Category: reason

Brickbat: The Last Place You Look

Four years ago, Minneapolis police said they had 194 untested rape kits. They now say they have more than 1,700 untested rape kits, some dating back to the 1990s. Police Chief Medaria Arradondo says he does not know why so many rape kits have been left untested. But Mike Sauro, who used to run the sex crimes unit, defended the department, saying that many of the kits uncovered in the 2015 audit were “restricted,” meaning the alleged victim was not cooperating with police. “We reviewed all the kits from the year 2000 all the way up to 2015,” he said. “People have this misconception that all kits have to be and should be tested, and that’s just not true. … If you don’t have an official police report made, we can’t enter them into the national database, so we can’t test them.”

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Brickbat: The Last Place You Look

Four years ago, Minneapolis police said they had 194 untested rape kits. They now say they have more than 1,700 untested rape kits, some dating back to the 1990s. Police Chief Medaria Arradondo says he does not know why so many rape kits have been left untested. But Mike Sauro, who used to run the sex crimes unit, defended the department, saying that many of the kits uncovered in the 2015 audit were “restricted,” meaning the alleged victim was not cooperating with police. “We reviewed all the kits from the year 2000 all the way up to 2015,” he said. “People have this misconception that all kits have to be and should be tested, and that’s just not true. … If you don’t have an official police report made, we can’t enter them into the national database, so we can’t test them.”

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Mistrusting Google

We kick off the episode with This Week in Mistrusting Google: Klon Kitchen points to a Wall Street Journal story about all the ways Google tweaks its search engine to yield results that look machine-made but aren’t. He and I agree that most of these tweaks have understandable justifications – but you have to trust Google not to misuse them. And increasingly no one does. The same goes for Google’s foray into amassing and organizing health data on millions of Americans. It’s a nothingburger with mayo, unless you mistrust Google. Since mistrusting Google is a growth industry, the report is getting a lot of attention, including from HHS investigators. Matthew Heiman explains, and when he’s done, my money is on Google surviving that investigation comfortably. The capital of mistrusting Google, of course, is Brussels, and not surprisingly, Maury Shenk tells us that the EU has forced Google to modify its advertising protocols to exclude data on sites visited by its customers.

A Massachusetts federal district court says suspicionless device searches at borders are not okay. Matthew and I dig into the details. Bottom line: Requiring reasonable suspicion for electronics searches isn’t a tough standard, but if CBP needs a reasonable suspicion that the phone contains contraband, we aren’t going to see a lot of searches. But that’s only good news for US citizens. Searches of foreign travelers’ phones can also be justified as a search for evidence that they should not be admitted to the country, and reasonable suspicion that such evidence will be found on a phone is not hard to come by.

The US Supreme Court will be deciding whether APIs can be copyrighted (or whether copying them is fair use). I put my Supreme Court maven cred on the line, predicting that the Court is going to reverse the federal circuit and reject Oracle’s claim that it can extract hefty rent payments from Google for use of Oracle APIs.

An injunction against disseminating violent and inciting speech is causing angst in Hong Kong. Maury explains why. And Klon unpacks the story of the Chinese hackers who’ve been spying on the US National Association of Manufacturers.

Maury and I throw shade at the federal court’s claim that it’s arbitrary and capricious for the Trump Administration to drop an unenforceable ban on the export through publication of 3D gun plans.

In a lightning round, no one should be surprised that Microsoft is making CCPA the law of the land. Nor that Amazon sells a lot of stuff directly from China. Or, frankly, that the hullabaloo over “sophisticated” DDoS attacks on British political parties is just campaign grist.

Advertisement (you knew it would happen eventually): Steptoe is hosting a complimentary webinar on Tuesday, December 10. We’ll be talking about the impacts on retailers of the newly implemented California Consumer Privacy Act and the EU’s General Data Protection Regulation. This is a fast-moving area of the law. You can find out more and register here.

