Back in 2012, we wrote about Philip Morris using corporate sovereignty provisions in trade agreements to sue Australia and Uruguay over their attempts to reduce the number of deaths from smoking through plain packaging and other health measures. Since then, the case has become a textbook example of all that is wrong with investor-state dispute settlement (ISDS).
For example, even though Philip Morris lost its battle in the Australian High Court to stop the introduction of plain packaging, it did not simply accept the ruling, but sought to use ISDS to nullify the court's decision. The natural instrument would be the trade agreement between the US and Australia, but the Australian government had wisely refused to accept a corporate sovereignty chapter there. So Philip Morris used an obscure 1993 trade agreement between Australia and Hong Kong, which did have ISDS, claiming that its business activities in the latter territory gave it the right to invoke the treaty -- a classic example of "treaty shopping".
Since those events from a few years back, we've heard nothing about how the Philip Morris ISDS case is proceeding -- until now, since The West Australian newspaper has discovered the following fact:
More than [AU]$50 million [about US$35 million] of taxpayer money is expected to go up in smoke defending cigarette plain packaging in a secretive international tribunal in Singapore.
But costs will pile much higher if Australia loses on its first defence that Philip Morris indulged in cynical "venue shopping" by shifting its headquarters to Hong Kong to sue Australia.
Philip Morris Asia is arguing that Australia's tobacco plain packaging measure constitutes an expropriation of its Australian investments in breach of Article 6 of the Hong Kong Agreement. Philip Morris Asia further argues that Australia's tobacco plain packaging measure is in breach of its commitment under Article 2(2) of the Hong Kong Agreement to accord fair and equitable treatment to Philip Morris Asia's investments. Philip Morris Asia further asserts that tobacco plain packaging constitutes an unreasonable and discriminatory measure and that Philip Morris Asia's investments have been deprived of full protection and security in breach of Article 2(2) of the Hong Kong Agreement.
The information obtained by The West Australian is significant, because it reveals the scale of the costs that a government must contemplate when defending itself against a corporate sovereignty claim. Given that background, it's easy to see why governments in these cases may choose to settle quickly, and to give the companies what they want, rather than risk mounting costs and a huge fine.
It's that fact that gives the lie to the claim that ISDS cannot force a government to change its laws. While that's true in theory, in practice governments are very likely to choose capitulation as the cheaper and easier option, recognizing that the whole process is biased against them. After all, unlike companies, a government can never win an ISDS case: the best it can hope for is not to lose.
from the officer-still-believes-no-'excess'-in-this-use-of-force dept
This was an extraordinarily-fast resolution to an excessive force lawsuit, especially considering it took a trip to the appeals court.
The culprit here is Polk County Sheriff's Deputy Anthony Burgess (presumably no relation except for the ultraviolence). Burgess works for Techdirt favorite Sheriff Grady Judd, a man who's more showboat than sheriff and who has frequently mistaken his Florida office for an episode of "To Catch a Predator."
Burgess helped "effect" the arrest of a man who was peacefully going about the business of being arrested. The suspect was ordered to spit out the cigarette he was smoking while he was being cuffed. He turned his head and did so, and the spit cigarette allegedly grazed the sleeve of Deputy Burgess -- whom the suspect hadn't seen approaching from behind him.
This didn't sit well with Burgess, who then interrupted the handcuffing of the suspect by throwing him to the ground in an extremely violent manner.
Deputy Burgess then grabbed Mr. Ramirez by his torso and took Mr. Ramirez to the ground, severely injuring Mr. Ramirez’s right leg and scraping Mr. Ramirez’s face on the road. Mr. Ramirez’s hands were in the air when he was thrown to the ground. Mr. Ramirez testified that the gun was in his face throughout the incident, until he was taken down. Deputy Burgess held Mr. Ramirez on the ground, with his knee on Mr. Ramirez’s spine, and handcuffed Mr. Ramirez. Deputy McLeod then put his foot on Mr. Ramirez’s head. Mr. Ramirez was held on the ground until a police vehicle was brought to the scene. Mr. Ramirez’s tibia was shattered by the takedown, and his face was bleeding, bruised and swollen. Additionally, Mr. Ramirez has tendons and ligaments in his leg that are torn beyond repair as a result of this incident.
