Court: Apparently Vindictive Detainment And Strip Search Are, Yep, Constitutional Violations

Legal Issues

from the being-an-asshole:-almost-always-a-rights-violation dept

You can be a law enforcement officer without being a complete asshole. I know it rarely seems to be the case, but it’s completely possible to command respect while still treating others with respect. And while assholery tends to go hand-in-hand with enforcing the law far too often, the end result of being vindictive and rude is almost always a handful of violated rights.

And that’s where qualified immunity comes into play. The Supreme Court created this doctrine under the theory that it would protect officers from the unintended consequences of split-second decisions made during tense, fast-moving situations they occasionally find themselves in.

That was the intent. But this immunity has been invoked to shield officers from the consequences of actions provoked neither by immediate danger nor time constraints. Instead, it’s something officers assume is more likely than not to excuse them from lawsuits, even when courts find they’ve violated rights. The officers are free to go, so long as they violated rights in a way that hasn’t been foreclosed by precedent.

Sometimes though, the roll of dice goes the plaintiff’s way. That’s the case here in a decision [PDF] handed down by the Sixth Circuit Court of Appeals.

It all started innocently enough. On June 5, 2014, 67-year-old Christopher Murphy sat in an Elmira, New York bus terminal, waiting for the bus taking him to his medical appointments. He boarded the bus and, shortly thereafter, police officers arrived and took him off the bus. They arrested him on a bench warrant for misdemeanor offenses related to the city’s property maintenance codes.

So far, so innocuous. Misdemeanor offenses. Code enforcement. Bench warrant. All of this should have been settled quickly, quietly, and without a strip search. Instead, officers handcuffed Murphy to a waist chain and sat him down in City Hall to wait to see a judge. The judge arrived and Murphy’s bail was set at $750. Murphy only had $400 on him, so the judge remanded him to the Elmira PD officers until he made bail or until his next hearing, which was nearly two hours later.

He was fingerprinted, photographed, and processed. Five minutes after that, his girlfriend showed up with the bail money. The officers told her Murphy was now in the custody of the Sheriff’s Department and she would need to post bail at the county jail.

Once at the county jail, Murphy was fingerprinted yet again by Glenn Gunderman, a jail employee from the Sheriff’s Department. Here’s what Gunderman told Murphy initially:

As Murphy was being fingerprinted, Gunderman said to him “[y]our bail’s sitting out there and we’re going to cut you loose” or “[w]e’ve got to cut you loose.” Gunderman also said that
Camilli [Murphy’s girlfriend] — who was attempting to post Murphy’s bail and secure his release — was “making a real fuss, making a real commotion” about the delay. Murphy’s impression was that he would be released “immediately.”

That didn’t happen. Instead, lots of other stuff did, most of it at the hands (and I mean that literally) of Admissions Officer William Washburn.

After about an hour, and about an hour before Murphy was due back in court, the Booking and Admissions Officer — defendant-appellee William Washburn — removed him from the cell. Washburn brought Murphy to a small room and conducted a visual body cavity search, requiring Murphy to disrobe, lift his scrotum, and spread his buttocks.Washburn did not touch Murphy during the search, which lasted around ten minutes.

After the search was completed, Washburn escorted Murphy out of the search room. Washburn gestured to other officers with his thumb and forefinger, which Murphy understood as mockingly connoting that he had a small penis. Murphy was then brought back to the holding cell.

On top of this insult, Washburn added more constitutional injury.

At least two or three times, in the presence of other deputies, Gunderman said “[t]his guy’s bail’s out there. We’ve got to cut him loose.”

Washburn responded: “No. We’re not done with him yet. He’s not going anywhere. He’s going to sit in my jail for a while.” Washburn made comments to this effect both before and after the strip search.

Murphy was held for two hours, and for at least an hour after he had made bail. On top of that, there was the strip search, which was neither supported by jail policy or the Constitution itself. Jail policy said strip searches were only justified if there was reasonable suspicion a detainee might be hiding contraband. Murphy was arrested on a bench warrant for city code violations while waiting for a bus, hardly the sort of thing that suggests the (perhaps hidden) presence of contraband.

According to policy, all strip searches were recorded on a “Strip Search Justification Sheet.” But the sheet Washburn presented to the court showed nothing more than “Per Post 1” in the space reserved for “explanation of the grounds or reasons for conducting the search.” The rest of the form was blank.

Washburn’s testimony — which came in the form of a sworn affidavit (he did not actually testify in court) — didn’t clear anything up. Instead, it was vague, recursive, and written in the exonerative tense.

