The FBI is watching you.

Well, maybe not you in particular, but there’s a new technique they’re using that may have you concerned.

A brief description of the FBI

The FBI (Federal Bureau of Investigation (FBI) is the primary investigative arm of the United States Department of Justice (DOJ).  In basic terms, they are the lead agency in charge of law enforcement in the United States. Their motto is “Fidelity, Bravery, Integrity”.

The controversial government spying technique

There is a new Internet surveillance technique that the FBI is using to collect data on Americans. You might think they’re using this data collection in order to find out what a particular criminal suspect is doing and they are recording this for investigative and evidence purposes. The problem here is that FBI agents are collected data on the activities of thousands of users on the internet at one time. They are then placing these web histories of unsuspecting innocent people in huge government databases. These allegations have been collaborated by current and former government officials.

Types of data collected on citizens

The information they may have on you may include your name, email address and keywords you are searching for.

The FBI used to use the Carnivore surveillance system (renamed to DCS1000) but this new method of internet data collection is broader and more controversial than even that system.

This approach by the FBI is called the vacuum-cleaner approach by some. It is used when there’s a court order given to police to gather information on a suspect. However, if an ISP (Internet Service Provider, like AOL) can’t isolate that person due to technical issues, they use this type of shotgun-scanning system.

The FBI can then record this information, which will include all Internet traffic, at the ISP side. They can then set it up to collect data on web browsing habits, emails, or instant messaging.

The law school symposium that started the scandal

Stanford University law school had a symposium called “Beyond a Physical Conception of the 4th Amendment: Search & Seizure in the Digital Age”. Paul Ohm, a University of Colorado law professor who was a commenter at the symposium said that federal agents use this kind of “full-pipe recording” as a default method for surveillance.  “You collect wherever you can on the (network) segment,” Ohm said. “If it happens to be the segment that has a lot of IP addresses (Internet Protocol addresses; a computer’s unique numerical address), you don’t throw away the other IP addresses. You do that after the fact. You intercept first and you use whatever filtering, data mining to get at the information about the person you’re trying to monitor. The question that’s interesting…is whether this is illegal, whether it’s constitutional. Is Congress even aware they’re doing this?”

“What they’re doing is even worse than Carnivore,” said Kevin Bankston, a Electronic Frontier Foundation staff attorney. “What they’re doing is intercepting everyone and then choosing their targets.”

Carnivore version two

The federal bureau dropped the Carnivore project two years ago. The bureau then basically outsourced this by having the Internet Service Providers do the surveillance and then reimburse the companies for the costs of such an operation.

Federal law versus the FBI

Federal law states that the FBI must perform “minimization”. Minimization decrees that federal agents must “minimize the interception of communications not otherwise subject to interception” and keep the supervising judge informed. This gives some privacy by intending to limit eavesdropping on innocent conversations. The current rules allow FBI agents to listen to a phone call up to two minutes, with one minute in between the sessions. An interesting observation with this federal law is that it mentions real-time interception – meaning agents actively listening to calls at the moment they occur. The law does not authorize the collection of huge information databases on thousands of innocent people. The closest the law comes to mentioning such a practice is: “In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.”

Some government officials feel the language authorizes the database collection. “Take a look at the legislative history from the mid ’90s,” says DOJ assistant deputy chief Richard Downing. “It’s pretty clear from that that Congress very much intended it to apply to electronic types of wiretapping.”

The Electronic Frontier Foundation staff attorney disagrees with that assessment. Kevin Bankston feels the FBI is “collecting and apparently storing indefinitely the communications of thousands–if not hundreds of thousands – of innocent Americans in violation of the Wiretap Act and the 4th Amendment to the Constitution.”

There might be a middle ground in this debate. The director of the Electronic Privacy Information Center in Washington, D.C., Marc Rotenberg,  feels that a balanced way of conducting this is to require FBI agents to only come in contact with the information that is permitted by court order. “The obligation should be on both the (Internet provider) and the government to make sure that only the information responsive to the warrant is disclosed to the government,” says Rotenberg.

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A Florida radio station ran billboards showing Britney Spears and one of the station’s DJs, suggesting that she and DJ were ‘nuts.’ Ms. Spears contested the use. The radio station is pulling the billboards. Unfortunately, the Smoking Gun has printed only one of Britney’s lawyers letters, not the one that contains ‘many legal authorities.’ However this letter does site Florida statutes and law. Interestingly, the two cases cited do not apply to media defendants.

