Some of the biggest reactions this week came in response to the story of an L.A. council member who proposed a staggeringly invasive use of license plate data to tell car owners they had visited areas "known for prostitution". Our first place winner for insightful was the second comment on that post, from an anonymous commenter who turned the tables:

Nury Martinez has been seen in areas known for bribery, corruption, fraud, and embezzlement. Perhaps someone should be sending her a letter implying that the only reason she's there is for criminal activity.

After all if she's not guilty of taking bribes from, oh let's say, various license plate reader companies to get their readers into wider use, then a letter all but accusing her of doing so shouldn't cause her any problems, or bug her in the least, right?

Meanwhile, our second place comment for insightful was the first comment on that post — and also our first-place winner on the funny side. This time it's another anonymous commenter with an alternative proposal:

There's a simple solution to this. Just move all prostitution to places where the councilwoman lives and works.

For editor's choice on the insightful side, we start out with yet another anonymous comment, this time in response to the news that a Turkish judge has set up a special panel to determine whether a doctor comparing the president to Gollum is an insult or not. As the commenter pointed out, that necessity provides an answer in and of itself:

If it takes a previously non-existent, special expert panel to determine if it is an insult, how was the doctor supposed to know?

Next, we've got a comment from this week's podcast episode about the collision between privacy and free speech in Europe. Adrian Lopez suggested some honest rebranding:

The Right to be Forgotten should be called The Right to Make Forget. That at least would be honest in its egregiousness.

Over on the funny side, we've already had our anonymous first place winner above, so we'll move straight on to second place, which comes in response to our post discussing the non-existince of WiFi allergies. Roger Strong had a different opinion, and a different kind of sensitivity:

Whenever my WiFi goes down I feel cranky and depressed. The symptoms go away once my router is working again.

For editor's choice on the funny side, we start out with one more nod to Roger, for responding to the latest news about Paul Hansmeier in the grand tradition of crossing wires between popular Techdirt stories:

Can anyone recommend a good "reputation management" consultant?

Finally, we've got That One Guy with his summing up of the selfie monkey situation:

The punchline to the whole joke of a case of course is that between the photographer, PETA, lawyers and a monkey, the one who's acted in the most civilized and mature fashion is the monkey.

Ook! That's all for this week, folks.

Five Years Ago

There were a couple major points of discussion this week in 2010. The first was the latest Wikileaks document release, which stirred ire from the president who was "considering" legal action as the DOJ tried to figure out how it could twist US law to charge Julian Assange. In the mean time, the government was putting the pressure on others to censor the site, convincing Amazon to refuse to host Wikileaks (though some pointed out Amazon seemed fine with not censoring pedophilia), telling students not to mention the site online if they wanted government jobs, and even blocking access to the site in the Library of Congress in an act of impressive denial. Of course, some were smart enough to see that this sort of freak-out was exactly the reaction Assange hoped to provoke, and that Wikileaks was not only inevitable but also critical to democracy. Even a few within the government were being rational.

The second incident was Homeland Security's sudden seizure of a bunch of domain names that were supposedly dedicated to piracy. We immediately noticed a bunch of problems with the seizures and put together a list of five important questions for Homeland Security and its ICE division. Then more problems began coming to light, like the fact that some of the seized sites were popular hip-hop blogs used by artists to promote their own music and that the entire incident pushed the law to its breaking point. While explaining/defending the seizures, ICE more or less admitted that it gets its orders directly from Hollywood.

Both these incidents had something in common, too: they showed how private intermediaries get involved in government censorship.

Ten Years Ago

There was upheaval in the world of television this week in 2005. While Americans were showing their disapproval of government regulation of TV and the telcos were struggling to offer TV of fibre and Nielsen was finally admitting DVRs were a thing, the FCC made a surprise reversal and started supporting the idea of a-la-carte cable networks. Suddenly the lines were drawn: AT&T made a strategic play in support of the idea while cable televangelists emerged as an unexpected opponent, and Cablevision stepped out of line with a maverick a-la-carte endorsement of its own.

Meanwhile, the Sony rootkit scandal continued to unfold when it turned out Sony knew about the problem before anyone noticed it. But now the list of people who had noticed it included New York Attorney General Eliot Spitzer. Some stores still had the CDs on shelves, though it wasn't clear who was to blame, and it turned out Sony's other copy protection software was similarly evil. A look way back at the beginnings of the rootkit revealed it was begged, borrowed and stolen by desperate programmers.