According to Washburn, the notation “per Post 1” on the Justification Sheet meant that some supervisory officer — he did not identify whom — had authorized the search. Washburn contended that the strip search “was necessarily based on reasonable suspicion” because the Policy required it to be; moreover, Washburn averred, neither he nor any other officer “directed to perform the search[] would have had the discretion to disobey the order.” On this basis, Washburn argued, even assuming “for purposes of this motion only” that he had conducted the search, he “would have lacked discretion as to whether or not to perform” it because it “would have occurred solely based upon a direct order from a superior pursuant to Chemung County Jail policy.”

Huh. The search was justified because jail policy required it to be justified. Settle down there, Perry Mason.

Somehow, the lower court was fine with all of this. The Sixth Circuit, however, not so much.

At no point in this litigation have defendants purported to identify a legitimate penological purpose for the strip search. Furthermore, there was evidence that Washburn’s actions were motivated by malice. He mocked Murphy about the size of his penis. And when another officer noted that Murphy’s bail was “out there” and they needed “to cut him loose,” Washburn responded in a manner that could be understood to exhibit malice by saying that Murphy would not be going anywhere and was going to sit in “my” jail “for a while.” On these facts, a reasonable jury could readily conclude that Washburn was acting not to further legitimate penological concerns but purely out of vindictiveness.

On top of that, Washburn just simply isn’t a credible witness.

First, the record is muddled as to whether Washburn was in fact following the directions of a superior officer. Washburn denies conducting the strip search and argues only hypothetically that if he did, he would have been following orders. […] Washburn does not state that any order was actually given, and no evidence has been provided as to the identity of any officer who might have given an order for the search.

Moreover, Washburn’s self-serving testimony that the entry “per Post 1” on the Justification Sheet meant that a superior officer had ordered the search was not necessarily believable. Second, on this record, a reasonable jury could find that Washburn was responsible, in whole or in part, for the decision to strip search Murphy. The Justification Sheet, which was supposed to set forth the reason for the search and identify the officer who authorized it, does not provide any reason for the search, does not reveal who (if anyone) authorized the search, and provides no detail about how the search was authorized other than the cryptic designation “per Post 1.” Doc.

Contrary to Washburn’s assertion that he did not conduct the search, the Justification Sheet identifies him as the “Search Officer.” […] The absence of reasonable suspicion for the search, Washburn’s failure to properly document the search or indicate which superior officer approved it, the crude gesture he made after the search, and his comments about Murphy sitting in “my” jail “for a while” despite bail having been posted are all circumstances from which a reasonable jury could infer that Washburn was acting of his own volition and not pursuant to the orders of a superior.

The same can be said for the two-hour delay, which was largely exacerbated by Washburn’s apparently animus towards Murphy.

Again, construing the record in Murphy’s favor, Gunderman cautioned Washburn two or three times that Murphy’s bail was “out there” and that he had to be released. Yet, Washburn ignored Gunderman and deliberately kept Murphy in “my” jail “for a while.” Moreover, Washburn subjected Murphy to a strip search gratuitously, without reasonable suspicion, in contravention of the Policy. Washburn’s words and his crude gesture suggest that his actions were not merely negligent but, instead, that he was actively hostile.

And that means these are constitutional violations outside the protection of qualified immunity. Even if they might seem small compared to other rights violations we’ve covered, they’re still violations and they never needed to happen. Instead of being able to smugly walk away from the complaints of a person he vindictively humiliated, Washburn will have to return to court to explain himself to a jury.

Filed Under: 4th amendment, 6th circuit, christopher murphy, detention, qualified immunity, strip search, william washburn

Publisher Wants $2,500 To Allow Academics To Post Their Own Manuscript To Their Own Repository

Culture

from the this-is-not-open dept

As a Walled Culture explained back in 2021, open access (OA) to published academic research comes in two main varieties. “Gold” open access papers are freely available to the public because the researchers’ institutions pay “article-processing charges” to a publisher. “Green” OA papers are available because the authors self-archive their work on a personal Web site or institutional repository that is publicly accessible.

The self-archived copies are generally the accepted manuscripts, rather than the final published version, largely because academics foolishly assign copyright to the publishers. This gives the latter the power to refuse to allow members of the public to read published research they have paid for with their taxes, unless they pay again with a subscription to the journal, or on a per article basis.

