Category Archives: rights

The DoJ Strikes Again

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This case involves a Bureau of Alcohol, Tobacco, Firearms and Explosives ex-agent who sued the BATF over its slander of him and its lack of adequate protection of him and his family after he’d done undercover work for the BATF in the Hell’s Angels motorcycle gang.

United States Court of Federal Claims Judge Francis M. Allegra opened his latest ruling in blunt terms:

On October 29, 2014, the court…issued an order voiding the prior judgment based upon indications that defendant [the United States; the BATF agent was the plaintiff], through its counsel, had committed fraud on the court.

Fraud on the court is an extremely serious bit of…miscreancy. As Allegra explained it,

Fraud on the court “is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.”

It’s a direct attack on the ability of our judicial system to function at all; it’s not one litigant lying to the other in order to gain an advantage in a particular case.

The underlying case is an indication of the integrity of Attorney General Eric Holder’s DoJ, but I want to focus on the fraud on the court allegation. Allegra focused on two examples he found indicative of a pattern of fraud on the court perpetrated by Holder’s representatives in the case. The first is this:

Testimony at trial indicated that Valerie Bacon, an attorney in ATF’s Office of General Counsel, attempted to convince SAC Atteberry not to reopen the arson investigation [regarding the destruction of the BATF agent’s home, the blame for which was central to the agent’s slander beef]. In this regard, SAC Atteberry testified:

Q. . . . Did you get any kind of discouragement in any respect from anyone at ATF with respect to reopening this arson investigation?

A. Yes.

Q. Please explain.
…
A. I had a phone conversation, and I also believe I talked to her [Bacon] in person one time when she was in Phoenix, and I believe during the telephone conversation she made a comment to me that if you, meaning myself, reopen the investigation that would damage our civil case.

The existence of this illegal conversation was never passed to the court until Atteberry’s testimony. Indeed,

Defendant’s filings regarding this situation demonstrated not only that its counsel—including supervisors in the Civil Division, who received email communications on this topic from plaintiff’s counsel in March of 2013—were aware of Ms Bacon’s actions prior to the trial in this case, but did nothing to apprise the court of her actions or of the potential that the integrity of these proceedings were at risk.

And this instance:

…a taped conversation (a copy of which is part of the appellate record in this case), revealed that defendant’s [the United States, recall] attorneys may have committed other violations of the duty of candor, including a potential failure to advise the court that an ATF agent who testified in this case may have been threatened by another witness during the trial. The taped communication states that defendant’s counsel ordered the agent in question not to communicate the threat to the court and stated that there would be repercussions if the agent did not follow counsel’s instructions. This matter has since been referred to the Office of Professional Responsibility (OPR) at the Justice Department.

Notice that. However,

legal filings show that the agency soon suspended its investigation, saying it would wait to hear what Judge Allegra finds.

This is Eric Holder’s OPR, recall. It suspended the investigation which the judge had explicitly requested be carried out, not a file folder created and then…HIAed.

Unfortunately, the judge has no recourse other than the one he took: to address the matter to…Eric Holder. He did, though, bar the seven defense attorneys from appearing further in his court in connection with this case.

Fox News also asked Attorney General Eric Holder if the lawyers involved had been disciplined. The Department of Justice declined to comment.

Of course not.

The judge’s ruling can be seen here.

Driving Death Rate

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It fell sharply in 2012, the latest year for which data were studied by the Insurance Institute for Highway Safety. Assuming Fox News accurately summarized the study, I have a couple questions.

Improved vehicle designs and safety technology have a lot to do with the reduced risk, but a weak economy that led to reductions in driving may also have played a role….

Well, yeah. This is why I’d rather see the death rates per (million? hundred thousand?) miles driven. The Edsel in its half-day might have had a very low rate per million sold, too. Or a sky high rate. Four of the cars the Institute identified as having no deaths in 2012 were luxury cars—which won’t have as many miles driven per model as a middle-class car like Honda Accord or a Ford Taurus.

Then there’s what the Institute used for their baseline: 48 deaths over the 2008-2009 time frame. I have to wonder, given events in the latter half of 2008 and extending through 2009, how many of those 48 were due to design and technology and how many were due to driving while distracted by distraught and/or suicide by driving accident. One such death would skew the results by two per centage points.

On the Confirmation of Loretta Lynch

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…for Attorney General to replace Eric Holder.

During confirmation hearings which started yesterday [emphasis added],

Her biggest challenge could be explaining her support and participation in civil forfeitures, a legal process in which law enforcement agencies can seize money and other assets without charging or convicting the owners….

And so…

After nearly three years of legal battles, the federal government last week dropped its case against the Hirschs, who own a distribution company that serves convenience stores on Long Island. The government agreed to return more than $446,000 in assets and cash seized by the Internal Revenue Service in 2012 under federal civil asset forfeiture laws, even though the Hirsch family was never charged with a crime.

