City Claims It Will Take 9,000 Hours And $79,000 To Fulfill Gawker's Request Emails Related To Abusive Police Officer
The McKinney (Texas) Police Department is under lots of outside scrutiny, thanks to the racially-tinged antics of its police force -- namely the since-departed Officer Eric Casebolt, who barrel rolled into infamy in a cell phone-captured video that culminated in him pinning down a 14-year-old girl while waving a gun at two teens.
Since that point, multiple entities have filed public records requests with the police department. An interim response given to MuckRock's Shawn Musgrave lists 61 requests as of June 19th, a number that has certainly increased since that point. One of the early requesters was Gawker's Andy Cush, who sought "[Officer Eric] Casebolt’s records and any emails about his conduct sent or received by McKinney Police Department employees."
Cush just received a response from the city's legal representatives claiming it will cost nearly $80,000 to compile this information. The city arrived at that extraordinary figure after estimating that hiring a programmer to execute the grueling and complex task of searching through old emails would cost $28.50 per hour, and that the search for emails about Casebolt would take 2,231 hours of said programmer’s time. That only comes to about $63,000; the bill also includes $14,726 “to cover the actual time a computer resource takes to execute a particular program.” In other words, the operating cost of the computer used to search the emails is nearly 15 grand on its own. Perhaps in an effort to make this stratospherically-high fee appear more reasonable, the law firm broke it all down in table form.
According to the city's lawyers, this exorbitant estimated fee is due to the police department switching over to a new email system on March 1, 2014. Apparently, every email created before then can't be searched without hiring a programmer to create a new program from the ground up. Whatever email software the city used prior to this apparently created email in an "unsearchable" format.
This estimate reeks of… well, several things (arrogance, obfuscation...), but mainly of bullshit. I find it hard to believe city personnel are unable to search older emails, especially considering "older" only means "slightly more than a year old," rather than "stored on punchcards." It boggles the mind that a move to a new email system would cut several years of emails irrevocably adrift from the rest of the city government's computing system -- or that the city would be fine with a lack of basic search options post-upgrade.
The city is claiming it will take a year of 40-hour work weeks for a programmer to create a search system for pre-2014 emails. Worse, it claims the same even if "an existing system" is used. That may just be boilerplate language for fee estimates, but it also could be closer to the truth than its "one year of programming" claim. No matter which system is used -- the "existing" or the bespoke -- the city still claims it will still take an unreasonable amount of time to search the system. According to the estimate, it will take roughly three years of 40-hour work weeks to "execute a particular program."
This appears to be nothing more than an attempt to dissuade requesters from pursuing information about Eric Casebolt or the McKinney Police Department. This "make 'em pay" strategy is as old as open records laws themselves. The city of Ferguson hit a number of journalists with exorbitant fees in the wake of the Michael Brown shooting. The Florida State Attorney's office told a requester seeking information on the alleged (and highly suspicious) suicide of her daughter that it would cost nearly $180,000 to fulfill her request.
Gawker's options here are pretty limited. It can either limit its request to post-March 2014 emails as suggested by the city's lawyers (pretty much useless if seeking a full representation of Eric Casebolt's career) or it can petition the state attorney general to take a look at the city's claims. A person who believes the person has been overcharged for being provided with a copy of public information may complain to the attorney general in writing of the alleged overcharge, setting forth the reasons why the person believes the charges are excessive. The attorney general shall review the complaint and make a determination in writing as to the appropriate charge for providing the copy of the requested information. This particular avenue of recourse has been used frequently in the past. A 2012 examination of Texas open records requests by the Center for Public Integrity found McKinney ranked highest in the state in the number of fee complaints to the state attorney general (per 100,000 residents). Not all of these were fee-related, but the ratio of referred requests suggests the local government is more reluctant to turn over responsive documents than its neighbors. A spokeswoman for the city notes in the article that requests related to the police department are treated with "an overabundance of caution." This response to Gawker, however, seems not so much cautious as confrontational -- a "shut up and go away" response in the form of a thoroughly ridiculous $79,000 price tag.