There is some precedent for media defendants to utilize someone’s name or likeness if the person was the subject of the media’s product. In Velez v. VV Pub. Corp., the Village Voice used an unflattering photo of local politico Ramon Velez (a subject of Voice exposes), in an advertisement for the Voice. The use of the photo fairly represented the Voice’s news coverage. 135 A.D.2d 47, 50, 524 N.Y.S.2d 186, 187 (1st Dept. 1988) (“[T]he incidental use in an advertisement by a news disseminator of a person’s name or identity does not violate the statutory proscription, if it had previously published the item exhibited as a matter of public interest.”

In Montana v San Jose Mercury News, the newspaper sold posters of Joe Montana following a Super Bowl victory, which posters were held to have news value due to their ‘relatively contemporaneous’ publication. Because the use was in connection with merchandise rather than a mere advertisement for the newspaper, this ruling seems like a bit of an outlier. 34 Cal.App.4th 790 (1995).

See more discussion by Stanford University Library here.

If you’re aware of Florida caselaw that would suggest how a media defendant using a name or likeness in advertisement for its services might fare, send it on in.

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Unless you’re a sex offender, in which case you’re going to jail.

There’s a law in New Jersey that forbids sex offenders from giving out candy on Halloween. That means Lester down the street won’t giving out chocolate yum-yums this year.

Don’t think this law is only going to affect a small number of people. Did you know there are 2,200 sexual crime offenders registered in the state of New Jersey?

It makes you think though, how many of these sex offenders used candy to lure children? Did any of them poison food or candy and then give it to them? Did they somehow put some sort of date rape drug in candy or food?

It seems the main goal is to prevent the contact between children and sex crime offenders. It’s a very reasonable concern. Most parents are already wary of their children coming into close contact with strangers, now add the fact that these strangers are convicted sex offenders and that concern raises to another level. People nowadays are scared to let their children out alone and if they know a convicted sex offender is out there then they’re even more scared.

Do sex crime offenders commit their crimes again? If they’ve paid their dues to society shouldn’t they have the same rights as everyone else?

Let’s get some facts. The term for repeat offenders is recidivism and the rate of repeating the crime is recidivism rate. The problem with getting accurate numbers here is that the rate for actual reporting sex crimes is very low. Victims of sex crimes are twice as likely to tell friends and family than they are to go to authorities, like the police. And then we look at the actual sex offenders. A study performed lie detector tests (polygraph) on sex offenders in prison who had committed their crimes on less than two known victims. The researchers discovered that these offenders actually averaged 110 victims and 318 offenses. So there is a major problem with under-reporting sex crime offenses.

How are they going to keep tabs on these sex crime offenders to make sure they aren’t giving out candy?

There will be at least sixty parole officers and members of the 12 district officers patrolling and checking on the offenders. Sixty officers versus 2,200 sex offenders? Hmm, seems like there’s a number disparity here. But with police departments already stretched so thin, it’s a tough situation for police departments. Officers have to be patrolling other areas where public safety may be at risk also.

Classic Public Service Announcement Video:

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Say what?

Well, David Montalvo, 36, was sleeping in his GMC pickup truck in the parking lot of a Market Place Deli, apparently sleeping off the effects of his drinking from the night before. A police officer from the Hamburg Police Department knocked on his pickup truck window at 5am in the morning. When Montalvo awoke, the officer instructed him to take a Breathalyzer test due to suspicion of drinking, but Montalvo refused to take the test.

Montalvo was arrested and entered a forced conditional guilty plea. His lawyer, Evan M. Levow, argued that the officer had no reasonable grounds to suspect a criminal activity on a guy sleeping in his truck. One key piece that may have affected the situation is that his car was running, although it was parked. The temperature was 25 degrees Fahrenheit so he apparently had the heater running.

The appellate court disagreed with Montalvo and Levow.

“From the perspective of the officer on the scene, I don’t find at all that what he was doing was unreasonable. In fact, I find it would have been unreasonable to have stopped his inquiries at any point short of what he did,” said Superior Court Judge Thomas Critchley Jr. “The officer wanted to make sure the driver was ‘okay,’ nothing was wrong with the businesses and that the truck was operating properly. We are convinced that under the facts as observed by Officer Aaronson defendant was lawfully subject to limited inquiry based upon an objectively reasonable exercise of the officer’s community caretaking function.”

