A computer check showed the LPN on defendant’s car had been cancelled, and he was stopped at a convenience store at the gas pumps. It turned out that the driver and the lone passenger had warrants for their arrest. The towing and inventory of the vehicle was reasonable. Armstrong v. State, 2014 Ga. App. LEXIS 51 (February 6, 2014).*
The person living at the house had apparent authority to consent, assuming defendant had standing [which seems doubtful but not explored]. United States v. Gardner, 2014 U.S. App. LEXIS 2369 (4th Cir. February 7, 2014).*
With information from a CI, the police knew that a vehicle with Utah plates would show up at defendant’s house to buy methamphetamine. Based on all they knew, there was reasonable suspicion for the stop when they showed up. United States v. Serrato, 2014 U.S. App. LEXIS 2387 (10th Cir. February 7, 2014).*
GA: Because LPN had been cancelled and all occupants had warrants, towing and inventory was reasonable
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CA9: General motion to suppress filed; government responded with facts; no contradiction; no hearing required
Defendant filed a boilerplate motion to suppress and the government replied with facts, and defendant didn’t respond. The motion could be denied without a hearing relying on the government’s uncontested facts. United States v. Kyle, 2014 U.S. App. LEXIS 2383 (9th Cir. February 7, 2014):
=> Read more!
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Selbstleseverfahren, Band 43
NDR ZAPP: Schwarzer und die Medien. Warum berichtete niemand über das, was alle wussten?Original: Selbstleseverfahren, Band 43
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Alabama Senate Approves Expungements for Non-Convictions
Record expungement is a legal process to have your criminal record erased or sealed. In the state of Alabama, it was very difficult to get an arrest or charge cleared from your record, even if you had already completed probation. Now the Alabama Senate has approved criminal charge expungement, which paves the way for many … Continue Reading
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On the macroeconomics of the private prison industry
At the Motley Fool, a widely read investment analyst site, Bradley Seth McNew had an item Feb. 6 titled, "Why I sold Corrections Corporation of America" despite the companies recent high dividend yields. His concern was over the long-term trends facing the private prison industry. Here's a notable excerpt explaining why McNew thinks the private prison stock is headed south:Why the stock, and the industry, is now heading for a long-term declineThe prison population in the United States has finally reversed its growth trend, and populations fell by 1.7% in 2012. In New York City alone, incarceration rates have declined 32% since 2001. Other cities will likely be following. Attorney General Eric Holder, the country's top law enforcement official, said that "[too] many Americans go to too many prisons for far too long, and for no truly good law enforcement reason." With political actions toward legalizing marijuana, relaxing strict immigration laws, and relaxing judicial punishment for non-violent crimes, this trend will likely continue during the foreseeable future.The political environment is changing, with activists and officials alike seeking to decrease the federal and public burden of detaining such a large population of people that probably don't need to be locked up, as opposed to other forms of punishment, such as fines and public service. CCA has tried to stop this trend. According to ProPublica, CCA has donated $1.9 million in political contributions from 2003 to 2012 to favorable candidates, and has spent an astounding $17.4 million on lobbying during that time. Unfortunately for the private prison company, the money doesn't seem to be flowing as strongly as before because the trend is reversing. Additionally, Corrections Corp. has been the recipient of some bad attention lately concerning their management of inmates. The company was recently under suit from prisoners and families of prisoners after issues involving inmate violence in facilities in Idaho. This is only the most recent in a series of such issues. According to reports, 132 inmate-on-inmate assaults were recorded at the Idaho facility during the one-year period of Sept. 2007-Sept. 2008 alone. Compare that to the 42 recorded at the equally sized state-run facility during the same time frame. These rises in assaults have been blamed on poor management and lack of security personnel due to cost cutting. McNew thinks the GEO Group is a better financial bet than Corrections Corporation of America - perhaps because of recent sweetheart deals in its home state of Florida - but Grits would point out that GEO is much more laden with debt than its biggest competitor and faces the same long-term trends described above. With state and local incarceration rates declining and the prospect of federal sentencing reforms on the horizon, these companies' only real prospects for growth stem from continued, large-scale immigration detention. So if and when immigration reform ever becomes a reality, Grits fails to see from whence their long-term growth could possibly come. That said, these have been highly profitable companies for the last three decades. But the Motley Fool analysis above suggests the coming decades may not be so kind to them.