I have reached out to the city employees listed in the letter to Gawker, asking for details on the current and pre-2014 email systems, as well as any methods used by city employees to access older emails. I'm not expecting an answer, but if one should materialize, it will be passed on.
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"The more things change, the more everything is just Smith v. Maryland (1979)."
Or so the FISA Court notes in its latest order authorizing the continued collection of bulk phone records under… well, not Section 215, which expired, but under a "non-hyper-literal evil genie" reading of the contradictory forces temporarily in play thanks to the passage of the USA Freedom Act. "Plus ça change, plus c'est la même chose," well, at least for 180 days. This application presents the question whether the recently-enacted USA FREEDOM Act, in amending Title V of FISA, 2 ended the bulk collection of telephone metadata. The short answer is yes. But in doing so, Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specifically authorized. For this reason, the Court approves the application in this case. The order notes that there was much more to consider in this renewal application. It nods to the expiration of Section 215 on May 31st and its brief return to its pre-Patriot Act form for roughly 24 hours before the passage of USA Freedom pushed the expiration date up until 2019. It notes the legal challenges brought against the bulk collection by Ken Cuccinelli and FreedomWorks, as well as the stipulations added to the collection by the surveillance reform bill.
The order denies Cuccinelli/Freedomworks' request to shut down the bulk collection entirely but does grant their request to serve as amicus curiae -- a new position provided for by the USA Freedom Act. This, however, is limited solely to motions already presented to the court by FreedomWorks and Center for National Security Studies. And the FISA Court finds the opposition to the government's claim of 180 days' worth of uninterrupted, unaltered bulk collections to be lacking in merit. The culprit is (partially) the USA Freedom Act itself. The USA FREEDOM Act prohibits the FISC from issuing an order for production of tangible things without the use of a "specific selection term." USA FREEDOM Act§ 103(b), amending FISA § 501(c). This amendment and the related amendments set forth in sections 101 through 103 of the USA FREEDOM Act prohibit the government from acquiring tangible things in bulk under a FISA business records order. Crucially for purposes of this case, however, section 109(a) of the USA FREEDOM Act states that these amendments do not take effect until 180 days after enactment (November 29, 2015).
And if that was not clear enough, the USA FREEDOM Act also states that "[n]othing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order [under the business records provisions of FISA] as in effect prior to [the ban on bulk acquisition taking effect after 180 days]." USA FREEDOM Act §109(b). In passing the USA FREEDOM Act, Congress clearly intended to end bulk data collection of business records and other tangible things. But what it took away with one hand, it gave back - for a limited time - with the other. The rest of the order is given over to dismissing a handful of other legal challenges to the bulk collection program, including the Second Circuit Court's finding that the program -- in its current form -- is not actually authorized by law.
The FISA Court, however, finds the appeals court's analysis "flawed" and reliant on "mischaracterizations." While the Second Circuit found the program "had no endpoint," the FISA Court claims the USA Freedom Act gives it one: November 29, 2015. This is the FISA Court shifting back into "hyper-literal evil genie" mode. The Section 215 collection has always had an "endpoint." It's just always been renewed by Congress, up until 2015's expiration, which was more a result of Snowden's leaks than an autonomous decision to give the program a true endpoint. Without a doubt, the modified collection will go through the same cycle of endless renewals.
The government's access to American phone records is never going to end completely, not as long as the government and FISA Court continue to rely on the Third Party Doctrine, as defined by the 1979 Smith v. Maryland decision. The FISA order refers to this decision repeatedly in its justification of ongoing bulk collections, either in pre-USA Freedom Act form or with the new limitations in place. As long as the government can rely on this large Fourth Amendment loophole, domestic surveillance in the form of bulk collections (as well as subpoena and National Security letter abuse) will continue. There is effectively no "endpoint" for these collections, as the Second Circuit pointed out.
The only thing "correct" about the FISA Court's analysis of these collections -- including the convenient elasticity of the term "relevant" -- is that a new Fourth Amendment privacy right doesn't simply spring into existence because these programs harvest information on millions of Americans. If the government -- and the courts -- aren't willing to extend protections to certain "business records" for an individual, the same lack of protection remains in place when it's hundreds of thousands who are affected.
