Appeals Court Says It's OK For Cops To Steal Stuff From Citizens

from the surprisingly,-this-isn't-about-asset-forfeiture dept

Qualified immunity isn't a codified defense. Congress never passed a law granting public employees this exception to Constitutional protections. This exception -- one that allows public servants to avoid being directly sued by the public whose rights they've violated -- was crafted by the Supreme Court. The theory is it's too hard for the government to fully comprehend the rights it's supposed to be guaranteeing, so there needs to be an escape hatch for government employees.

This escape hatch has allowed an amazing amount of abuse to go unpunished. As long as the government employees were the first to engage in egregious Constitutional violations, they're given a free pass. The free pass runs indefinitely if courts refuse to draw a bright line in published opinions. It doesn't seem like it would be that difficult to comply with the Constitution, but here we are.

Qualified immunity has again been extended in a case where the behavior the government engaged in was not only unconstitutional, but criminal. (h/t Clark Neily)

In this case, an illegal gambling investigation led to the search of property owned by the plaintiffs. The search warrant authorized the seizure of cash, gambling machines, and anything else the government determined was derived from illegal activity. So, the government did some seizing. But the inventory sheet didn't match up with what was taken. From the decision [PDF]:

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from the properties. Appellants allege, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants claim that the City Officers stole the difference between the amount listed on the inventory sheet and the amount that was actually seized from the properties.

The Ninth Circuit Court of Appeals says there was no Fourth Amendment violation because the officers were authorized to seize this property. As for the theft, the court says it won't even examine the Fourth and Fourteenth Amendment implications of the alleged misconduct because it must consider the defendants' qualified immunity defense first. That leads directly to this jaw-dropping statement from the court:

The panel determined that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.

This dismaying conclusion was reached by examining similar caselaw from other circuits. The Ninth Circuit isn't the only circuit saying rights aren't violated when the government steals citizens' property… so long as the theft is accompanied by a warrant.

At the time of the incident, the five circuits that had addressed that question, or the similar question of whether the government’s refusal to return lawfully seized property violates the Fourth Amendment, had reached different results.

Four of the five circuits have stated the Constitution does not protect against theft by the government provided the initial seizure was legal. The only holdout is the Fourth Circuit, which stated theft of property (obviously) interferes with citizens' interest in the property they no longer have.

Worse, the Ninth Circuit is unwilling to establish this right and put the government on notice that similar theft in the future will be considered a Constitutional violation.

The allegation of any theft by police officers—most certainly the theft of over $225,000—is undoubtedly deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, is not obvious. The split in authority on the issue leads us to conclude so.

Given that law enforcement is still allowed to steal property when executing search warrants, the court's final words to the plaintiffs are the appellate equivalent of "thoughts and prayers."

We sympathize with Appellants. They allege the theft of their personal property by police officers sworn to uphold the law. [...] But not all conduct that is improper or morally wrong violates the Constitution.

Sure, but we expect our government to engage in proper and moral behavior. Qualified immunity allows the government to do the opposite of that, and to violate Constitutional rights on top of it, all without having to answer for its misdeeds.

Filed Under: fourth amendment, ninth circuit, qualified immunity

Court Again Rules That Cable Giants Can't Weaponize The First Amendment

from the no-luck,-try-again dept

Over the last few years, telecom giants have increasingly been trying to claim that pretty much any effort to hold them accountable for their terrible service (or anything else) is a violation of their First Amendment rights. Historically that hasn't gone so well. For example, courts generally laughed off ISP lawyer claims that net neutrality violated their free speech rights, quite correctly highlighting that ISPs are simply conduits to information, not acting as editors of available speech through their blocking or filtering of available information.

Charter Spectrum, the nation's second biggest cable operator, has been trying to embrace this argument a lot lately as it fights off state lawsuits for terrible service. It recently tried to use the First Amendment card again in a legal battle with Byron Allen's Entertainment Studios Networks (ESN), which recently accused Charter of violating the Civil Rights Act of 1866 by refusing to carry TV channels run by the African-American-owned ESN.

While Charter tried to have the suit dismissed by claiming that the First Amendment prohibits such claims because an ISP enjoys "editorial discretion," the ruling (pdf) by the U.S. Court of Appeals for the Ninth Circuit didn't agree. The court noted that while ISPs and cable companies do enjoy some First Amendment protection, it doesn't apply here, just like it didn't apply in the net neutrality fight:

"As part of its defense, Charter had told the court that by choosing which channels to carry, the company was engaging in a form of editorial discretion protected by the First Amendment. Therefore, it said, the court would have to use a stricter standard to evaluate Entertainment Studios’ claim of a legal violation — a standard that might result in the claim being rejected.

