new jersey – Techdirt (original) (raw)

New Jersey Trying To Salvage Its Sketchy AF Infant DNA Harvesting Program By Claiming It’s All About Health

from the excuses-excuses dept

The state of New Jersey has been sued twice over its infant DNA program. Like the rest of the nation, New Jersey hospitals collect a blood sample from newborns to test them for 60 different health disorders. That part is normal.

But New Jersey is different. Rather than discard the samples after the testing is complete, it holds onto them. For twenty-three years. That’s unusual. And it’s a fair bet that almost 100% of New Jersey parents are unaware of this fact.

There’s a reason parents don’t know this and it has nothing to do with parents just not paying attention when this test is performed. According to the lawsuits, New Jersey healthcare professionals do what they can to portray the testing as mandatory, even though it isn’t. They also take care to keep parents uninformed, never once informing them that they are free to opt out of the testing for religious reasons.

The state, however, is fine with this. The biggest beneficiary of this program is state law enforcement, which can freely obtain these DNA samples without having to go through the trouble of obtaining a warrant. Warrants are needed to obtain DNA samples from criminal suspects, but there’s nothing stopping cops from searching the DNA database for younger relatives of the suspect whose DNA might still be in the possession of the state’s Health Department.

That’s why the state is facing multiple lawsuits, making it an anomaly in this group of 50 states we Americans call home. And that’s likely why the state’s health officials are trying to healthwash this by crafting a new narrative for this uniquely New Jersey handling of infant blood tests. Here’s Elizabeth Nolan Brown with a summary of the rebranding for Reason.

Mandatory genomic sequencing of all newborns—it sounds like something out of a dystopian sci-fi story. But it could become a reality in New Jersey, where health officials are considering adding this analysis to the state’s mandatory newborn testing regime.

Genomic sequencing can determine a person’s “entire genetic makeup,” the National Cancer Institute website explains. Using genomic sequencing, doctors can diagnose diseases and abnormalities, reveal sensitivities to environmental stimulants, and assess a person’s risk of developing conditions such as Alzheimer’s disease.

Ernest Post, chairman of the New Jersey Newborn Screening Advisory Review Committee (NSARC), discussed newborn genomic sequencing at an NSARC meeting in May. An NSARC subcommittee has been convened to explore the issue and is expected to issue recommendations later this year. It’s considering questions such as whether sequencing would be optional or mandatory, the New Jersey Monitor reported.

The state wants to take what’s already problematic and make it a privacy nightmare. But, you know, for the children. The framing encourages people to think this is about early detection and preemptive responses to expected long-term health problems.

And that’s not to stay it won’t have the stated effect. The problem is the state hasn’t been honest about its newborn DNA collection in the past and health care providers (whether ignorant of the facts or instructed to maximize consent) haven’t been exactly trustworthy either.

Now, the state wants to expand what it can do with these blood samples despite not having done anything to correct what’s wrong with the program as it exists already. This just opens up additional avenues of abuse for the government — something it shouldn’t even be considering while it’s still facing two lawsuits related to the existing DNA harvesting program.

The ACLU is obviously opposed to this expansion. The statement it gave to the New Jersey Monitor makes it clear what’s at stake, and what needs to happen before the state moves forward with gene sequencing of newborn blood samples.

If New Jersey adopts genomic sequencing, policymakers must create “a real privacy-protective infrastructure to make sure that genomic data isn’t abused,” said Dillon Reisman, an ACLU-NJ staff attorney.

“What we’re talking about is information from kids that could allow the state and other actors to use that data to monitor and surveil them and their families for the rest of their lives,” Reisman said. “If the goal is the health of children, it does not serve the health of children to have a wild west of genomic data just sitting out there for anyone to abuse.”

Maybe that will happen before this program goes into effect. But it seems unlikely. Given the history of the existing program, the most probable outcome is a handful of alterations as the result of court orders in the lawsuits that are sure to greet the rollout of this program. The state seems super-interested in getting out ahead of health problems. But it seemingly couldn’t care less about heading off the inherent privacy problems the new program would create.

Filed Under: dna, dna samples, evidence, new jersey, privacy

New Jersey Governor Signs Bill That Will Make It Much More Difficult To Obtain Public Records

from the codifying-'nothing-to-see-here' dept

Very few governments and government agencies value the transparency and accountability that robust open records laws create. It took an act of Congress to even establish a presumptive right of access to government records. And all across the United States, state governments are always trying to find some way to limit access without getting hit with an injunction from courts that seem far more respectful of this right than the governments and agencies obliged to conform with statutory requirements.

