Year: 2014

Categories
Documents Legal, Laws, and Regs

Who owns the law?

I follow several legal cases, most related to animal welfare, climate, the environment, or agriculture and food. Like others, I have a PACER account, which gives me access to most court documents at the federal level, but at a price. I’m not overfond of the cost, as I’ve noted in the past, but I am, at least, grateful for such simple access to the documents.

I also re-publish the documents for access by all, and that includes discovery material and and evidence exposed during a trial. If it’s posted by PACER, it’s public domain. When I pay for PACER I’m paying for access to the system, not the documents. So far, no cease and desist letters, knock on wood.

I also re-publish other interesting government produced documents I find. Most are from US agencies, but some are from states. So I was surprised when reading about the experiences of Carl Malamud, creator of Public.Resource.Org, when he was attempting to access statutes for several states. He recounts his experiences in the excellent article, Who owns the law? Technology reignites the war over just how public documents should be, in the June edition of the ABA Journal:

During the January hearing, Malamud spoke about how, during the past year, he has been targeted by opponents that have blurred the distinction between government entity and private organization. For example, state and local governments often contract private publishers like West or LexisNexis to produce and publish their official codes. In 2013, Georgia, Idaho and Mississippi asserted copyright protection after Malamud posted their laws on his website. “While it is clear that the law has no copyright, a few states have evidently not received the memo,” he says.

Idaho, for instance, claimed in its cease-and-desist letter that it owned a copyright in the “analyses, summaries and reference materials” contained in the annotated code. However, the state went one step further and claimed copyright protection for the native statutory content itself, stating that Malamud needed a license (which could be provided free of charge) if he wanted to use it on his website. Georgia also claimed copyright infringement, writing in its takedown letter that while “the state asserts no copyright in the statutory text itself,” Malamud allegedly copied annotated text, which the state claimed was copyrighted. Mississippi made a similar claim, noting that LexisNexis, which published the code, had provided a clean, unannotated copy of the code that was available for free.

To Malamud, that’s a false distinction. He says the codes are not independent endeavors by private companies but are, instead, clearly labeled as official state laws.

A copyright on state code? Impossible.

Sure enough, when I tried to pull up the Georgia state code, as linked from the official George state web site I get this—an assertion that I can access a free copy of the code, only if I acknowledge that the material is copyright the state of Georgia.

A copyright on state code? Oh, hell no.

If the state wants to allow a private entity to annotate the state code, then the private entity can provide a link to the annotated copy. It’s the state’s responsibility to provide direct access to the code without asserting any form of copyright that must be agreed to before the individual can access. The material is prepared with tax payer funds and therefore is public domain. More importantly, as Malamud notes, laws that impact on citizens must be freely available to the citizens.

Not just state laws, though. Malamud also posts standard organization regulations, and is currently involved in lawsuits related to the standards organizations’ claims of copyright. It brings up an interesting question: we can consider that a private entity has rights to material it produces, but what happens when the material it produces is referenced in laws?

The organizations claim that they shouldn’t lose their copyright just because the regulation is referenced in law, but Malamud notes that “Access to justice should not require a gold card.”

Or even a plain old bank debit card, which is what I use with PACER.

The ABA Journal article is a fascinating and informative read, especially for those interested in open document access.

For more on Malamud’s legal cases, the Electronic Frontier Foundation provides access to the court documents for the Sheet Metal and Air Conditional Contractors court case, and Archives.org provides access to the documents for the most recent American Educational Research Association case, uploaded via RECAP. I’m rummaging around for the court documents related to the American Society For Testing and Materials court case and counterclaim. Recent filings in both show them being reassigned from Judge Emmet Sullivan, a judge I’m very familiar with, to Judge Tanya S. Chutkan.