The Ninth Circuit said otherwise, saying that just because Charter engages in corporate speech when it selects which channels to carry does not “automatically” require the court to use the tougher standard.

As a result, the court is letting the case move forward. For its part, ESN's discrimination complaint alleges that its complaint is based on more than just having its channel withheld from the company's cable lineup:

"The opinion on Charter’s motion to dismiss also marks a victory for the 25-year-old programming firm founded by comedian Byron Allen, which bought the Weather Channel in March and accused Charter executives in court of hurling racist insults at Allen and other black Americans in numerous encounters. In one alleged instance, Charter chief executive Tom Rutledge called Allen, who is black, “boy” at an industry conference and advised him to change his behavior, according to court documents. In another alleged example, the court said, Charter’s senior executive in charge of programming, Allan Singer, approached a group of black protesters outside Charter’s offices to tell them to “get off of welfare."

Consumer groups like Public Knowledge were quick to applaud the ruling, happy to see another effort to "weaponize" the First Amendment shot down. The district court will now proceed to determining whether Charter did engage in racially discriminatory conduct.

"Holding us accountable for absolutely anything violates our free speech" rights was historically something telecom lobbyists often just throw at a wall in a bid to see if it sticks. But these efforts have escalated in the last few years. For example FCC staffers under Ajit Pai, at this point nearly indistinguishable from big telecom lobbying efforts, have even tried to claim that community-run broadband (an organic, voter-approved response to terrible service) is a threat to free speech, a charge there's absolutely zero supporting evidence for.

It's a legal argument giant ISPs have also embraced more recently in large part because they hope that new Justice Brett Kavanaugh, who bought into some of these arguments during previous net neutrality battles, will ultimately be a deciding vote should many of these battles wind their way to the Supreme Court. So far, however, these efforts haven't worked out all that well, and while that's not likely to change when the net neutrality court fight kicks off next February, it could be an important issue should that fight make its way to the highest court in the land.

Filed Under: cable, first amendment, isp, ninth circuit, telecom
Companies: charter spectrum, esn

We Interrupt Today's News With An Update From The Monkey Selfie Case

from the it-ain't-over-till-it's-over dept

In today's fast-paced news cycle it's easy to overlook the important things: the copyright status of the monkey selfie.

Today we have learned nothing new about it, except that the case is not over yet. Which is itself significant, because the parties in the case had jointly moved to dismiss the appeal, and today that motion was denied. In its order denying the motion [pdf, embedded below] the Ninth Circuit acknowledged that while it had the power to dismiss an appeal if the parties so requested it, it did not have the obligation to do so if there were countervailing interests. And in this case, the Ninth Circuit found, there were countervailing interests requiring it to fully adjudicate the matter.

It cited several other cases as analogs. As in Albers v. Eli Lily, "this case has been fully briefed and argued by both sides, and the court has expended considerable resources to come to a resolution. Denying the motion to dismiss ensures that 'the investment of public resources already devoted to this litigation will have some return.'" Furthermore, as was the case in Ford v. Strickland, "a decision in this developing area of the law would help guide the lower courts."

Also, referencing Albers and Khouzam v. Ashcroft, the court noted that denying the dismissal of appeals prevents the parties from "manipulating precedent in a way that suits their institutional preferences."

As one of our colleagues once warned in a similar context, “courts must be particularly wary of abetting ‘strategic behavior’ on the part of institutional litigants whose continuing interest in the development in the law may transcend their immediate interest in the outcome of a particular case.” Suntharalinkam v. Keisler, 506 F.3d 822, 828 (9th Cir. 2007) (en banc) (Kozinski, J., dissenting from the denial of rehearing).

In other words, enough of this procedural monkey business. The appeal remains a live matter, and at some point the court will presumably substantively rule on it.

Filed Under: copyright, monkey selfie, ninth circuit

Ninth Circuit Appeals Court Decision On Fair Use And Right Of First Sale Fails To Budge The Needle On Either Issue

from the we-hold-that-Adobe-litigated-itself-into-defeat dept

A ruling on fair use, the right of first sale and the limits of trademark protection has been handed down by the Ninth Circuit Court of Appeals panel. Normally, I'd proceed the word "ruling" with an adjective like "important," or "terrible," or "wonderful." But this ruling is none of those. It's a ruling, and I suppose it does set some sort of precedent, but thanks mainly to Adobe's inept handling of the case, it does very little to clarify any of the above issues.

