An inexplicable wave came over white women of child bearing age from 1980 to 1990 that compelled them to name their male offspring “Josh.”  Today, walk into a meeting of the Young Lawyer Section of the ABA and yell out, “Hi, Josh,” and you’ve got 90% of the place covered.  It’s weird, but Mrs. Blackman succumbed like her contemporaries.

When Joe Palazzolo, the guy who took over the Wall Street Journal Law Blog after  Peter Lattman went legit,  Dan Slater got dumped and Ashby Jones got bored, and now mails it in, wrote about Paul Ryan on the Rule of Law, it was a provocative enough title to take a look. While I learned nothing whatsoever about Ryan, I did get a surprise.

H/T to Josh Blackman, a professor at South Texas College of Law, who  highlighted the speech on his blog.

As Professor Blackman notes, Mr. Ryan casts the ever-present tension between liberty and security in economic terms.

The vice presidential debate — remember: Joe Biden taught constitutional law  – could be very interesting, as Professor Blackman points out.

Professor? Not only does Palazzolo mention Josh Blackman three times, but each time made sure to note he was a “professor.”  How is this possible, I wondered?  Josh Blackman was a smart, extremely wet behind the ears law grad about 30 second ago, and now he’s a professor?  Not that I’ve ever heard of South Texas College of Law before, but apparently it exists and Josh is a professor at it. Huh?

Some kids coming out of law school know, just know, that they want to be scholars. Nothing wrong with that, and Josh Blackman was definitely one.  To that end, he wrote thoughtful posts at his blog, and for while was allowed to guest post at Concurring Opinions,  Both reflected two disturbing, if not surprising, problems. 

First, a peculiar self-absorbtion, like a five year old on the high diving board yelling at the grown-ups to look at him.  Second, a desire to opine on matters far, far beyond his ken, such as the future of legal education and the practice of law.  In noting this, I  subtly hinted that Josh might want to change his trajectory a bit:

Yet, one of our own has boldly leaped where no man has gone before.  Following on a  curious post by Josh Blackman, who is in the process of transitioning from law student to legal scholar by hurdling over the chance to practice law, if only for a moment.

Aside: One of the most intriguing things about most of those who aspire to telling lawyers what their future will be is that they don’t actually practice law, and some have never practiced law.  It’s like being a food critic when no savory crumb has ever passed their lips, and they’ve only gazed upon cuisine from afar, reminiscent of a Star Trek episode they’ve likely never watched where the food looked magnificent but had no flavor whatsoever.  And yet, they feel no shame in telling those who do about the view from those who don’t. Go figure.

Sadly, I was ignored. As soon as his clerkship was over, Josh signed up for pedagogy, rather than spend a few minutes of his life actually being a lawyer. You know, just for the experience of it.  Try a case. Negotiate a deal. Hold a real person’s hand whose life or fortune depends on you. Learn for yourself what it is you hope to teach someone else. Something. Anything.

But no. Instead, Josh made a bee line to South Texas College of Law, the Harvard of Houston, award-winning for best work/life balance and cafeteria barbecue, where young minds will be placed in his hands.

And with his new post comes the return of his blog, aptly named Josh Blackman’s Blog, where he has gotten right down to business with a critical and thoughtful plea :

Wanna help me get back into the ABA Journal Blawg 100?

During my hiatus, I was unceremoniously bumped out of the august crowd of the ABA Journal Blawg 100 after my entrance into this Parthenon of Electrons in 2010

Now, I’m back. If you would like to help, please nominate me here. It only takes a moment.

Welcome back, Josh.  It’s too bad you didn’t take my suggestion to heart. And if begging for the attention of others (it only takes a minute?) matters this much to you, I hope someone nominates you.  But it still won’t prepare you to teach law school, or to opine about matters you’ve only seen from afar.

The shooting in Darius Kennedy, a man with a knife, may have happened in the most public place on earth, Times Square. It comes as no surprise, therefore, that tourists from everywhere pulled out their cellphones are recorded the incident.  One tourist, however, had the misfortune of being noticed by the police.

Julian Miller, 22, who was visiting New York from Boston, said the police confiscated his phone after he recorded video of the confrontation. He said in an interview that he followed the pursuit from Times Square to 37th Street and Seventh Avenue, his phone recording as he ran to keep up. He said a police detective pulled him aside after the shooting and asked to see his phone and the video.