Fifteen Years Ago

It was a slow week in 2000, but we did see some early glimmerings of big change, like nascent experiments with voice recognition for mobile web surfing. Some plans didn't pan out so well, like Hollywood's top secret internet distribution schemes. Reporters were discovering that their web platforms give them power as customers, and Japan was discovering that simulated dating can be a hit. This was also the week that Opera, the other other browser, announced that it would become free.

Sixty-Seven Years Ago

It's not particularly tech related, but how about a good unsolved mystery? It was on December 1st, 1948 that an unidentified man was found dead on a beach in Australia, with a bunch of bizarre details surrounding the death, like a scrap of the Rubaiyat in his pocket that was then linked to a book with strange ciphers written on it. Dubbed the Taman Shud Case or the Mystery of the Somerton Man, it remains a source of speculation and mystery to this day.

This one's for collectors and folks with a little cash to spare: Pixel Vision, a beautiful hand-made game emulator from Sweden.

The Good

Love Hultén is a designer who makes incredible video game cabinets both large and small, and the Pixel Vision is a Kickstarted attempt to make some of his very desirable work available to more people with his smallest device yet. It runs on a Raspberry Pi board inside a handmade walnut casing — in fact everything about the Pixel Vision is handmade by one person. It has controls much like a classic Nintendo, runs emulators for a bunch of classic game systems, all controlled through a special minimal front-end interface that lets you access emulator functions like Reset and Save/Load State via hotkey combinations. It comes with some pre-loaded ROMs and you can load more via USB.

Given the completely hand-made nature of everything Hultén makes, all his products are ultra-limited edition, and this is no exception: there are only 500 Pixel Visions, and a few extra special versions with even finer materials. Nothing here is revolutionary, but all the elements are top quality and put together with style to create a product I suspect many gamers — and especially those with nostalgic memories of their Game Boys — would love to have in their collection.

The Bad

There was no way a lovingly hand-crafted, limited edition, solid wood handheld gaming device was going to be cheap, was there? Alas, the Pixel Vision costs around $470 (but is priced in Swedish Krona). Considering the nature of its construction and the fact that it's essentially an art piece, this isn't an unfair price — and indeed this is Hultén's less expensive offering, given that his other even-more-impressive designs cost considerably more — but it will certainly discourage most would-be buyers (that is, after all, more than a Playstation 4). Though, with only 500 on the market, that's not exactly a problem.

The Details

What really caught my eye about the Pixel Vision is just how much Hultén's attention to detail permeates every aspect of its design. This isn't just some electronics crammed in a nice hand-made wood box by a woodworker hoping to find a market — it's actually a complete design by someone who clearly cares about all the elements of the device, hardware and software included.

The best example of this is the 3.5" LCD screen. Anyone could stick a small screen in a box, but this one is mounted in a bezel that is ever-so-slightly curved outwards to evoke old-school TVs — but it doesn't stop there. The curved bezel is a great vintage look, but the screen would still clearly be modern, so the Pixel Vision runs custom OpenGL software that applies barrel distortion and a soft shader to all the emulator's graphics, giving it the genuine bulged look of an old CRT television. That's the sort of detail that ties the whole thing together and makes it not just a gimmick but a cohesive piece of great design.

The monkey selfie story is the gift that keeps on giving. When we last left the monkey, who PETA insists goes by the name "Naruto," the website Blurb and the didn't-take-the-monkey-photos-photographer David Slater had both pointed out to the court the simple fact that monkeys can't sue for copyright infringement and the lawsuit that PETA filed on behalf of the monkey was completely ridiculous. If you don't recall, these monkey selfies are unquestionably in the public domain, even if Slater still argues that he holds the copyright on them. He didn't take the photos, as his own statements indicate, and thus the photos are in the public domain (longer explanation at that link). But the idea that the monkey might own the copyright is something that Slater and I completely agree on: it's not even in the realm of possibility. Until PETA sued it was only in the realm of satire.