You might think that is unfair and inconvenient, but easy to circumvent, because the public will be able to download copies of the peer-reviewed manuscripts that the researchers self-archive as green OA. But many publishers have a problem with the idea that people can access for free the papers in any form, and demand that public access to the green OA versions should be embargoed, typically for 12 months. There is no reason for academics to agree to this other than habit and a certain deference on their part. It’s also partly the fault of the funding agencies. The open access expert and campaigner, Peter Suber, explained in 2005 why they are to blame:

Researchers sign funding contracts with the research councils long before they sign copyright transfer agreements with publishers. Funders have a right to dictate terms, such as mandated open access, precisely because they are upstream from publishers. If one condition of the funding contract is that the grantee will deposit the peer-reviewed version of any resulting publication in an open-access repository [immediately], then publishers have no right to intervene.

Accepting embargoes on green OA at all was perhaps the biggest blunder made by the open access movement and their funders. Even today, nearly 20 years after Suber pointed out the folly of letting publishers tell academics what they can do with their own manuscripts, many publishers still demand – and get – embargoes. Against this background, ACS Publications, the publishing wing of the American Chemical Society, has come up with what it calls “Zero-Embargo Green Open Access” (pointed out by Richard Poynder):

A number of funders and institutions require authors to retain the right to post their accepted manuscripts immediately upon acceptance for publication in a journal, sometimes referred to as zero-embargo green open access (OA). More than 90% of ACS authors under these mandates have a simple and funded pathway to publish gold OA in ACS journals.

For those not covered by an institutional read and publish agreement or through other types of funding, ACS offers the option to post their accepted manuscripts with a CC BY license in open access repositories immediately upon acceptance. This option expands this small subset of authors’ choices beyond the existing option to wait 12 months to post at no cost.

Great news? Well, no, because a hefty new fee must be paid:

The article development charge (ADC) is a flat fee of $2,500 USD and is payable once the manuscript is sent for peer review. The ADC covers the cost of ACS’ pre-acceptance publishing services, from initial submission through to the final editorial decision.

That is, if academics publish a paper with the ACS, their institution must pay $2,500 for the privilege of being allowed to post immediately the accepted manuscript version on their own institutional server – something that should have been a matter of course, but was weakly given up in the early days of open access, as Suber pointed out. There is a feeble attempt to justify the cost, on the basis that the $2,500 is for “pre-acceptance publishing service”. But this apparently refers to things like peer review, which is generally conducted by fellow academics for free, and decisions by journal editors, who are often unpaid too. In general, the costs involved in “pre-acceptance publishing” are negligible.

“Zero-Embargo Green Open Access” sounds so promising. But it turns out to be yet another example of the copyright industry’s limitless sense of entitlement. Publishing is constantly finding new ways to extract money from hard-pressed academic institutions – money that could be used for more research or simply paying underfunded researchers better.

This is a personal issue for me. In 2013, I spoke at a conference celebrating the tenth anniversary of the Berlin declaration on open access. More formally, the “Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities” is one of three seminal formulations of the open access idea: the other two are the Bethesda Statement (2003) and the original Budapest Open Access Initiative (2002) (all discussed in Walled Culture the book, free digital versions available). I entitled my speech “Half a Revolution”, and the slides I used can be freely downloaded from SlideShare, along with many more of my presentations.

My Berlin talk concluded with a call to action under the slogan “Zero Embargo Now” (ZEN). Back then, I looked forward to a world where all academic papers would routinely be available under green OA immediately, without any embargo. I’m still waiting.

Follow me @glynmoody on Mastodon. This post originally appeared on Walled Culture.

Filed Under: academic research, embargo, gold open access, green open access, open access, research, zero-embargo green open access
Companies: acs publishing

Let’s Go! Supreme Court Grants Cert To Hear Cases About Social Media Moderation Laws In Florida & Texas

Legal Issues

from the big-case-time dept

This isn’t exactly a surprise. Everyone has expected this pretty much from about the time that Ron DeSantis insisted he had a plan to regulate social media, but it got delayed by a year, because it seemed that the Supreme Court just didn’t want to deal with it yet, and punted by asking the White House to weigh in. And weigh in they did, telling the Court to take the case, but not all of it. And that’s now what the Supreme Court has done, agreeing to hear the NetChoice/CCIA challenges to Florida and Texas’s laws regulating social media moderation.

This means that the Supreme Court is finally going to review whether or not states can force websites to host speech they disagree with. That’s important, because the somewhat obvious answer to this question should be “hell no.” And that should be obvious to people across the political spectrum. Tragically, people across the political spectrum seem eager to use this power to force social media to moderate the way they want.