Assuming that Miller, like most people these days, has a cellphone that is both expensive and utilitarian, in the sense that he kinda likes to have it so he can use it at his leisures, the question is raised whether the police have the authority to seize it. 

A secondary question relates to the contents of his cellphone, in that it is likely to contain other, personal information and images that are private and which he prefers that no one, particularly the police, can see.  While one might surmise that they will only be interested in the video of the shooting, there is nothing to prevent the cops from inspecting all the contents of his phone, whether in searching for the video or just for fun.  Should there be images that are either inculpatory, or perhaps just personal, what authority do they have to inspect it?

Before going further, it’s critical to bear in mind (for the non-lawyers) that police have no rights.  Rather, they possess authority pursuant to the police power, the general authority to make and enforce laws that regulate behavior for the public health, safety and welfare.

Historically, the police possessed the authority to seize evidence that was either contraband in itself or relevant and material to prove that a crime occurred and the identity of the perpetrator of the crime.  This authority related to seizure from the person being arrested for the crime, and there was little question in the law about the authority to do so. However, seizing a cellphone from a wholly unrelated third part, in this case a tourist from Boston, raises an entirely different question. 

Just as cellphone videos have become ubiquitous, so too has seizing the cellphones of unrelated third parties.  While it may be understandable why the police want the video, and there is little question that the video (or still images) may be relevant to the underlying incident (and is substantively evidentiary), it remains the property of a person who has concededly committed no crime and is otherwise uninvolved in the underlying incident.  By what authority can police confiscate the personal property of a law-abiding citizen?

Quick research has revealed nothing dealing directly with the issue of cellphone videos.  The only effort at meaningful commentary comes from (you guess it) Carlos Miller at Photography is Not a Crime,

Two attorneys I interviewed in 2009 in the wake of the Oscar Grant incident said that police can only seize your camera if it was used in the commission of a crime, such as child pornography or upskirting.

And more recently, Mickey H. Osterreicher, attorney for the National Press Photographers Association reiterated those statements in a letter to Miami Beach Police Chief Carlos Noriega (bold emphasis mine):

Your officers should be well aware that they may only seize the property of another pursuant to a lawful arrest or by court order. Their alleged actions with regard to the seizure of a WPLG camera from a working photojournalist cannot be tolerated. Video showing another officer pointing his weapon at an unarmed citizen, who was then allegedly pulled from his car, placed face down on the pavement, handcuffed and threatened at gunpoint is an affront to the public. For officers to do so and then smash his cell phone in hopes of destroying any recordings should make them liable for both criminal and departmental prosecution.  

However, another attorney I interviewed said officers do have the right to confiscate your camera to preserve evidence.

This can only be done in extreme cases such as homicides, rapes or kidnappings, said Michael Pancier, who not only is a nature photographer, but is representing me in my case against 50 State.

Pancier, who Carlos notes is a strong advocate for photographers’ rights, goes on to argue that

The alternative (to confiscating camera) is that they detain you until such time as a subpoena is obtained which could be days.

Evidence has to be preserved.  If you photographed a murder scene; that’s evidence;  they can’t just let you go and hope that you don’t delete it or alter it.   If the evidence is not immediately preserved, it may be challenged and may be inadmissible. Likewise, if the evidence is destroyed or lost because it was not preserved; then a whole case whether for the state or the defense may go down the tubes. 

Carlos then asked the money question:

I asked Pancier what is more important, preserving the evidence or preserving the Fourth Amendment and he said preserving the evidence is preserving the Fifth Amendment that entitles a suspect to due process in the legal system.

“When you have a serious crime where somebody can do 25 years to life, then it’s important to gather all the evidence,” he said.

Because that video clip might turn out to be exculpatory evidence, meaning it could prove the defendant’s innocence.

While Pancier’s rationale is certainly logical, it seem to utterly miss the critical issue: By what authority do the police seize the property of an unrelated third party?  As a corollary, by what authority do the police seize the person of an unrelated third party, as suggested by Pancier as the alternative, who has committed no crime?

Clearly, his argument that the images may just as well be exculpatory as not, and that exculpatory evidence is something the defense certainly wants to preserve, is true. But good intentions are not a substitute for lawful authority. The Constitution does not permit the police to simply seize property at will from people who have committed no crime because it’s in their interest to do so. Indeed, it prohibits the government from taking property without authority and just compensation. 