Anyway, PETA's lawyers at the (formerly) prestigious law firm of Irell & Manella have struck back with a filing defending the lawsuit, which they insist is, like, totally real and legit. Which it's not. That Irell & Manella would let itself get played by PETA for a stupid publicity stunt that serves no purpose other than to waste the court's time, really speaks poorly of that firm. Their argument is based on the silly idea that "well, someone must own it, and thus, it should be the monkey." This is wrong on both points, but we'll get there. First, the argument:

This case presents an issue of first impression: Whether human authorship is required for protection of works under the Copyright Act. There is no dispute here that Naruto took the photographs spontaneously and without human assistance. In every practical (and definitional) sense, he is the “author” of the works. Defendants argue that animals have no standing under the statute—that they cannot be “authors.” Yet none of the Defendants suggests that they have any entitlement to ownership of the works. Defendant Blurb implies that any work created by an animal falls into the public domain; Defendant Slater does not argue here that he owns the copyright. These positions are both inconsistent with other statements made by Defendants and wholly inconsistent with the premise of the Copyright Act—every copyright must have an author. And both Blurb and Mr. Slater ignore the fundamental question posed here: Does the Copyright Act permit Plaintiff’s ownership of the works or give him standing to assert claims under that statute? The answer to both questions is “Yes.”

This is wrong on multiple levels. First, even though I totally disagree with him, Slater claims that he holds the copyright. He's also been creatively revising his story since it first came out to suggest that he played a larger role than originally implied in getting the monkey ("Naruto" or not) to take the photo. Second, this belief that (a) there must be a copyright and (b) someone must hold it is wrong. As we've discussed, this is a bit of dangerous thinking, that every bit of cultural output must be "owned" via copyright law. But that's not what the law says at all. It is entirely possible for new works to be created that are in the public domain, and this is clearly one of them.

As for the idea that a monkey can hold the copyright, that has long been debunked. We've said it a bunch of times already, but the Copyright Office itself has made it clear that a work must be created by a human being to be eligible for copyright. David Schwartz, the Irell & Manella lawyer who really is a lawyer, who actually graduated from Duke Law School and clerked for Judge Kozinski, then doubles down on the crazy by arguing that since copyright law was intended to benefit the public by creating incentives for creativity, it's obvious that they meant to cover monkeys.

The text of the statute itself does not compel the conclusion that authorship may be vested exclusively in humans. To the contrary: Since enacting the Copyright Act of 1790, Congress and the Supreme Court have instructed that the copyright laws should be interpreted liberally in order to safeguard the “general benefits derived by the public” from works of authorship.... Copyright protection advances that goal by allowing authors to “disclose” their works without losing control of them.

Think about this for a second. He's trying to claim, first, that Naruto the monkey (who many people dispute even took the photo), not only put such creative thought into the "authorship" of the photo, but also that the monkey requires the exclusivity provided by copyright to properly incentivize the production of the photograph.

Just what kind of monkey crap is that? Copyright law is an incentive to create and then, yes, to distribute. But the monkey doesn't need such an incentive. The monkey was not and is not thinking "gee, if only I could protect this image, well, that's a reason to take this photograph." It's a monkey.

Every copyright must have an “author.” If there is no author, there is no copyright

Yes, and the courts have long recognized that an "author" is a human. Thus, you've just made the case that there is no copyright here. Because there isn't. The photograph is in the public domain.

A key part of PETA's argument that copyright holders don't need to be people is... that corporations can hold copyrights:

In allowing both corporate authors and anonymous authors, the Copyright Act stands in stark contrast to how Congress decided to provide for other intellectual property rights, such as patents. Under the Patent Act, the “inventor”—i.e., patent law’s equivalent of a copyright “author”—specifically excludes corporations and other non-natural persons.... Thus, if Congress wanted to exclude non-human authorship rights, it knew how to do so and would have enacted parallel features into the Copyright Act.

It seems unlikely that this argument will go very far.

Finally, the lawyer seems to argue with a straight face that the public domain is antithetical to the concept of copyright by saying it's impossible to imagine that Congress wanted to support the public domain when it created copyright law. Really.

Without an author, there can be no “fixation,” no “work of authorship,” and thus, no copyright.... Thus, if an animal cannot be an “author,” then any work which “owes its origin” to an animal will not have copyright protection.