What it does do, however, is at least reaffirm burden-shifting for companies who insist they haven't sold software, but "licenses." This is the preferred method of undermining the right of first sale: tying up purchasers with legal language that claims they're not making purchases, but rather "renting" the goods until the manufacturer says otherwise. This allows companies to stipulate all sorts of restrictions on purchased goods, including the resale of software.

Adobe tried to claim Joshua Christenson had never "purchased" any of its software, and therefore could not resell it. Christenson had in fact purchased software, but from third parties rather than directly from Adobe. Adobe didn't like being cut out of the loop, so it took him to court for alleged copyright and trademark infringement.

Six years later, very little of it has stuck. (Christenson was sued in 2009.) The appeals court notes that Christenson successfully managed to shift the burden of proof on the licenses v. sales issue back on Adobe -- which then failed to produce evidence that the reseller possessed only worthless licenses rather than resellable goods.

Noting that if construed broadly enough, software licenses could "swallow the statutory right of first sale defense," the panel says that the burden of proof must be shifted back to the plaintiffs when alleging copyright infringement of licensed software. The reseller only has to prove he or she acquired the software legally. Adobe -- being the manufacturer -- is in a "superior" position to demonstrate whether or not the software in question was merely licensed.

As the district court held, it was uncontroverted that Christenson “lawfully purchased genuine copies of Adobe software from third-party suppliers before reselling those copies.” Christenson offered invoices to document his purchases of legitimate Adobe software from various suppliers. Nothing on those invoices suggests that he was other than a legitimate purchaser of the software. According to Christenson’s sworn statement, “[n]either [he] nor SSI have a contract with any of the suppliers that supplied SSI with software... SSI asked them if they could supply SSI with a product at an acceptable price, and if they could, payment was negotiated.” This claim is consistent with Christenson’s inability to produce something more than invoices from his suppliers: He cannot produce records that do not exist. Christenson discharged his burden with respect to the first sale defense.

Adobe countered that it never sold software. It only licensed it. Burden of proof shifted to Adobe, which came up empty.

Adobe’s problem is that it did not produce those licenses or document the terms of contracts with specific parties. Because of the state of discovery at the time of the summary judgment motions, the district court excluded virtually all of Adobe’s late-offered evidence of licenses. Adobe challenges this ruling in its appeal. The district court and magistrate judge had a long history with the parties and their discovery efforts. After a careful examination of the rather tortured discovery process, we conclude that the district court did not abuse its discretion in granting Christenson’s motion to strike and excluding evidence purporting to document the licenses...

Adobe’s effort to substitute general testimony and generic licensing templates in lieu of the actual licensing agreements does not withstand scrutiny under Vernor. Under Vernor, the precise terms of any agreement matter as to whether it is an agreement to license or to sell; the title of the agreement is not dispositive. And here, in the end, there is no admissible evidence that Adobe “significantly restrict[ed] the user’s ability to transfer the software” at issue here.

So, there's not much in the way of a "win" for the right of first sale. While it's heartening that the burden shifts to the "licensing" party to prove infringement, all this really does is encourage companies like Adobe to write more restrictive licenses. It does almost nothing at all to treat licenses as actual purchases, which can be resold without the manufacturer's permission.

Other claims raised were similarly bungled by Adobe. The trademark infringement allegations were dead in the water because Christenson never used Adobe's logos for anything else than selling actual Adobe products.

While it does appear there may have been some shady software sales by Christenson (purchasers complained about received academic versions rather than the full OEM versions they were expecting), Adobe failed to raise its false advertising claims until the case was already in the appeals court -- far too late for them to be addressed.

In the end, we have a decision on fair use and the right of first sale that does nothing to push either issue forward. Fortunately, this stasis also does nothing to damage either of these defenses, something the Ninth Circuit Appeals Court has done in the past. One gets the disheartening feeling that if Adobe had managed its case better, the right of first sale would be worse off, rather than bolstered by the Appeals Court's final opinion.