This was a case approved and brought by US Attorney for the Eastern District of New York Loretta Lynch.

Hmm….

Because We’re Not Being Spied on Enough

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The Justice Department has acknowledged constructing a database to track the movements of millions of vehicles across the U.S. in real time.

And

A Justice Department spokesman told Fox News that the tracking program is compliant with federal [law]… claiming it “includes protocols that limit who can access the database and all of the license plate information is deleted after 90 days.”

Perhaps (although with this Justice Department or this administration, that’s hard to see), but that doesn’t make it right, or consistent with the precepts of our Constitution. And how do we know the information is “deleted after 90 days?” We don’t know when it was collected, starting that clock. We have only the Eric Holder DoJ’s word that the data are deleted. We know from experience with IRS “lost emails” that “deleted” doesn’t necessarily mean deleted.

Another kicker:

It is not clear whether the tracking is overseen or approved by any court.

The Wall Street Journal had this from its original tale:

The primary goal of the license-plate tracking program, run by the Drug Enforcement Administration, is to seize cars, cash and other assets to combat drug trafficking, according to one government document. But the database’s use has expanded to hunt for vehicles associated with numerous other potential crimes, from kidnappings to killings to rape suspects, say people familiar with the matter.

The program’s current scope is this:

[It] collects data about vehicle movements, including time, direction and location, from high-tech cameras placed strategically on major highways. Many devices also record visual images of drivers and passengers, which are sometimes clear enough for investigators to confirm identities, according to DEA documents and people familiar with the program.

The documents show that the DEA also uses license-plate readers operated by state, local, and federal law-enforcement agencies to feed into its own network and create a far-reaching, constantly updating database of electronic eyes scanning traffic on the roads….

That’s the problem with a government program—it grows, it never shrinks, it never is eliminated. When the program is a secret one, its expansion is hard to discern, and the program is even harder for a free people to control. When the program is used to spy on the citizens, it’s extremely dangerous to our liberty.

What will happen when the program is further expanded—because anonymous donations to this or that political organization is viewed, by government, to be inimical? What will happen when the program is used to harass groups of Americans of whom the men in government disapprove, or of whom the men in government especially favor? Think that can’t happen? Look no further than this Justice Department and white voter intimidation by New Black Panthers and this DoJ’s avowed policy of not going after voter crimes involving white victims and black perpetrators. Look no further than this administration’s use of the IRS to go after political groups the White House doesn’t like.

Privacy Misbehavior

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Andrea Peterson of The Washington Post has a warning.

Recall that ‘way last November, Verizon was exposed as using a supercookie that they’d developed for the purpose: it sits on your cell phone and tracks, ostensibly for their own use, your cell usage (supposedly limited to your use on the Internet). And you can’t delete it.

It turns out that Turn, an online advertising company that works with Google and Facebook,

uses [the Verizon supercookie] to collect data that makes it easier for advertisers to place targeted online ads, according to the researchers.

Verizon says they’re “looking into this,” but they don’t say they’re putting a stop to it.

We are evaluating how third parties are using the UIDH in this evolving ecosystem and considering any appropriate response[.]

Peterson suggests that

Turn’s use of the identifier highlights how data about someone’s online tracking practices can sometimes be deployed beyond its original intent—making it harder than ever for consumers to control who has knowledge about their online activities.

And

Turn’s General Counsel and Chief Privacy Officer, Max Ochoa, confirmed Mayer’s analysis of how its program worked in an interview with The Post.

Ochoa also thinks this is perfectly jake [emphasis his].

Clearing cookies is not a reliable way for a user to express their desire not to receive tailored advertising….
…
It is vital to note that clearing a cookie cache is not a widely recognized method of reliably expressing an opt-out preference.

Yeah—because the user didn’t use a bureaucrat’s special hoop. This, of course, is nonsense. The user didn’t clear the cookies because he didn’t have anything better to do with his time, so he just started putzing around with his cell phone. Leave it to an advertiser—and one that does his data collection for his clients in an entirely behind-the-scenes way—to pretend to this level of obtuseness.

Just as disappointingly, Verizon is pretending innocence in all of this.

“[I]t is unlikely that sites and ad entities will attempt to build customer profiles for online advertising” and noting that the identifier “changes frequently.”

Never mind that

While you have a Turn tracking cookie and are on the Verizon network, it kept track of the linkage between your Turn cookie and that Verizon Wireless tracking header,” he explained. “But if you get rid of the Turn cookie, the back end of that system would notice and reinstate that cookie based on the header.

It strains my credulity to think that the IT experts at Verizon wouldn’t understand this as they developed their supercookie and deployed it.

Hmm….