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WI - Freed, but still in jail: New limits on sex offenders leave them in care of sheriff
Original Article
So he's done his time but because he couldn't find a place to stay, behind bars, he will remain behind bars? That is just so wrong!
02/08/2014
By Stephanie Jones
RACINE - _____...
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Skip Meals or Go to Jail? How the For-Profit Probation Industry Preys on the Poor
Original Article
It's extortion, plain and simple!
02/06/2014
By Steven Hsieh
A new Human Rights Watch report released Wednesday documents how the growing use of for-profit probation companies...
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KS: Forced blood draw of driver requires PC to believe driver under influence; accident alone not enough
Defendant was in an accident, and the state took her blood. The state conceded a lack of probable cause to believe that defendant was operating a vehicle under the influence. The Kansas statute authorizing a blood test solely because of being in an accident, without more, violates the Fourth Amendment. The court refuses to follow a similar Oklahoma case has having an “unsatisfying” analysis, instead following the weight of authority. A driver's consent under Kansas' implied consent statute, without more, does not constitute valid consent under the Fourth Amendment. The good faith exception as the state’s alterative fails for lack of proof of good faith. State v. Declerck, 2014 Kan. App. LEXIS 5 (February 7, 2014):
=> Read more!
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Bergen, Monmouth, or Ocean County; Regardless Where a DWI Arrest Occurs, a Strong Defense is Important
The old saying, "It's not what you know, but who you know," could be applicable to almost any aspect of life. Whether you are looking for an experienced building contractor, a reliable snow removal company, or a skilled legal expert, it's always best to do one's homework in order to get the best and most qualified professional on your side. But, while many things in life can be put off, finding a good attorney is not necessarily one of them.
For anyone who has even been charged with driving while intoxicated (DWI) or driving under the influence of prescription medications (drug DUI), it is a fact that when staring at potential penalties in the hundreds to thousands of dollars, getting to know a good drunk driving defense lawyer can quickly become a top priority. Here in the Garden State, being convicted of DWI or DUI, not to mention breath test refusal, underage drunken driving, or marijuana possession in a motor vehicle can be a serious event in one's life; and, one that will not soon be forgotten.
The often serious penalties awaiting those who are found guilty of drunk driving can include not only monetary fines and assessments, but also a likely driver's license suspension, imposition of an ignition interlock device on one's vehicle, not to mention the possibility of jail time. As anyone can imagine, being charged with an alcohol- or drug-related traffic offense can have serious ramifications for the motorist and his family.
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Revenge Porn: A New Internet Crime
Revenge Porn: New Orleans Computer Crimes Attorney Perspective By: Elizabeth B. Carpenter, Esq. Remember years ago when you would pack a shoe box with photos and other keepsakes after breaking-up with your boyfriend or girlfriend. Thanks to the internet, this practice has changed a little. Yes, people still have the boxes […]The post Revenge Porn: A New Internet Crime appeared first on .
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Who Cares Who Killed Roger Ackroys?
