Suzuki 115 HP 4 Stroke Cylinder Head Cover PN 11170-90J00-019 Fi

from the we're-in-the-right-say-people-who-folded-like-a-cheap-card-table dept

In February, cash transport business Empyreal Logistics Ice Hockey Skate Guards Soakers - Fits Regular & Goalie Skates! for the lifting of nearly $1.2 million in cash from its drivers during two traffic stops. Empyreal, which notes that it follows all federal guidance for the transport of cash generated by legal marijuana sales, was hit twice in California, resulting in officers walking away with a whole lot of legal cash (and bringing in the feds to ensure HARDINGE BROTHERS Collet SIZE: 11/64 R STYLE 32V. VINTAGE - NEW). Other Empyreal drivers were pulled over in Kansas, during which $165,000 was seized by law enforcement and handed over to the DEA.

The sued sheriff, Shannon Dicus, claimed (without presenting evidence) that nearly all marijuana sold by dispensaries is grown illegally, thus justifying his decision to take cash that had been earned legally. He also claimed he and his deputies were doing the lord’s drug war work and “would prevail” in this lawsuit.

He’s wrong about both things, as Noah Taborda reports for the Kansas Reflector. (h/t Marijuana Moment)

The U.S. Department of Justice agreed Wednesday to return all cash seized from an armored car company used by legal marijuana dispensaries during several traffic stops in California last year.

The California seizures occurred based on what authorities learned in Kansas during a May traffic stop of an Empyreal Logistics car. Conversations between state and federal law enforcement agencies stemming from this stop resulted in a series of events in which Kansas and California officers seized more than $1.2 million.

Note how quickly the DOJ folds when challenged during forfeitures. The DOJ — along with state and local law enforcement agencies — tend to play the odds, assuming that not everyone relieved of cash or property will sue. And if the dollar amount is low enough, it’s almost guaranteed they won’t be sued.

But when the DOJ (and others) are sued, they tend to return property pretty damn quickly. Empyreal was represented by the Institute for Justice in this case, an entity that has successfully secured several returns of property illegally seized by government employees.

And this isn’t the end of the litigation, even though it has resulted in the return of almost all of the money seized by law enforcement officers in two states. As the Institute for Justice notes, the sheriff who claimed he would prevail is still being sued and Empyreal is still seeking the return of $165,000 seized in Kansas.

In exchange for the return of the funds, Empyreal will dismiss its case against the federal government over the seizures. The settlement announced today does not include the San Bernardino County Sheriff and does not affect a separate civil forfeiture action in Kansas in which Empyreal is represented by separate counsel. 

The seizures in California expose the bad faith activities of local law enforcement. Weed sales are legal in California but illegal under federal law. Seizing the cash and sending it to the feds laundered the forfeiture, allowing it to be represented as illegal earnings under federal law when the same earnings would be considered legal under state law. This is a crime of opportunity. And it’s being perpetrated by law enforcement officers who’d rather have other people’s cash than a pristine reputation or a healthy relationship with the people they serve.

Filed Under: california, One New CORTECO Drive Shaft End Bushing 602036 1244100732 for Me, dea, doj, legal weed, shannon dicus

from the fair-abuse dept

Angry Joe, real name Jose Antonio Vargas, has appeared on our pages several times in the past. In addition to being a famed YouTube creator with a huge following, Angry Joe also regularly rages against the DMCA machine. Whether he’s criticizing Twitch’s takedown policies, swearing off Nintendo for being bullies, or battling CBS over television show reviews that were taken down, he tends to fight the good fight.

And speaking of his fighting with CBS, he’s been at it again recently over the Halo TV show. Angry Joe was given screeners of upcoming episodes and has been reviewing them on YouTube, as per his usual gig. CBS, it seems, keeps claiming the monetization for those videos via copyright claims. Notably, these appear to be manual copyright claims, so can’t be blamed on overaggressive algorithms. Angry Joe then edits the videos down to limit the amount of footage from the show he’s using, but the claims keep coming. There’s even a Reddit megathread tracking all of this stupid drama.

CBS has issued copyright claims on certain bits of the footage from the Halo TV show on multiple occasions, which means the ad revenue is then transferred to the copyright creator rather than Joe himself. He demonstrates how difficult it’s proving for him to get around this, and states that CBS is “completely ignoring and abusing” the fair use policy, which is “a US law that allows the reuse of copyright-protected material under certain circumstances without getting permission from the copyright owner.”