Burgess tried for immunity, claiming the use of force was justified and not excessive given the circumstances. The court disagreed.
When Deputy Burgess used force to effectuate the arrest here, Mr. Ramirez had already stopped moving, had surrendered, was obeying the deputies' commands, and posed no threat to the safety of the officers. In fact, by taking Ramirez to the ground, Deputy Burgess interrupted another officer, Deputy McLeod, who was handcuffing Mr. Ramirez. Ramirez was being arrested for a misdemeanor offense, domestic violence – battery. The undisputed facts show that Ramirez followed every command the deputies gave him, including the command to spit the cigarette out. Ramirez could not use his hands to take the cigarette out of his mouth because his hands were either in the air or being held behind his back from the time he was initially stopped until the takedown. There are no allegations that Mr. Ramirez was actively resisting arrest or attempting to flee. Ramirez did not attempt to fight, kick, hit, or swing at the deputies. He was compliant with the deputies’ commands. The evidence, in the light most favorable to Ramirez, indicates that Ramirez did not pose a threat to the safety of the officers or others.
A reasonable law enforcement officer in this situation would not believe that anything more than de minimis force was warranted. Yet, Deputy Burgess used force sufficient to break bones and tear ligaments. That force was excessive.
And because the court found the force excessive, away went Burgess' immunity.
The right to be free of excessive force by law enforcement officers during an arrest is clearly established. Because Deputy Burgess’ conduct violated a clearly established constitutional right of which a reasonable person would have known, he is not entitled to qualified immunity.
Viewing the facts in the light most favorable to the Plaintiff, the cigarette grazed the sleeve of Deputy Burgess’ uniform. Deputy Burgess was not injured by the cigarette and there is no evidence that this action amounted to a level of resistance that made breaking Mr. Ramirez’s leg reasonable – particularly in light of the fact that it was Deputy Burgess who instructed Mr. Ramirez to spit out the cigarette in the first place.
This appeal stems from a citizen-police encounter. Defendant Burgess, an officer in the Polk County, Florida, Sheriff’s Office, contends that the District Court erred in denying him qualified immunity as to plaintiff Carlos Ramirez’s claim, brought under 42 U.S.C. § 1983, that Burgess used excessive force in violation of the Fourth Amendment in arresting him on the night of July 28, 2010. We disagree. Taking the evidence in the record in the light most favorable to Ramirez, we conclude that a reasonable jury could find that Burgess used excessive force as Ramirez contends. AFFIRMED.
This is the entirety of the opinion. Very few unpublished opinions run more than a couple of pages at the most, but this unpublished opinion runs only four sentences, and that's if you include "AFFIRMED." This is a swift booting that defines the term "dismissive." One almost can see the eyeroll that accompanied this quick review of the facts. Being an appeals court judge means spending time on the weakest of appeals, simply because every appeal must be looked at. There's nothing in this one, though, and the court only wastes the number of words it absolutely has to in order to send it back where it came from.
We've previously pointed out how some charities might need some changes to improve their reputation, public image and effectiveness. Some charities have been vilified for million-dollar CEO salaries or inefficient operations, but in the end, everyone wants to see more net good come from their donations than would have happened by doing nothing, right? Here are just a few examples of charitable organizations getting some good results -- even if their methods may still be debated.
The FBI recently raided a small gas station in Cleveland, Ohio for apparently no other reason than having a controversial mural painted on the wall.
The SWAT team, armed with rifles, handguns, and bulletproof vests, stormed through the store without showing any warrants or answering any questions about why they were there according to the store’s owner, Abe Ayad.
According to Cleveland’s NewsNet5, Ayad demanded to see a warrant from the agents, but they were never able to show him one.
Here's some video of the raid, which apparently concluded (the video, not the raid) when FBI agents shut down the recordings.