Unfortunately, the Supreme Court will not be reviewing everything about those laws. They agreed only to grant cert on the first two questions, about moderation restrictions and the requirement to explain every moderation decision, but not the transparency mandate part or the question about viewpoint discrimination. Here’s the list of questions that they were asked to review, and you can see that they’re skipping over the last two.

That’s too bad, because, as we’ve discussed in the past, the transparency parts are actually really important. And leaving those in place will lead to real mischief. Of course, the Supreme Court can only avoid this issue for so long. The decision not to hear the transparency parts seems like another issue that the Supreme Court is just punting on (as it does), that it will have to deal with later.

Indeed, the failure to review that part is setting up a potentially really interesting fight. That’s because there are social media transparency mandate laws in some very different states. Florida and Texas both have them, but there’s also one in New York and one in California (again, highlighting how both sides of the political spectrum view this tool as a weapon to pressure companies to moderate the way they want them to).

So the Supreme Court is currently ignoring the question about transparency mandates, but with Eugene Volokh challenging the NY law and Elon Musk challenging the California law (both of which I think are good lawsuits), it’s setting up a potentially really weird scenario in which you have all of these converging on the Supreme Court together. And while the 5th Circuit has made it clear it has no problem ruling that certain things are okay “if Republicans do it,” it may be a bit more difficult for the Supreme Court to do that in a case that directly highlights the contradiction. Is it possible for the Supreme Court to say that “Mark Zuckerberg must be transparent, but Elon Musk doesn’t have to?” I mean, sure, anything’s possible, but it seems like a pretty big stretch.

Either way, this is going to be a really big and important Supreme Court case regarding the future of internet regulations.

Filed Under: 1st amendment, content moderation, florida, section 230, supreme court, texas, transparency
Companies: ccia, netchoice

Ohio Cops Respond To Online Sexual Exploitation Report By Offering To Arrest The 11-Year-Old Victim

Failures

from the when-in-doubt,-target-the-weakest-person-first dept

The most cynical take on this period of historic lows in US crime rates isn’t that we’ve locked up so many people that most crime now takes place in prisons where no one cares (or tabulates) how many criminal acts are still being committed.

No, the most cynical take is this: people just got sick of reporting crimes just to have disinterested cops show up and shrug their way through the victim’s statements, making it clear they didn’t care much about solving the crime and/or providing any assistance to the victims.

Even the crimes cops care about — the ones that make headlines — are crimes cops aren’t all that great at solving. In some cities, the odds are better than a coin flip that the perp will get away with literal murder.

Most law enforcement activities now go where the money’s at: drug interdictment. And they don’t really care about the drug trafficking. They only care how much cash they can take from motorists or how good they look after stumbling into a massive drug haul while trolling the highways for loose cash.

And that’s on top of the massive backlogs of untested rape kits and law enforcement’s general unwillingness to take domestic violence seriously because that would mean placing a whole lot of sworn police officers behind bars.

Calling the cops to report a crime doesn’t tend to result in a flurry of helpful activity from the Thin Blue Line. Even at the best of times, it was ridiculous to assume cops could handle all the crime reports they received. In times like these — when cops are walking off the job rather than subject themselves to the barest minimum of accountability — the likelihood of any reported crime being dealt with, much less solved, continues to drop.

And here we have another data point — one captured on a private citizen’s camera — that shows cops don’t care much about crime that might involve them having to investigate something or, at the very least, help out a troubled parent. This is the sort of thing we’re becoming numb to, as cops tend to view people reporting crimes as nuisances, rather than valued members of the public they’re supposed to be proud to serve. (h/t Robby Soave/Reason)

A concerned parent called the Columbus, Ohio police department at 6 pm after discovering his 11-year-old daughter had been sending explicit pictures to an adult she had met online. The police response was captured by his doorbell camera, making it impossible for the involved officers to claim they weren’t involved or, at best, had been misquoted.

The father expressed his concern to the officers and suggested they might want to speak to his daughter to impress on her the potential danger of her contact with this person. This is what he got from the cops:

“She’s in bed now,” the man said. The audio is briefly inaudible as he opens the door.

“It still happened, though, right?” the female officer said.

“Yeah, yeah, yeah, the whole point, I just wanted you guys to come over and talk to her,” the man said. “I just want her to realize what this was. I mean, reality is not much I probably can do about it, is there?”

“I mean, she can probably get charged with child porn,” the female officer replied.