I've told this story three years ago. (Actually, I've told it since then, most recently Friday night over a couple of beers, but I digress.)Friday night, June 11, 1965. I was at Shea Stadium. Mets-Dodgers game. Warren Spahn was pitching for the Mets, Don Drysdale for the Dodgers. Dodgers won 2-1. Both Dodgers runs were on homers by Drysdale. The Mets run was on a homer by Spahn. Incredible. Etched in my memory. I'll never forget it. Except, of course, it didn't happen that way.Oh, I was at the game, and it was one hell of a game. A real pitching duel between Spahn and Drysdale. And Drysdale did win it with a home run in the 8th. But the Dodgers other run was on a homer by John Roseboro in the 5th. The Mets run, also in the 5th, came when Joe Christopher singled in Johnny Lewis. Spahn went 0 for 3. Helluva game, like I said. As Casey used to say, you could look it up. (I did. I'll save you the trouble. Here's the link.) Close enough to my memory so you can see how the story got better over time. Until . . . . Like I said, I'm mistaken. I know I'm wrong about just how the game unfolded. But I remember it as three homers - two by Drysdale and one by Spahn. It's not a lie to say I remember it that way. And if I hadn't looked it up, I wouldn't know I was wrong. And even though I know, know for sure, my memory hasn't changed.You don't care about the game unless you were there or you're some sort of baseball geek.On the other hand, you probably care (at least lots of people do) about wether Woody molested Dylan. Just as at one time everyone seemed to care about whether Fatty Arbuckle raped and killed Virginia Rappe. (A total aside to note surprise that my younger son knew who Fatty Arbuckle was - that was a scandal célèbre 80 years ago, one generally forgotten except among scandalistas, silent-film buffs, and those well past a certain age.) Dahlia Lithwick says that you're actually kind of obligated care about Woody and Dylan - at least if you want to avoid water-cooler ostracism. But, she adds, we have no evidence. No standards, no burden of proof, no nothing to resolve "the case." Which is true enough. But then, we don't have a case, either.What we have is a salacious (that's the point, isn't it) allegation involving a celebrity (the other part of the point). It's gloriously tawdry (another part of the point, I guess). And a whole lot of belief one way or the other. Those who are sure - Dylan wouldn't, Dylan couldn't have made it up; it's too detailed, too ugly. Anyways, kids don't lie and nobody would lie about this sort of thing and of course Woody denies it. Those who are sure - Woody didn't, Woody couldn't; the allegations are too bizarre. Anyway, he's been cleared and Mia hate him and of course there are false memories so Dylan's absolute certainty is irrelevant to whether it happened. I take a perhaps jaundiced view of all this. I am, after all, a criminal defense lawyer. I don't like trial by newspaper and twitter feed. We're not well-served by declarations of faith on the part of the general public. More, I don't care. Woody's an artist. Maybe you like his films, maybe not. But they're the same films, as good or as bad - but ultimately they're the same - whatever did or did not happen to Dylan. In that way, at least, this is differs from what you do or don't believe about A-Rod's steroid use. (Though I guess almost everyone believes the same thing in that case.) The steroids, at least this was the idea, made him a different player, changed his performance. As I say, I don't care. I don't get the culture of celebrity that finds these things fascinating. Or, and really more to the point, feels a personal involvement. On the other hand, I'm not inclined to slow down to eyeball an accident on the other side of the highway. Amanda Knox? Raw deal. But the deal was raw from a legal perspective (applying U.S. standards, anyhow) whether or not she killed Meredith. Kercher. Did she? Don't know. Don't care. Casey Anthony? Ditto.The hordes - Robert Blecker, Thane Rosenbaum, Nancy Grace - they apparently care deeply about these things. It's important for them to hate the bad guys, which means they have to know who the bad guys are. Even when there's no way to know and no actual need to know.Maybe the problem is that I don't watch enough television. Maybe the problem is that everyone else watches too much.------------------If you're wondering about the title here, "Who Cares Who Killed Roger Ackroyd?" was a New Yorker piece by Edmund Wilson from 1945 explaining why all detective fiction since Sherlock Holmes was appalling drivel and those who found pleasure in it were literarily, intellectually (and by implication at least), morally bankrupt. You can read it here. The Murder of Roger Ackroyd is, if you don't know, a mystery novel by Agatha Christie.
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Rengan Rajaratnam Moves to Dismiss Insider Trading Charges
Rengan Rajaratnam (“Rengan”), brother of Galleon founder Raj Rajaratnam (“Raj”) whose conviction on insider trading charges was upheld by the Court of Appeals for the Second Circuit last summer, has moved to dismiss the criminal charges against him stemming from his alleged role in his brother’s scheme. According to prosecutors in the Southern District of New York, the Rajaratnams engaged in a conspiracy whereby Raj obtained material nonpublic information from insiders at Clearwire Corporation and Advanced Micro Devices, which he then passed on to Rengan. Rengan also faces substantive securities fraud charges related to purchases of Clearwire stock.
Rengan’s motion is based principally on the argument that fatal inconsistencies exist between the way the government charged and tried his brother and the way the government has indicted his case.