For what it's worth, Section 215 (now Section 501) will no longer be collected and stored by the NSA after this six-month wind-down. These records will reside with telcos and be returned only in exchange for specific searches based on "reasonable articulable suspicion."
Unfortunately, this order doesn't bode well for the newly-created position of amicus curiae. Everything examined here in ad hoc, interim form is dismissed completely by FISA judge Michael Mosman. Barring a Supreme Court examination of bulk domestic collections or a revisiting of the issues central to Smith v. Maryland, arguing the public's case against bulk harvesting is going to be an exercise in futility.
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We keep pointing out that the public really seems to like Uber, so this crackdown seems rather bizarre. And, not so surprisingly, it seems to only be creating that much more interest in Uber in France, with the service reaching a record high in downloads since this all went down. So I decided to take a look at Uber downloads in France, to see what happened during the strike. Not surprisingly, they spiked. In fact, Uber last Thursday was the second-monst downloaded iPhone app in France, which was the first time that had ever happened. Then, on Friday, it hit the top spot. As Uber has discovered in the past, controversy can be great marketing. But it really makes you wonder what French politicians think they're doing here. Yes, there are some people who really hate Uber, but the public certainly seems to find the service to be pretty damn valuable.
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The promise of virtual reality has been teasing us since the late 60s, and yet it never seems to arrive in a fully realized form, and often gets relegated to the realm of mockery. Recently, however, VR (and its cousin, augmented reality) is back in a big way, with flagship products like the Oculus Rift and Microsoft Hololens taking the spotlight, backed up by dozens of other contributions from Google Cardboard to our recent Awesome Stuff feature, the Gloveone. To discuss this exciting trend, we're joined by erstwhile Techdirt writer Carlo Longino who, along with regular co-host Dennis Yang, attended this year's E3 conference and tried out a bunch of new offerings on the VR market.
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Bungie's first misstep came when it unveiled the latest Destiny expansion pack, The Taken King. To access all of the content in this new expansion, gamers need to buy the new $80 Collector's Editon, forcing fans to shell out some notable cash to buy a slew of content they already owned (the base game and previous DLC), just to nab some new DLC doo dads. Destiny's creative director, Luke Smith, then did an epically shitty job of not-really-trying to quell fan outrage over at Eurogamer, where he repeatedly dodged the question of why consumers should pay for content they already own:"Eurogamer: Can you see that some fans are confused that you're asking them to buy stuff they already own?
Luke Smith: Yeah, I can totally empathise with those people. But the Collector's Edition is a pretty cool package for people who want to pursue that stuff. Otherwise, surely what you're saying is that you would want to buy them separately, right?
Eurogamer: Well, yeah. I would rather do that - pay a few pounds or dollars or whatever - than spend money on things I already own.
Luke Smith: [Laughs] Well, we have nothing more to talk about regarding your opportunity to spend extra money in Destiny, other than The Taken King and the three versions we've announced" Talk about non-answers. Smith essentially laughs off concerns about Bungie double dipping, arguing that users just haven't seen the full awesome scope of what Bungie has planned. When pressed by Eurogamer, Smith would only elaborate that the company is "really comfortable with the value" they're offering consumers. That of course completely ignored the fact that most Destiny fans were making it very clear they were not seeing said value whatsoever. Not too surprisingly, based on Smith's seemingly-flippant tone in the article, many Destiny fans felt they were at best being ignored, and at worst being laughed at.
All of this is, of course, ingenious on Bungie's part if the goal was to create a series of high caliber shitstorms on Reddit. Bungie only made things worse when the company subsequently announced that a chunk of The Taken King DLC would only be available to consumers who buy Red Bull products:
Over at Reddit, someone posted some leaked Red Bull marketing materials for the promotion, which are quick to highlight how this kind of stuff is great because Destiny players are "used to paying a premium for downloadable content." Isn't nickel-and-diming fans, like, totally rad?