*While this sounds entirely despicable, there is a small bit of truth underlying the depiction of a rabbi with his mouth on an infant's penis. Here's a description of the circumcision process, as practiced by some Orthodox members of the Jewish faith. It's short, but says all it needs to say.
Under Jewish law, a mohel must draw blood from the circumcision wound. Most mohels do it by hand with a suction device, but some Orthodox groups use their mouth to draw blood after cutting the foreskin.
Abe Ayad "identifies" as a Muslim, which probably makes him a Muslim (distancing use of "identifies" courtesy of Cleveland.com), which probably explains why so many of his murals target Jews. That these are displayed on the outside of his business sort of makes it a civic issue. In all fairness to the city, it has never demanded a removal of the murals. It has only asked that they be made smaller and thus less visible from the road.
Ayad has refused. And if a man's home is his castle and his licensed business his castle with an ROI, then he should -- for the most part -- be free to decorate it with images others might find offensive. (Obviously, actually obscene images would be another issue altogether.) Those offended are free to tell Ayad he's a racist and a fool and spend their money elsewhere. It's not as though Ayad is the sole provider of anything in Cleveland. But considering the issues at the center of the artwork, the city has responded in a mostly commendable fashion. There seems to be nothing approaching a heckler's veto being humored here.
That's the good news. Here in the US, people are free to display their irrational hatred and ignorance. If Ayad isn't actually committing violence against Jews or imploring others to commit criminal acts, then his artwork is just a two-party wall of shame that should be pitied for its deep-held ignorance, rather than booed off the face of the planet by the offended.
Ayad also claims to have been raided by local police in 2009. He doesn't specifically say it was because of the murals (it's implied) but law enforcement seized money, guns and an apparently very expensive stamp collection. Most of it was subsequently returned.
"They can’t arrest me. For what?” said Ayad. “2009 they raided me too. No charges. They gave me back my guns, they kept my money and then they gave me back my money minus the coin collection, which was valued over $3 million.”
Similar items were seized in the recent raid. But this doesn't have anything to do with the murals, even if Ayad is skewing it in that direction. Cleveland.com has, simultaneously, no details and more details.
FBI spokeswoman Vicki Anderson said agents surrounded and sealed off the East 55th Street gas station about 10 a.m. to execute a warrant.
She would not provide any other details.
Ayad, however, did.
The store's owner, Abe Ayad, said agents were looking for evidence of food stamp fraud and illegal gun sales. Ayad said no such activity has taken place in the business.
Which is not the same thing as being raided for controversial murals. Ayad may believe this is part of a conspiracy to shut down his business and save the city from having to field more mural-related complaints, but it appears the issues at hand in this raid (and the 2009 raid as well) are unrelated to the paintings on the exterior walls.
Now, it may be possible that two raids with six years between them are both a part of a larger plan to disrupt and destroy Ayad's business. It could be Ayad's multiple appearances in court for civil lawsuits are also instrumental to the city's long-term plan to be rid of his murals forever. Or it could simply be that neither of these are related to the artwork, but rather inextricably tied together because the murals on the outside can't be separated from the interior of the business endorsing these viewpoints.
It may be that someone in Cleveland's law enforcement community has it in for Ayad, possibly because of the murals, but there doesn't appear to be a sustained history of harassment. While the city would undoubtedly enjoy a respite from Ayad's "antics" and the complaints that follow them, there's very little here to justify any claims that the FBI raided Ayad's store over the murals. Free speech (mostly) lives here and Ayad's contentious relationship with a great many people has yet to see his store shut down for any reason, legitimate or not.
As for Ayad not being allowed to see the warrant, that's perfectly legal as well. Law enforcement officers are under no obligation to present the warrant before performing searches or seizures. It's simply enough that the warrant exists and is presented to the raided party at some point during the search. A "warrantless raid" -- as this has been portrayed -- means the absence of a warrant, not just that the raided party wasn't presented with a warrant before it commenced. Any number of exigent circumstances exist that allow for the presentation of a warrant after a search/seizure has already commenced. In this case, paperwork was handed over to Ayad at the time of the agents' departure. So, while a bit on the shady side morally-speaking, the entire operation clearly falls within the legal bounds.