The police can use court process to obtain evidence and testimony, whether by a subpoena or, where there are reasons to believe a witness will not comply, a material witness warrant.  That it doesn’t prevent a witness from destroying the evidence in the interim (whether innocently or intentionally) is certainly true, and clearly a problem for whoever desires the evidence.

But the alternative, that police are empowered to seize at will the personal property of innocent people, unrelated to the commission of any offense, is fundamentally intolerable. No matter how much the police (or the defense) might have wished the videos be preserved, there is no authority for the police to seize property from people who have committed no crime.

While Radley Balko is busy studying up for his CPA exam (or something like that), he’s got some friends providing guests posts at the Agitator.  One guest is Lenore Skenazy from Free Range Kids, fighting to keep our children from being put in a hermetically sealed bubble so they never skin their knee and, instead, have a life.

Lenore picked up on a story in the  New York Post about unicycling high school student, 18-year-old Isaih Rosemond.

The laundry list of shocking major allegations is long: 

• An approach following a rolling stop with gun drawn


• Strip search for an alleged rolling stop


• Strip search on the side of a public road


• Strip search in front of her children


• Second strip search


• Forcible removal of a tampon

• Michael Sechrest wants to earn a legal fee


• This is not going to be a quick settlement for nuisance value


• Given the outrageous nature of the allegations, Sechrest certainly conducted a significant investigation before putting his name on the complaint and is confident that his client’s story is both accurate and provable


• The Sheriff hasn’t produced a dash cam video of the stop to disprove the allegations

• The Citrus County Sheriff’s Department vehemently denies it


• No witnesses have come forward to say to say they were on that busy street and saw a woman being strip searched


• There is no video to prove it happened

“The Citrus County Sheriff’s Office wants to go on record as saying the allegations made in this lawsuit are not only ludicrous, but completely untrue.  Yes, a traffic stop was conducted on July 17, 2011.  The plaintiff was issued a criminal citation for violation of restrictions on her driver’s license.  She also was issued a written warning for rolling through a stop sign.

No strip search was conducted, and the plaintiff’s tampon was never forcibly removed by any deputy.

It is the Sheriff’s Office intent to aggressively defend itself against these malicious allegations.

As required by the police handbook and the ABC Affiliate “never piss off the cops” policy manual, the obligatory irrelevant smear of the claimant was thrown in at the end.

Tarantino has been arrested multiple times in the past for drug possession, driving under the influence and domestic battery.

Whether this revelation is included for the purpose of proving that she deserved whatever happened or that “she must be high” isn’t clear.  It is curious that they elected to mention domestic battery, given that this is a sheriff’s department, for whom domestic battery is an occupational hazard.

It’s possible that the understanding of strip search differs from the police to the lawyer and his client.  Perhaps the police understand it to be the full removal of all garments, while Tarantino believes it to be the removal of something less than everything.  There is some wiggle room in the relative use of the phrase strip search, and the removal of some garment may not equate to the police view of squat and spread as the sine qua non of a strip search.

It’s harder to explain the forcible removal of a tampon, however.  Does this mean that the female officer, one of six present, commanded Tarantino to remove her own tampon, or does it mean that the officer physically did the removal?  The latter is not merely gross, but truly bizarre. 

One would assume that some passerby would come forward to confirm at least part of Tarantino’s allegations.  Unless, of course, people are strip searched on the side of the road in Citrus County so regularly that no one would make note of it.  Or no one wants to make enemies for life with their local sheriff’s department, just in case they need them some day or find themselves inadvertently rolling through a stop sign.

All things considered, it seems more likely than not that the claims of Leila Tarantino are true, at least as far as she and her lawyer understand their allegations.  Of course, if it’s as ludicrous as the sheriff’s department claims, there is always the dash cam video to show that she’s out of her mind and none of this ever happened. 

Leila Tarantino and her lawyer, Michael Sechrest, have laid their cards on the table.  It’s up to the sheriff’s department to do the same. Denials notwithstanding, the ball is in their court to show that this is not merely crazy, but false.

Law professor Jay Wexler lives in a strange place. No, not Boston, but his mind.  Only a mind that functions a bit differently than the rest of us could produce his latest book, The Adventures of Ed Tuttle, Associate Justice, and other stories, his first work of fiction. 