“Who, she can?” the man said. “She’s 11 years old.”

“She’s creating it, right?” the female officer said.

The man repeats himself: “She’s 11 years old.”

“Doesn’t matter. She’s still making porn.“

“No, she’s not,” the man said. “She’s being manipulated by a grown (explitive) adult on the internet.”

“Is she taking pictures, though?”

The man dismisses the officers: “You guys have a nice evening,” and starts to head inside the house. “Thank you for coming.”

He turns to say something else. “Are you serious? Have a nice evening.”

Sweet holy fuck. If this were the medical field, it would be malpractice. Neither cop offered to use their vast stores of “training and experience” to speak to the child to explain how dangerous interactions like these might me. Neither officer even bothered to ask if there was any information the parent might have gathered or might be present on his daughter’s devices that might help identify the person soliciting explicit pictures from a minor.

Nope. The cops seemed to feel the best way to handle this was tell a distraught father they could, if they so desired, arrest his daughter for the crime of [checks recording] being sexually exploited by an adult. That’s the best these two could come up with after waiting six hours to respond to an actual, live CSAM report.

Presumably, none of this made its way into the officers’ report on this incident. If it had, one would assume an investigation would have been opened before the parent’s video went viral on social media. Then again, maybe it did make its way into the report and the officers involved (along with the officers they shared it with) all had a good laugh.

Either way, these officers are under investigation now. The PD’s Inspector General is digging into this after receiving several complaints from “citizens” no doubt located all over the internet as a result of this viral video.

Better yet, the PD has put Sexual Assault Unit detectives on the case to identify and locate the person soliciting photos from the 11-year-old — something the responding officers should have done, rather than tell a parent the best way through this might be to arrest his daughter for creating child porn.

Cops aren’t regular people, folks. They will say the stupidest thing imaginable because their brains don’t work like ours do. Even if we thought something like this, we would never say anything like this to a parent concerned about his child being sexually exploited. But for cops, it’s whatever crime is easiest to solve. And, in this case, it the was the “production” of CSAM by an 11-year-old, never mind that it would never have happened if it weren’t for the efforts of the adult on the other end of the internet connection.

Filed Under: csam, ohio, police, sexual exploitation

Daily Deal: Ninja Dragon Storm X 4K Dual Camera Smart Drone

Deals

from the good-deals-on-cool-stuff dept

Your future is here with the Ninja Dragon 4K Smart Drone. It’s super simple to take off and land with an optical flow positioning system that allows you to keep your hands off the controls when flying, especially if you have trouble taking off/landing from high places like trees. This model also has intelligent gesture recognition for some auto functions like following a subject or avoiding obstacles, and a compact foldable body with extended range flight capabilities so that you can experience longer flight time! It’s on sale for $93.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

NLRB Files Complaint Against Ridiculously Overbroad Non-Compete As An Unfair Labor Practice

Legal Issues

from the non-competes-are-human-drm dept

We’ve been on this soapbox for over 15 years now. There are reams upon reams of evidence that the single greatest reason why California became the innovation hub that it became (in both Silicon Valley and Hollywood) was because it effectively outlawed non-compete agreements in the late 19th century. I have long been a vocal advocate for outlawing all non-compete agreements. The benefit is clear and the data is unquestionable. Non-competes are not just a tax on labor, it’s a huge and damaging tax on innovation.

I was cautiously happy earlier this year that the Biden administration seems to agree, and the FTC has proposed banning non-competes entirely. My concern, though, is that this might go beyond the authority of the FTC itself. I’d much rather that Congress do this and pass a law instead.

In the meantime, though, the National Labor Relations Board (NLRB), seems to be taking a different path. Back in May, the NLRB’s General Counsel released a memo saying that “overbroad” non-competes could be seen as an unfair labor practice.

“Non-compete provisions reasonably tend to chill employees in the exercise of Section 7 rights when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work,” said General Counsel Abruzzo. “This denial of access to employment opportunities interferes with workers engaging in Section 7 activity in a number of ways—for example, workers know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; their bargaining power is undermined in the context of lockouts, strikes and other labor disputes; and their social ties and solidarity leading to improvements in working conditions at workplaces are lost as they scatter to the four winds.”