Of course, one person's bumbling face plant is another person's marketing opportunity, and makers of the zombie apocalypse game Dying Light were quick to make fun of Bungie's DLC horrible week by offering users free DLC...if they drink water (their Twitter feed is now amusingly full of people drinking water): June 24, 2015 The Eurogamer interview was published Monday, and by yesterday Bungie had been forced to do a complete 180, not only announcing they'd let fans buy the new DLC piecemeal, but also having Smith apologize for being an "asshat":"Reading my interview with Eurogamer and imagining it came from some random developer of a game I love - that random developer looks like an Asshat. But that Asshat was me - and those words rightfully anger you. I'm sorry. My words made it sound as if Bungie doesn't care about their most loyal fans. We do care. We are listening. And we will make it right." Of course, Bungie wouldn't have to "make it right" if it hadn't tried to aggressively nickel-and-dime its loyal fans in the first place. And Bungie, like many companies, wouldn't be trying to aggressively nickel-and-dime loyal fans if gamers didn't perpetually reward this kind of behavior by lapping up garbage pricing and content whenever it's shoveled in their general direction. At the end of the day, the way to stop this kind of pricing isn't to raise hell after the fact (though obviously that helps), it's to avoid paying companies that exhibit this kind of behavior in the first place.
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Last week, we announced the new website for the Copia Institute and talked about our philosophy of hacking policy through innovation, not lobbying. This week, we're inviting everyone to get involved in one example of this philosophy in action.
In this world of rapid technological innovation, nobody can truly claim their efforts stand alone. Everything is built upon previous innovations, and everyone benefits from those who took a pro-innovation stance when building their businesses and technologies. Today, everyone bears some of the responsibility for ensuring that we continue to promote innovation rather than stymie it, and it’s to that end that Copia is creating the Statement of Innovation Principles: a clear, robust statement for innovative companies to sign on to, laying out a variety of principles they intend to uphold in order to promote future innovation, ranging from how they deal with data and intellectual property to how they structure their APIs and developers’ kits.
We started this project in March at our 2015 Inaugural Summit, where we presented an initial version of the statement to a roundtable of General Counsels from innovative companies, then opened up a revised draft for discussion with everyone present. There were lots of interesting points raised at the summit, and you can watch the full roundtable discussion for some background on the project:
Based on all the comments and ideas from the summit we've made another round of revisions to the Statement, and we have now published the updated draft and are seeking feedback from the public. We've included some notes on key questions that were raised at the Summit and which we feel deserve further discussion, as well as a list of possible additional principles that were proposed but haven't yet been adopted into the complete list. We'd really love the community here at Techdirt to get involved, since we know you have a deep understanding of and interest in these issues, so we hope you'll head over to the project page on the Copia site where you can read the current draft and leave comments on individual points or the document as a whole. We look forward to hearing what you have to say, and will be incorporating the feedback into a new draft later this year.
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In some way, this isn't a surprise. EU Digital Commissioner Gunther Oettinger recently mocked net neutrality and its supporters, saying they had turned it into a "Taliban-like" issue. Then a month ago, rumors started to fly that the weekly "trialogue" meetings between the EU Commission, the Council of the EU and the EU Parliament was looking to ditch net neutrality altogether. Instead, it appears that the final solution was actually to redefine net neutrality to pretend they were offering it, while really killing it. And, as a consolation prize, they're killing off roaming charges around Europe (which can be pretty extreme). But that is little consolation for the fact that they're actually destroying net neutrality in the process.
The little trick being pulled by politicians who apparently think the public is too stupid to understand this is to redefine net neutrality. First, they claim that the "open internet" is really important and they won't allow paid prioritization. This part all sounds good: The rules enshrine the principle of net neutrality into EU law: no blocking or throttling of online content, applications and services. It means that there will be truly common EU-wide Internet rules, contributing to a single market and reversing current fragmentation.
- Every European must be able to have access to the open Internet and all content and service providers must be able to provide their services via a high-quality open Internet.
- All traffic will be treated equally. This means, for example, that there can be no paid prioritisation of traffic in the Internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to justified technical requirements, and which must be independent of the origin or destination of the traffic.
What are specialised services (innovative services or services other than Internet access services)?