Now the sleeping motorist has a DUI on his record, a “driver responsibility” tax of $3000, miscellaneous fines and fees of around $1000 and legal bills to take care of.

Doesn’t seem right to me. Wasn’t he doing the right thing sleeping off his drunkenness in a parking lot?

I can see both sides of it.

On one hand, the police officer has a duty to keep drunk drivers off the street. How can he be assured that half an hour later he’d wake up and still being intoxicated drive around and smash into something or someone?

On the other hand, it’s much better to have a drunk driver sleeping it off in a parking lot than trying to get home drunk. Do you think maybe this ruling may cause more people to drive home drunk because they’ll be scared a cop will give them a DUI for stopping somewhere to sober up? It’s a tough situation for sure.

Legal Filing: A-1303-06T5 STATE OF NEW JERSEY VS. DAVID MONTALVO
(SUSSEX COUNTY AND STATEWIDE)

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How would you feel if a police officer asked you that?

Well that’s what happened to a super drunk Spanish speaking driver.

A man gets pulled over because the cops on the case find him suspicious of driving under the influence (DUI). When they pull him over, they find out that he can only speak Spanish. So they call over another officer that speaks Spanish. He shows up and reads the driver his Miranda rights and they give him a breathalyzer.

The dude is completely blasted off his mind drunk.

So the cops think, ok this is a done deal, he’s going to jail for DUI. We have our case sealed and this guy is going down with a definite conviction. But a twist in the case comes in. The driver’s attorney submits a motion to void the results of the breathalyzer. His lawyer says that the drunk driver of the car didn’t really understand his rights before he was administered the breathalyzer test. The police officers are dumbfounded because they even read everything off a card to make sure they got everything right in Spanish.

The defense lawyer then displays the card that’s in Spanish which the officers used. In the card, there’s a section in which the officer is supposed to ask the suspected drunk driver if he is 21 years old, which is translated to, “Tienes veinteuno años?”.

However, there was a small problem with that.

There was no tilde over the n, resulting in, “Tienes veinteuno anos?”

Big difference.

In Spanish, años means years. But anos translates to anus.

Yes, the driver thought they asked him, “Do you have 21 anuses?”

The weirdest part of it all? The defendant answered, “Si.” (Yes.)

To top it all off, once they’re all in court, the defense attorney won’t even use the word “anus”. He instead calls it “the back region”.

So remember, if you’re ever in danger of DUI, use the Anus Defenseâ„¢. In fact, we are trademarking the phrase. All royalties must be directed to me. Paypal accepted. Rates are negotiable.

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Dawn Herb, a woman in Scranton, Pennsylvania, was cited for disorderly conduct and could face up to 90 days in jail and a fine up to $300.

“It doesn’t make any sense. I was in my house. It’s not like I was outside or drunk,” said Ms. Herb. “The toilet was overflowing and leaking down into the kitchen and I was yelling (for my daughter) to get the mop.”

She admitted to using some profanity near an open bathroom window.

The big problem for Dawn is that her next door neighboor was a police officer. He asked her to keep it down, she didn’t, so he call the cops on her.

“You can’t prosecute somebody for swearing at a cop or a toilet,” said Mary Catherine Roper, an attorney with the American Civil Liberties Union in Philadelphia.

The thought now comes up: is this really against the law? Is getting pissed off at your toilet a crime? Is toilet-screaming now illegal?

The quick answer to this bathroom brawl? No.

This is the text of 18 Pa.C.S. § 5503(a), which is Pennsylvania’s prohibition on disorderly conduct:

A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

    (1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

Was Dawn engaging in fighting or threatening, or in violent or tumultuous behavior? Not unless you count toilet-warfare as violent, no.  Was she making unreasonable noise? Let’s remember the statute says “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof”. She definitely didn’t do that. Did she use obscene language? Well yes she did but, again, keep in mind she didn’t do it “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof”. And we can pretty much throw out the “creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

Our main point that we should take from this is not to let others dissuade you from having a good time under the guise of “disorderly conduct”. I can’t tell you the amount of times people have tried to use that excuse to prevent people from doing a fun, non-violent, legal activity that may produce some noise. Remember, disorderly conduct goes hand-in-hand with public unruliness which may lead to disorder and tumult. Just noise does not break the public peace! Yes it can piss off people that may want to go to sleep. Yes, 91 year old people who like their “peace and quiet” may throw their walker at you.  But noise in-and-of itself does not cause the crime of disorderly conduct! It is not meant as a catch-all condition for any little thing that can disturb or annoy someone.

