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March 2018
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Court Moves Business Owner One Step Closer To Getting Paid Back For Vehicle DEA Destroyed In A Failed Drug Sting

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Almost seven years ago, DEA agents borrowed a truck (and an employee) from Craig Thomas Expeditors. Craig Patty, proprietor and employer of Lawrence Chapa, had no idea this was happening. The DEA never approached Patty and, for all he knew, Chapa was taking the truck down to Houston for some service. This was all a ruse. The DEA loaded Patty's truck with marijuana (and his driver) and went down to Houston to engage in a drug sting.This wasn't the first sting the DEA had deployed using Patty's truck and his driver. But it was the last. Instead of a controlled purchase followed by several arrests, the DEA ran into an ambush instead. Patty's truck was riddled with bullets, as was Patty's driver. In the middle of it all, a plainclothes cop from one Texas agency was shot by a plainclothes cop employed by another.After this debacle, Patty was finally informed that his truck and employee had been part of a tragic DEA misfire. He was also informed that the federal government would not be shelling out a single cent to repair the $100,000 worth of damage to the truck. (It said even less about the cost of the life it had taken from Patty's driver.) The DEA said it did not have to pay anything for the damage because it occurred during a law enforcement operation. Patty's insurance company said the same thing.Patty sued the DEA. This went nowhere. The government argued -- successfully -- that clandestine operations like drug stings don't require notification of citizens whose private property is put to use. It also argued it was immune from liability because undercover operations are more important than protecting assets owned by law-abiding citizens. The court agreed and tossed Patty's case.This appeared to be the end of it. But I'm happy to report that's not the case. Nearly seven years has elapsed since the DEA destroyed Patty's truck, but a federal judge for the Federal Claims court has said Patty can move ahead with his lawsuit seeking compensation for his "borrowed" truck. (via FourthAmendment.com)The denial of the government's motion to dismiss [PDF] is pretty weedy, but basically comes down to competing interpretations of Patty's allegations. The government argued Patty's complaint alleged illegal actions by the DEA, which would mean this court lacked jurisdiction over the case. The judge points out Patty's complaint doesn't actually do that. What Patty is alleging is something different: a violation of the Takings Clause. The government took property of Patty's without permission and failed to compensate him for the damage done to it.

Defendant relies in part on the fact that plaintiffs assert that the agency’s use of their truck was without permission and an unjustified risk to private property and to the lives of those involved in the LLC. Pls.’ Compl. ¶ ¶ 2, 17, 18, 21. But an assertion of lack of consent to the use is not the same as an assertion of illegality. More importantly, it is not inconsistent with the assertion of a taking. Condemnation actions, whether direct or implied, typically are done over the property owner’s objection.
This changes the legal contours, much to the presumed dismay of the government. It's no longer about apparent theft, but rather the government running roughshod over a citizen's property rights. The government tried to argue it wasn't a taking per se, but rather a form of forfeiture. It didn't say as much in its arguments, but all of its supporting citations dealt with forfeitures in criminal cases or seized evidence. As the court points out, the supporting case law cited by the government does not address the issue at hand.
In each of these cases, the property was evidence in an investigation or the object of the law enforcement action. In none of them did the government simply seize property as a convenience to the government in pursuing unrelated law enforcement.
It then goes on to point out exactly why it won't let the government get away with its false equation.
If defendant’s position is the law, the police power would swallow private property whole. Neither plaintiffs nor their truck were the subject of an investigation, their truck did not belong to a person who was the subject of an investigation, nor was it related, before the fact, to any violation of regulation or statute. Plaintiffs emphasize that neither the LCC nor Mr. Patty had any connection to or dealings with criminal outfits in the state of Texas and that, had it not been for their driver working with the DEA, their truck would have never been involved in the operation. The government instead chose to use plaintiffs’ property as a tool to stage a controlled drug delivery.
Then it goes further, calling out the government for its refusal to admit it screwed a law-abiding citizen out of $100,000+ worth of property -- something the government has done repeatedly in the past and been held accountable for.
Plaintiffs’ claim bears striking similarities to cases in which the government has chosen simply to appropriate private property to secure a benefit for the public. Here, the assertion is that law enforcement officials used private property as a resource for an operation despite lack of consent of the property owner. Using the dichotomy of whether the government action prevented harm to the public or secured a benefit to the public, the government’s action falls within the latter category: it did not seize the truck to prevent a harm to the public caused by or related to the truck or anyone associated with it, but rather the agency chose to use the truck as a resource in ridding the area of controlled substances and criminal activity. It could just as easily have rented a truck and furnished it to Mr. Chapa. Plaintiffs’ truck was not evidence in a criminal prosecution, involved in a police investigation, seized pursuant to criminal laws, or subject to forfeiture proceedings. If what the DEA is alleged to have done here were not compensable, then presumably it could have seized a fleet of trucks or an airplane for the same use.
This moves Patty one step closer for being repaid for the DEA's use of his vehicle. Sure, it's not the DEA's fault its drug sting fell apart and resulted in vehicle damage and the loss of life. But as the court points out, the DEA could have pursued a sting operation without using a private citizen's vehicle. It had plenty of options that wouldn't have put it in the position it's in today. But it chose to do it the easy way, which is now -- seven years after the fact -- turning into the hard way. The DEA worked harder, not smarter. Hopefully, this business owner won't remain screwed for much longer.