Such a result is antithetical to the public interest, and hence, the intent of the drafters of the Copyright Act.

Um, no. That's not antithetical to the public interest at all, unless you believe that the drafters of the Copyright Act didn't believe in the public domain, which they clearly do. The motion was written by someone who appears not to know the first thing about actual copyright law and the concept of the public domain. Again, this is a total embarrassment for Irell & Manella -- a firm that is engaged in lots of big copyright cases. Everyone knows that PETA plays stupid publicity stunts. But for an actual high profile law firm to make arguments like these is an embarrassment.

The DOJ's Inspector General Michael Horowitz has a thankless job. His office must look into improper actions by a variety of government agencies that have no interest in being independently overseen, much less inspected generally. The DEA and FBI have both played an instrumental part in undermining his investigations -- so much so that Horowitz has taken his complaints to Congress and suggested legislators punch the unhelpful agencies right in the pocketbook.

The OIG has just released its semi-annual report for 2015, which sums up the highlights and lowlights of six months of investigations. There's more bad news than good, but that's to be expected considering a) the Inspector General is supposed to look into the DOJ's problems, not its heroics and b) the DEA, FBI et al haven't improved their attitude toward being inspected/implementing OIG recommendations.

Case in point on the last one:

The FBI has always received data "tipped" by the NSA from the Section 215 collection. During the same period (2007-2009) the NSA was getting chewed out by FISC Judge Reggie Walton for its abuse of the program, the FBI was having its own issues. IG Horowitz wasn't able to look into this as quickly as he wanted to because the FBI stonewalled him, refusing to grant access to pertinent documents. Horowitz hoped to get to the bottom of this before the Patriot Act reauthorization came up in May, but was unable to.

However, he was able to put the following together. The FBI had put inadequate minimization procedures in place back in 2006, shortly after another Patriot Act reauthorization. The OIG told the FBI to update its procedures in 2008, in order to comply with the reauthorization. The FBI got right on it.

Nevertheless, the OIG found that by mid- 2009, DOJ had not replaced the interim procedures, and FISA Court judges began to issue Supplemental Orders in Section 215 matters requiring DOJ to report to the FISA Court on the implementation of the interim procedures. The Attorney General ultimately adopted final minimization procedures in March 2013.

Which lead the IG to this obvious conclusion:

Given the significance of minimization procedures in the Reauthorization Act, the OIG does not believe that DOJ should have taken until 2013 to meet this statutory obligation.

That's basically seven years of the FBI using minimization procedures that did not meet statutory requirements. (The Patriot Reauthorization Act of 2005 went into effect in March of 2006.)

The OIG is still looking into other aspects of the FBI's participation in the Section 215 program, but any conclusions it draws will be of historical interest only now that the program is officially dead. These are listed in the "Ongoing Work" section.

The FBI’s use of Section 215 authority under the FISA from 2012 through 2014, including the effectiveness of Section 215 as an investigative tool and the FBI’s compliance with the minimization procedures DOJ approved and implemented in 2013.

The FBI’s use of information derived from the National Security Agency’s (NSA) collection of telephony metadata obtained from certain telecommunications service providers under Section 215 of the Patriot Act.

The FBI isn't the only DOJ agency partaking in broad surveillance efforts. The DEA is also collecting tons of data and information without a warrant.

The DEA’s use of administrative subpoenas to obtain broad collections of data or information, including the existence and effectiveness of any policies and procedural safeguards established with respect to the collection, use, and retention of the data.

Other works-in-progress include an examination of the ATF's confidential informant program, the DEA's handling of drug seizures, nepotism and favoritism at the US Marshals Service, issues with the Bureau of Prisons' private contractors and an investigation of the ATF's controversial "Storefront" program, which has taken heat recently because of agents' decisions to turn intellectually-disabled people into shills for fake drug/weapon sales operations before arresting them for their "complicity."

But all of this won't lead to much unless Congress acts to roll back a DOJ policy backed by an Office of Legal Counsel decision.

In particular, in July, DOJ’s Office of Legal Counsel (OLC) issued its opinion, 14 months after it was requested by the then Deputy Attorney General (DAG), which found that Section 6(a) of the IG Act does not entitle the OIG to obtain independent access to grand jury, wiretap, and credit information in DOJ’s possession that is necessary for the OIG to perform oversight of DOJ. Indeed, the OLC opinion concludes that such records can only be obtained by the OIG in certain—but not all—circumstances through disclosure exceptions in specific laws related to those records.