Download the 288th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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Mistrusting Google

We kick off the episode with This Week in Mistrusting Google: Klon Kitchen points to a Wall Street Journal story about all the ways Google tweaks its search engine to yield results that look machine-made but aren’t. He and I agree that most of these tweaks have understandable justifications – but you have to trust Google not to misuse them. And increasingly no one does. The same goes for Google’s foray into amassing and organizing health data on millions of Americans. It’s a nothingburger with mayo, unless you mistrust Google. Since mistrusting Google is a growth industry, the report is getting a lot of attention, including from HHS investigators. Matthew Heiman explains, and when he’s done, my money is on Google surviving that investigation comfortably. The capital of mistrusting Google, of course, is Brussels, and not surprisingly, Maury Shenk tells us that the EU has forced Google to modify its advertising protocols to exclude data on sites visited by its customers.

A Massachusetts federal district court says suspicionless device searches at borders are not okay. Matthew and I dig into the details. Bottom line: Requiring reasonable suspicion for electronics searches isn’t a tough standard, but if CBP needs a reasonable suspicion that the phone contains contraband, we aren’t going to see a lot of searches. But that’s only good news for US citizens. Searches of foreign travelers’ phones can also be justified as a search for evidence that they should not be admitted to the country, and reasonable suspicion that such evidence will be found on a phone is not hard to come by.

The US Supreme Court will be deciding whether APIs can be copyrighted (or whether copying them is fair use). I put my Supreme Court maven cred on the line, predicting that the Court is going to reverse the federal circuit and reject Oracle’s claim that it can extract hefty rent payments from Google for use of Oracle APIs.

An injunction against disseminating violent and inciting speech is causing angst in Hong Kong. Maury explains why. And Klon unpacks the story of the Chinese hackers who’ve been spying on the US National Association of Manufacturers.

Maury and I throw shade at the federal court’s claim that it’s arbitrary and capricious for the Trump Administration to drop an unenforceable ban on the export through publication of 3D gun plans.

In a lightning round, no one should be surprised that Microsoft is making CCPA the law of the land. Nor that Amazon sells a lot of stuff directly from China. Or, frankly, that the hullabaloo over “sophisticated” DDoS attacks on British political parties is just campaign grist.

Advertisement (you knew it would happen eventually): Steptoe is hosting a complimentary webinar on Tuesday, December 10. We’ll be talking about the impacts on retailers of the newly implemented California Consumer Privacy Act and the EU’s General Data Protection Regulation. This is a fast-moving area of the law. You can find out more and register here.

Download the 288th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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South Dakota’s Anti-Meth Marketing Slogan Is Going Viral

South Dakota has employed a very unique advertising strategy to combat meth use in the state. The slogan for the state’s new anti-drug campaign is “Meth. We’re on it.” 

In announcing the campaign, Gov. Kristi Noem (R) wrote that last year, 13 South Dakotans lost their lives because of methamphetamines and 3,366 were arrested on related offenses. To curb usage, Noem announced on Monday the state’s “largest and most aggressive” campaign yet. 

As with many aspects of our seemingly endless drug war, South Dakota’s campaign has good intentions. But it’s not the intention that has people talking.

“Meth. We’re on it,” reads the campaign’s logo in big, bold lettering that are plastered over an outline of the state. If that wasn’t enough to grab attention, the campaign and its logo can be viewed at the website onmeth.com.

A company called Broadhead LLC received $448,914 to design the campaign. The state is now running ads and posters featuring a diverse group of South Dakotans saying, “I’m on meth.”

Whether the state succeeds in reducing meth use and helping people who want to quit do so, they’ve already succeeded in “raising awareness.”

The new slogan is even trademarked to thwart any copycats.

According to Facebook, this campaign is a refresh of the state’s “Meth Changes Everything” marketing strategy. 

The new campaign directs people to a tipline where residents can report suspected drug activity to the state attorney general. It also includes classroom resources reminiscent of a certain other anti-drug campaign aimed at young people. 

But lest this seem only like a hilarious way to lock more people up, the campaign also includes funding for substance abuse treatment facilities and a confidential locator for connecting with those facilities. South Dakotans can also receive financial assistance for treatment. 

Reason has reached out to the South Dakota Department of Social Services for comment on the campaign, the treatment facilities, and literally anything about this campaign other than the insane slogan that is currently breaking the internet. The story will be updated with comment.

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South Dakota’s Anti-Meth Marketing Slogan Is Going Viral

South Dakota has employed a very unique advertising strategy to combat meth use in the state. The slogan for the state’s new anti-drug campaign is “Meth. We’re on it.” 