And, now, the NLRB has acted on this. A new NLRB complaint against a spa in Ohio has charged the spa with unfair labor practices for its non-compete agreements. The complaint against Juvly Aesthetics quotes the company’s non-compete agreement extensively (and it’s quite a non-compete, as beyond just barring going to work for a competitor, it also includes a non-disparagement clause, and further bars an employee who does go somewhere else from “soliciting” clients to follow them, including barring them from even responding to client questions about where they’re working now). I mean… what the hell is this:

As part of your initial employment documentation, you signed a nonsolicitation and nondisparagement agreement that prevents you from communicating with the public, clients, or employees of Juvly/Contour Clinic beyond your termination, whether voluntary or involuntary. If you fail to comply with the following requirements, your actions will be considered a solicitation and/or tortious interference in which you will be liable pursuant to the above solicitation clause and any additional damages incurred by Juvly/Contour Clinic.

Do not contact any clients or notify them of your departure from Juvly/Contour Clinic.

Do not respond to any client questions regarding your employment status. You may only refer them to Juvly.com to book an appointment.

Should you choose to pursue work with any prior Juvly/Contour employee, retain all communications as this is considered a solicitation, their destruction is prohibited by law.

Do not discuss any information with any individual regarding your employment at Juvly/Contour Clinic.

Do not make any public statements to any party for any reason regarding Juvly employment, business practices, or treatment information.

That… pretty obviously, goes way beyond even a typical non-compete, so I can see why the NLRB chose to go after such an egregious form of a non-compete agreement. It’s unclear if this will lead to further cases against more typical non-competes, even as good as that would be for the economy.

Still, it’s good to see at least a little more recognition of how problematic non-compete agreements can be.

Filed Under: ftc, innovation, nlrb, non-compete agreements, non-disparagement, unfair labor practices
Companies: contour clinic, juvly

Feds Probing Tesla For Lying About EV Ranges, Bullshitting Customers Who Complained

(Mis)Uses of Technology

from the the-customer-is-always-wrong dept

Back in July, Reuters released a bombshell report documenting how Tesla not only spent a decade falsely inflating the range of their EVs, but created teams dedicated to bullshitting Tesla customers who called in to complain about it. If you recall, Reuters noted how these teams would have a little, adorable party every time they got a pissed off user to cancel a scheduled service call. Usually by lying to them:

“Inside the Nevada team’s office, some employees celebrated canceling service appointments by putting their phones on mute and striking a metal xylophone, triggering applause from coworkers who sometimes stood on desks. The team often closed hundreds of cases a week and staffers were tracked on their average number of diverted appointments per day.”

The story managed to stay in the headlines for all of a day or two, quickly supplanted by gossip surrounding a non-existent Elon Musk Mark Zuckerberg fist fight.

But here in reality, Tesla’s routine misrepresentation of their product (and almost joyous gaslighting of their paying customers) has caught the eye of federal regulators, who are now investigating the company for fraudulent behavior:

“federal prosecutors have opened a probe into Tesla’s alleged range-exaggerating scheme, which involved rigging its cars’ software to show an inflated range projection that would then abruptly switch to an accurate projection once the battery dipped below 50% charged. Tesla also reportedly created an entire secret “diversion team” to dissuade customers who had noticed the problem from scheduling service center appointments.”

This pretty clearly meets the threshold definition of “unfair and deceptive” under the FTC Act, so this shouldn’t be that hard of a case. Of course, whether it results in any sort of meaningful penalties or fines is another matter entirely. It’s very clear Musk historically hasn’t been very worried about what’s left of the U.S. regulatory and consumer protection apparatus holding him accountable for… anything.

Still, it’s yet another problem for a company that’s facing a flood of new competitors with an aging product line. And it’s another case thrown in Tesla’s lap on top of the glacially-moving inquiry into the growing pile of corpses caused by obvious misrepresentation of under-cooked “self driving” technology, and an investigation into Musk covertly using Tesla funds to build himself a glass mansion.

Isn’t modern innovation exciting?

Filed Under: consumer protection, electric cars, elon musk, ev, fraud, ftc, range, unfair and deceptive
Companies: tesla

Minnesota’s Top Court The Latest To Say The Smell Of (Legal) Marijuana Can’t Justify A Warrantless Search

Legal Issues

from the looks-a-whole-lot-like-olfactory-perjury-here,-folks dept

Marijuana has been legalized pretty much everywhere in the United States. Even the DEA seems somewhat willing to move this source of easy busts off its drug schedule. At this point, there are only four states that have yet to legalize (or decriminalize) marijuana possession.

So, how is it that cops still think the “odor of marijuana” allows them to search vehicles? At best, it means they’re tossing cars because they observed a misdemeanor offense. At worst, they’re tossing cars because someone possessed an entirely legal substance.