The opening line in my review of Jay’s last book, The Odd Clauses, was “Jay Wexler is a very funny guy.”  I meant funny in a conventional sense. His new book, sent to me for review, is anything but conventional.  Consider this excerpt from the chapter, Henry Clay Will Solve Our Problems.

December 2010. In Mexico City, a U.S. climate change negotiator argues with his Chinese counterpart.

CHINESE NEGOTIATOR: We absolutely cannot accept this proposal. The developed world has created this global warming crisis, and you must lead us out of it. The United States must pledge to cut emissions by 50% and provide low-cost technology to developing nations.

U.S. NEGOTIATOR: My country will never agree to such drastic cuts unless yours agrees to the same. China is the greatest emitter of greenhouse gases in the entire world.

A dapper man enters and takes a seat next to the two negotiators.

HENRY CLAY: with booming voice, somewhat out of place in the small conference room Gentlemen, surely we can find some compromise!

CHINESE NEGOTIATOR: I’m a woman.

HENRY CLAY: And I am Henry Clay, the Great Compromiser. I have an idea that will appeal to both of your great nations. Neither of you want to decrease emissions unless the other one decreases emissions, right? So why don’t you both not decrease emissions?

A pause.

U.S. NEGOTIATOR: I’m cool with that. You?

CHINESE NEGOTIATOR: Umm, it seems wrong, but . . .

HENRY CLAY: Then it’s settled!

Another pause.

HENRY CLAY: Did I mention that I invented the mint julep?

t = rF sin θ and a smidge

He was hooked. 

The book is made up of short stories and vignettes that are both surreal and yet, in an inexplicable sort of way, not sufficiently surreal to be sure they couldn’t happen.  The title chapter, the story of Supreme Court Association Justice Ed Tuttle’s sex life and aspirations on vacation (how exactly does a Supreme Court justice, vacationing in Jackson, Wyoming, prove to hot chicks and roadies he really is a judge?) takes the reader on a severely alternative view of the big guys, but not all the stories are law related.  And even the ones that are use law as a hook rather than their core.

This is not a book that will enlighten anyone on the law.  Not even a little bit. But if your sense of humor is anything close to that of a guy who once worked in the Office of Legal Counsel at the Department of Justice, perhaps shattering the myth that there is no one in government who can tell a joke, you’re going to love this book.

Trying to get a firm grasp of the book to explain what exactly Jay is doing isn’t easy. Not at all. There’s a perpetual sense that it’s funny, yet it’s nearly impossible to explain why.  The “Lunch Beans” story, for example, is what I would imagine Kafka would write if he was studying for a math doctorate.  It can be that obtuse, and at the same time, sufficiently absurd as to make you laugh against your will.

It’s not as if Jay didn’t warn me that I was about to enter an odd world, as reflected in his inscription.



Why, I wonder, does Sal the pineapple hate himself?  I don’t know. It’s obviously a cry for help, but the options when it comes to pineapples are extremely limited.

As I read The Adventures of Ed Tuttle, I frequently heard a whooshing sound overhead. That was caused by the parts I didn’t get, or at least I wasn’t sure I got.  If you’re the sort of person who prefers his humor with a punchline, this isn’t the book for you. This is a book for people who are going to get the allusions and covert references, and who appreciate their humor with a side of absurdity. 

This is a book for smart, yet peculiar, people.  I’m not at all clear that I’m smart enough to have appreciated the book, even though I thought it funny and enjoyed it.  It was often beyond my ability to explain why.

The book reads very quickly, with the chapters short and utterly without discernible connection to each other.  It’s as if they reflect Jay’s lucid thoughts following a series of Timothy Leary lectures, feeling no compulsion to proceed in a linear fashion.

And yet, it was a book I wouldn’t miss reading. If Jay Wexler is insane, then this book is the way it spreads. Whether it will have any significant impact on sales of pineapples is doubtful, but read the book and see if you agree with my diagnosis. And if you understand why Sal hates himself, could you please let me know?

The New York Police Department announced that it has  identified the suspect in the shooting of Sgt. Craig Bier.  The image of the wanted man is all over the television and newspapers, and according to the information carefully leaked to every media outlet who cared to listen, the evidence to suggest they’ve got their man seems pretty strong.