Not for nothing is it pretty much de rigueur to engage in litigation to obtain records from entities legally required to hand them over. New Jersey is the latest state to help itself to more opacity while placing more obligations on the public — you know, the people who pay their salaries. While there have been a few moves towards the positive side of this equation over the past decade, legislators and Governor Phil Murphy have decided the public only deserves to know what the government feels like telling it.

As Matt Friedman reports for Politico, the new normal in New Jersey is discouraging people from suing after their records requests have been blown off by state agencies. This isn’t anything state residents want. This is the governor protecting the government from the people it’s supposed to be serving.

The problematic law doesn’t dial back any obligations to respond to requests. Instead, it’s a bit more nefarious. It assumes government entities will fail to comply with their statutory obligations, but passes that cost on to the people directly by making it far more expensive to force records out of agencies’ hands.

Here’s the impetus:

The push for the bill has largely come from lobbyists for county and local governments, who say records custodians are burdened by commercial and unreasonable requests by a small number of people.

And here’s the outcome:

Most controversially, the legislation would end the current practice of mandatory “fee shifting,” in which governments pay the “reasonable” legal costs for any requester who successfully challenges a records denial in court. It would instead leave it up to a judge, who would only be required to award the legal costs to the plaintiff if they determine the denial was made in “bad faith,” “unreasonably,” or the government agency “knowingly or willfully” violated the law.

That places the burden of litigation almost entirely on records requesters. If they decide to initiate litigation to obtain what the law says the state must turn over, they’re now faced with the possibility of not being able to recover their litigation costs even if a judge rules a government agency must turn over the requested records. All the government needs to demonstrate (and a judge needs to trust its narrative) is that any failure to provide records wasn’t a “knowing” violation of the law. This is the government seeing all the litigation non-compliant agencies generate and somehow arriving at the conclusion that it just must be too easy to sue the government for refusing to uphold its end of the public records bargain.

And that’s not all. The law also grants a presumptive fee burden on requesters, requiring them to demonstrate (to agencies already unwilling to comply with requests) that the requested fees are “unreasonable.” More specificity is also demanded of requesters, which is insane because requesters in some cases can’t possibly know the specifics of the records they’re requesting and will likely only have those specifics if the government agency actually hands over the records.

Bizarrely, it also bars requesters from sharing any photo or video received via a public records request if it contains “any indecent or graphic images of the subject’s intimate part” without getting direct permission from the person captured in the recording or photo. And that makes it pretty easy for the government to bury photos and recordings it doesn’t want to have shared by refusing to redact or blur any footage/photos containing an “intimate part.”

That means things like a violent arrest of person suffering a mental health crisis could be buried just because (as happens frequently in cases like these) the person being violently subdued by cops is underclothed or naked. If nothing else, it passes on the expense of redacting footage to those receiving the recordings, rather than place that obligation on those releasing records that might violate the stipulations of the revised public records law.

The gist of the law — and definitely the gist of the governor’s statement [PDF] in support of his own signature on said law — is that the government is real victim here. It’s being steadily crushed under the litigious heel of requesters who sue when the government violates the law, refuses to hand over records it’s obligated to hand over, or just make what the government considers to be too many records requests.

After a thorough examination of the provisions of the bill, I am persuaded that the changes, viewed comprehensively, are relatively modest.

Hmmm. Except that no one but government entities seeking greater opacity (or at least angling for a lower obligation for responses) is in favor of this law. Anyone actually engaged in transparency and accountability efforts doesn’t see this as “modest” revision of the state’s public records law, much less as a win for the general public. This is the government doing what it does with its greatest enthusiasm: protecting itself from the people it’s supposed to be serving.

Filed Under: accountability, foia, lawsuit, new jersey, phil murphy, public records, transparency

Three Cities Sue Axon; Claim It Has A Monopoly On Body Cams, Electronic Weapons

from the bit-thuggish,-but-probably-not-a-monopoly dept

As much as I dislike and distrust Axon (formerly Taser and the leading proponent of the “excited delirium” theory of cop exoneration), I just don’t think there’s much going on here. Sometimes there are actual monopolies. And sometimes, one business is just better at business than its competitors.

But that’s what a few cities are claiming in a new lawsuit, first reported by Cyrus Farivar for Forbes:

Baltimore, Maryland; Augusta, Maine; and Howell, New Jersey have sued Axon, alleging that the company has committed antitrust violations, abused its market power, and forced cities to pay exorbitant fees for a basic, but crucial piece of law enforcement tech.

Filed in federal court in New Jersey, the suit claims that the Arizona-based company formerly known as Taser International bought VieVu, one of its key competitors, to secure four major contracts that had eluded it: New York City, Oakland, Miami-Dade and Phoenix. Then, under its new Axon brand, it aggressively raised prices for clients that had few other options. Within a year, Axon’s body cam prices had risen 50 percent. By 2022, those prices had nearly tripled, reaching $490 per camera.