I'm all for a "bad cop/censorship" narrative, but one doesn't exist here. I prefer the ones where the official parties have buried themselves, rather than grab a shovel and start hurling dirt when in possession of only a bare minimum of facts. So, score one for the good guys, I guess -- pending any further details that point to the FBI being pointed in the direction of Ayad because (a) he's Muslim and (b) he owns guns.
There's a number of reasons Verizon is slowly exiting the fixed-line broadband business and focusing on wireless. One, wireless is notably less regulated than Verizon's aging copper lines, which are saddled with "cumbersome" requirements that they keep these services (since they were largely paid for by taxpayer subsidies) active for folks like your grandma. Wireless is also far less unionized, with around 2% or less of Verizon's 38,000 unionized workers employed on the wireless side. Since the data is usage-capped, wireless also has huge profit growth potential as Internet video explodes on mobile networks.
Verizon's currently engaged in contract negotiations with the company's 38,000 unionized workers at the CWA and IBEW, whose contracts expired August first. Negotiations haven't been going so well, with the CWA threatening to strike and Verizon busily training 15,000 replacement workers should that happen (though, even with the contract expiring, the parties have agreed to keep negotiating without a strike for now). But Verizon's also taking some other interesting precautions. The company is giving non-unionized workers an app in the hopes that they'll record union workers engaged in bad behavior. Verizon says this isn't to collect useful dirt on union employees, but to protect the company's infrastructure:
"Amy Seifer, Verizon associate general counsel for labor and employment, told RCR Wireless News, “The app serves three primary purposes: the first is a means for our management employees to report or document an unsafe situation, unlawful act, or violation of our code of conduct, and it will also be used by managers who have been assigned to these union positions for the duration of the strike to ask questions about installations or repairs they are handling. It also provides a means for our employees to submit suggestions on process improvements."
In the age of everyone recording everyone else, it's not too surprising that Verizon wants to keep a closer eye on union workers. But curiously Verizon's interpretation of what can and can't be recorded is, you'll be shocked to learn, not exactly equitable. According to Verizon's worker code of conduct (pdf), these union workers being recorded technically can't record Verizon or these other non-unionized employees:
"1.8.2 Use of Recording Devices
In many jurisdictions, use of recording devices without the consent of both parties is unlawful. Unless you are participating in an approved observation program or you have obtained prior approval from Security or the Legal Department, you may not record, photograph, or videotape another employee while the employee is at work or engaged in business activities or access another employee’s systems, records or equipment without that employee’s knowledge and approval. In addition, unless you receive prior approval from the Legal Department, you may never record, photograph or videotape any customer, business provider or competitor without that person’s knowledge and approval."
Apparently, apps that let non-unionized employees track, monitor and report on unionized workers would be one such "approved observation program." Union workers, should they strike next week, apparently won't be enjoying the same privilege.
from the dodgy-agency-dodged-by-respectable-parties dept
The FBI's cyber-initiatives may be doomed to fail. While it seems to have little problem acquiring and deploying new technology and techniques, it's finding it very hard to talk people into running all of it, as Alexander Martin at The Register points out.
The Federal Bureau of Investigation is struggling to hire computer scientists, according to a Department of Justice audit of the feeb's attempts to implement its Next Generation Cyber Initiative.
A 34-page audit report (PDF) from the DoJ notes that, while making considerable progress, the FBI has "encountered challenges in attracting external participants to its established Cyber Task Forces".
The Inspector General's report provides additional details on how far behind the agency is falling on its hiring goals. Even the hiring process itself is holding the FBI back.
While the process may start with a recruitment event attended by 5,000 interested candidates, the inability of candidates to meet the FBI’s specific eligibility criteria reduces that number to approximately 2,000 eligible candidates. Subsequently he told us that only about 2 candidates out of such a group are actually hired by the FBI. Another FBI official told us that the FBI loses a significant number of people who may be interested because of the FBI’s extensive background check process and other requirements, such as all employees must be United States citizens and must not have used marijuana in the past 3 years, and cannot have used any other illegal drug in the past 10 years. Another factor may be that private sector entities are able to offer technically trained, cyber professionals higher salaries than the FBI can offer.