In announcing the campaign, Gov. Kristi Noem (R) wrote that last year, 13 South Dakotans lost their lives because of methamphetamines and 3,366 were arrested on related offenses. To curb usage, Noem announced on Monday the state’s “largest and most aggressive” campaign yet. 

As with many aspects of our seemingly endless drug war, South Dakota’s campaign has good intentions. But it’s not the intention that has people talking.

“Meth. We’re on it,” reads the campaign’s logo in big, bold lettering that are plastered over an outline of the state. If that wasn’t enough to grab attention, the campaign and its logo can be viewed at the website onmeth.com.

A company called Broadhead LLC received $448,914 to design the campaign. The state is now running ads and posters featuring a diverse group of South Dakotans saying, “I’m on meth.”

Whether the state succeeds in reducing meth use and helping people who want to quit do so, they’ve already succeeded in “raising awareness.”

The new slogan is even trademarked to thwart any copycats.

According to Facebook, this campaign is a refresh of the state’s “Meth Changes Everything” marketing strategy. 

The new campaign directs people to a tipline where residents can report suspected drug activity to the state attorney general. It also includes classroom resources reminiscent of a certain other anti-drug campaign aimed at young people. 

But lest this seem only like a hilarious way to lock more people up, the campaign also includes funding for substance abuse treatment facilities and a confidential locator for connecting with those facilities. South Dakotans can also receive financial assistance for treatment. 

Reason has reached out to the South Dakota Department of Social Services for comment on the campaign, the treatment facilities, and literally anything about this campaign other than the insane slogan that is currently breaking the internet. The story will be updated with comment.

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California Tried To Fine a Company $10,000 for Ordering Blind People Ubers and Lyfts Without a Permit

California regulators are trying to crack down on a company that orders Ubers for the blind and elderly.

In February, the Consumer Protection and Enforcement Division (CPED) of the California Public Utilities Commission—the state body that regulates transportation network services such as Uber and Lyft—issued a citation to GoGo Grandparent for operating a for-hire transportation service without permission.

Regulators demanded that the company pay a $10,000 fine and obtain the necessary permit to run a transportation network company, which would involve getting $1 million liability insurance for its vehicles and handing over lists of its drivers to the state.

But GoGo doesn’t own any vehicles, and it doesn’t contract directly with any drivers.

Instead, for the past four years, the company has been providing a toll-free hotline that customers without a smartphone can call to order an Uber or Lyft ride to their home or another prearranged location. Using customer-provided information, GoGo’s software automatically orders a ride, then charges a 27-cent-per-mile fee for its services.

GoGo’s service is aimed at elderly and disabled people who either don’t have or can’t use smartphones. Its novelty and perceived public benefit—improving mobility for seniors—has earned the company coverage from such outlets as The New York Times and TechCrunch.

State regulators have taken a more negative view.

California law defines a for-hire ride service—referred to as “charter-party carriers”—as any “person engaged in the transportation of persons by motor vehicle for compensation.” CPED argues that this applies to GoGo. In regulatory filings, it has used the Merriam-Wester definition of “engaged” as “involved in [the] activity.”

The division officially cited GoGo in February. In March, the company filed an appeal, arguing that the regulations it was being asked to comply with were inapplicable to its business model.

“GoGo allows a flip phone to act as a substitute for a smartphone for the rider summoning a ride through a [transportation network company] such as Uber or Lyft,” says appeal, which notes that the company neither employs or contracts with drivers. “For the [Public Utilities Commission] to regulate them would be equivalent to regulating a smartphone or the Google Alexa Device or a computer code.”

In an August opinion, an administrative law judge agreed with GoGo, noting that the CPED had used a more narrow definition of transportation service in the past—and that if regulators’ expansive definition of what it meant to be “engaged” in transporting people were accepted, those same regulators might themselves be labeled a for-hire transportation service.

CPED regulators “are ‘engaged’ in the transportation of persons by motor vehicle by virtue of this enforcement action and they are compensated for their activity,” the judge noted. “This absurd result of relying on its dictionary definition demonstrates the ambiguity of the term ‘engaged.'”