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The Taxi Driver, the GPS Tracker and the 4th Amendment
--> This post examines an opinion a federal district court recently issues in a civil case: On May 31, 2013, plaintiff Hassan El–Nahal filed a complaint against defendants David Yassky, Commissioner Matthew Daus, Michael Bloomberg, and the City of New York alleging that the NewYork City Taxi and Limousine Commission (TLC) has violated 42 U.S. Code §1983 and the 4th Amendment of the United States Constitution . . . by using a global positioning system (GPS) device to track [his] whereabouts without probable cause or a search warrant. El-Nahal v. Yassky, 2014 WL 333463 (U.S. District Court for the Southern District of New York 2014). Both sides rather quickly filed cross-motions for summary judgment, i.e., El-Nahal filed a motion asking the District Court judge who has the case to award summary judgment for him and the defendants did the same, asking the judge to award summary judgment to them. El-Nahal v. Yassky, supra. As Wikipedia explains, summary judgment is a judgment a court enters “for one party and against another party summarily, i.e., without a full trial.” As Wikipedia also notes, to grant summary judgment for a party the court has to find that there are no disputes of `material’ fact requiring a trial to resolve, andin applying the law to the undisputed facts, one party is clearly entitled to judgment. It notes that a “material” fact is “one which, depending upon what the factfinder believes "really happened," could lead to judgment in favor of one party, rather than the other.” So, each side is trying to avoid a trial on some/all of the issues in the case. As to how the case arose, the opinion explains that the New York Taxi and Limousine Commission (TLC) is the agency charged with regulating and supervising the transportation of persons by licensed vehicles for hire in New York City. . . . The TLC's responsibilities include regulating taxicab safety, design and comfort; reasonable rates of fare for taxi service; and the licensing of taxi drivers. . . . The TLC has the right to inspect books and records and to require the submission of any reports that it deems necessary. . . . Since 1992, the TLC rules have required a TLC-licensed New York City taxi driver to create and maintain a trip record. . . . Until recently, drivers were required to keep a trip record in which they entered certain information, including: (1) at the start of each trip, the date, time, specific location, and number of passengers; (2) on completion of the trip, the destination, time, amount of fare, and any tolls paid; (3) the taxi's readings at the end of the shift; and (4) any toll bridges or tunnels used by the driver, whether or not with a passenger. . . . The TLC currently mandates that all New York City taxis must be equipped with a Taxicab Technology System (`T–PEP’ or `TT’ system), which includes a GPS, a credit-card device, and monitors for the driver and passengers, and which automatically collects certain trip information, including the taxi license number, the taxi driver's license number, the location of trip initiation, the time of trip initiation, the number of passengers, the location of trip termination, the time of trip termination, the metered fare for the trip, and the distance of the trip. . . .Taxi drivers are required to create handwritten trip records if the T–PEP system fails to operate properly. . . . Taxis are also equipped with a meter that displays the fare, surcharges, and the rate codes. . . . There are six rate codes, including trips within the city, trips to and from airports, trips beyond the city limits and to other counties, negotiated fares, and group rides. . . . At the start of each trip, the driver sets the rate by pushing a button on the meter. . . . Among other requirements, taxi drivers are prohibited from charging a fare above the approved rates. . . . Penalties apply to various violations of the rules, including overcharging. . . .When a taxi driver is charged with a violation of any TLC rule, the TLC may . . . impose a penalty of license revocation, license suspension of up to six months, and/or a fine. . . . [I]n 2007, before the technology mandate took effect, the TLC issued a `Statement of Basis and Purpose,’ which stated the reasons for its technology and GPS mandate. . . . The TLC made no mention in this statement (or elsewhere) of using GPS data to investigate or prosecute taxi drivers. . . . On its website, the TLC stated it would use the T–PEP technology to provide customer service improvements, and that it was `replacing the current hand-written trip sheets with automatic electronic trip sheets which are limited to collecting pick-up, drop-off, and fare information, all of which are already required.’ . . . On March 12, 2010, the TLC issued an e-mail press release in which it claimed that 35,558 taxi drivers had illegally overcharged at least one passenger over a 26–month period by manually switching the taxi meter from Rate Code 1 (the default setting used for trips within the city) to Rate Code 4 (the rate that applies to out-of-city trips). . . . The TLC stated that it used `GPS technology installed in taxicabs’ to make this discovery. . . On March 14, 2010, the TLC issued a revised press release that stated that 21,819 drivers had overcharged passengers. . . . On or around January 3, 2012, the TLC sent a letter to [El-Nahal] instructing him to appear at a hearing concerning overcharges. . . . [He] was found guilty after a hearing, and the [Administrative Law Judge] imposed fines totaling $550 and revoked his license. . . . The OATH Taxi and Limousine Tribunal appeals board reversed that ruling and reinstated plaintiffs license. . . . On remand, the TLC reinstituted some charges against [El-Nahal]. . . . [He] was again found in violation and his license was again revoked. . . . On appeal, the appeals tribunal again reversed. . . . Finally, [he] was found guilty for a third time, he again appealed, his conviction was again reversed, and his license was again restored. . . . El-Nahal v. Yassky, supra. As Wikipedia explains, the 4th Amendment bars the government (and the TLC is a government agency) from conducting unreasonable “searches” and/or “seizures.” Therefore, to have a valid 4th Amendment claim, El-Nahal had to show he had been the victim of a search and/or seizure that was “unreasonable. As I have noted in earlier posts, if there is no search or seizure, there is no 4th Amendment violation. As I have also noted, and as Wikipedia explains, for someone to have been the target of a 4thAmendment search, the government must have engaged in conduct that violated that the person believed, subjectively, was a “private” place or thing and society must be prepared to regard that belief as objectively reasonable. El-Nahal had two problems with his 4th Amendment argument: The first, as the opinion notes, was that he directed “much of his complaint and many of his arguments not to the collection of data through the T–PEP system but to the use of the data in administrative proceedings.” El-Nahal v. Yassky, supra (emphasis in the original). Logically, for El-Nahal to have been the victim of an “unreasonable” search carried out by the government, government personnel would have had to have intruded into data or a place that contained data either of which was “private” for 4th Amendment purposes. As the court pointed out, if the collection of the data did not constitute a “search,” then there would be no cognizable 4thAmendment, i.e., no search, and El-Nahal’s claim would fail. (Using the data might be considered a seizure if the government had taken data that belonged to El-Nahal from him, but the data at issue here clearly did not belong to El-Nahal. If the government did not take his property, there would be no seizure.) Or, as the federal judge who has this case explained, a 4thAmendment search ‘occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.’ Maryland v.Macon. 472 U.S. 463 (1985). This inquiry `embraces two discrete questions. The first is whether the individual . . . has exhibited an actual (subjective) expectation of privacy—whether . . . the individual has shown he seeks to preserve [something] as private. The second is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable. . . .’ U.S. v. Knotts. 460 U.S. 276 (1983). . . . Here, as the [U.S. Court of Appeals for the 2d Circuit]has already ruled, El-Nahal had no reasonable expectation of privacy in the T–PEP data at issue. See Buliga v. New York City Taxi & Limousine Commission, 324 Fed. Appx. 82 (2009). Local law requires the collection of the data. . . . Prior to the installation of the T–PEP system, drivers were required to create `trip sheets’ containing the same information. . . Furthermore, `[t]axicabs in New York City have long been subject to regulation by the TLC . . . and the TLC maintains the right to inspect books and records, including the trip sheets. . . . Accordingly, [El-Nahal] cannot show a reasonable expectation of privacy in any of the information collected under the system. . . . El-Nahal v. Yassky, supra. The judge then analyzed El-Nahal’s claim and its defects: Essentially, [he] alleges . . . he reasonably expected defendants would `not use GPS tracking as a prosecutorial tool.’ . . . That . . . is legally irrelevant to the 4th Amendment analysis here. The subsequent use of data does not create a privacy interest in the information that does not otherwise exist. See Maryland v. Macon, supra (`The mere expectation that the possibly illegal nature of a product will not come to the attention of the authorities . . . is not one society is prepared to recognize as reasonable). . . . The only expectation that is relevant . . . is an expectation of privacy in the data themselves. . . . For the reasons set forth above, there is no reasonable expectation of privacy in such information. . . . Regulations not only mandate use of the T–PEP system but also require taxi drivers to create handwritten trip records if the system fails to operate, and have long required drivers to keep records of their activity. . . . [El-Nahal] had no reasonable expectation of privacy in the data collected through the T–PEP system-regardless of the ends to which defendants ultimately used such data. El-Nahal v. Yassky, supra. Finally, the judge noted that “[e]ven assuming arguendo that a search occurred because [El-Nahal] had a reasonable expectation of privacy in the collected data or because defendants physically trespassed on [his] property, [his] 4th Amendment claim still must fail, because any such search was reasonable under the circumstances.“ El-Nahal v. Yassky, supra. She pointed out that “[w]hile reasonableness generally requires obtaining a warrant, a search unsupported by probable cause and a warrant can be reasonable and thus constitutional where `special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.’” El-Nahal v. Yassky, supra (quoting Vernonia School District v. Acton, 515U.S. 646 (1995)). El-Nahal v. Yassky, supra. 4th Amendment special-needs analysis requires “the examination of three factors: `(1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs’”. El-Nahal v. Yassky, supra. She then found that under this standard, the collection of the data at issue here was reasonable, i.e., did not violate the 4th Amendment. El-Nahal v. Yassky, supra. First, [El-Nahal] had a low privacy interest in the data collected through the T–PEP system, and the governmental intrusion was of a low degree. The data relate directly to [his] work as a taxi driver, and regulations already required [him] to keep track of the information collected through the system. . . . Additionally, taxi drivers have a low privacy interest because `the taxi industry is pervasively regulated by the Commission.’ Statharos v. New York City Taxi & Limousine Comm'n, 198 F.3d 317 (U.S. Court of Appeals for the 2d Circuit 1999); see Skinner v. Railway Labor Execs. Ass'n, 489 U.S. 602 (1989) (finding a low privacy interest for employees who participate an `industry that is regulated pervasively’). . . . El-Nahal v. Yassky, supra. The judge also found that the government interest in collecting the data is substantial, and the installation of the T–PEP system and collection of data through the system are an effective way to address that interest. `[T]he City of New York, acting through the TLC, “has a substantial interest in promoting taxi customer service, taxicab ridership, and passenger and driver safety.”’ Buliga v. New York City Taxi & Limousine Commission, supra (quoting (quoting Alexandre v. New York City Taxi & Limousine Commission, 2007 WL 2826952 (U.S. District Court for the Southern District of New York)). The City's collection of T–PEP data is directly related to those goals; for example, the City can use the data to ensure taxi drivers are driving their vehicles the minimum amount required by regulations or to ensure drivers are not systematically overcharging passengers. Meanwhile, because defendants only collect information related to the locations and times of the start and end of each trip and the trip distance, and only collect information while drivers are on duty . . ., there is little likelihood [they] will obtain personal information through this system-thus rendering it an effective means of addressing the governmental need in question. . . . El-Nahal v. Yassky, supra. Since the judge found (i) that there was no 4thAmendment search or (ii) if there was, then the search was “reasonable” and so satisfied the constitutional requirements, she granted the defendants’ motion for summary judgment an denied El-Nahal’s motion. El-Nahal v. Yassky, supra. She also ordered the Court Clerk “to terminate this action.” El-Nahal v. Yassky, supra.
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New Bill Requires Updated Photos For Sex Offenders
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Can you get Weekend Jail in Virginia?
Learn whether or not weekend jail reporting will be possible for your Virginia traffic or misdemeanor case. Originally published at AndrewFlusche.com. © 2014 Andrew Flusche. Can you get Weekend Jail in Virginia?
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Slick Conditions on Sweetzer Summit
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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IDAHO STATE POLICE NEWS RELEASE
District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000
Fax (208) 324-7897
For Immediate Release: 02/10/14 06:46
Please direct questions to the District Office
At this time the Idaho State Police is working multiple slide offs on I84 at Sweetzer Summit due to slick conditions. Traffic is starting to move, expect delays.