And he’s right about that. Using clips of a show the content producer invited him to watch in order to review the product lands the footage use squarely in fair use territory. Especially given all the efforts he’s undergone to limit the amount of footage he’s using. He’s had to go through this editing exercise five times thus far. The latest version of the review appears to be holding, though, either because the folks at CBS have decided this version is okay… or perhaps because Angry Joe opens the video with a direct threat to take this all to court, where he would almost certainly win.

CBS, meanwhile, gets to look like a bullying jerk that either doesn’t know how fair use works, or simply doesn’t like the content in some of Angry Joe’s reviews, which are fairly negative when it comes to the quality of the show. As he’s noted in some of his videos, this didn’t seem to happen when he was being positive in his reviews, suggesting that it’s not purely about the “copyright” issue.

Either way, this is all clearly fair use. Given how intently at least one person at CBS watches these videos, the opening monologue has now ensured that CBS, too, should know it’s fair use. But, that doesn’t mean it won’t keep claiming the videos.

I’m not going to pretend, though, that part of me wouldn’t love to cover such a court case….

Filed Under: angry joe, copyright, copyright claims, dmca, fair use, halo
Companies: cbs

from the about-time dept

We’ve written a bunch about Carl Malamud, who has devoted so much of his time and energy towards freeing the law. While that may sound ridiculous that the law needs to be “freed,” Malamud noticed, before most others, different forces that were looking to lock up (and often from) the actual text of the laws. And Carl, rightly, believes that everyone should be able to read the law freely, otherwise how can people be expected to know what’s legal and what’s not?

For his troubles, Carl has been sued in a few big (and important) cases. I’ve seen people “congratulate” Carl on getting sued for his efforts to publish the law, thinking that this is what he wants — but it’s not. I’ve spoken to him about this multiple times, and he just wants the law to be free, not to have to go through the pain and hassle of a lawsuit. Yet, when those who seek to lock up the law come after him, Carl is willing to fight back. A few years ago, he freed the laws of Georgia from a stupidly convoluted setup, in which the state partnered with a private company to lock up the “official” code of Georgia.

But one of Carl’s biggest projects is getting people to recognize the problems when lawmakers incorporate some sort of standard into the law where the official standard is then locked up behind (often expensive) paywalls. There are standards-making bodies out there that insist that this is the only way that they can afford to keep the standards going, by making money selling copies of it. And while some may be sympathetic to that argument, it’s no excuse for hiding standards that are required by law. If lawmakers are saying that you have to meet a standard to be in compliance with the law, then the standards must be freely available.

A bunch of standards bodies sued Carl and his organization, Public.Resource.Org, and the case has bounced around the courts. The standards bodies were incredibly obnoxious about it all, with one board member of a standards body bizarrely whining in an email that the people clamoring to free the law “are still clamoring for free beer and free sex too.” Weird to admit that you normally expect to pay for sex, but, hey everyone has their own preferences.

Back in 2017, a district court ruled against Carl, but thankfully the DC Circuit sent the case back saying that the lower court needed to consider if such standards that are incorporated by law can be posted under fair use. And as the next round heated up, one of the remaining plaintiffs agreed to drop the case, leaving just one remaining standards body: ASTM — the American Society for Testing and Materials.

Finally, a few weeks ago (I’m catching up on some stories that I’ve been meaning to write up), the district court ruled (mostly) in favor of Carl, but very much in favor of fair use. The parts that the court ruled against him were on a few standards he had posted that, for a variety of reasons, were somewhat different than the actual standard incorporated into the law. But for the ones that were the standards used in the law, the court found in favor of fair use.

Somewhat incredibly, the court went through each of the separate 217 standards at issue in the case and did a fair use analysis on each of them in a separate appendix to the ruling. I’m not going to go through each fair use analysis, but it’s worth skimming through and getting a sense. The key part, though, is the recognition by the court that when a standard has been incorporated into the law, it should be fair use to republish the parts of the standard that are relevant to the law.

One interesting tidbit, though, is that throughout this very, very long legal dispute, the various standards bodies have insisted that allowing Carl to do this would destroy their “business” and the ability to keep working on standards. This issue came up in determining part of the fourth factor of the fair use test — which is the impact on the market. And the court notes that the standards bodies like ASTM have had lots of time to show harm, and have failed to do so.

