cell Phone Searches

from the this-isn't-a-box-of-papers-in-an-unused-outbuilding dept

Another court has stepped up to inform law enforcement that just because criminals are known to use cell phones doesn't mean any cell phone possessed by a suspect is fair game -- warrant or no warrant.

This time it's the Superior Court of Delaware making the point. In its suppression of evidence found on a seized cell phone, the Superior Court makes it clear that cell phones are used by everyone -- not just criminals. Not only that, but if an officer is going to seek a warrant that effectively allows them access to the owner's entire life, the warrant needs to contain more specifics and limitations than this one did.

During a consensual search of an apartment where a homicide suspect (Qualeel Westcott) was staying, police came across heroin and three mobile phones. All three of the phones were seized. A warrant was obtained to search the content of the phones. But a warrant alone isn't good enough. While a warrant is better than nothing at all, the warrant here -- according to the court -- barely exceeded "nothing at all."

While the court does recognize [PDF] there's a good likelihood that phones possessed by suspects will often contain useful evidence of criminal activity, it takes far more than the bare bones assertions made by the officer obtaining the warrant, which did almost nothing to establish a relationship between the phone and suspected criminal activity. (via FourthAmendment.com)

[H]owever, Detective Sergeant Horsman did not expressly state any nexus between Mr. Westcott's ownership of the mobile phone and the existence of evidence of the crimes (including a confession) on that mobile phone. Although the magistrate may draw reasonable inferences from the factual allegations of the affidavit, the leap required here is a long one. The mere fact that a defendant owns a mobile phone is not, in and of itself, sufficient to warrant an inference that evidence of any crime he or she commits may be found on that mobile phone. The affidavit did not provide probable cause for a search.

The court goes on to point out that even if Sergeant Horsman had managed to do a better job establishing a nexus, the warrant would still fail because of how broadly written it was. State law, along with judicial precedent, have set the bar higher for warrants seeking information stored in citizens' cell phones. As the Supreme Court pointed out in its Riley decision, phones are not simply "containers" that can be rifled through with a minimum of particularity. They are people's "entire lives." With that in mind, the warrant sought in this case is an abject failure.

Here, the search warrant authorizes a search of all "data and cellular logs." This description does not limit the scope of the officer's search of the mobile phones to relevant material and does not place any limitation on the types of "data, media, and files" to be searched.

There is also no temporal limitation on the search. The police alleged that the shooting occurred on May 11 and the presence of heroin at the apartment provided probable cause for its recent distribution. The police should have sought a more limited search warrant permitting the search of suitably recent data from the phones.

Instead, the application sought a general search "of the three phones." The warrant thus provides broad permission to rummage through the entire digital lives of the phones' owners. Accordingly, it does not contain the level of particularity required under the Constitution of the United States, the Delaware Constitution, or Delaware statute.

Yes, it's true that criminals use cell phones. That makes them indistinguishable from a majority of the United States' population. But the wealth of information stored in the average cell phone makes them far different than a filing cabinet or a cardboard box full of personal papers. Courts are doing a (slightly) better job at demanding more from law enforcement officers when they seek to access these contents. The first part of it is to establish something more than "criminals use cell phones" when seeking a warrant. The second part is even more important: limiting the search to just what's needed to uncover evidence related to the criminal act. Particularity is a must. Without it, a cell phone search warrant is nothing more than a boilerplate-backed Law Enforcement Fishing Expedition (Short Form).

Filed Under: 4th amendment, delaware, law enforcement, phone searches, privacy

State Court Tells Cops Obtaining Consent Not Enough To Fix Suspicionless Vehicle Search

from the 99-Problems-all-over-again dept

Without citing the Supreme Court's Rodriguez decision, the Superior Court of Delaware has returned a ruling [PDF] that should serve as a deterrent to law enforcement fishing expeditions. (h/t FourthAmendment.com)

Two state courts recently held that extending an interaction beyond the objective of a traffic stop is unconstitutional, pointing out that it's not the length of the constitutional violation that's a problem, but the violation itself. There is no de minimis Fourth Amendment violation acceptable under the Rodriguez decision.

The court here could have found similarly but didn't even have to make it as far as the Supreme Court's decision to find the officers' post-traffic stop actions unconstitutional.

The defendant seeking suppression of evidence was pulled over for speeding. Everything about the stop was completely normal. As the court sees it -- according to the officers' own testimony and reports -- there was nothing else for them to do but issue a speeding citation.

Officer Hamilton stopped the defendant (John Geist) and asked for the usual documents. These were provided and the citation was written up. Six minutes after the initiation of the stop, Officer Hamilton to Geist he was free to go. Another officer showed up during the stop and asked Geist if he had any questions. Geist asked the officer what the dollar amount of the speeding fine was.