[...]

The OLC opinion also provides that, in all instances, DOJ employees will decide whether access by the OIG is warranted— placing agency staff in the position of deciding whether to grant, or deny, the Inspector General access to information necessary to conduct its oversight. Requiring an Inspector General to obtain permission from agency staff in order to access agency information turns the principle of independent oversight that is contained within the IG Act on its head.

This won't just make it more difficult for the OIG to do its job. It will also discourage DOJ employees from coming forward with information about abuse and misconduct.

Such a shift in mindset could deter whistleblowers from directly providing information to Inspectors General about waste, fraud, abuse, or mismanagement because of concern that the agency may later claim that the disclosure was improper and use that decision to retaliate against the whistleblower.

I'm sure the DOJ feels there's no problem on its end as it pertains to this new policy. But independent oversight is one of the few things standing between DOJ components and incredible amounts of misconduct and abuse. There's far too much power vested in these agencies and the OLC has made it even easier for them to abuse this power and get away with it.

Penicillin and its derivatives haven't actually been around for that long in the scheme of things, but antibiotics have enabled an incredible age of prosperity without people having to worry about common infections killing us off. Unfortunately, nature has a way of evolving and adapting to our not-so-clever use of antibiotics, and we've been breeding superbugs in our hospitals and in our industrialized food chain. Sketchy meats have been around for a long time, but hopefully, it won't take a public health nightmare to get folks to take a closer look at food safety.

• The overuse of antibiotics in the meat industry could be creating superbugs in our food chain -- and a surprising amount of these resistant microbes are already in commercial foods. Consumer Reports looked at a variety of meat samples and found over 80% of the turkey meat it tested contained superbugs. Ugh. Cook your Turkeys thoroughly next Thanksgiving.... [url]
• The 1993 E. coli outbreak from hamburger meat killed at least four kids and poisoned hundreds of people. That outbreak was followed years later by other infectious contamination in produce, cheese and cookie dough... and the food safety system still isn't perfect. Salmonella in chicken is another potential problem, and the food industry is responding -- though perhaps a bit slower than some would like. [url]
• Bacteriophages as biocontrol agents in foods were approved by the FDA in 2006, but it's not approved for infant formula. Bacteriophages -- viruses that specifically attack bacteria -- are abundant everywhere, so they're presumably safe and environmentally friendly -- and could prevent babies from getting terrible illnesses. These phages could be an important tool to combat food-borne microbes, but we may still want to be careful not to over-use them or over-engineer them to the point that they might attack microbes indiscriminately. [url]

After you've finished checking out those links, check out this holiday gift guide for some awesome deals at the Techdirt deals store.

Whenever we discuss patents here, it's always useful to restate that the purpose of patent law generally is to promote creativity and innovation such that the public has greater access to novel and useful inventions. That the application of the patent system has been perverted from this original purpose ought to be obvious to everyone, which is why the mantra of patent protectionism by industry, often large industry, has always had the air of religiosity to me. Without patents, no creation would be made. Without patents, small inventors would be pilfered by monied interests. Without patents, we'd be without life-saving medicine. So goes the mantra of those prostrating themselves before restrictionism, repeated over and over again lest their imagined livelihood be taken away by the heathens who point out every counter-example.

Those counter-examples abound, of course, and we typically talk about them in terms of generic medicines that proliferate after a patent expires, or when life-changing technology is suddenly available to a wider public when access to it is relieved from restriction. But lesser examples can be useful to illustrate this as well. One such example is an absolutely asinine patent that had been granted long ago for mini-games being used within software loading screens. That patent recently expired and nobody is even pretending like this won't suddenly mean the proliferation of much less tedious loading screens.

For twenty years, Namco Bandai has held patent US 5718632 A, which has given them ownership of the idea of a loading screen minigame. On November 27 (this Friday), that patent expires. This is a big deal! For two decades, companies that wanted to keep players busy during load times (like Ridge Racer’s amazing Galaga) either had to pay Namco, find ways around it (as EA’s FIFA series has) or...give up and go back to writing a ton of boring tips and lore screens for people to read.