The new EU net neutrality rules guarantee the open Internet and enable the provision of specialised or innovative services on condition that they do not harm the open Internet access. These are services like IPTV, high-definition videoconferencing or healthcare services like telesurgery. They use the Internet protocol and the same access network but require a significant improvement in quality or the possibility to guarantee some technical requirements to their end-users that cannot be ensured in the best-effort open Internet. The possibility to provide innovative services with enhanced quality of service is crucial for European start-ups and will boost online innovation in Europe. However, such services must not be a sold as substitute for the open Internet access, they come on top of it.Got it? The "regular" internet has no fast lanes. But... right over here, we have the "specialized services" part of the internet which, you know, kinda looks like a fast lane. Because it is. So, now, basically, in Europe you can buy your way into the fast lane by claiming your services are "specialized" and watching as the regular internet pokes along at slower speeds.
The agreement does a lot of handwaving to pretend this doesn't destroy net neutrality, but the more handwaving they do, the more obvious it is that the politicians here know exactly what they're doing:
By allowing the provision of innovative services, are we not promoting a two-tier Internet?
No. Every European must be able to have access to the open Internet and all content and service providers will be able to provide their services via a high-quality open Internet. But more and more innovative services require a certain transmission quality in order to work properly, such as telemedicine or automated driving. These and other services that can emerge in the future can be developed as long as they do not harm the availability and the quality of the open Internet.
Therefore it is important to have future proof rules which, while fully safeguarding the open Internet, allow market operators to provide services with specific quality requirements in order to provide them in safe manner. It is not a question of fast lanes and slow lanes - as paid prioritisation is not allowed, but of making sure that all needs are served, that all opportunities can be seized and that no one is forced to pay for a service that is not needed.Oh, and of course, the new rules allow zero rating, which is the sneaky trick by which telcos use data caps to backdoor in preferential treatment to those willing to pay, while pretending this is some sort of benefit to consumers. The EU sees no problem with this, despite the fact that it enables large internet companies to squeeze out startups and smaller players.
What is zero rating?
Zero rating, also called sponsored connectivity, is a commercial practice used by some providers of Internet access, especially mobile operators, not to count the data volume of particular applications or services against the user's limited monthly data volume.
Zero rating does not block competing content and can promote a wider variety of offers for price-sensitive users, give them interesting deals, and encourage them to use digital services. But we have to make sure that commercial practices benefit users and do not in practice lead to situations where end-users' choice is significantly reduced. Regulatory authorities will therefore have to monitor and ensure compliance with the rules.Of course, Digital Commissioner Oettinger inadvertently appeared to confirm that this is the end of net neutrality with his poorly worded tweet on the subject, in which he notes that this is "the end of roaming and net neutrality." Obviously, he only meant "the end of" to apply to roaming, but having it cover net neutrality as well would be a lot more accurate. Either way, while Oettinger once compared it to a Taliban-like issue, his response has been more on the Orwellian side of things. So long as they redefine the words, the government hopes no one will notice what they actually did. It's the public officials' way of thinking that they're clever and that the public is stupid. That seems like an unwise assumption.
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PARIS — On Wednesday, France woke up to find that the National Security Agency had been snooping on the phones of its last three presidents. [...]
Yet also today, the lower house of France’s legislature, the National Assembly, passed a sweeping surveillance law. The law provides a new framework for the country’s intelligence agencies to expand their surveillance activities. Opponents of the law were quick to mock the government for vigorously protesting being surveilled by one of the country’s closest allies while passing a law that gives its own intelligence services vast powers with what its opponents regard as little oversight. But for those who support the new law, the new revelations of NSA spying showed the urgent need to update the tools available to France’s spies. [...]
Until the law was passed, France’s intelligence services operated almost without any laws to regulate them. Although the new law delivers a much-needed framework, its safeguards are regarded by many critics as insufficient. The powers of the oversight body in charge of the intelligence agencies have been slightly strengthened and it will be possible, if a citizen suspects she is being surveilled, to take her case before the Conseil d’Etat, France’s highest court. But other parts of the law have drawn controversy, including the way it defines the purposes the government can invoke to surveil French residents. The categories extend well beyond terrorism. Many opponents of the law think these guidelines are so broad that they could enable political surveillance. But the key point of disagreement is what the government calls “black boxes.” The law allows the use of government equipment inside Internet Service Providers and large web companies to analyze streams of metadata and find “terrorist” patterns and behaviors. [...]