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D.Idaho: Providing false name and being nervous when stopped justified search of car
Defendant when stopped for a traffic offense gave his brother’s name, and the stop thus really dragged out because he had no DL and didn’t look like his brother. Then he was nervous. A search of the area around where he was sitting was supported by probable cause for providing false information to the officer. That search and a more intense one was also supported by the search incident doctrine. United States v. Mahler, 2014 U.S. Dist. LEXIS 15784 (D. Idaho February 6, 2014):
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Personal Data Protection and Breach Accountability Act of 2014 would enact criminal penalties for "intentionally or willfully" concealing a secuirty breach
Thanks in part to the recent security breaches at Target and Neiman Marcus, pressure for a federal response to data security has become increasingly popular. Numerous bills have been introduced in the House and the Senate that call for new legislative enactments to answer the data security problem.A somewhat popular proposal for many of these bills is a new criminal statute for individuals who knowingly and willingly fail to report a known security breach. I recently introduced readers to Senator Patrick Leahy’s Personal Data Privacy and Security Act of 2014, and detailed some of the bill's criminal proposals, including numerous amendments to the Computer Fraud and Abuse Act. The bill also included a proposed criminal statute that would read,Whoever, having knowledge of a security breach and of the fact that notice of such security breach is required under title II of the Personal Data Privacy and Security Act of 2014, intentionally and willfully conceals the fact of such security breach, shall, in the event that such security breach results in economic harm to any individual in the amount of $1,000 or more, be fined under this tile [sic] or imprisoned for not more than 5 years, or both. Last Tuesday, ahead of a Senate Judiciary Committee hearing addressing the Target and Neiman Marcus data breaches, Senator Richard Blumenthal and Senator Ed Markey introduced the Personal Data Protection and Breach Accountability Act of 2014. According to a recent press release, Senator Blumenthal stated that the bill “will give consumers much stronger, industry-wide protections against massive thefts of private financial information” and that “[s]tiffer enforcement with stringent penalties are vital to assure that retailers use state of the art safeguards.” Similar to Senator Leahy’s bill, the Personal Data Protection and Breach Accountability Act of 2014 would include a new criminal statute that would read, Whoever, having knowledge of a security breach and of the fact that notice of such security breach is required under title II of the Personal Data Protection and Breach Accountability Act of 2014, intentionally or willfully conceals the fact of such security breach and which breach, shall, in the event that such security breach results in economic harm or substantial emotional distress to 1 or more persons, shall be fined under this title or imprisoned not more than 5 years, or both.A notable difference between these two proposals is the Personal Data Protection and Breach Accountability Act’s requirement that the breach “results in economic harm or substantial emotional distress to 1 or more persons.” In my eyes, this would encompass significantly more security breaches than in Senator Leahy's already broad proposal.In a recent op-ed for the International Association of Privacy Professional’s online publication, Privacy Perspectives, I question whether criminal liability for failing to disclose a data security breach would be a prudent move, focusing specifically on Senator Leahy’s bill. My concerns would extend to this new proposal as well.It will be interesting to see, with such an outcry for a federal response, what (if anything) will be adopted, and whether some variation of these "criminal concealment of a known security breach" proposals will be included.
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State Prosecuting Attorney to Greg Abbott: Butt out
Regular readers will recall that last year the Texas Court of Criminal Appeals declared Texas' online solicitation of a minor statute unconstitutional. Strangely, given that he has no role in criminal cases unless he's invited by local prosecutors (unless you consider his motives political, in which case it's not strange at all), Attorney General and gubernatorial candidate Greg Abbott sought to have the CCA re-hear the case. Mark Bennett earlier published his arguments why the AG had no authority to request rehearing, and it turns out the State Prosecuting Attorney agrees. Reported the Austin Statesman last week (Feb. 4):Lisa McMinn, the state prosecuting attorney, asked the Court of Criminal Appeals to disregard Abbott’s request, arguing that there was no obligation to notify Abbott about a case he was powerless to join.McMinn told the court that only local prosecutors and her office, created in 1923 to handle criminal appellate matters for Texas, may represent the state in appeals involving criminal cases. Abbott, who represents Texas in civil court matters, cannot intervene in an ongoing criminal case unless invited by a local prosecutor — and Abbott received no such offer in the case, she said.
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A Persuasive Offer To Contribute
Last Monday afternoon, an intriguing email from a charming fellow named Ryan appeared in my inbox:
Respected Sir,
I would like to inform you that i am interested in contributing “Law” related blog content on your blog.
Kindly let me know how should i proceed ahead for contribution.
Waiting for your response.
Ryan, who identified himself as a publisher as well as a writer, must be a faithful reader too. How else could he know my blog features “Law” related content?
He is also quite proactive. After i neglected to respond to him for over a day, he emailed me again during the wee hours of the morning last Wednesday:
Hello Sir,
Hope you are doing well.
I guess you must be busy.
Just wanted to know if you got a chance to go through my previous email.
Hope to hear from you soon!
Ryan must also be clairvoyant. How else could he know i ...
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