Plaintiffs’ evidence falls well short of showing some meaningful likelihood of future harm. Plaintiffs begin with the premise that Defendant’s postings are “unrestricted” and “widely viewed,” and conclude that “[t]his means its users include those individuals and entities who would otherwise purchase or license copies of Plaintiffs standards.” See Pls.’ 2d MSJ at 27. But Plaintiffs’ evidentiary support for this proposition is meager: correspondence from an engineer asking Defendant if the Circuit’s decision in ASTM I meant Defendant could “update the site,” Wise Decl. ¶ 174, Ex. 173 at PRO_00267293, and correspondence from an engineering firm telling Defendant it heard about its organization from a “colleague” and asking Defendant how it could access Defendant’s postings, id. ¶ 165, Ex. 164 at Interrog. 22. Those communications—showing that two entities were interested in accessing Defendant’s posting —do not explain whether the entities were interested in accessing Defendant’s postings in lieu of purchasing Plaintiffs’ standards, as opposed to simply accessing them in Plaintiffs’ read-only access rooms.

Plaintiffs also argue that beyond those two engineering entities, there “may also” be “further would-be-infringers” who could repurpose Defendant’s postings to turn a profit for themselves. See Pls.’ 2d MSJ at 27. This argument is even more tenuous than the former. Plaintiffs point to a third-party website offering users the ability to pay to access ASTM standards, but they do not assert—or offer any evidence to show—that the third party’s offerings are a result of Defendant’s actions, or whether the third party, like Defendant, purchased Plaintiffs’ standards and then scanned and uploaded them to its website. See id. (citing Pls.’ 2d SMF ¶¶ 105-06 (citing Wise Decl. ¶ 154-55)). In other words, evidence that other websites are also posting Plaintiffs’ standards—without any causal connection to Defendant’s actions—does not show “market harm caused by the particular actions of the alleged infringer,” nor does it show whether Defendant’s actions enabled “widespread conduct of the sort engaged in by [Defendant]” that “would result in a substantially adverse impact on the potential market for the original.” Campbell, 510 U.S. at 590 (internal quotation marks omitted).

All in all the end result here is good. The court has said that when standards are incorporated into law, Public.Resource.Org will be able to publish those parts of the standards and be protected under fair use.

Filed Under: carl malamud, copyright, fair use, incorporated by law, incorporated by reference, locking up the law, standards
Companies: astm, public.resource.org

from the bigger-better-bupkis dept

In most people’s heads, electric vehicles are going to very quickly supplant gas-powered vehicles in the next few years, resulting in massive disruption and a massive boost to climate change mitigation. But there’s trouble in paradise: experts continue to warn that we lack the elements and supply chain necessary to ramp up production of electric vehicles at the scale that exists in everybody’s imagination.

Oddly, this is usually some kind of weird footnote in EV discourse. But last week, Rivian CEO RJ Scaringe clearly pointed out that we’re facing a massive battery shortage (warning: paywall) as companies engage in a mad dash to lock down supplies of cobalt, lithium, battery-grade graphite, and nickel needed for batteries:

“All the world’s cell production combined represents well under 10% of what we will need in 10 years,” Scaringe noted. “Meaning, 90% to 95% of the supply chain does not exist.”

I imagine that as a smaller player, Scaringe is nervous about all the bigger players engaged in a mad dash to lock down already limited resources, and his call could be construed as a call for some government help. Though that doesn’t make his concerns any less true. The scale of the challenge is fairly massive:

Battery evolution will continue and engineering may lift some of this strain in time, but it’s pretty clear that the speedy EV timeline that exists in many people’s heads isn’t realistic. Such restrictions should also probably result in a re-assesment of what kind of vehicles get build priority, since you can build a dozen smaller vehicles with the components and minerals needed to build one Hummer EV:

This being America, the demand side of the equation isn’t likely to want to meaningfully integrate those considerations.

Granted this is occurring at the same time as folks are finally realizing the massive weight of some of these much larger EVs is going to pose a Zoro Select Bulk-Rs-Nhs40-27 3/8" High Grade Neoprene Rubber She to smaller vehicles, incentivizing Americans who already like big stuff to prioritize bigger EVs for family safety, therefore accelerating supply constraints.