The whitehat hackers the FBI would like to hire are looking for more pay and a less-intrusive hiring process. The FBI's hiring process and wage scale are unlikely to be responsive (though the latter is far more flexible than the former) to these demands. As long as coders can get better pay from employers that don't subject them to this level of pre-hire intrusion, the FBI will always find its staffing trailing its capabilities.
While the Five Eyes partners mentioned in the report have expressed their support of the FBI's cyber-focused joint task force, it's clear the public has not. But that part of the equation isn't mentioned in the OIG report. It may have been discussed off the record, but there's no acknowledgment that the post-Snowden climate -- combined with the exposure of FBI misconduct ranging from national security letter abuse to its series of entrapment-esque terrorism busts -- have made the FBI a less-than-desirable employer. Its reputation isn't entirely toxic, but it has managed to alienate a large portion of the tech crowd it wishes to hire. Director James Comey's continued assault on encryption isn't helping anything.
It's doubtful the deployment of a G.I.-bill-but-for-coders will fix this, but that's what the agency is looking to do.
One FBI official explained that the FBI is offering several incentives to recruit individuals including school loan repayment, reimbursement for continuing education, and hiring at higher salary levels on the general pay scale. He also added that the FBI is providing training opportunities for existing personnel including certifications and enrollment in the Carnegie Mellon University Master’s program in Information Technology as retention tools. In addition, in December 2014, the FBI announced to its employees a similar program at the New York University Polytechnic School of Engineering.
The good news is that once someone's hired by the FBI, they tend to stay, despite more lucrative opportunities elsewhere. But that's of little use when the problem is acquisition, rather than retention.
As of January 2015, however, 52 of the 134 Computer Scientist positions remained vacant and 5 of 56 field offices did not have at least 1 computer scientist, as planned.
Working for the FBI isn't like working for another tech company. The job also has a social cost that won't be addressed by student loan assistance and training opportunities. To work for the FBI, especially for someone who identifies as a "hacker," is to say goodbye to a large number of your colleagues. While the private sector doesn't lack for non-disclosure agreements, the FBI's disapproval of "shop talk" with friends and family carries hefty federal weight behind it. Normal small talk starts to resemble a series of probative queries. This may only exist in the minds of those interacting with friends and colleagues who have taken jobs at the FBI, but it's enough to make things uncomfortable.
The FBI may believe its problems are mostly of the pay scale variety, but there's more to it than purely fiscal concerns. The agency may do good work, but it has engaged in questionable investigations and activities almost since its formation. Leaks and FOIA documents have done further damage to its reputation in recent years. The FBI, despite its technical prowess -- appears to be anti-tech, at least in terms of fighting against any advances that impede its surveillance techniques. The agency, for the lack of a better word, is untrustworthy. The FBI appeals to candidates' idealism during the recruitment process, but over the years, it has repeatedly acted without integrity. Because of that, it will always have a problem finding whitehats willing to work for an entity that often seems to be in the "blackhat" camp.
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We live in a world that venerates "ideas" but ignores the fact that even the best idea is worthless if it's poorly executed. In turn, people who "copy" ideas are often demonized, even when it's their superior execution that is responsible for their success. But the truth is that copying is a critical part of innovation and progress, and the instinct to ignore or refute that idea has left us without many clear measurements of its impact — not to mention lots of bad policy, and a highly problematic "ownership culture" when it comes to ideas and creative output.
There have been plenty of discussions on the possible "risks" of running a tor exit node, where clueless law enforcement might confuse traffic that comes out of that node as being from the person who actually manages the node. And, indeed, last year we wrote about an absolutely ridiculous case in which a tor exit node operator in Austria was found guilty as an "accomplice" because someone used his node to commit a crime. Thankfully, it appears that the US isn't going quite down that road yet. It appears that a month and a half ago, of all places, the website Boing Boing received a subpoena concerning the tor exit node that the site hosts, demanding an appearance before a federal grand jury in New Jersey.