In this case, Dawn was in her home and her neighbor seems to be the only person that was disturbed by this. Her neighbor may have a right to be pissed off. He may have the right to not talk to her again. He may have the right to not bring fruitcake to her house in the Holidays. But disorderly conduct? You sir, are the one out of order.

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Imagine doing that at 12pm. Under the hot beating sun. With sweat dripping down your forehead. For two hours.

If you get caught stealing and you end up in Putnam County Judge Peter Miller’s courtroom, that just might be your punishment.

”It is better than going to jail, but it’s not fair,” said Rashane Lewis, who was arrested for being the lookout in a Wal-Mart while a friend of hers took some children clothes.

Over the past twelve years, Judge Miller has sentenced over 600 people to these unusual punishments either outside the courthouse or at the store where the incident took place. Walking around with an embrassing sign is his preferred method to deal with shoplifters.

According to the administration of the Putnam Count probation system has said only three of Judge Miller’s sign carriers has repeated their offense. He, along with other judges around the United States believe that public penitence, involving some sort of public humiliation works to rehabilitate convicted offenders.

‘If you see someone marching up and down in front of a store, you may think twice before stealing. I’m not going to say it is going to prevent it, but it will stop the one who did it from doing it again,” said Judge Miller.

He gives the offenders an option. Take a 30-60 day jail sentence or endure two hours of public embarassment. Along with their choice, they must perform 25 hours of community service, they have six months of probation and they are fined $294.

Like I mentioned earlier, Judge Miller isn’t the only judge in the U.S. to have these unusual and creative sentencing ideas.

Take Ohio Municipal Court Judge Michael A. Cicconetti in Painesville for example. Teens had yelled “Pigs” to some local police officers. He had the teens stand on a busy street corner with a pig and a sign reading, “This is not a police officer.” He had three men who were arrested for soliciting prostitution wear chicken suits and carry a sign with them that read, “There is no chicken ranch in Painesville.” He also sentenced a couple who stole a baby Jesus statue from a manger to dress up as the Virgin Mary and Joseph and walk around Painesville with a donkey at their side.

In Harris County, Texas Judge Larry Standley had a man who hit his wife take yoga classes as a form of anger management.

In San Francisco, a man convicted of mail fraud was sentence by a judge to walk outside of a post office with a sign reading, “I stole mail. This is my punishment.”

“We don’t like it, but what he does is legal,” says Assistant Public Defender Mack Brunton. “It doesn’t take a rocket scientist to know that this is his way to encourage them not to do it again. It seems to work fairly well.” When defendents are given the option of either jail or carrying a sign, most people “cringe.”

“They hate it. They would rather jump off a cliff than carry the sign. They would pay more money. They would swim the English Channel,” says Mr. Brunton.

There is precedent for these public humiliation sentences in history, so don’t think this is anything new. Back in colonial times, those that broke the law were made to sit in stocks, which consisted of a frame in which the culprit’s hands and/or feet were confined while the offender remained seated. Villagers would taunt these people and throw rotten fruits and vegetables. And yes, they would sometimes even throw excrement. That’s when you know your neighbors really don’t like you.

A Connecticut professor at the Quinnipiac University School of Law named Quilliam V. Dunlap has researched cases that end in an usual sentence. He hasn’t come across any studies that reveal anything about whether jail time or public humiliation is a better crime deterrent.

”They don’t amount to cruel and unusual punishment. They are unusual, but most of them as not as cruel as sending someone to jail or prison,” said Mr. Dunlap.

Even though it may be preferable to jail time, those that have to undergo the humiliation don’t seem to like it. “This is just a humiliating stunt,” said Wal-Mart shoplifter Rashane Lewis.