Addressing that cycle will require more actual engineering innovation, and less… innovation performance art.

Filed Under: auto regulation, auto safety, battery, disruption, electric vehicles, EVs, innovation, supply chain

from the phew dept

For years now we’ve been following cases related to scraping data off of websites and the Computer Fraud and Abuse Act (CFAA). The CFAA is an extremely poorly drafted law, that has been stretched by both law enforcement and civil plaintiffs alike to argue that all sorts of things are “unauthorized access” and therefore hacking. We’ve covered many of these cases over the years. The courts have at least started to push back on some of the more extreme interpretations of the law, though it’s still problematic.

Over a decade ago, we followed a case that I still think is one of the most problematic rulings for the internet: when Facebook sued a small startup called Power.com. Power made a social media aggregator, allowing you to access all your different social media accounts through one interface and even to post messages across multiple platforms through that single interface. In order to do that, you had to provide your login to Power, which would access your social media accounts, suck out the data (or push in the data for posting). Again, this was the user willingly granting their login information. Leaving aside whether or not it’s wise to share your login info with a third party, it was still the user’s choice.

However, Facebook decided that this was hacking and in violation of the CFAA… and the courts (tragically) agreed, allowing Facebook to effectively shut down a useful service that would have prevented Facebook from locking up so much data (and becoming such a dominant player). The key reason the court sided with Facebook was it claimed that once Facebook sent a cease-and-desist letter, that effectively mean that any further scraping was “unauthorized.” I still think that we’d see an extremely different competitive landscape today if the Power case had turned out differently. It would have significantly limited the ability of the big social media players to lock in their users. Instead, the rule more or less turned Facebook into a roach motel where your data checks in, but it can never check out.

Other internet companies unfortunately followed suit, using similar lawsuits against websites providing useful complementary services. Craigslist went after 3taps, which made Craigslist data available to third party apps. LinkedIn went after a company called HiQ that was scraping and making use of LinkedIn data. Here, unlike the Power case, the courts actually ruled against LinkedIn saying that LinkedIn could not use the CFAA to block scraping of public data. The key difference between this case and the Power one was that HiQ was scraping public info (i.e., it didn’t need to log in to LinkedIn with someone’s info to access the data). LinkedIn appealed… and lost again. LinkedIn then asked the Supreme Court to weigh in, resulting in the Supreme Court vacating the 9th Circuit’s ruling and sending it back to the court to reconsider in light of last summer’s big Van Buren ruling that Camden Door Controls CM-703 Blue Pull Station with Cover, New In.

So now, with yet another chance… the 9th Circuit has correctly concluded the same thing. HiQ’s scraping of public information still does not violate the CFAA. There are a few different legal issues involved here, but the CFAA claims are the main event. LinkedIn argued that it sent a cease-and-desist to HiQ, so as per the Power ruling, its continued scraping violated the law.

The panel reviewing this case goes deep into the CFAA, why it exists, and what it’s supposed to do before concluding that LinkedIn’s interpretation can’t be the correct one, noting that “the CFAA is best understood as an anti-intrusion statute and not as a ‘misappropriation statute,'” and as such accessing public information shouldn’t be a violation.

Put differently, the CFAA contemplates the existence of three kinds of computer systems: (1) computers for which access is open to the general public and permission is not required (2) computers for which authorization is required and has been given, and (3) computers for which authorization is required but has not been given (or, in the case of the prohibition on exceeding authorized access, has not been given for the part of the system accessed). Public LinkedIn profiles, available to anyone with an Internet connection, fall into the first category. With regard to websites made freely accessible on the Internet, the “breaking and entering” analogue invoked so frequently during congressional consideration has no application, and the concept of “without authorization” is inapt.

As for reconsidering in light of the Van Buren ruling, that doesn’t change things.

Van Buren’s “gates-up-or-down inquiry” is consistent with our interpretation of the CFAA as contemplating three categories of computer systems

[….]

Van Buren’s distinction between computer users who “can or cannot access a computer system,” suggests a baseline in which there are “limitations on access” that prevent some users from accessing the system (i.e., a “gate” exists, and can be either up or down). The Court’s “gates-up-or-down inquiry” thus applies to the latter two categories of computers we have identified: if authorization is required and has been given, the gates are up; if authorization is required and has not been given, the gates are down. As we have noted, however, a defining feature of public websites is that their publicly available sections lack limitations on access; instead, those sections are open to anyone with a web browser. In other words, applying the “gates” analogy to a computer hosting publicly available webpages, that computer has erected no gates to lift or lower in the first place.17 Van Buren therefore reinforces our conclusion that the concept of “without authorization” does not apply to public websites.