A federal judge has just ordered the government to return $167,000 it took from a man passing through Nevada on his way to visit his girlfriend in California. The officers really wanted that money, too. They used two consecutive stops to jerry-rig some probable cause… even though at that point they thought they were only dealing with $2000. From the original stop forward, the entire situation was deplorable, indisputably showing that everyone involved was more interested in taking (and keeping) a bunch of cash than enforcing laws or pursuing justice.
The order is a jaw-dropping read. It begins with the flimsiest of "reasonable suspicion" and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a "left-lane violation" -- driving too slow in the passing lane. (This itself isn't actually a moving violation, but the Supreme Court's Heien decision has ensured that law enforcement needn't be slowed by actual knowledge of the laws they're supposed to be enforcing.)
This lead to some questioning, because reasons: Upon request, Gorman produced his license and registration and told Monroe that he was traveling to Sacramento, California to visit “his chick.” Id. at 60:9-61:5. Gorman told Monroe that his girlfriend lived in downtown Sacramento, but was not able to produce her exact address, noting that it was entered into his GPS system. Id. at 84:2- 22. Gorman’s use of the word “chick” aroused Monroe’s suspicion that Gorman’s answers were rehearsed because Monroe thought that “chick” was an unusual word for a person Gorman’s age—thirty-one at the time of the stop—to use. Obsolete vernacular = "reasonable suspicion." That and State Trooper Greg Monroe felt Gorman's claimed employment with a "beach activities and paddle board company" sounded similarly "rehearsed." Monroe went back to his vehicle and tried to rustle up a K9 unit. But there were no units nearby, the records check was coming up clean and Monroe was running out of ideas. First, he told Gorman he was free to leave. Then he started fishing: Immediately afterward, Monroe asked Gorman if he could ask some additional questions. Monroe first asked how Gorman could afford to drive a motor home cross-country when gas prices were over $3.00 per gallon. Monroe then asked if Gorman still sold paddle boards for a living, and asked about his compensation, to which Gorman responded “I don’t want to talk about how much I make.” At approximately 9:25 a.m., Monroe asked if there was anything illegal in Gorman’s motor home, or if he was carrying large amounts of U.S. currency. Gorman then told Monroe that he was only carrying about $2000 in U.S. currency in the motor home. At 9:25:45 a.m, Monroe asked Gorman “do you mind if we search the vehicle?,” to which Gorman said “I do mind, yes.” At this point, Monroe told Gorman that he was free to leave [for the second time], returned to his vehicle, and said “he’s carrying money” aloud to himself. Monroe smelled money and he wasn't about to let $2000 travel across his state without being apprehended. So, he called the Highway Patrol and told dispatch his suspcions, stating that the only way the vehicle could be searched was with the use of a drug dog. Dispatch called Deputy Doug Fisher and informed him that Gorman did not consent to a search and that he "might want to follow up on the information." Here we have two different law enforcement entities basically colluding to perform a search simply because one entity experienced a refusal. The court isn't impressed. The Court is particularly troubled that the officers’ belief that Gorman would not consent to a search, and his opposition to the canine sniff, appears to have contributed to the officers’ purported reasonable suspicion to extend the stop and continue the investigation. Individuals have a right to refuse consent for a search, and the existence of this right requires that denial of consent not be a basis to prolong a stop. On top of this, Monroe called Deputy Fisher directly to "relay his suspicions." He also inflated the amount of money Gorman had admitted to be carrying with him -- from $2000 to $5000. Fisher left the Sheriff's Office ostensibly to perform a "roving patrol," but soon decided to park himself on the side of the highway in order to catch Gorman when his RV passed by. Fisher pulled the RV over after it "crossed the fog line" a few times.