The full utility commission still needs to vote to ratify this decision, and the vote keeps getting delayed. The five-member commission was initially supposed to vote to dismiss the citation issued against GoGo in October, but that was moved back to November, and now early December.

A spokesperson for the California Public Utilities Commission told the San Francisco Chronicle that a few delays are pro forma. Not so, says Tom MacBride, GoGo’s attorney, who told the paper that multiple delays usually happen only for major commission business, not a minor citation like the one issued against his client. He speculates that CPED staff could be holding up proceedings.

Regardless of what’s behind these delays, it’s ridiculous that GoGo is in this position in the first place. The company is performing a useful and innovative service by helping seniors to make use of technology that might otherwise have left them behind. For their trouble, they’ve been beset by dictionary-quoting regulators who are stretching state law to penalize the company.

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California Tried To Fine a Company $10,000 for Ordering Blind People Ubers and Lyfts Without a Permit

California regulators are trying to crack down on a company that orders Ubers for the blind and elderly.

In February, the Consumer Protection and Enforcement Division (CPED) of the California Public Utilities Commission—the state body that regulates transportation network services such as Uber and Lyft—issued a citation to GoGo Grandparent for operating a for-hire transportation service without permission.

Regulators demanded that the company pay a $10,000 fine and obtain the necessary permit to run a transportation network company, which would involve getting $1 million liability insurance for its vehicles and handing over lists of its drivers to the state.

But GoGo doesn’t own any vehicles, and it doesn’t contract directly with any drivers.

Instead, for the past four years, the company has been providing a toll-free hotline that customers without a smartphone can call to order an Uber or Lyft ride to their home or another prearranged location. Using customer-provided information, GoGo’s software automatically orders a ride, then charges a 27-cent-per-mile fee for its services.

GoGo’s service is aimed at elderly and disabled people who either don’t have or can’t use smartphones. Its novelty and perceived public benefit—improving mobility for seniors—has earned the company coverage from such outlets as The New York Times and TechCrunch.

State regulators have taken a more negative view.

California law defines a for-hire ride service—referred to as “charter-party carriers”—as any “person engaged in the transportation of persons by motor vehicle for compensation.” CPED argues that this applies to GoGo. In regulatory filings, it has used the Merriam-Wester definition of “engaged” as “involved in [the] activity.”

The division officially cited GoGo in February. In March, the company filed an appeal, arguing that the regulations it was being asked to comply with were inapplicable to its business model.

“GoGo allows a flip phone to act as a substitute for a smartphone for the rider summoning a ride through a [transportation network company] such as Uber or Lyft,” says appeal, which notes that the company neither employs or contracts with drivers. “For the [Public Utilities Commission] to regulate them would be equivalent to regulating a smartphone or the Google Alexa Device or a computer code.”

In an August opinion, an administrative law judge agreed with GoGo, noting that the CPED had used a more narrow definition of transportation service in the past—and that if regulators’ expansive definition of what it meant to be “engaged” in transporting people were accepted, those same regulators might themselves be labeled a for-hire transportation service.

CPED regulators “are ‘engaged’ in the transportation of persons by motor vehicle by virtue of this enforcement action and they are compensated for their activity,” the judge noted. “This absurd result of relying on its dictionary definition demonstrates the ambiguity of the term ‘engaged.'”

The full utility commission still needs to vote to ratify this decision, and the vote keeps getting delayed. The five-member commission was initially supposed to vote to dismiss the citation issued against GoGo in October, but that was moved back to November, and now early December.

A spokesperson for the California Public Utilities Commission told the San Francisco Chronicle that a few delays are pro forma. Not so, says Tom MacBride, GoGo’s attorney, who told the paper that multiple delays usually happen only for major commission business, not a minor citation like the one issued against his client. He speculates that CPED staff could be holding up proceedings.

Regardless of what’s behind these delays, it’s ridiculous that GoGo is in this position in the first place. The company is performing a useful and innovative service by helping seniors to make use of technology that might otherwise have left them behind. For their trouble, they’ve been beset by dictionary-quoting regulators who are stretching state law to penalize the company.

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Did Elizabeth Warren Forget She’s a Senator?

As a United States senator from Massachusetts, Elizabeth Warren is earning $174,000 a year. The least she could do is show up for work.