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Self-expression is one of the keys to individuality.  Consider leprechauns, for example.  Two of them, Jaclyn Timmering and Kurisa Suhr, put on some Irish outfits (what else?), dyed their hair green and went to John H. Eader Elementary school in Huntington Beach yesterday.  The two, eight-year-old third graders had planned their St. Patrick’s Day celebration for weeks, wearin’ plenty o’ green and even T-shirts that read:  ”Be Lucky” and “Good Luck Girl.”

Unfortunately, the St. Patrick’s Day celebration turned into a dud.

Their Principal, Cynthia Guerrero, was none too happy with their temporarily-sprayed green hair, applied willingly by Jaclyn’s mother.  When the green-clad and green-maned girls arrived at school, the Principal gave the girls three choices:  wash the dye out, spend the day in the Principal’s office or go home.  The girls were crestfallen.  What had planned to be “the best day” of their lives turned into the worst.  The girls’ school district in Huntington Beach has a policy that discourages dyed hair.

The problem with the policy, however, is that it can only be unevenly applied.  Many Irish folks that I know, including their children, have red hair.  As a Welshman, I have brown hair (yes, I know it’s got more grey in it, but stay with me here).  In the summertime, my hair starts to turn red from the sun.  When I was younger, say for example eight years old, my hair could easily go from brown to substantially red, pretty much on its own.  My daughter’s hair is blonde, and she can turn it more blonde overnight.  Perhaps surprising to us all, many blondes are not true blondes, and many other hair colors may not be completely natural.

If you’re a Principal who likes purple - not a hairdresser – how do you know for sure?

Green hair, and perhaps a few others like blue or magenta are easy to spot and punish.  But I’m willing to go out on a limb here and bet that the Huntington Beach School District does not evenly enforce this policy among its students, and especially among its high school students.

Beyond the unequal treatment (we lawyers would call it arbitrary and capricious), it’s a celebration for God’s sake.  Let the kids have some fun for a day.

What  should we expect from a Principal whose choice of a “historical figure to have dinner with” is Oprah Winfrey (see her response to Question #9 in the “purple” link above)?  MIPTC suggests we send the Principal to a day of sensitivity training, and let the little leprechauns dress up and have a good time.

It’s one thing to be on the Left Coast, a.k.a. the land of fruits, nuts, twigs and berries.  It’s quite another, however, to be North of the Left Coast.

Quite another thing altogether.

The City and County of San Francisco City/County Supervisors are trying to push through a measure to limit the sale of plastic grocery bags.  Pause for a minute here and contemplate that word:  “limit.”

But before we get started with that analysis, let’s look at the consequences of such a “limitation.”  It likely means more consumers will be using paper bags.  While that option is friendlier on the recycling end of things, it does mean, on the other hand, that we’ll be cutting more trees down.

The supposed environmentally conscious supervisors explain that result with two options:  recyclable plastic paper bags or canvas bags.  Sure, San Franciscans could all become canvas bag-toting shoppers, but the only way that’s going to happen is to completely ban paper and plastic.  And if you offer two types of plastic bags, then the recycling team is going to have a helluva time distinguishing the two, and they’ll end up with both in the regular trash instead of being recycled.

What’s most troubling, however, is that word I identified earlier:  “limit.”  Notice I didn’t say “eliminate” or “ban.”  The City/County plans to enact this legislative marvel only against grocery stores with more than $2 million in sales.  In other words, there’s a gaping hole of an exception that won’t end up keeping plastic bags out of the trash.  The small stores will still be able to use plastic bags.

If you’re going to put your toe in the water, why not jump in all the way?  Just get it over with and ban plastic altogether.

Just don’t ask for a plastic milk jug.  If San Francisco has its way, you’ll be getting your milk in a paper milk jug.

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Apparently Black Mountains Smokery, a food company based in Powys, has been warned it could face legal action over the name of its Welsh Dragon Sausages. Trading standards officials are anxious that consumers may be confused since the sausages contain pork rather than dragon. Says Jon Carthew, for the company:

“I don’t think any of our customers actually believe that we use dragon meat in our sausages. We use the word because the dragon is synonymous with Wales and I think everyone who buys from us knows that”.

Trading Standards defend their action on the ground that they would not want vegetarians to buy the product by mistake, thinking they were meat-free. The word “pork” apparently features on the list of ingredients, but this may not provide sufficient guidance for simple-minded consumers.