Filed Under: copyright, fair use, first sale, joshua christenson, licensing, ninth circuit, sale, software
Companies: adobe

Court Dismisses Ripoff Report's Malicious Prosecution Lawsuit Against People Who Sued It Five Years Ago

from the no-winners;-just-multiple-losers dept

There aren't too many user-generated-content-reliant sites that defend their Section 230 turf more viciously than Ripoff Report. This has earned it a thuggish reputation, something its pay-for-play quasi-reputation management offerings do little to dispel. For better or worse (and it's definitely some of each), Section 230 is the Ripoff Report's load-bearing center.

Because of its entrenched defense, those hoping to skirt the site's Section 230 protections have tried a number of questionable legal gambits. One person got a court to assign him the copyright on a particularly nasty review, which he then used to pursue a copyright infringement lawsuit against the site. In this case, the Asian Economic Institute attempted to quash critical reviews by claiming Ripoff Reports was engaged in extortion (with its for-pay "Corporate Advocacy Program," which advocates on behalf of aggrieved companies).

This Section 230-dodging tactic didn't work. The court found little that backed up AEI's racketeering claims -- claims that shifted mid-trial when Ripoff Report revealed it had secretly recorded all of its phone conversations with the plaintiffs.

Rather than enjoy its victory, Ripoff Reports (as Xcentric) filed its own lawsuit against the AEI principals, alleging malicious prosecution. Proving once again that two wrongs don't make a right, the Ninth Circuit Court of Appeals has found… well, not exactly for the defendants (the former AEI plaintiffs), but rather that Xcentric (the company behind Ripoff Report) was capable of filing equally-baseless lawsuits. From the opinion:

Xcentric Ventures appeals the district court’s grant of summary judgment and judgment on the pleadings in favor of defendants Mobrez and Llaneras and Rule 12(b)(6) dismissal of defendant Borodkin in Xcentric’s malicious prosecution action. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. We agree with the district court that Xcentric cannot prove an element of its malicious prosecution claims, that the underlying claims were brought or continued without factual or legal probable cause. We also deny Borodkin’s motion for sanctions.

As the court points out, the very low bar of "legal probable cause" was met by the defendants' prior extortion claims. That the claims ultimately were determined to be without merit does not raise the original lawsuit to the level of "malicious prosecution." The appeals court affirms the lower court's decision.

The former plaintiffs (now defendants) are also graceless winners. Rather than walk away from the twice-dismissed lawsuit, Mobrez and Llanernas approached the Ninth Circuit Appeals Court and asked it to publish the decision it had rendered more than two months earlier. Why? Well, apparently so they could show the world that they too were capable of having a questionable lawsuit against them dismissed -- much like theirs against Xcentric was five years earlier. Um... touché?

Filed Under: lawsuits, malicious procecution, ninth circuit, section 230
Companies: asian economic institute, ripoff report, xcentric

Appeals Court Orders Government To Return Non-Child Porn Files To Convicted Man

from the files-not-forfeited-forever dept

When the government seizes computers and storage devices linked to criminal activity, it has the obligation to return these once the investigation is over. A verdict in either direction or a guilty plea effectively eliminates the government's claim on the seized items. Now, the government may argue that it can't separate the criminally-related files from the "innocent" ones, but it bears the burden of proof for this claim.

A man convicted of child porn possession has been fighting to reclaim his personal emails and photos from the government, but so far has been rebuffed by its claims that separating the good and bad files would be too difficult to pursue. A lower court agreed with the government's assessment of the situation, but this has now been overturned by the Ninth Circuit Court of Appeals.

As the ruling notes [pdf link], the lower court failed in its duty to shift the burden of proof from the convicted man to the government.

The panel held that the district court’s decision not to put the burden of proof on the government was legal error, where the defendant filed the Rule 41(g) motion after he pleaded guilty and the government no longer needed his property as evidence. The panel held that the government could not have carried its burden of proof had the district court correctly placed it on the government, where the government failed to submit any evidence of the difficulty and costs of segregating the defendant’s data, which it claimed was a legitimate reason for retention of the noncontraband files.

While keeping in mind that the government can raise legitimate concerns about the cost and difficulty of segregating data, the lower court allowed the government to make unsupported claims about the task at hand. While the government did file some paperwork along with its opposition to the release of the files, nothing it submitted bore relevance to the case at hand.

The government attached three exhibits to its opposition brief: (1) a document listing some of Gladding’s property the government found to be noncontraband; (2) email correspondence between counsel; and (3) the transcript of a hearing on a similar dispute in a different case. None of the exhibits established the burden or cost to the government of segregating contraband from noncontraband computer files.