A law-enforcement official with knowledge of the matter said Mr. Thomas was identified as the alleged shooter in two ways: A fingerprint on a magazine for a Ruger 9mm handgun, which was found at the scene and believed to be the weapon used in the shooting, was tied to Mr. Thomas, the official said.

 

Peter J. Smith for The Wall Street Journal
The weapon believed to be used.

In addition, a set of keys dropped at the scene were traced to an apartment in a Queens public-housing project where Mr. Thomas appears to live, the official said. According to the official, mail inside the apartment contained Mr. Thomas’ name. The apartment was unoccupied when police arrived there.

Whether this evidence pans out, or is susceptible to other explanation, remains to be seen, but given the opportunity to sell their case to the public before anyone has a chance to dispute it, the NYPD has made sure to prejudice as many people as possible.

But there’s one additional detail that has been passed around to anyone listening:

Mr. Thomas has 17 prior arrests for charges that include criminal possession of a weapon and criminal possession of controlled substances,

Did you catch that?  Not 17 prior convictions. Seventeen prior arrests.  No hint of what became of the arrests. Tried and acquitted?  Dismissed?  Were they for serious crimes or trivial offenses? Was he a regular on the stop and frisk tour of Queens?  Was he ever convicted of anything?  Anything at all?

And what of the crimes, since the police just happened to mention possession of a weapon and controlled substances.  Did he have a gun or a pen knife?  Did he have ten kilos of heroin or trace amounts of cocaine? 

While printing such meaningless drivel remind us that the media remains as clueless and unskeptical of police vagaries as ever, two things emerge from the fact that the police have chosen to leak this bit of inside information, which for all we know was sealed and should never have been known, no less revealed.

First, by the fact that they speak of arrests, the implication is that there are no convictions.  The public has a tough time distinguishing the significance of these two point, assuming that anyone arrested deserved to be arrested, since the police don’t wander the streets arresting black guys for nothing.  Except they do, with enormous frequency, but we prefer to pretend otherwise or we would feel constrained to do something about it.  That would interfere with television viewing and make life unpleasant.  Nobody wants life to be unpleasant, at least for themselves and while there’s a show on they want to watch.

Second, the smearing of a person by propensity, the suggestion that they are of a criminal nature, inclined to commit crimes, and therefore likely to have committed the additional crime for which they are now sought, remains as powerful as ever.  As every cop and prosecutor knows, tainting a person as being of a criminal bent creates the framework with which to view every allegation against him.  He’s a criminal, and therefore it’s easy to believe that he does criminal things.

This isn’t to say that the suspect isn’t the guy who shot Bier in both legs, Nor is this to say that there is any conceivable justification for whoever did the shooting for having done so.  Thomas may be guilty as sin.

But even if so, let him be proven guilty by evidence, not be pre-arrest taint spread thick across the media to make sure that every watcher of TV news or reader of a newspaper knows before a piece of evidence is offered in court that he’s just a criminal type of guy.

And it might serve the public interest for someone in the media to give a bit of thought to not only showing reluctance to dutifully serve the police by spreading its smear campaign, but by giving an iota of thought to what the cops are leaking and consider that 17 arrests, or 197 arrests for that matter, isn’t the same as a single conviction.  In New York City, 17 arrests could just as easily mean the guy likes to go out for a walk at a time that just happens to coincide with the end of his local beat cop’s shift.

While he plays a lawyer on TV, the ABC “voice of reason” juxtaposed to the Nancy Grace’s “voice of insanity,” it’s clear that  Danny Abrams needs to bone up on his legal research and caselaw analysis.  In a post at Lawyers.com, the Lexis-Nexis, Martindale-Hubbell effort to feign relevance in a digital world under the guiding hand of former social media marketer, now editor, Larry Bodine, Abrams cries about the falling sky :

Social media has changed everything, moving that chatter to the public sphere and putting educators on uncertain legal ground. Whether the issue is students making fun of their teachers or principals, kids bullying other kids, protesting school policies or flouting student codes of conduct, the move into the social media arena complicates an important legal issue.

Social media can be experienced and produced on mobile devices like smartphones and tablets, and that makes it difficult to determine a student’s location when offending comments are made. Imagine that a high school student posts an offensive picture of her principal on Facebook via her mobile phone. If the student pressed “Post” while sitting in her school’s parking lot it could theoretically be grounds for suspension, but if she’s five blocks away the school’s administrators might not have a legal leg to stand on.