Except, Boing Boing's lawyer, Lauren Gelman, quickly shot off a note explaining "tor exit node" to the FBI... and the FBI understood what was going on and moved on. Really. Here's the note that Gellman sent:
Special Agent XXXXXX.
I represent Boing Boing. I just received a Grand Jury Subpoena to Boing Boing dated June 12, 2015 (see attached).
The Subpoena requests subscriber records and user information related to an IP address. The IP address you cite is a TOR exit node hosted by Boing Boing (please see: http://tor-exit.boingboing.net/). As such, Boing Boing does not have any subscriber records, user information, or any records at all related to the use of that IP address at that time, and thus cannot produce any responsive records.
I would be happy to discuss this further with you if you have any questions.
They didn't have any questions. They understood the situation and (one assumes) continued the investigation through other means. As Cory Docotorow writes:
The FBI agent did his homework, realized we had no logs to give him, and no one had to go to New Jersey. Case closed. For us, anyway. Not sure what went down with the grand jury.
We write plenty of stories about "clueless" law enforcement and politicians overreacting to things by not understanding the technology. Because that's newsworthy. But it is worthwhile, every once in a while, to remember that there are some in these jobs who do understand technology and are perfectly willing to understand what is happening and continue to do their jobs without going overboard.
And, as Cory notes, perhaps this story of nothing actually happening will be useful in convincing a few more people that maybe the "risks" of running a tor exit node aren't quite as high as some have made them out to be. Yes, you may receive a subpoena, but hopefully it's from law enforcement willing to understand how tor actually works and what it means.
We've written a couple stories already about the ridiculous (and chilling) decision by German prosecutors to investigate the news site Netzpolitik for treason in publishing a couple of stories about plans to expand German surveillance capabilities and powers, with whistleblowers as sources. Things have become fairly heated over the past few days and appear to have just resulted in the country's Justice Minister firing the top prosecutor behind the investigation.
On Friday, Justice Minister Heiko Maas said publicly that he didn't think the investigation was appropriate and that he had told the chief federal prosecutor Harald Range exactly that. Following this, Range announced that he was pausing the investigation "for the good of press and media freedom," but then lashed out angrily at Maas, saying that his statements were "an intolerable encroachment on the independence of the judiciary." Details of internal discussions quickly slipped out into the public, after Range had told Maas he was intending to continue the investigation after an "independent" expert he had brought on determined that the documents revealed by Netzpolitik did contain state secrets.
[Range] said the independent expert had agreed that the documents appeared to be state secrets, as asserted by domestic security agency chief Hans-Georg Maassen.
Range said he had informed the justice minister of this but was told "to immediately stop" the process of commissioning outside advice.
The chief prosecutor said he had complied, but he added angrily that "to exert influence on an investigation because its possible outcome may not be politically opportune represents an intolerable encroachment on the independence of the judiciary".
"I saw myself obliged to inform the public about this," he added in a statement.
On the broader Netzpolitik case, he said: "The freedom of the press and of expression is a valuable asset.
"But this freedom, including on the Internet, is not limitless. It does not absolve journalists of the duty to comply with the law."
And... in response to that, it appears that Maas has fired Range:
"I have told federal prosecutor Range that my trust in his ability to fulfill the office has suffered lasting damage and therefore in agreement with the Chancellery I will request his retirement today," Maas told reporters in Berlin.
Maas also claims that Range's statement about Maas telling him to stop commissioning outside advice was "false."
The whole thing appears to have turned into quite the soap opera. Over the weekend, I had a long discussion about this case with someone quite knowledgeable about German law and legal process, who noted that the situation may not be quite as troubling as some are making it out to be, because all of this needs to happen in public under German law (including the notification of the investigation) unlike the American system, under which a grand jury can proceed with an investigation for years in total secrecy. And while the publicity around this investigation appears to be having an impact on (hopefully) curtailing and ending this investigation, it does not change the fact that the investigation happened in the first place, or the kind of chilling effects that it is clearly creating for journalists and whistleblowers alike.