Gladding hired a digital forensics expert who was able to retrieve a great deal of the non-criminal files, despite arguments from the government that doing so was technically unfeasible. But there were still some files left that Gladding wanted returned and, again, he was stonewalled by the government, with an assist by the district court, which muffed the "burden of proof" determination.

The district court did not expressly state whether Gladding or the government had the burden of proof on the motion. However, the parties impliedly concede the court put the burden on Gladding. And the district court’s brief analysis denying Gladding’s motion sheds light as to whom the district court thought should bear the burden of proof. The district court denied Gladding’s motion because it was “satisfied” by the government’s “representations” that it is “almost impossible to separate [the noncontraband files] out.”

But representations are not evidence, unless adopted by the opponent. The government failed to submit any evidence of the difficulty and cost of segregating Gladding’s data, which it claimed was a “legitimate reason” for retention of the noncontraband files. For that reason, the government could not have carried its burden of proof had the district court correctly placed it on the government. The district court’s decision not to put the burden of proof on the government was legal error.

This looks an awful lot like a deferral to the government -- contrary to the one of the main prongs of the judicial system: to act as a check against government overreach or misconduct. This failure may have only been an "error," but it's the sort of error that undermines the system's integrity.

There were multiple options available to the government to help mitigate the costs and difficulty of separating the data -- including passing those costs on to the requester -- but it was allowed to simply declare the effort to be too much trouble. By failing to shift the burden of proof, the court screwed Gladding and basically gave the government a pass to hold onto unrelated, non-criminal data for as long as it wanted to. Fortunately, the appeals court reversed the previous decision and forced the government to make an active effort to return the unneeded files. As it points out, child porn possession may be an odious offense, but a criminal's computer is rarely used solely for criminal activities.

Many people store every aspect of their lives on electronic devices. Those devices are brimming with correspondence, schedules, photographs, and music. As a result, a crashing computer or a lost smartphone can lead to catastrophic results for a person who failed to back up that data; the only record for years of a person’s life can be lost in an instant.

Criminals who possess child pornography are no different. Those criminals may likewise store important aspects of their lives on their electronic devices. But along with the normal risks of losing their personal data, such criminals also risk losing that personal data when the government seizes their devices for evidence of child pornography.

Even if the good and bad are intermingled, the non-offending files still belong to the convicted person. The potential loss of personal data isn't presumed to be part of the "consequences" of criminal behavior. The government's unchallenged assertions about the inseparable nature of Gladding's files effectively argue that convicted persons have no right to their own files, much less the expectation that non-criminal, non-investigative data will be returned to them when no longer needed.

Filed Under: child porn, doj, evidence, ninth circuit, property

Prediction: Eventual Appeal In Key Prenda Case Will Be One Worth Reading

from the just-saying... dept

Joe Mullin has the details of the latest in a long line of setbacks for John Steele and Prenda Law, in which the Ninth Circuit appeals court has rejected Team Prenda's attempt to reduce the bond amount that they need to put up, consolidated the various appeals, and set a briefing schedule for later this year. The ruling is short and sweet and basically is an indication that the appeals court isn't interested in Prenda's usual game of trying anything and everything to create a distraction. But, what caught my attention, and which I hadn't realized before, is that it appears that the three judge panel handling the appeal is headed up by Judge Alex Kozinski (see update below) -- perhaps one of the most well known and entertaining judges on the bench today. We've written about Kozinski many times before -- and while I don't always agree with Kozinski (to be fair: I very often do agree with him), he is almost certainly the most entertaining, both when speaking live and in his rulings. And, equally as important, he's one judge who really does seem to make sure he really understands what's going on, beyond the superficial level that we've seen elsewhere. Given that, the Kozinski-fanboy in me is already anticipating the turns of phrase that Kozinski will spin in any eventual ruling involving Prenda... District court judge Otis Wright's original ruling against Team Prenda was impressive, as many folks have acknowledged, but there's an opportunity here for Judge Kozinski to produce a sequel that will be a delight. Update: Bah, procedural error on my part. This is the motions panel, not the merits panel, meaning that we don't yet know which three judge panel will handle the actual case. Let's just hope that Kozinski is on it, though...

Filed Under: alex kozinski, bond, john steele, ninth circuit, otis wright
Companies: prenda, prenda law