The court again distinguishes Power from the HiQ case by saying that Facebook limited access to the data to only those who were logged in, as opposed to the more public access available on LinkedIn.

In that case, Facebook sued Power Ventures, a social networking website that aggregated social networking information from multiple platforms, for accessing Facebook users’ data and using that data to send mass messages as part of a promotional campaign. Id. at 1062–63. After Facebook sent a cease-and-desist letter, Power Ventures continued to circumvent IP barriers and gain access to password protected Facebook member profiles. Id. at 1063. We held that after receiving an individualized cease-and-desist letter, Power Ventures had accessed Facebook computers “without authorization” and was therefore liable under the CFAA. Id. at 1067–68. But we specifically recognized that “Facebook has tried to limit and control access to its website” as to the purposes for which Power Ventures sought to use it. Id. at 1063. Indeed, Facebook requires its users to register with a unique username and password, and Power Ventures required that Facebook users provide their Facebook username and password to access their Facebook data on Power Ventures’ platform. Facebook, Inc. v. Power Ventures, Inc., 844 F. Supp. 2d 1025, 1028 (N.D. Cal. 2012). While Power Ventures was gathering user data that was protected by Facebook’s username and password authentication system, the data hiQ was scraping was available to anyone with a web browser

And thus this doesn’t fix the unfortunate precedent in the Power case, but at least it limits it from getting worse, while making it clear that scraping public web pages is not hacking, even if you’re sent a cease-and-desist letter.

Filed Under: 9th circuit, cfaa, scraping, web scraping
Companies: hiq, Vice President George H W Bush 4 Inaugural Event Covers Cacheted

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

The 2022 Ultimate Big Data Bundle has 10 courses to help you learn about software development and data visualization. You’ll learn about Python, Pandas, Numpy, Raspberry Pi, and more. It’s on sale for $25.

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

Filed Under: daily deal

from the all-seeing-eye-hoping-to-see-all-the-eyes dept

Back in 2017, the Indian government — having collected at least some biometric records from most of its 1.2 billion citizens — did what was previously considered unthinkable: it MAILED With Date Space Self-Inking Stock Stamp -BLACK to these records to anyone willing to pay for the privilege. What had been collected involuntarily was sold to private companies for use in verifying users’ identification and, presumably, to find more efficient ways to sell them goods and services.

This obviously presented a tasty target for malicious hackers, who were soon selling database login credentials for as little as $8, allowing other malicious people to scoop up a wealth of identifiable info to misuse.

The government’s collection is going to become even bigger if proposed legislation passes. Most of the country’s population is already in existing databases, having contributed some form of biometric information for the purposes of identification by the government and/or private companies. More involuntary contributions would add even more to the government’s biometric stockpile, as the BBC reports.

The Criminal Procedure (Identification) bill, which was passed in parliament last week, makes it compulsory for those arrested or detained to share sensitive data – like iris and retina scans. The police can retain this data for up to 75 years. The bill will now be sent to the president for his assent.

Prime Minister Narendra Modi — who has proven willing to abuse nearly any available law to target critics — claims this is exactly what the country needs to combat criminal activity. Modi claims the new collection will “modernize policing” and “increase the conviction rate.” Both assertions may be true, but those cannot be the only concerns addressed by legislation like this.

A recent Indian Supreme Court decision upheld the right of Indian citizens to be free of pervasive, unjustified state surveillance. This law will likely be challenged if passed. And the government is going to need a lot more than the assumption more criminals will be convicted to survive a constitutional challenge.

But, as it stands now, there’s not much in the way of privacy laws in India. Modi is at least correct on one thing: the nation’s laws do need to be updated to address the realities of the twenty-first century. The last law governing collection of info from prisoners was passed in 1920. And it limits collection to photographs, footprint impressions, and fingerprints from those who have been convicted or charged with offenses punishable with more than a year in prison.

This law would strip almost all of those restrictions and vastly increase the amount of biometric and personal information collected by the government.