A pair of federal cases involving student-created Myspace pages, for example, established that a school’s right to discipline may be confined to actions that take place on its physical grounds, even when the offending speech exists in the digital sphere. Although the Myspace pages caused disruptions that reached school hallways and (in one case)could be accessed on the school’s computers, the court held that the school had no right to discipline the students for speech that occurred outside school property.

Clearly, he never read the decisions, as his story bears no resemblance to their holdings.  Had he even bothered to read his own link, he would have realized that he got it completely wrong:

Using the guidance provided by the Supreme Court, the Third Circuit held that the students’ speech did not cause a substantial disruption in the school.  Nor did the creation of the profiles forecast a substantial disruption which would allow a school district to punish a student.  Further, just because the students’ speech was lewd, vulgar, and offensive and had an effect on the school and the educational mission of the District (one of the exceptions to the Tinker rule), the fact that it was off-campus speech meant it fell within the free speech umbrella.  Even if it reached the school, it was not enough to qualify under the Tinker substantial disruption exception.

Needless to say, had Danny done an legwork at all, he would have stumbled onto the case of Avery Doninger , whose run for student office was  terminated with prejudice because she called her school’s superintendent and principal “douche bags” for canceling a school function.  Or Morse v. Frederick, the  ill-conceived “bong hits for Jesus” case.  Anything strike a bell here, Dan?

It’s not that Dan Abrams isn’t allowed to take up arms against student speech, if he hates it as much as he says.  Just because his father was one of the premier advocates of free speech doesn’t mean the son can’t despise the First Amendment. Sometimes, the apple rolls far from the tree. Very, very far.  That’s his right.

What is not his right is to misstate the law and make people stupider for having read his post. 

For reasons that are unclear, Danny has become a legal television celebrity, his inability to find the courthouse notwithstanding.  His smiling face appears regularly, almost daily, the ABC entertainment show, Good Morning America.  Millions upon millions of people listen to him debate Nancy Grace on legal issues of the day, and given that the bar is being slightly more astute than one of the looniest legal commentators ever, he comes off as eminently reasonable.

But with his celebrity comes a responsibility.  It’s a duty to educate.  It’s a duty to be accurate.  It’s a duty to not let his hatred of free speech for others (remember, he’s a member of the commentariot, and as such gets paid to speak freely) color his legal explanation of the state of the law.  That he cannot do.  Yet, that’s exactly what he does here.

I remember Danny from the old days at MSNBC in Secaucus, when he was a nice young man, a lawyer who hitched his wagon with television rather than courtrooms. Smart, polite and badly in need of a well-pressed shirt, Dan’s heart and mind were in the right place even if he lacked the experience to back it up.  Now that he’s a celebrity, maybe his darker angels have taken over.  Maybe he just hates kids. I don’t know.

What I do know is that Dan Abrams is smart enough to figure out what the law says, and that regardless of his opinion that student speech needs to be shut down, the use of his celebrity and his law degree to grossly misinform people is irresponsible.  Unless, of course, he’s got it in his head to take over the Nancy Grace role on TV, in which case this post nails it.

Via Kevin Underhill at Lowering the Bar, it appears that one takes a grave risk of watching the Olympics in person if your face doesn’t show the requisite degree of “happy.”

Mark Worsfold, 54, a former soldier and martial arts instructor, was arrested on 28 July for a breach of the peace shortly before the cyclists arrived in Redhouse Park, Leatherhead, where he had sat down on a wall to watch the race. Officers from Surrey police restrained and handcuffed him and took him to Reigate police station, saying his behaviour had “caused concern.”

While the bobbies may well have good reason to show heightened concern, given that the Olympics may be a target for terrorism and the Brits don’t want another Munich on their hands, there’s a limit to what sort of things are sufficient to seize a fellow.  From the Guardian :

Worsfold, whose experience was first reported by Private Eye, claims police questioned him about his demeanour and why he had not been seen to be visibly enjoying the event.

“It could have been done better. I was arrested for not smiling”

As it turns out, Worsfold has Parkinson’s Disease, which is not (yet) a crime a Great Britain.  Apparently, having Parkinson’s is a more anticipated cause for concern there than one might expect.