Instead, Senator Warren’s recent absenteeism has me—a Boston resident and biographer of Samuel Adams—upset about what Adams might have recognized as a twist on taxation without representation. If Warren doesn’t bother to vote, her constituents, including me and millions of other citizens of the Bay State, are effectively deprived of a say in the Senate.

That’s exactly what has been happening. The first two weeks of November, there were 14 roll call votes in the Senate. Warren was absent for each and every one. Nor was this phenomenon limited to November. There were four roll call votes on October 31; Warren didn’t show up for a single one of those, either. She’s missed at least the past 23 votes in a row. According to ProPublica, she’s missed more than four out of every ten votes this year. According to GovTrack, she missed 70.2 percent of the votes from July through September of 2019 and has missed 95.3 percent of the votes in October and November of 2019.

Sens. Bernie Sanders (I–Vt.), Cory Booker (D–N.J.), and Kamala Harris (D–Calif.), who are also running for president, have also missed a lot of votes, but that’s not my problem. They aren’t my senators. It must be said, too, that Sens. Michael Bennet (D–Colo.) and Amy Klobuchar (D–Minn.) either take their responsibilities as senators more seriously than Warren does or they take their presidential campaigns less seriously than she does. Whatever their motives, Bennet and Klobuchar have been better about showing up for the work they were elected to do.

Warren could give her flagging presidential campaign a boost and signal some respect for the voters of Massachusetts by following in the footsteps of Senator Robert Dole, a Republican who resigned from the Senate in 1996 to devote himself full time to his presidential campaign against Bill Clinton.

If Warren isn’t willing to take that step voluntarily, the governor of Massachusetts, Republican Charlie Baker, could try offering her some incentives by promising to fill Warren’s seat by appointing a Democrat until a special election can be held. Baker could appoint his own predecessor as governor, Deval Patrick, who might agree in return to end the presidential campaign that could siphon votes from Warren in New Hampshire. Or Baker could appoint the man Patrick appointed to fill John Kerry’s seat, Mo Cowan, who is widely liked and respected on both sides of the aisle. Or Baker could appoint Rep. Joe Kennedy III (D–Mass.), a former student of Warren’s who has endorsed Warren’s presidential campaign and who has also announced plans to challenge the other senator from Massachusetts, Ed Markey.

Some might complain that it’s a double standard to expect Warren to resign from the Senate to seek the presidency. After all, President Trump campaigns for re-election while also serving as president. If it’s okay for Trump to do two jobs simultaneously—president and presidential candidate—why isn’t it okay for Warren to do the same?

The executive function is different from the legislative function. Trump can delegate certain tasks to his vice president or cabinet members. But only a senator can vote in the Senate. Warren’s chronic absenteeism demonstrates that she’s not taking that responsibility seriously. Sure, she’s way more left-wing than I am, but even if I don’t necessarily agree with how she’d be voting, I’d still like my state to be represented.

The issue is all the more acute given that the Senate may soon be pressed into function as, in essence, a jury deciding whether to convict the president in an impeachment proceeding. How is Warren—or, for that matter, Sanders, Booker, Harris, or the rest of them—supposed to serve as an impeachment juror while also campaigning for the president’s job? The competing time demands will be hard to manage, and it makes it even harder to take an impeachment trial seriously when six of the 100 jurors are announced presidential candidates hoping to oust Trump through the electoral process.

Warren got elected in 2018 in part on the basis of a pledge to be a full-time senator. “Warren: I’ll serve my full Senate term if reelected,” was the headline Politico put over a 2018 news article that began, “Elizabeth Warren said she would serve her full six-year term in the Senate if reelected in November.” The article quoted Warren as saying, “I am not running for president of the United States. That’s my plan.” The senator wasn’t pressed on the definition of “serve,” but, as a Massachusetts voter, I certainly didn’t imagine that by “serve” she meant she’d miss so many of the votes.

It’s one thing if a politician falls ill or has pressing family obligations that require missing work. But Warren has decided to spend months interviewing for a job other than the one that she currently has.

Ultimately, the decision on whether to stay in the Senate or resign while seeking the presidency is Warren’s to make. But as one of the people she’s ostensibly representing, I’d sure prefer someone who treats it as a full-time job by showing up when it’s time to vote.

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