It does not specify what these “biological samples” are but experts say it likely implies collection of DNA and blood. The police currently require a warrant to collect these samples.

The new law, however, massively expands its ambit to include other sensitive information such as fingerprints, retina scans, behavioural attributes – like signatures and handwriting – and other “biological samples”.

This collection would not be limited to convicts and people charged with serious crimes. It would allow officers to collect these “samples” from people who have been arrested or detained, prior to them being charged. And if they’re never charged, the government apparently still gets to hold onto their information for decades.

What it will be really great for is helping Prime Minister Modi keep tabs on his critics. Protesters will be tagged and bagged, served up for ongoing surveillance by federal and local law enforcement. Presumably, the database will be accessible by the PM and his cabinet, allowing them to more directly keep an eye on dissidents, mouthy journalists, and political opponents who’ve been detained solely for the purpose of harvesting biometric data.

It’s a truly dangerous proposal. Unfortunately, the people currently in power in India are more than happy to continue passing self-serving laws that make it easier to ensure they’ll retain their power for decades to come.

Filed Under: biometric data collection, biometrics, criminal procedure bill, india, law enforcement, narendra modi, police, privacy, surveillance

from the first-do-no-harm dept

Given the seemingly endless privacy scandals that now engulf the tech, telecom, and adtech sectors on a near-daily basis, many consumers have flocked to virtual private networks (VPN) to protect and encrypt their data. One study found that VPN use quadrupled between 2016 and 2018 as consumers rushed to try and protect themselves in the wake of scandals, breaches, and hacks.

Unfortunately, many consumers are flocking to VPNs under the mistaken impression that such tools are a near-mystical panacea, acting as a sort of bulletproof shield that protects them from any potential privacy violations on the internet. Not only is that not true (ISPs, for example, have a universe of ways to track you anyway), many VPN providers are even less ethical than privacy-scandal-plagued companies or ISPs.

A Consumer Reports study late last year took a look at 16 top VPN providers, and found that the majority of them misrepresented their products or their data retention practices, and many of the companies actually put consumer privacy at greater risk. Only a quarter of the VPNs looked at clearly indicated how long they retain user browsing and other data.

Other VPNs simply don’t provide particular stellar security, despite marketing claiming that’s the entire reason they exist. For example, Surfshark, TurboVPN, Sumrando VPN, and several other VPN providers were recently accused of installing a trusted root certificate authority (CA) cert on user devices, often without user knowledge or approval.

This risky root certificate opens the users of these VPNs to increased risk of man in the middle or other attacks:

The installation of an additional root CA cert potentially undermines the security of all your software and communications. When you include a new trusted root certificate on your device, you enable the third-party to gather almost any piece of data transmitted to or from your device. 

Plus, an attacker who gets hold of the private key that belongs to a trusted root certificate authority can generate certificates for his own purposes and sign them with the private key.

For consumers, determining what VPN provides useful security and what VPN is a privacy and security dumpster fire isn’t easy, especially given how so many VPN reviews are little more than affiliate kickback blogspam. So while quality VPNs are still definitely useful, experts increasingly point out that unless you know what you’re buying and really need the protection, they’re often just not worth it.

Filed Under: consumers, privacy, privacy scandals, root cert, vpn

from the obeying-the-law-cannot-be-considered-suspicious dept

The opportunistic actions of drug warriors has often been encouraged by courts, which have been willing to grant considerable leeway to law enforcement, even when their articulated suspicion is contradictory or could be read to cover nearly 100% of the American public. (And when that fails, there’s always the ever-popular “odor of marijuana” claim which generally can’t be disproven in court.)

For the most part, any way. Some courts have pushed back, pointing out that what officers call “suspicious” is often just humans being human. This memorable decision, written by Texas federal judge Brian Quinn, called bullshit on law enforcement assertions about “reasonable” suspicion.

A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, or looking at a peace officer, or looking away from a peace officer, or a young person driving a newer vehicle, or someone driving in a car with meal wrappers, or someone driving carefully, or driving on an interstate, most anything can be considered as indicia of drug trafficking to law enforcement personnel.