The stop's objective had been achieved and Geist had presented nothing that amounted to reasonable suspicion to justify further questioning. But Officer Hamilton proceeded with more questions, almost all of them focused on getting Geist to consent to a search of his vehicle.

At that point, the engagement of all aspects of the speeding violation had completed. Nevertheless, Officer Hamilton spontaneously asked Defendant if he had any weapons or drugs in his vehicle. Other than an unspecific “thought that he might be under the influence of alcohol,” Officer Hamilton had utterly no basis for any suspicion that Defendant was transporting anything untoward. On Defendant’s negative reply, Officer Hamilton asked Defendant if he could search the automobile. Defendant, after a fashion, consented.

Consent normally cures a lot of Fourth Amendment ills. But not in this case. Law enforcement isn't allowed to push for searches it has no articulable reasons to pursue.

Certainly, if there had existed any reasonable suspicion on the part of Officer Hamilton that any such contraband were present, a warrant to search, at least arguably, could have been obtained, and consent of the Defendant would have substituted entirely adequately. There was, however, in this case, utterly no basis for any such suspicion.

The state argued that a lack of suspicion shouldn't matter because the officer obtained consent for a search. It argued there were no coercive factors to tip the scale towards unconstitutionality. The court points out something few courts have: that the imbalance of power between law enforcement officers and members of the general public is its own form of coercion.

To say that a reasonable person, standing at the instruction of the officer outside of his vehicle, while wearing sandals, shorts and no shirt, confronting two fully uniformed and armed officers would feel no coercion effect simply flies in the face of reality. In that situation, “Mind if I look around” is not really a question. It is tantamount to the statement: “I’m going to look in your car to see if you’re telling the truth.” The coercion is the situation.

As to the state's assertion that a lack of reasonable suspicion shouldn't result in the suppression of a search for which consent was obtained, the court cites an earlier case that declared drivers aren't expected to put up with being harassed and harangued into "consensual" searches just because they've committed a moving violation.

“Travelers on our State highways should not be subjected to the harassment, embarrassment, and inconvenience of an automobile search following a routine traffic stop unless the officers has at least an articulable suspicion that the search will yield evidence of illegal activity.”

Fishing license revoked. The court never had to approach the Supreme Court's decision because it found the officers' actions wholly unreasonable given the facts of the case. Another win for drivers -- albeit one that it limited to Delaware residents and does nothing to prevent officers from using made-up laws to initiate traffic stops and all of the consensual jousting that usually comes packed with it.

Filed Under: 4th amendment, consent, delaware, police, probable cause, search

State AG: We Have A Warrant Requirement For Stingrays; State Police: FILE(S) NOT FOUND

from the the-latest-in-LEO-tech:-the-warrantless-warrant dept

In a comprehensive look at Delaware State Police usage of Stingray devices at DelawareOnline, there's this very darkly amusing factoid. (h/t Nathan Burney via Brad Heath)

The state Attorney General's Office says police must obtain a warrant to deploy the Stingray, but when The News Journal requested those court orders through a FOIA, state police said none existed.

This is a problem. It's not that the state police chose to withhold the information, as it has with several other Stingray-related documents requested by the News Journal and the local ACLU. It's that it says no records exist. This means the warrants the Attorney General says police must use are not being used.

What do appear to be used by Delaware State Police are vague pen register orders that hide from judges and defendants the technology actually being used to obtain this phone data. Public defender John Daniello had one such document turned over to him by the police -- one that apparently was used to deploy Harris Technology's cellphone-tracking technology.


It's a pen register order, with a handwritten "negative on TriggerFish location" scrawled across the top. Daniello's now looking to force the state police to hand over the paperwork it's actually using to deploy cell tower simulators -- which isn't the same paperwork the AG's office has stated must be used.

“I was going to make a stink about it and demand all the information,” Daniello said. “They’re going out and pinging everybody."

Daniello said that police are "pulling one over on the courts" by not indicating in the full text of a warrant that cell-site simulators are being used.

Daniello's inquisitiveness has already helped one defendant out. Rather than turn cell tracking documents over to Daniello, prosecutors offered his client a "far better" plea deal than they had initially offered.

The Delaware State Police are following the pattern set by many other law enforcement agencies: claiming their agreement with Harris (and the FBI) forbids any mention of cellphone tracking technology and using pen register orders (which have a lower evidentiary standard than warrants -- information sought must only possibly be "relevant" to an ongoing investigation). The State Police may disingenuously assert the two are roughly equivalent, but the Attorney General's office has explicitly stated Stingray devices can only be deployed with warrants.

This suggests the Attorney General really isn't paying too much attention to what the police are doing with their cell tower spoofers. The following suggests the AG isn't the only person not in the know. The obfuscation of Stingray/TriggerFish deployments is apparently so multi-layered that even the state police find it impossible to locate relevant documents.