Is this really a big deal? No. Also, yes, absolutely. No because having a mini-game inside of another game's loading screen isn't going to save a life or ease the suffering of the masses. But yes, too, because it's an easily understood example of how broken the promise the patent system made all those years ago has become. Already there are plans to do a "game jam" for loading screens, where people will get together and spurt their creativity, now that what was once banned, is finally allowed. If the patent system worked on its original premise, this shouldn't be a thing. The patenting of mini-games in loading screens should have resulted in the use of that concept throughout gaming. It hasn't. If it had, a game jam built around building that very thing wouldn't be necessary.

Loading Screen Jam's "theme" is creating interactive loading screens (or anything that infringes on the abstract) and defiling the patent that held back game design for so many years! Create games/interactive material based on infringing the now-defunct patent in any way possible!

It's yet another example of the reality of the patent system working in nearly exact reverse to its stated purpose. Once the patent expires, the public benefits.

When we talk about the many, nearly universally positive impact that mods and modding communities have on software and gaming, including for the makers of the original products, we typically focus on those benefits that are achieved when the modding community is embraced. These benefits can include everything from extending the life of a game to extending the original game's universe into entirely new experiences and games, making the original more attractive to buyers. But a strong modding community can have positive effects even when the original producers are recalcitrant where they should be gung-ho in meeting customer demands.

Take the case of Sony and its remote play functionality for the Playstation 4. When the console was first released, one of the most interesting features of it was its ability to be played remotely with a pretty slick experience. This would allow gamers to take their gaming on the go everywhere from just another room in their homes to on the road in another state. Unfortunately, for reasons I cannot even come close to explaining, Sony decided to limit this functionality to owners of the PSP, the portable gaming device that Sony itself has done everything to murder in the marketplace, and Sony's smart-phone line, which has the kind of market share that should result in people losing their damned jobs. As this was going on, Microsoft's Xbox One, a console which Microsoft did everything it could at launch to make it as unattractive as possible, had life breathed back into it as Windows 10 included the option for users to stream Xbox games via the operating system. Gamers want game streaming. Microsoft provided a fairly wide-ranging solution. Sony didn't.

But someone else did. Modder Twisted, who long ago modded Sony's Playstation 4 Android app to allow it to work on any Android phone, has now done the same thing for the PC. After working on it for several years, Twisted is starting to release a PC version of his remote play application, finally allowing gamers to stream PS4 via remote play to their PCs. In a break from the norm, Twisted even announced that the PC app would need to be purchased, rather than given away. Even at that, the people rejoiced.

And Sony finally decided to listen to customers.

Some people asked if we plan to provide Remote Play function to PC, and yes, we are indeed working on an official application for PC/Mac. :D — Shuhei Yoshida (@yosp) November 27, 2015

Yoshida is the President of Sony's Worldwide Studios and the clamor over remote play for PCs was loud enough that he decided to say publicly that Sony was working on its own release. Would this be happening without Twisted's work? Please. One modder, even with some outside help, got this done after the better part of a year of development. Sony makes the Playstation 4, which was released two years ago. If it had wanted to embrace customer demand on its own, it would have done so long ago.

So, when you gamers out there are remote playing your PS4, make sure you give a mental note to Twisted and modding in general for pushing this along.

It's not been a good year for Paul Hansmeier, the Prenda attorney-turned-"ADA Champion." He's been hit with counter-claims on his Americans with Disabilities Act (ADA) lawsuits which claim thousands in damages from local companies despite no actual issues. This was followed in May by an appeal hearing on Judge Wright's infamous Star Trek order where after summing up the Prenda business model 9^th circuit Appeals Judge Pregerson called it an "Ingenious crooked extortionate operation."

Then in August, one of the three central figures in the Prenda saga, Paul Duffy, died, moving the focus more squarely onto Hansmeier and Steele. Finally, just over two weeks ago, the Minnesota Law Board started proceedings to disbar him, meaning his ability to continue as a lawyer at all would be in jeopardy.