A court willing to call bullshit is the reason a man will be getting back more than $13,000 stolen from him by law enforcement. In this case, North Carolina law enforcement officers decided the discovery of legally-owned weapons was evidence of illegal activity. The court [PDF], fortunately, decided to shut that line of reasoning down. (via Volokh Conspiracy)

In August 2018, Rahkim Franklin took $23,000 in cash to his bank, $8,000 of which had been given to him by his significant other (and co-claimant) Shelly Medrano. They were trying to buy a house and hoped to secure a loan by paying off an outstanding car loan and applying the rest to the down payment on the house. Franklin was denied the loan but still paid off the car loan, leaving him with a little more than $13,000 in cash.

He then went to a nearby restaurant to pick up a takeout order. As he exited the restaurant, he was pulled over by sheriff’s deputy who felt the windows on Franklin’s car were “overly tinted.” (This is also a very popular excuse for suspicionless stops and searches.) The deputy stated he “detected a strong odor of marijuana” coming from the vehicle. The car was searched and the deputy asked if Franklin had any weapons on him.

Franklin did not have any weapons on him. But he did have a bunch of cash, approximately $6,000 in one bundle and his wallet. A window tint test was performed and the deputy declared the tint was too dark. A citation was issued. Franklin was apparently not free to go. Instead, another officer arrived and the car was searched, resulting in the discovery of “loose marijuana shake” on the floorboard and under the seat. But this small amount was not enough to warrant a charge of drug possession, so no sample was taken.

The deputies keep searching, though, apparently hoping to discover more cash. And they did. They found another $7,000 in the center console. They kept it all. They also apparently kept $200 in coins found in a plastic container. Then they came across a loaded handgun under the seat. Franklin was ultimately arrested on concealed weapon charges. No drug charges were filed.

The government claimed many things supported its assertion the seized money came from drug sales, including Franklin’s invocation of the Fifth Amendment during cross examination, something Franklin claimed was due to his misunderstanding the questions being asked and misunderstanding what invoking the Fifth actually meant. (He was questioned again in court after sorting this out and answered the same questions without invoking the Fifth.) It also claimed his lack of verifiable income suggested only illegitimate sources of income. And then it claimed the gun deputies found was indicative of drug trafficking.

The court says all of the government’s assertions are wrong. As to the invocation of rights as a sign of guilt, it has this to say:

[T]he Government’s questions, as posed in the written interrogatories and deposition, were so broad as to encompass topics beyond what is relevant to this case—thus obviously raising Mr. Franklin’s suspicion and confusion. As such, the very imprecise questioning by the Government’s counsel caused Mr. Franklin’s invocation of the privilege to carry no appreciable probative value.

Moreover, at trial, Mr. Franklin responded fully to counsel’s questions regarding his illicit drug use and whether he had any involvement in the sale of controlled substances.

For these reasons, the Court declines to draw an adverse inference from Mr. Franklin’s invocation of his Fifth Amendment in the course of discovery.

As for the lack of verifiable income sources, the court says the government is drawing the wrong inferences from what it has presented as evidence, none of which suggests Franklin could only have gotten the money from dealing drugs.

[T]he Government has failed to prove that Mr. Franklin has a history of distributing controlled substances. At most, the Government proved that Mr. Franklin’s brothers are so involved. But the Government’s reliance on such evidence is equivalent to attempting to prove guilt by association or even guilt by blood.

At most, the Government has provided evidence that Mr. Franklin has a history of using controlled substances, primarily marijuana.

Thus, even if the Court were to find that Mr. Franklin does not appear to have legitimate, verifiable sources of income, Mr. Franklin’s apparent lack of involvement in the sale of controlled substances renders the evidence of his income sources to be less than probative on the issue of whether the Defendant Currency is traceable to illicit drug activity.

The court also says the drug dog alert on the seized cash proves nothing.

The cash to which the dog alerted, however, was located inside of a vehicle that smelled strongly of marijuana. Mr. Franklin admitted during the traffic stop that he had been smoking marijuana, and multiple officers on the scene noted the strong odor of marijuana coming from Mr. Franklin as well. In light of these circumstances, it is not surprising (in fact, it would be expected) that the cash located in
the center console of that vehicle would also smell of marijuana. At most, the positive canine alert establishes that the cash was within the vicinity of marijuana—a fact that was already known to the officers by virtue of the shake observed on the floorboard of the car and Mr. Franklin’s admission that he had been smoking marijuana.

Finally, there’s the gun, which the government alleged was evidence Franklin was in the drug trafficking business. Fuck that noise, says the court. Maybe read the Constitution?