Campaigners, however, said the incident was illustrative of the kind of “chronic misunderstandings” people with Parkinson’s have to deal with regularly. “Sadly Mark’s experience highlights the lack of understanding and compassion that many people currently living with Parkinson’s have to deal with every day,” said Laura Bowey, head of information and support at Parkinson’s UK.

On the other hand, once the police realized after two hours of “investigation” they had needlessly seized Worsfold, who had no nefarious scheme in mind when he failed to adequately smile, he was released unharmed.

Surrey police said: “There were a number of factors which led officers to make this arrest, including the fact that the race was rapidly approaching, the heightened level of security due to the high-profile nature of the event and the sheer number of spectators in attendance. These were fully explained to the individual concerned. He was given words of advice and released with no further action.”

While the actual “words of advice” given remains a well-guarded secret, Underhill may have the inside track:

“See if you can’t get that Parkinson’s disease cleared up before the next Olympics.”

Words to live by.  More seriously, however, is the concern that facial recognition software, developed to automate that keen eyes of the Surrey constabulary, will not only suffer from the same false positive reaction, but will hardly be as prompt to cure as did this little Brit kerfluffle.

The most relevant example being the NGIFRP—what? You haven’t been following the deployment of the NGIFRP? The Next Generation Identification Facial Recognition Program? That’s the government’s plan to include in its giant biometrics database at least 12 million “searchable frontal photos” (hopefully, this means your face) and develop software to track and ID people in crowd or social-media photos. The vast majority of such people, of course, will not even be suspected of a crime. But hey, can’t be too careful. Still, consider this: if human beings are so incredibly bad at identifying bad guys, let alone potential bad guys— and they are really, really bad at it—is it better or worse to hand that off to software? How well do you think that software will work?

The problem is that facial recognition programs involve “science” (note scare quotes).  If “science” says it works, then work it must. If “science” says it’s valid, then who is a judge to disagree?  After all, no one can argue with “science.”

That cynical Kevin Underhill not only suggests that this technology is unlikely to work in a way that won’t sweep in the Worsfolds of the world, but that somebody is going to get filthy rich off the government contracts.  Personally, I’m considering a substantial investment in Guy Fawkes masks. They’re always smiling.

In a decision described by Judge William Fletcher as “easy,”  the 9th Circuit enforced a DEA administrative subpoena against Golden Valley Electric Association in Alaska for a broad array of information about three of its customers.  At the very least, Golden Valley’s refusal to simply hand over its records without a fight warrants appreciation and admiration, despite its having taken the loss.

While most companies are not merely happy to turn over anything requested by the government, usually sending a box of donuts along with personal information just to remain on its good side, GVEA decided that it would rather protect the privacy of its members than become a cog in the government’s wheel.  The request was, to be mild, intrusive:

As part of its investigation, the DEA served an administrative subpoena on Golden Valley pursuant to 21 U.S.C. § 876(a). The subpoena ordered Golden Valley to provide company records pertaining to electricity consumption at three specified customer addresses. The records subpoenaed were:

customer information including full name, address, telephone number, and any account information for customer; method of payment (credit card, debit card, cash, check) with card number and account information; to include power consumption records and date(s) service was initiated and terminated for the period 10-01-2009 through 12-14-2010, if applicable[.]

Golden Valley did not immediately comply with the subpoena.

The Comprehensive Drug Abuse and Prevention Act of 1970 was intended to “strengthen law enforcement tools against the traffic of illicit drugs.” No law since the ratification of the Bill of Rights to the Constitution was intended to strengthen tools to protect our privacy from the government. 

The purpose of the subpoena was to ascertain whether the three locations used significantly greater amounts of electricity than the norm.  This is one indicia of a property being used as a “grow house,” due to the intense lighting needed to grow marijuana.  As for the rest of the information sought, identifying the individual(s) in control of the premises and their financial information, it was the sort of detail that would be useful if the premises were being used illegally.  If not, it was just personal, private financial information of innocent people in the hands of the government. What could go wrong?

GVEA questioned the relevance of the information sought by the government, contending that fluctuations in electric use were common in Alaska.  The court dismissed the argument.

The information subpoenaed does not need to be relevant to a crime; in fact, it may be used to dissipate any suspicion of a crime. The information subpoenaed need only be relevant to an agency investigation.