Sure, cops can still go after impaired drivers. But the odor of marijuana is rarely indicative of anything, especially when it’s pretty much legal pretty much everywhere.

This legalization has led to cops complaining about having to put down their now-useless drug dogs, who apparently aren’t even worth keeping around as pets. And, in recent years, it’s led to courts telling cops that the odor of marijuana — something that can’t be objectively verified by judges or corroborated by body cam/dash cam recordings — is no longer the probable cause they continue to insist it is.

The state of Minnesota recently legalized recreational marijuana use/possession. Though the state won’t be moving forward with recreational weed sales until 2025, medical marijuana has been legal since 2014. This legalization of marijuana — even on a limited scale — means the “odor of marijuana” is no more indicative of illegal activity than, say, the “odor of gasoline” when it comes to traffic stops. (h/t West Central Tribune)

The ruling [PDF] issued by the state’s top court (one that affirms the rulings handed down by the previous two courts handling this case) says what everyone but cops are thinking: the odor of a legal substance does not allow cops to engage in warrantless searches of vehicles.

A Litchfield (MN) police officer pulled over Adam Togerson because he believed a light bar mounted on the grill of Torgerson’s car was “too bright.” Already we’re wading deep into subjective waters. And, of course, it wasn’t the real reason for the stop. The real reason was to try to find some reason to search the car.

The officer stated that he smelled marijuana and asked Torgerson if there was any reason for the odor. Torgerson answered no, stated he did not have marijuana on him, and denied ever having marijuana in the vehicle.

The officer and Torgerson spoke briefly about the vehicle’s light bar before the officer returned to his squad car with Torgerson’s license and registration. While the officer verified Torgerson’s license and registration, a second officer arrived on the scene. The first officer explained to the second officer that he thought he smelled marijuana coming from the vehicle and that Torgerson denied possessing marijuana. The second officer approached the vehicle and spoke briefly with Torgerson and his wife before asking if there was marijuana in the vehicle, noting that he and his partner could both smell marijuana coming from inside the vehicle. The couple, again, denied possessing marijuana, but Torgerson admitted to smoking marijuana in the distant past. The second officer stated that the marijuana odor gave them probable cause to search the vehicle and directed everyone to exit the vehicle.

Despite both officers claiming they smelled marijuana (and swearing in court they smelled marijuana), no marijuana was found during the warrantless search.

The first officer searched the vehicle and found a film cannister, three pipes, and a small plastic bag in the center console. The plastic bag contained a powdery, white substance, and the film cannister contained a brown crystal-like substance. A field test of the brown crystal-like substance tested positive for methamphetamine. The officers arrested Torgerson for possession of a controlled substance after he admitted ownership of the contraband.

To be clear, meth (whether smoked or not) does not smell like marijuana. These officers simply claimed they smelled marijuana and claimed that was all the permission they needed (either from Torgerson or the US Constitution) to search the car.

Both cops testified (vaguely) they could smell weed when they approached the car that contained no weed. Neither officer was able to recall whether they noted any signs of impairment in Torgerson.

The trial court suppressed the evidence from the warrantless car search and dismissed the charges. The state appealed. The state appellate court took a look at the case and arrived at the same conclusion. The state appealed again.

Three strikes. You’re out.

It is undisputed that the only indication that evidence of a crime or contraband may be found in Torgerson’s vehicle was the odor of marijuana emanating from the vehicle. The first officer testified that he “could smell a strong odor of burnt marijuana” emanating from the vehicle, that he could not smell the odor before approaching the vehicle, and that the odor’s strength ranked as a five on a scale of one to ten. The second officer testified that he “could immediately [smell] the odor of marijuana coming from inside the vehicle,” the odor “was strong enough that [he] immediately recognized it when [he] got to the window,” and that the odor “definitely wasn’t the faintest” marijuana odor he had ever smelled, but “it definitely wasn’t the strongest.” Neither officer articulated any other circumstance contributing to their probable cause analysis.

There was nothing in Torgerson’s actions to give suspicion that he was under the influence while driving, no drug paraphernalia or other evidence to indicate that the marijuana was being used in a manner, or was of such a quantity, so as to be criminally illegal, and no evidence showing that any use was not for legal medicinal purposes. In the absence of any other evidence as part of the totality of the circumstances analysis, the evidence of the medium-strength odor of marijuana, on its own, is insufficient to establish a fair probability that the search would yield evidence of criminally illegal drug-related contraband or conduct.