Amongst all that, in July Hansmeier filed for Chapter 13 bankruptcy (RECAP docket), seeking to repay his debts (many of which are damages and costs from various Prenda cases nationwide) totaling $2.43 million via installments. Under US Bankruptcy law, a person owed money by someone in Chapter 13 proceedings cannot start or continue collection proceedings, so for Hansmeier, it would have been a neat way to push payment of these debts down the road, while paying them off at a fraction of their value. (His proposed plan would have paid off a maximum of $161,400 in monthly installments of $2,690 across 5 years legal maximum at which point all debts would be discharged and considered paid.)

However, petitions by the creditors (those who are owed money) pointed out in motions leading up to a December 3rd hearing at the United States Bankruptcy Court for the District of Minnesota that he had shown he was not trustworthy. "The argument that somehow there's going to be a payment in full, your honor, just doesn't ring true," Michael R Fadlovich, the attorney representing the Bankruptcy Trustee is reported to have said.

Even Hansmeier's lawyer admitted "he's a bad actor," but claimed "he'd found Jesus," although given the number of Does filed against, it's entirely possible Jesus was found by their speculative invoice letters. She also claimed that the sale of Hansmeier's downtown Minneapolis condo for $1.2 million would have provided a rare chance to have his debts mostly paid off, despite figures submitted by the trustee that indicate less than $90,000 would be realized by the sale.

Nevertheless, U.S. Bankruptcy Judge Kathleen H. Sanberg was not swayed, converting the proceedings from Chapter 13 to Chapter 7, and requiring a liquidation of assets to pay, while any money left from the sale of the condo goes towards the debt fund. However, the court is not yet finished with Hansmeier. Numerous lawyers (representing creditors) highlighted a number of suspicious money transfers, possibly to hide assets, as other judges have already discovered. At issue was his constant dishonesty with courts, in this proceeding and others, which the judge sided with. While further actions are coming, Hansmeier has to now be very careful, as bankruptcy fraud is an imprisonable offense, and investigated by the FBI who are presumably already well aware of Mr. Hansmeier courtesy of Judge Wright.

It seems that Hansmeier's 'luck' has just about run out.

The FBI continues to handcraft its own terrorists, ensuring a steady stream of prosecutions, press releases and counterterrorism funding. Meanwhile, the Bureau of Alcohol, Tobacco, Firearms and (more recently) Explosives (ATF) is busy turning unsuspecting males into would-be Omar Littles.

Last year, Mike Masnick covered federal Judge Otis Wright's scathing critique of the ATF's "made-up plot" to turn three people into drug house robbers. Only there was no drug house, no drugs or cash to rob and the ATF had to work overtime just to get the three defendants to agree to carry out this completely fabricated criminal act.

In his dismissal, Wright took aim at the ATF's beyond-questionable tactics.

But for the undercover agent’s imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.

...Despite the Supreme Court’s admonition, the ATF manufactured this entire crime. It did not infiltrate an ongoing criminal enterprise, as there is no indication that Hudson, Whitfield, and Dunlap had any previous criminal affiliation between them.

He also pointed out that, because the criminal enterprise was completely made up, the ATF could say whatever it wanted to in order to maximize the future "wrongdoing" of the men it arrested.

In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.

The ATF deployed similar tactics against Alex Pedrin. Twenty-year ATF veteran Richard Zayas -- who has carried out "hundreds" of stash house stings -- turned Pedrin into an aspiring stash home invader. Unfortunately for Pedrin, the Ninth Circuit Court of Appeals wasn't as appalled by the ATF's actions as Judge Otis Wright.

Again, a fictitious drug house was presented as a robbery target by Zayas, watched over by "armed guards" and "containing" 40 to 50 kilos of cocaine. Pedrin never got a chance to take down the stash house. The other participants became suspicious it might be a setup. Everyone split up after spotting ATF agents, but were captured shortly thereafter. Pedrin -- who never actually participated in a robbery, much less obtained any drugs -- was charged with "conspiracy to possess with intent to distribute." Another "successful" sting by Agent Zayas, and not a single actual criminal was harmed.

Pedrin didn't raise the entrapment defense, but did challenge his prosecution as being the result of "outrageous government conduct." The court didn't buy it, but Judge John T. Noonan dissented from the majority opinion.

The undisputed and dispositive fact is that Pedrin was not known to the government to be predisposed to raid a stash house at the time when an agent of the ATF proposed this action to him. The law is settled: “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and induce commission of a crime so that the government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992). In this case, the ATF originated the criminal design, implanted it in Pedrin’s mind and induced him to commit the crime that the government then prosecuted.