The News Journal sent a FOIA request to the Delaware State Police asking for copies of all warrants from adjudicated cases that contained the term “pen register,” the technical term for a call search history. Despite existence of the warrant* issued for Daniello’s client, the agency responded that no records existed.

*It's not a warrant.

Police departments sold state legislators on Stingrays by citing terrorism and drug warring. No one asked too many questions because these are Serious Things few legislators could possibly oppose. They allowed hundreds of thousands of dollars to be spent on technology that's being deployed with little to no oversight. Also discovered during the FOIA requests is that the State Police have no written policies or guidelines covering these deployments. The Attorney General may claim a warrant requirement is in place, but -- considering the lack of responsive documents -- it's entirely unclear what he's basing this assertion on.

Filed Under: delaware, foia, imsi catcher, police, records, stingray

Delaware Passes Law Granting Residents The Right To Pass On Digital Goods To Their Heirs

from the because-of-course-people-should-have-this-right dept

As rights holders have made clear time and time again, your digital purchases are never truly yours. If someone decides to shut down a service, it's likely your purchases will vanish into the ether along with the service itself. If you want to resell your mp3s or ebooks, you're facing any number of unsettled legal questions and various industries pushing the assertion that your money was exchanged for a limited use license, rather than the acquisition of a product.

But there may be some changes forthcoming. As The Digital Reader reports (via Ars Technica), Delaware has just passed a law that allows its residents to pass their digital purchases licenses on to their heirs.

Last week Governor Jack Markell signed House Bill (HB) 345, “Fiduciary Access to Digital Assets and Digital Accounts Act”, giving heirs and the executors to estates the same rights over digital content which they would have over physical property.

In a case of life imitating art, the new law basically accomplishes what the Daily Mail fictitiously reported in 2012 that Bruce Willis wanted to accomplish; ebooks and other digital content can now be inherited.

That's one small right restored. While rights holders still demand real money for permission to use their offerings in pre-approved ways, at least a few people in the US won't have the lives of their digital goods expire along with them.

The clunkily-titled Uniform Fiduciary Access to Digital Assets Act law does the following:

The Uniform Fiduciary Access to Digital Assets Act solves the problem using the concept of “media neutrality.” If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. UFADAA governs four common types of fiduciaries: personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees.

UFADAA defers to an account holder’s privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement. Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA.

Even so, the ruling is very limited. Tech companies outside of Delaware will not be affected.

The new law in Delaware only affects Delaware residents and will be probated there. It does not affect the tech companies registered in the state, according to one spokesperson. “If a California resident dies and his will is governed by California law, the representative of his estate would not have access to his Twitter account under HB 345,” Kelly Bachman, a spokesperson for the Delaware governor’s office, said by email.

Some goods, like purchases, can be passed on. Online accounts will likely remain out of reach for now. The Uniform Law Commission is pushing for adoption of these sorts of laws elsewhere, so there could be more of this in the future. Things are looking up a bit for consumers, it would seem.

Year by year, consumers are gaining more rights over the digital content they buy. If this trend continues then it won’t be long before consumers have the same rights over digital content as they do over physical goods.

There's still a long way to go before an iTunes accounts resembles a box full of CDs or records and there's still too many here-today-gone-tomorrow platforms/services selling what amounts to limited digital access instead of actual products, but a small restoration of the right of first sale is still a step in the right direction. The real problem is that we need these laws in the first place, which is the direct result of rights holders placing their piracy fears above their paying customers' concerns. That attitude will be much tougher to fix.

Filed Under: delaware, digital goods, heirs, inheritance, licenses, property

Delaware Attorney General Throws Subpoeana At Reddit Over Comment On Photo Of Two People Having Sex Behind A Dumpster

from the your-tax-dollars:-workin'-it dept

Not necessarily a sign of widespread social media surveillance, but you still have to wonder how the state of Delaware's Attorney General's office managed to come across a comment referring to some St. Patrick's Day-related NSFWing, much less pursue one unlucky commenter who made a joke about one of the participants being his "sister."

Here's a link to the photo which kicked off the unlikely chain of events. It depicts two green-clad people, presumably of consenting age, expressing their love in a physical manner. Needless to say, probably, very definitely NSFW.

Redditor un1cornbl00d received notice from Reddit that the Delaware DOJ had served a subpoena demanding the platform turn over his personal information, along with "all posts, responses and their content" related to the original submission. (Found here, with comments now deleted).

The good news is that Reddit's privacy policy (which states that it will inform users that their information has been requested unless prohibited by a court order) trumps the ridiculous phrase the state DOJ deploys in all caps mid-subpoena.

*DO NOT NOTIFY CUSTOMER*

PLEASE DO NOT DISCLOSE OR NOTIFY THE USER OF THE ISSUANCE OF THIS SUBPOENA.
DISCLOSURE TO THE USER COULD IMPEDE AN INVESTIGATION OR OBSTRUCT JUSTICE.