In a footnote, the Government points out that Mr. Franklin also owns several firearms, which the Government contends “have long been recognized as being ‘tools of the drug trade.’” It is undisputed, however, that Mr. Franklin owned these firearms legally; he is not a convicted felon or an otherwise prohibited person. Further, none of Mr. Franklin’s firearms were subject to forfeiture by the Government. The Government has not presented any evidence from which this Court could reasonably conclude that these firearms were owned for the purpose of furthering any criminal activity. For the Government to suggest that a citizen’s mere possession of firearms implicates that person in illicit drug trafficking is to strain credulity. The Government’s argument presents some Second Amendment considerations that counsel has apparently not considered.

That ends the government’s litigation against the money it stole. The seizure warrant is vacated and the court declares Franklin and Medrano the rightful owners of the $13,000 law enforcement took from them. And it’s one more ruling that will be useful when combatting bullshit seizures performed by drug warriors who think legal activities are illegal and any amount of cash carried by people they stop could only have been obtained through criminal activity.

Filed Under: 5th amendment, ONE Used FATEK FB-40EA, REF# 1090-09600-01-01B DETROIT DD13 2016 FAN CLUTCH/HUB ASSEMBLY, shelly medrano

from the cristal-clear dept

What is it about producing champagne that turns you into a trademark bullying jackwagon? Readers here will know that the Comite Champagne, or CIVC, is purely a trademark bully for champagne producers out of France, policing the rest of the world to ensure nobody dares call anything not produced by one of its constituents anything remotely resembling “champagne.” But this ownership culture that must certainly have been learned from the top down in this micro-industry has also spilled over at the winery level.

For an example of this, you need only look to Louis Roederer, producers of famed brand Cristal, and its attempt to oppose the trademark registration of a small Oregon winery that makes a sparkling wine branded as Crystal Visions.

Melaney Schmidt and Malia Myers are the sparkling wine specialists behind Landmass Wines in Cascade Locks. In 2019 the duo named a new sparkling pinot noir Crystal Visions in honor of their admiration for the singer Stevie Nicks. The phrase “crystal visions” appears in the lyrics of the Fleetwood Mac song “Dreams.”

Schmidt and Myers then did what they should have: applied for a trademark on the brand with the USPTO. From there, an attorney was assigned to review the application and to search out any potentially conflicting trademarks that had already been registered, and then pushed the application through to publication. From there, the companies and individuals of the world got 30 days to oppose the trademark.

Louis Roederer asked for an extension to review and then finally filed an opposition to the mark. In addition, counsel for the company sent a letter to Landmass Wines claiming that its branding could cause confusion with the public between the two brands.

And that, dear readers, is pretty fucking stupid. Cristal is a hundreds-per-bottle French sparkling white wine sold in a distinctive bottle. Crystal Visions is a sparkling red wine that costs about as much as a short cab ride and sold in a bottle that looks nothing like a bottle of Cristal. There is no real confusion to be had here.

Cristal is made with grapes from grand cru vineyards in France’s Champagne region. Cristal’s distinctive clear glass bottle is wrapped in gold cellophane to protect the wine from ultraviolet rays. The bottle features an understated label and a traditional cork. Cristal is also expensive and enjoyed by both David and Victoria Beckham.

Crystal Visions is made with grapes from Underwood Mountain in the Columbia Gorge, and it is cellophane-free. The wine’s label is pure pop art, and the bottle is sealed with a metal crown cap. Crystal Visions is inexpensive, and it is unknown whether the Beckhams have ever enjoyed it. If they did, they could buy a case of Crystal Visions for about the price of one bottle of Cristal.

This should be a simple case to make and win in front of any sane juror or judge. Or member of the public. Or the USPTO attorney who reviewed the application. Or, let’s say, a particularly intelligent golden retriever. But, because Louis Roederer is big and Landmass Wines is small, the former can simply drown the latter in court and legal costs. As a result, Landmass has decided to simply abandon its application and rebrand the wine.

“We’re being told we can’t use something we worked hard to create, only because we’re so small. It feels like bullying, and there’s nothing we can do about it,” Myers said.

Correct, unfortunately, on all counts.

Filed Under: cristal, crystal visions, sparkling wine, trademark, wine
Companies: landmass wines, GBC CombBind C20 Binding Machine 20 Sheet Punch/320 Sheet Bindin