Who has the burden of proof as to the defendant’s disposition? In Jacobson, the Supreme Court provided the answer: “[T]he prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents.” The timing of the defendant’s disposition is critical: “The sole issue is whether the Government met its burden of proving that petitioner was predisposed to violate the law before the Government intervened.” No showing has been made that Pedrin was known to be predisposed to commit this crime prior to being approached by the agents of ATF. The ATF laid out the entire stash house scheme to him before he had said a single word. The prosecution of his case should be dismissed.

Noonan finishes off his dissent by pointing out what the ATF's long history of "reverse stings" has done for it, and the government it serves. Not content to take down actual criminals engaged in actual criminal activity, the ATF has continually manufactured criminals and criminal activity. Maybe it finds this process generates better results. Maybe it just finds it easier than investigating criminals currently engaged in criminal activity. Whatever the case, Noonan doesn't care for the ATF's takedown of Pedrin and his co-defendants.

As the case now stands, the ATF enhances its reputation by its successful ruse. The government of the United States is diminished by its dependence on the duplicity of the agency. Because of a choice made by Pedrin or his counsel, entrapment was not argued and Jacobson was uncited. By the rules governing litigation we can affirm Pedrin’s conviction. By our commitment to a humane justice, we are called to dismiss the case made by the entrappers.

Pedrin perhaps saw Noonan as a wedge against the appeals court's decision. An en banc hearing was requested to rehear the decision upholding his conviction. The court has declined this opportunity to further examine the ATF's fake drug house operations. Once again, it's Noonan who has a few words to say about the subject.

When the government puts psychological pressure on persons to commit a crime this pressure militates towards a finding of entrapment...

Here, the government [...] relied on psychological tricks to persuade Pedrin to participate in the crime. First, the confidential informant was co-defendant Omar Perez’s uncle, and therefore someone to whom Perez and Pedrin, a close friend of Perez’s, were more likely to succumb than they otherwise might. Second, the informant-uncle peer pressured Pedrin and Perez by telling them that the government agent was “very cool people,” that he, the informant, “want[ed] to do the job,” and that if they could not do it, he would find people who could. Third, the government put time pressure on defendants by telling them the opportunity was available to them for only a limited period. Finally, the government agent eliminated some of the moral qualms defendants may have had about the drug dealers they were planning to rob by telling them that he had “no love” for the dealers and that they were cheating him out of his fair share of the profits from their business. These psychological tactics no less induced defendants to participate in the reverse sting than did the tactics employed by the government in Sorrells, Sherman, or Jacobson.

As to the government's claims that Pedrin was predisposed to commit criminal acts like a stash house robbery, Noonan finds them weak and unsupported by the evidence presented.

Regarding Pedrin’s predisposition to participate in the scheme, not only did the government know nothing about him when they approached him, nothing in his record suggests that he was apt to commit a crime like this one. Pedrin was in and out of the juvenile system, and as an adult served time in jail for several misdemeanors. Pedrin had two felony convictions, one for being “belligerent to officers while being booked into jail,” and another for the crime of endangerment for which he served a prison sentence of a little over one year. Pedrin’s record contains no crimes related to dealing cocaine, robberies, or home invasions.

The only evidence supporting that Pedrin previously committed a stash house robbery is the testimony of co-defendant Terry Bombard who was more than ten years older than twenty-four-year-old Pedrin and who testified against him in exchange for a deal of ten years instead of a life sentence. The government offered no evidence independently corroborating Bombard’s testimony. On these facts, Bombard’s assertions that Pedrin previously committed stash house robberies would likely not be proven beyond a reasonable doubt.

The conviction holds, for something as ethereal as a conspiracy to possess drugs. Apparently, this is the way the ATF fights the Drug War. (And who knows why it's even decided to "enlist," other than the weapons connection…) It steers people not currently engaged in criminal behavior towards criminal acts predicated on nonexistent locations and contraband. Then it serves them up to the justice system and issues press releases. Apparently, the DEA is supposed to catch the actual criminals, even if it seems to be far more interested in lifting cash from the recreational marijuana users it finds traversing the drug corridor known as the United States of America.