Having been stopped for a second time in under an hour, Gorman was understandably annoyed. He told Fisher the same thing he had told Monroe during his twenty-minute stop earlier. Fisher ran the same records checks and received the same lack of anything actionable. Despite this, Fisher pushed for a canine search. [A]pproximately twelve minutes into the traffic stop, Fisher released his drug-detection canine “Euros” from his vehicle. Fisher and Euros then approached the motor home and began walking around it in the clockwise direction, starting at the rear left-hand side of the vehicle. As Fisher and Euros circled the rear of the motorhome, Euros sat down near the vehicle’s back right compartment, facing the compartment. Fisher described this as a “committed sit and stare,” which he considered to be a positive alert. Even if you believe -- like the Supreme Court does -- that drug dogs are mostly reliable and unlikely to respond to signals (unconscious or otherwise) from their handlers, Fisher's next statements indicate that bringing a drug dog onto the scene is just an easy way to generate "probable cause" where none exists. Gorman then referred to the back rear compartment and said “I can open that if you want to look in it. It’s charcoal and stuff like that, do you want to look in it?” Fisher replied “do you want to talk to me now?” Gorman replied “if he alerted somewhere, look in it because there’s no drugs.” Fisher then noted that odor could come out anywhere on the vehicle, and that the rear back compartment was on the “downwind side of the vehicle.” Armed with the drug dog's affirmation that drugs might be located somewhere in the RV, the deputy acquired a telephonic warrant and immediately began searching the entire interior of the RV. And while the drug dog continued to "alert" on objects inside the vehicle, no drugs were found. The only thing "illegal" in Gorman's motorhome was $167,000 in cash, stashed away in the freezer, microwave and bedroom. Gorman was (for the third time in under two hours) free to go. But his money wasn't.
Gorman fought back. Almost two-and-a-half years from the point the money was taken, it is now ordered to be returned. On top of that, Gorman will also be awarded attorney's fees. Why? Because the government lied every step of the way.
First off, two different law enforcement officers performed consecutive stops, with the second stop being predicated on the "suspicions" generated by the first. This is something law enforcement cannot do. Here, Gorman was initially stopped for a minor traffic offense at approximately 9:03 a.m. and released at approximately 9:26 a.m. when Monroe concluded that he did not have probable cause to search the motor home. Gorman was stopped the second time, again for a minor traffic offense, at approximately 10:15 a.m., and held for more than nine minutes before Fisher asked if he could conduct a canine sniff. Fisher knew that Monroe had previously ran a records check and lacked probable cause to hold Gorman, but nonetheless two additional records checks were conducted in order to prolong the detention and make time for a canine sniff. The positive alert occurred approximately twelve minutes after the second traffic stop occurred.
All tolled, Gorman was detained for a total of approximately thirty-five minutes without convincing independent reasonable suspicion—before the officers conducted a canine sniff of the motor home and obtained probable cause for the search. Of course, “an individual who has already been seized can still be further seized for purposes of the Fourth Amendment.” Hopkins v. Bonvicino, 573 F.3d 752, 772 n.12 (9th Cir. 2009). But a second stop requires additional reasonable suspicion independent of the reasonable suspicion present in the first stop. On top of that, the government -- when arguing for its "right" to take money just because -- claimed the two stops were entirely unrelated. In its supplemental briefing, and after it became evident that the two stops were connected, the United States argues that “Monroe’s earlier traffic stop is wholly irrelevant to the Fourth Amendment analysis applicable to Gorman’s motion to suppress.” Specifically, the United States contends that “Fisher’s traffic stop was based on his own observations of traffic violations being committed by Gorman, without regard to any information provided” by Monroe. These statements cannot be reconciled with the testimony by Monroe and Fisher, or an independent review of the evidence before the Court. Note the phrase "after it became evident." This wasn't evident at first. Deputy Fisher hid this fact from the magistrate judge when requesting a warrant over the phone and lied about what Gorman had actually told him. [T]he warrant application never mentions Monroe’s original stop, that Monroe called Fisher with information about Gorman and Gorman’s vehicle, or that Fisher was dispatched to investigate Gorman. This omission thereby represented to the magistrate that Fisher pulled Gorman over solely due to his traffic violations, as opposed to having been encouraged to investigate Gorman by NHP and Monroe. Second, Fisher represents in the warrant application that Gorman “indicated he had no job.” This is unambiguously contradicted by the video of Fisher’s questioning of Gorman, in which Gorman states clearly that he works for a Maui paddle board company. These lies -- kindly called "omissions" by the court -- sadly wouldn't be enough on their own to suppress the evidence obtained by the search. But the application of the Supreme Court's Rodriguez decision (officers can't unnecessarily prolong stops to perform [often dog-assisted] fishing expeditions) does call for suppression.