This rationale is rather extraordinary, slipping in the backdoor argument that the evidence subpoenaed could not merely show guilt, but could exculpate the targets as well.  The problem with such a theory is that it could be used affirmatively by the government as a basis for a subpoena.

Company:  Why are you subpoenaing Joe Smith’s records?

DEA Agent: We suspect that Smith has not committed a crime, and are trying to prove it.

Company: Well then, here you go. After all, it’s relevant to dissipating suspicion of a crime.

While it’s doubtful that Judge Fletcher had this in mind when he wrote those words, the law of unintended consequences remains in full force and effect.

Moreover, GVEA contended that the information of its customers was private, and that the government should be held to the standard of the 4th Amendment, and require a warrant, before the company was compelled to hand over the information.  The Circuit wasn’t impressed with that argument either.

The Supreme Court has refused to require that an agency have probable cause to justify issuance of a subpoena. See United States v. Powell, 379 U.S. 48, 57 (1964) (citing the “general rejection of probable cause requirements in [administrative subpoenas] involving other agencies”); Okla. Press, 327 U.S. at 215-16 (rejecting probable cause requirement in agency subpoena context).

While this is nothing new, it bears noting that the black letter law from 1964 is more than adequate to dispense with the need for administrative subpoenas to meet probable cause.  Why is that, you ask?  Don’t worry your pretty head over it, the court responds.  After all, if a party refuses to comply, the agency will have to go to court to enforce it’s subpoena, and a court will then decide it’s worthiness.  Just like this court did.

The court then rejected GVEA’s contention that it had a duty to its customers to keep their personal information private.

Golden Valley also relies on a company policy of protecting the privacy of its members. Depending on the circumstances or the type of information, a company’s guarantee to its customers that it will safeguard the privacy of their records might suffice to justify resisting an administrative subpoena. However, Golden Valley has not shown the existence of any agreement with its customers to keep their usage and payment records confidential. Further, the Court in Miller carefully explained that the nature of the subpoenaed bank records gave the bank’s customers little reason to expect that they would be kept confidential from the government. The Court wrote:

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually received and obtained by means of the subpoena, we perceive no legitimate “expectation of privacy” in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.

While the court offers some hope that a company can, with an unspecified “guarantee,” create a contractual duty with its customers to keep their information private from the government, that hope is pretty well dashed by the quote, to the effect that bank checks and deposit slips, perhaps the information most dear and private to citizens, isn’t confidential because we “voluntarily convey” that information to banks and their employees are “exposed” to it.

While this may be a fine argument for keeping your savings under your mattress to protect your privacy, other laws requiring disclosure of currency transactions and prohibiting its use make that problematic as well. 

Sadly, the 9th Circuit’s decision is sound in all respects on existing law, meaning that every time some company with which you do business promises that it will protect your privacy, you can bet that a court will have a good chuckle when asked to enforce a government subpoena.  At least GVEA tried to fight it. Not too many would bother.

If you were running a government, a very expensive one at that, and were offered the opportunity to use your authority to compel businesses to pay out a few billion dollars or, in the alternative, lock up a few corporate executives for a couple of years, what would you do?

Pharmaceutical companies, military contractors, banks and other corporations are on track to pay as much as $8 billion this year to resolve charges of defrauding the government, analysts say — a record sum and more than twice the amount assessed last year by the Justice Department.

The surge in penalties is because of a number of factors, including the resolution of longstanding actions against drug makers and military contractors, as well as lawsuits brought against mortgage lenders after the financial crisis. But it also reflects a renewed emphasis on corporate fraud, as the Justice Department devotes more resources to the issue and demands higher penalties from companies.

The ballooning settlements are for civil charges of fraud against the government, criminal charges often related to the same conduct and, in the case of health care companies, recovery of money for states for Medicaid fraud.

But while the collections are a boon to the government and taxpayers, they are resurrecting questions about the relative lack of charges against executives at the companies that are getting the stiffest penalties.

The most recent cases involve wrongdoing at some of the largest and most prominent companies. Last month, for example, GlaxoSmithKline said it would pay $3 billion to settle criminal and civil accusations of drug marketing and pricing fraud. In April, the military contractor ATK Launch Systems agreed to a $37 million settlement for selling “dangerous and defective” flares to the military.

In November, Merck settled charges of drug marketing and safety fraud for $950 million. A month earlier, Oracle agreed to pay $199.5 million after being accused of overbilling the government for software.