The evidence that was rejected two decisions ago is rejected yet again. And now it appears the only valid criminal act is these officers’ violations of Torgerson’s Fourth Amendment rights.

Where weed is legal, it’s ridiculous to assume the odor of a legal substance — without any other evidence of criminal activity — is probable cause. At some point, no cop will be able to use this convenient excuse to engage in constitutional violations. Let’s hope that point is sooner, rather than later.

Filed Under: 4th amendment, minnesota, probable cause, warrants

The Group Claiming To Have Hacked Sony Is Using GDPR As A Weapon For Demanding Ransoms

(Mis)Uses of Technology

from the unintended-consequences dept

We’ve spilled a great deal of ink discussing the GDPR and its failures and unintended consequences. The European data privacy law that was ostensibly built to protect the data of private citizens, but which was also expected to result in heavy fines for primarily American internet companies, has mostly failed to do either. While the larger American internet players have the money and resources to navigate GDPR just fine, smaller companies or innovative startups can’t. The end result has been to harm competition, harm innovation, and build a scenario rife with harmful unintended consequences. A bang up job all around, in other words.

And now we have yet another unintended consequence: hacking groups are beginning to use the GDPR as a weapon to threaten private companies in order to get ransom money. You may have heard that a hacking group calling itself Ransomed.vc is claiming to have compromised all of Sony. We don’t yet have proof that the hack is that widespread, but hacking groups generally both don’t lie about that sort of thing or it ruins their “business” plan, and Ransomed.vc has also claimed that if a buyer isn’t found for Sony’s data, it will simply release that data on September 28^th. So, as to what they have, I guess we’ll just have to wait and see.

The hack was reported by Cyber Security Connect, which said that a group calling itself Ransomed.vc claimed to have breached Sony’s systems and accessed an unknown quantity of data. “We have successfully compromissed [sic] all of Sony systems,” Ransomed.vc wrote on its leak sites. “We won’t ransom them! we will sell the data. due to sony not wanting to pay. DATA IS FOR SALE … WE ARE SELLING IT.”

The site said the hackers posted some “proof-of-hack data” but described it as “not particularly compelling,” and also said that the file tree for the alleged hack looks small, given the group’s claim that it had compromised “all of Sony’s systems.” A price for the hacked data isn’t posted, but Ransomed.vc did list a “post date” of September 28, which is presumably when it will release the data publicly if no buyers are found.

But what really caught my attention was the description of how this particular group was going about issuing threats to its victims in order to collect ransoms. And part of the group’s reputation is that it compromises its victims and then hunts for GDPR violations, building ransom requests that are less consequential than what the GDPR violation fines would be.

While the hackers say they’re not going to ransom the data, Ransomed.vc apparently does have a history of doing so, with a unique twist: Cybersecurity site Flashpoint said in August that Ransomed takes “a novel approach to extortion” by using the threat of the European Union’s General Data Protection Regulation (GDPR) rules to convince companies to pony up. By threatening to release data that exposes companies to potentially massive GDPR fines, the group may hope to convince them that paying a little now is better than paying a whole lot later.

“The group has disclosed ransom demands for its victims, which span from €50,000 EUR to €200,000 EUR,” Flashpoint explained. “For comparison, GDPR fines can climb into the millions and beyond—the highest ever was over €1 billion EUR. It is likely that Ransomed’s strategy is to set ransom amounts lower than the price of a fine for a data security violation, which may allow them to exploit this discrepancy in order to increase the chance of payment.”

And so because of the mess that the GDPR is, combined with its remarkable level of fines, the end result is that in some respects the EU has empowered rogue hacking groups to act as its enforcement wing for GDPR. And that both sucks and certainly isn’t what the EU had in mind when it came up with this legislative plate of spaghetti.

Frankly, this has some parallels to other unintended boondoggles we’ve seen. What is making the hacking industry such a rich endeavor? Well, in part it’s the cyber-insurance industry and its habit of paying out the bad actors because it’s cheaper than helping their customers recover from ransomware and other attacks. All of which encourages more hacking groups to compromise more people and companies. GDPR appears to now operate in the same way for bad actors.

Well meaning or otherwise, when legislation purported to protect private data and interests instead proves to be a weapon in the hands of the very people most interested in compromising those private data and interests, it’s time to scrap the thing and send it back to the shop to be rebuilt, or discarded.

As to what this Sony hack actually is, for that we’ll have to wait and see.

Filed Under: eu, fines, gdpr, hack, ransomware, threats
Companies: sony