But Deputy Fisher wasn't the only one lying. The State's Attorney's office also lied to the court. The Court is disappointed that the United States would aggressively pursue this forfeiture action while all of its moving documents for summary judgment and supporting affidavits contained material omissions concerning the history leading to the traffic stop and canine sniff at issue. The government’s Motion for Summary Judgment, with supporting affidavits from Deputy Fisher and the Assistant United States’ Attorney, made no disclosure of anything which would have suggested that Fisher’s stop was a follow-up on Monroe’s stop and was based upon suspicion of a drug related offense. This is how the government portrayed Fisher's actions in its provided documents. On January 23, 2013, ECSO Deputy Doug Fisher was monitoring west-bound traffic on Interstate 80 near Elko, Nevada. But, as pointed out earlier in the order, Doug Fisher wasn't assigned to traffic patrol and wouldn't have just been "monitoring traffic" if he hadn't received a call from dispatch about Gorman's RV, as well as a direct call from Trooper Monroe himself.
On top of the deceit at all levels, there were problems with the search itself. The drug dog alerted on a rear compartment. But rather than search that area, the deputies searched the entire vehicle. [E]ven assuming that the officers had probable cause to search the back right compartment where the canine alerted, the Court is not convinced that the dog’s positive alert to the compartment gave the officers probable cause to search the entire motor home. Despite Gorman’s consent to search the compartment, the officers did not even begin their search of the motor home with the compartment, instead beginning with a search of the motor home’s main cabin. “Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” United States v. Ross, 456 U.S. 798, 824 (1982) The court doesn't weigh this issue specifically (although it does express its skepticism) but it doesn't have to. The prolonged detainment without probable cause is enough to suppress the evidence under Rodriguez.
The court sums it up succinctly while ordering the government to hand over not only Gorman's original $167,000, but attorney's fees as well. Gorman is undoubtedly the successful party here. This order shows law enforcement at its ugliest: willing to lie and cheat to maintain control of what it stole.
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Paris, 30 June 2015 – After months of negotiations behind closed doors between the Council of the European Union, the European Commission and the European Parliament (trialogue), the very positive text on Net Neutrality adopted by the European Parliament in April 2014 has become more ambiguous and weaker. Net Neutrality deserves more guarantees and La Quadrature du Net is regretting a third-rate agreement.
Last night at 2 am, the trialogue's negotiators on the Telecom single market Regulation have found an agreement. The text adopted by the three institutions, which was supposed to define the guarantees surrounding Net neutrality and provide a framework for so-called "specialised services" is disappointing and brings very little safeguards for users.
Indeed, the definition of Net neutrality has disappeared, even though the text begins by recalling the necessity of an open and non discriminatory Internet and an equal process of all Internet traffic. Likewise, provisions on specialised services are very blurred and equivocal and may be used by operators and large online services to circumvent Net Neutrality and harm consumers' freedom of choice as well as competition and innovation.
An important role is given to national regulatory authorities which may arise doubts on very numerous interpretations regarding each country. Citizens must put pressure on the European and national authorities to ensure that, in their implementation, those blurred principles can be used to dismantle increasing oligopolisation of the Internet, which benefits large telecom operators and big American platforms.
After months of campaign and citizens' participation on this complex matter, La Quadrature du Net regrets that the trialogue reached a weak and unclear text, whereas the version coming from the European Parliament in April 2014 was balanced and precise one. The mad lobbying carried on by telecommunication operators has, once again, overcome the public interest in protecting Net neutrality. Policy-makers both within national governments, at the EU Commission and in the EU Parliament jointly share the responsibility for this sad outcome. At a time where the European Union is preparing its digital strategy, this third-rate agreement unfortunately shows they are unable to actually listen to the voice of citizens and resist big companies who wants to become the Internet's gatekeepers.