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posted at: 12:00am on 10-Mar-2018
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Wikimedia's Transparency Report: Guys, We're A Wiki, Don't Demand We Take Stuff Down

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Wikimedia, like many other internet platform these days releases a transparency report that discusses various efforts to takedown content or identify users. We're now all quite used to what such transparency reports look like. However, Wikimedia's latest is worth reading as a reminder that Wikipedia is a different sort of beast. Not surprisingly, it gets a lot fewer demands, but it also abides by very few of those demands. My favorite is the fact that people demand Wikimedia edit or remove content. It's a wiki. Anyone can edit it. But if your edits suck, you're going to be in trouble. And yet, Wikimedia still receives hundreds of demands. And doesn't comply with any of them. Including ones from governments. Instead, Wikimedia explains to them just how Wikipedia works.

From July to December of 2017, we received 343 requests to alter or remove project content, seven of which came from government entities. Once again, we granted zero of these requests. The Wikimedia projects thrive when the volunteer community is empowered to curate and vet content. When we receive requests to remove or alter that content, our first action is to refer requesters to experienced volunteers who can explain project policies and provide them with assistance.
On the copyright front, they only received 12 requests. I actually would have expected more, but the community is pretty strict about making sure that only content that can be on the site gets there. Only 2 of the 12 takedowns were granted.
Wikimedia projects feature a wide variety of content that is freely licensed or in the public domain. However, we occasionally will receive Digital Millennium Copyright Act (DMCA) notices asking us to remove content that is allegedly copyrighted. All DMCA requests are reviewed thoroughly to determine if the content is infringing a copyright, and if there are any legal exceptions, such as fair use, that could allow the content to remain on the Wikimedia projects. From July to December of 2017, we received 12 DMCA requests. We granted two of these. This relatively low amount of DMCA takedown requests for an online platform is due in part to the high standards of community copyright policies and the diligence of project contributors.
This is actually really important, especially as folks in the legacy entertainment industry keep pushing for demands that platforms put in place incredibly expensive "filter" systems. Wikipedia is one of the most popular open platforms on the planet. But it would make no sense at all for it to invest millions of dollars in an expensive filtering system. But, since the whining from those legacy industry folks never seems to recognize that there's a world beyond Google and Facebook, they don't much consider how silly it would be to apply those kinds of rules to Wikipedia.Also interesting is that Wikipedia has now been dealing with some "Right to be Forgotten" requests in the EU. It notes that in the six month period covered by the transparency report they received one such request (which was not granted):
rom July to December of 2017, the Wikimedia Foundation received one request for content removal that cited the right to erasure, also known as the right to be forgotten. We did not grant this request. The right to erasure in the European Union was established in 2014 by a decision in the Court of Justice of the European Union. As the law now stands, an individual can request the delisting of certain pages from appearing in search results for their name. The Wikimedia Foundation remains opposed to these delistings, which negatively impact the free exchange of information in the public interest.
I don't envy whatever person eventually tries to go after Wikimedia in court over a Right to be Forgotten claim -- though it feels inevitable.There's more to look at in the report, but it is interesting to look over this and be reminded that not every internet platform is Google or Facebook, and demanding certain types of solutions that would hit all platforms... is pretty silly.

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Amobee Launches Custom Bid Algorithms for Marketers

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Solution Delivers Actionable Audience Insights for Campaign Optimization, Driving Performance Lift Across Verticals Amobee, a global digital marketing technology company serving brands and agencies, announced enhancements to its platform that allow buyers to deploy custom data sets into Amobee's bid modeling system. The feature launch empowers advertisers and their agencies to tailor their bid strategies […]The post Amobee Launches Custom Bid Algorithms for Marketers appeared first on Adotas.

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Anura Case Study: Deep Analytics Reporting

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The post Anura Case Study: Deep Analytics Reporting appeared first on Adotas.

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