Well, if you seriously believe an investigation might be "impeded" or "obstructed," you might want to put with more legal weight than a caps lock key behind it. Most court orders don't say "please," and most court orders point out the legal reasons for the demand. This subpoena tries to demand compliance with shouty typing.

Apparently, this is the way things are done at Joe Biden Jr.'s office. Another subpoena sent late last year demanding that Facebook turn over information on the "owner" of a small (~300 likes at the time subpoena was issued) page with an anti-government slant contained similar all-caps demands for keeping everything a secret… which was also ignored.

*SUBSCRIBER IS NOT TO BE NOTIFIED OR MADE AWARE OF THIS INVESTIGATION*

Seeing as the subpoena was posted by the page being investigated, Facebook also has little respect for slightly larger letters with no legal weight behind them.

So, why would a "special investigator" at the state DA's office be interested in a tossed-off comment on a photo of two people having sex out in the open? Well, as far as anyone can theorize, whoever's monitoring social media for the Delaware DOJ (or the entities that feed into it) must have thought unic0rnbl00d was the rarest of creatures on the internet: someone who only tells the truth, and if so, was hoping to bust his "sister" (and possibly Joe Random Stranger as well). Quotes from police "investigating" the sex that two (probably inebriated) people momentarily enjoyed confirm that the force was indeed looking to slap these two with some sort of charge. (Link contains photo -- NSFW)

[T]he police are investigating the pair on suspicion of lewd conduct. A Newark Police spokesman said the couple was "engaging in sexual intercourse in public in plain view of numerous passersby."

Why the hell the state is so interested in punishing people for consensual acts performed in the past is beyond me, other than that pervasive belief that the word "justice" means no one getting away with anything ever. I would think whatever nearly-nonexistent tarnishing of state pride would pale in comparison to the state now being viewed as overreaching busybodies after sending subpoenas to track down an internet commenter and targeting people engaged in First Amendment activities. The latter subpoena is vastly more concerning, as it shows the state attempting to sniff out people with anti-government sentiments. Sure, the page may contain the word "riot," but the full title of the group is "Peaceful Rioters For Wilmington, Delaware."

Again, these may not be signs of active social media monitoring, but this sort of behavior certainly doesn't reflect well on those in the Delaware law enforcement community. I can only assume the state has run out of real crime or other pressing issues and is now just creating busywork for its special investigators.

Filed Under: comments, delaware, privacy, sex behind dumpster, subpoena
Companies: reddit

The Day All The Patent Trolls Rushed To File New Lawsuits

from the because-of-fee-shifting dept

The Senate is still working on patent reform, despite the House approving it months ago. However, you can be sure that patent trolls and their lawyers have been watching the space carefully. One of the proposed amendments on the Senate side would concern fee shifting -- making the losing party have to pay the winning party's legal bills -- and in the amendment it says it would go into effect, on April 24, 2014. Even though the bill has not yet gone anywhere and the amendment may not make it, it would appear that trolls and their lawyers (often one and the same) realized that if they wanted to avoid fee shifting, they'd better get filing. And, boy, did they ever file a lot of patent infringement cases on Wednesday April 23rd: 190 cases. In case you're wondering, the day before 8 patent cases were filed.

But just that number alone might not give you enough perspective to understand this mad rush to the courts (or, well, as we'll see, one court in particular) to file patent lawsuits. The good folks over at Lex Machina have put together some data to show just how noteworthy all those patent lawsuit filings are. Here are the daily patent lawsuit filings for the first four months of 2014. Notice any particular outlier? Of course, trolls have known that fee shifting was a possibility for a while now, so it's not like they suddenly realized it might be good to get lawsuits in just under the wire. So Lex Machina also went back a few years and looked at the weekly filings of patent lawsuits. You might notice a bit of a trend leading up to the massive outlier: And, with so many filings, they should be distributed widely around the country, right? It's not like trolls play a silly jurisdiction shopping game in which they all try to file in one random obscure court in eastern Texas, right? Well, let's look at where most of those 190 cases were filed: Oh, and if you're wondering why the district court in Delaware seems to be fairly popular too, I'm guessing some research by Mark Lemley may have something to do with that. He compared patent cases in various districts and found that, for cases that actually go to trial, Delaware had a higher win rate than East Texas. Oh, and also that a far higher percentage of patent cases actually go to trial in Delaware as well. East Texas still gets the majority of cases (by far), but Delaware has been the alternative favorite for trolls for quite some time now.

Of course, this also shows that trolls know they have questionable claims and that they fear fee shifting mightily. It's why any patent reform bill needs strong fee shifting provisions to deal with such bogus lawsuits.

Filed Under: delaware, east texas, fee shifting, lawsuits, patents