Categories
Political

Billy Sol Estes and Congress are why the USDA is ordering machine guns

The tea-soaked conspiracy crowd has a new rai·son d’être this week: a procurement request from the USDA for machine guns and ammo. As RT.com notes, “The request has captured the attention of many conservative, pro-gun websites…which have raised questions about it.” These same gun loving web sites even managed to excite an Oklahoma Congressional member, Representative Jim Bridenstine, who sent a letter to the USDA demanding answers.

It’s ironic that sites that support arming every single human being for any reason object to arming federal agents who are enforcing criminal laws. And it’s unfortunate that Congressional members are unaware of laws passed by Congress.

The weapons requested are for the USDA’s Office of Inspector General (OIG), tasked with investigating criminal acts related to the USDA’s own specific areas of interest. Congress established the Offices of Inspector General within each of the departments, such as the USDA, in the Inspector General Act of 1978. The USDA’s OIG was, however, created administratively in 1962 following an incident known as the Billy Sol Estes Scandal.

Who is Billy Sol Estes, and why was there a scandal related to him? According to the New York Times obituary for Billy Sol Estes:

In the late 1950s, Mr. Estes launched a bewildering array of interlocking enterprises involving liquid fertilizer, storage tanks, grain elevators, cotton crops, illegally borrowed money, secret payments to farmers and thousands of sham mortgages. It leaned heavily on government programs that compensated farmers for storing surplus grain and for lands taken under eminent domain laws to build public works projects.

There were clandestine lease-back arrangements, phony mortgages on nonexistent fertilizer storage tanks, illegal transfers of federal-compensation rights, kickbacks for bankers and bribes for Washington. The scams were so complex that prosecutors eventually had to break them down into 50 state and federal indictments.

The cover was blown in early 1962, when The Pecos Independent and Enterprise published an exposé by its city editor, Oscar Griffin Jr., on thousands of mortgages for nonexistent fertilizer tanks. The articles, which did not name Mr. Estes, won a Pulitzer Prize for investigative reporting and led to an avalanche of investigations.

You get a feel for how widespread the corruption was, especially in the local community where Estes was treated almost like a god, when you read how the key Estes investigator was found battered about the head, carbon monoxide in his bloodstream, with five rifle blasts to his chest and his death was originally ruled a suicide by the local authorities.

One of the outcomes of the multi-year investigation and criminal trial was the establishment of the first non-military OIG, embedded in the USDA. The reason for the establishment was to facilitate cooperation between auditing and investigating enforcement arms—a cooperation that was missing, as was painfully discovered with the Estes investigation.

When you consider the fate of the original Estes investigator, including those five bullet holes, you might understand why the USDA would be ordering bullet proof vests. And it can do so because it was granted law enforcement authority via Section 1337 of the Agriculture and Food Act of 1981, which specifically authorized that properly designated agents could carry firearms, conduct searches and seizures, execute warrants for arrest, and in specific circumstances, make arrests without warrants.

If all of this was too involved for the good Congressman from Oklahoma, a quick search of the USDA OIG web site provides the answer to his question about why the USDA needs weapons, and where it gets its authority for doing so:

Pursuant to the Inspector General Act of 1978 and Section 1337 of the Agriculture and Food Act of 1981 (P.L. 97-98), OIG Investigations is the law enforcement arm of the Department, with Department-wide investigative jurisdiction. OIG Special Agents conduct investigations of significant criminal activities involving USDA programs, operations, and personnel, and are authorized to make arrests, execute warrants, and carry firearms. The types of investigations conducted by OIG Special Agents involve criminal activities such as frauds in subsidy, price support, benefits, and insurance programs; significant thefts of Government property or funds; bribery; extortion; smuggling; and assaults on employees. Investigations involving criminal activity that affects the health and safety of the public, such as meat packers who knowingly sell hazardous food products and individuals who tamper with food regulated by USDA, are also high-profile investigative priorities. In addition, OIG Special Agents are poised to provide emergency law enforcement response to USDA declared emergencies and suspected incidents of terrorism affecting USDA regulated industries, as well as USDA programs, operations, personnel, and installations, in coordination with Federal, State, and local law enforcement agencies, as appropriate.

I can understand why conservative pundits avoid Google like a plague when it comes to investigating their next controversy of the week, but I’m assuming that Representative Bridenstine’s staff, which cost tax payers $915,521 in 2013, is capable of using a search engine before he takes pen to paper and demands explanations from a government agency about why it is enforcing laws established by the very organization in which he works.

Categories
Critters

Animal welfare groups settle with Feld Entertainment

Last update

I’ve had a day to get over the shock at the settlement amount.

All of the statements by the animal welfare folk I posted links to make logical sense. And believe it or not, once I got over the shock at the amount of the settlement, I wasn’t necessarily against a settlement in the ESA attorney fee battle—though, I believed it was important to continue the fight in the RICO case. What I had expected was a settlement closer to the amount given in the original animal welfare attorney fee reply—about five million.

This amount would have been a loss for the groups, yes, but it wouldn’t have been such a PR bonanza for Feld. The larger amount, though…that’s going to cut deep, and not just in a monetary sense.

Regardless of what I’ve said today, I am not mad at the groups. I am profoundly disappointed, which, in some ways, is worse.

This settlement has ramifications beyond just the animal welfare groups and the fight for circus elephants. Corporations have started using RICO as a weapon against nonprofits, and what the corporations now see is that nonprofits won’t even stay around to fight a RICO case when one is brought. No matter the “logic” or the legal arguments—and, most likely, the insurance company demands—the harmful consequences of this settlement will have a disturbing and lasting effect.

I have said I won’t finish my original book, and this is true. That book is dead. That book was based on a heroic battle against all odds. I guess, in a way, it was a book of fiction because in our courts and in our philosophical equivalencies, there is no room for heroes.

But I am still going to write something about these cases. I have so much of the history, have spent so much time in research and among court documents. I am going to write something—I’m just not sure what, and I’m not sure when.

second update

Other statements:

From firm of Meyer Glitzenstein & Crystal the animal welfare attorneys in the original Endangered Species Act lawsuit.

From the Animal Welfare Institute.

From Wayne Pacelle, President of the Humane Society of the US.

update The Humane Society of the United State has issued a statement. No donor money is going to Feld, the insurance companies that provide liability insurance for the animal welfare groups are most likely paying the costs.

Does this statement make this settlement better?

No.

earlier After all the years following this court case, what I didn’t expect was for the animal welfare groups to basically capitulate to Feld Entertainment.

They agreed to a $15.7 million dollar settlement. Combined with the previous $9.3 million settlement by the ASPCA and Feld Entertainment actually made a profit on this court case.

And oh, how Feld is crowing about it today.

“After winning 14 years of litigation, Feld Entertainment has been vindicated. This case was a colossal abuse of the justice system in which the animal rights groups and their lawyers apparently believed the ends justified the means. It also marks the first time in U.S. history where a defendant in an Endangered Species Act case was found entitled to recover attorneys’ fees against the plaintiffs due to the Court’s finding of frivolous, vexatious and unreasonable litigation,” said Feld Entertainment’s legal counsel in this matter, John Simpson, a partner with Norton Rose Fulbright’s Washington, D.C., office. “The total settlement amounts represent recovery of 100 percent of the legal fees Feld Entertainment incurred in defending against the ESA lawsuit.”

Justice was not served in this case, or with this payment. It’s difficult to see how we can trust any of these animal welfare groups to stay the course with any new litigation or other effort after this settlement.

I had originally planned on writing about this case. I have close to three years of research into these two legal cases. Thousands of dollars of PACER fees, too.

But what good is telling the story when it ends with, “…and the animal welfare groups, tails between their legs, slunk off into the sunset”?

And what of the battle for the circus elephants? Though this settlement doesn’t change the facts—that the life for circus elephants is miserable—how can we continue this fight, when every time we open our mouths, this settlement will get shoved into our faces?

I guess we’ll see what the future holds. I do know, Justice was not served in this case.