The lawsuit [PDF] stresses a lot of these points and says a lot of things about profit margins being inordinately high. But if that’s what the market bears, that’s what Axon can charge (is there a pun intended here? maybe?). And while it’s somewhat concerning that Axon managed to acquire VieVu (which it referred to internally as its “#2 competitor”), that alone is not enough to create a monopoly.

Also highlighted in the lawsuit are a bunch of things lots of businesses do, like tie up customers with lengthy contracts, force customers to only use refills made by the same company (Taser refills are pretty much proprietary ink cartridges), and vertically integrate as much as possible to make moving away from tied-in products extremely difficult. This is something Axon does with its body cameras and its front end for recording access, Evidence.com. Cameras without storage and access aren’t all that useful. And only Axon cameras work with Axon’s software.

Again, this is the sort of thing seen literally everywhere. While it does make customers unhappy, it works out pretty well for the companies using these tactics. That’s why so many companies do it. And that’s why some unhappy customers sue, much like these cities have.

It’s not all that remarkable that Axon increased its camera prices once it acquired VieVu. Then again, Axon has also given away cameras for free to increase market share and tie law enforcement agencies into far more lucrative data retention/access contracts.

But what’s probably most fatal to this lawsuit is the argument it makes in support of its monopoly theory:

Motorola, Panasonic, and Utility largely make up the rest of the BWC Systems market. As demonstrated by the dramatic price increases that Axon implemented after acquiring VieVu, none of these other competitors pose the same competitive constraint on Axon as did VieVu, and none were able to constrain the exercise of Axon’s monopoly power. These other competitors’ BWC Systems rarely provided significant competition to Axon in RFP processes conducted by police departments. A chart included in a December 2019 Axon investor presentation shows the meager market share these competitors had compared to Axon, with the closest competitor, Motorola, controlling only 7 of 69 U.S. Major City Chief Agencies compared to Axon’s 47.

It’s that first sentence. If you’re able to list a handful of other competitors in the market, you can’t credibly make a claim the market has been monopolized. Sure, Axon may have the largest share of the market, but it’s no more a monopoly than Google’s outsized share of the search engine market. Some companies manage to dominate markets because they’re making better products, have better marketing, or do both well enough that their name becomes synonymous for _competitors_‘ products — like Taser for any stun gun-esque weapon and Google becoming the go-to shorthand for performing a web search on any service.

The lawsuit also claims Axon “aggressively” defends its patents, to the point it has sued “potential competitors” in the “less lethal weapon” market out of existence. Again, while nobody likes a bully, this is sort of thing lots of patent holders do, even when they control far less market share than Axon does. Again, just because Axon is dominant doesn’t mean it’s a monopoly or that any of these claims — ones that could apply to plenty of other companies in plenty of other fields — add up to the conclusion this lawsuit wants a judge to reach.

I, for one, welcome this lawsuit, if for no other reason than it might expose some previously unknown facts about Axon, its management, its sales tactics, and its communications with law enforcement agencies. In other words, I’m here for the discovery. Axon may be a “gorilla” (as one of its execs encouraged its marketers to be) but it’s hardly a monopoly.

Filed Under: antitrust, baltimore, body cameras, body cams, competition, howell, new jersey, tasers
Companies: axon

New Jersey Sued Again For Giving Cops Access To Newborn Babies’ DNA

from the I-guess-getting-sued-is-easier-than-respecting-the-4th dept

It appears the New Jersey Department of Health still believes the state’s residents are better served by giving law enforcement another way to dodge the Constitution.

The Department of Health was sued two years ago by the state’s Office of the Public Defender (OPD). That lawsuit targeted the state’s peculiar practice of holding on to newborns’ blood tests for nearly a quarter century and turning these over to investigators who just don’t feel like following the Fourth Amendment rules.

Here’s what triggered that lawsuit:

Plaintiff New Jersey Office of the Public Defender (OPD) recently learned that the State Police has successfully subpoenaed a newborn blood spot sample from the Newborn Screening Laboratory that belonged to a child who is now approximately nine years old. The reason the State Police subpoenaed the sample was so that it could perform a DNA analysis on the sample and tie the child’s father, who became OPD’s client, to a crime that was committed in 1996.

By serving a subpoena upon the Newborn Screening Laboratory, the State Police sidestepped its constitutional obligation to develop probable cause and obtain a warrant so that it could obtain a buccal swab from OPD’s client to perform an analysis of his DNA. By obtaining the child’s blood spot sample from the Newborn Screening Laboratory, it was able to perform a DNA analysis on the child’s blood and then use those DNA results to form the basis of an affidavit of probable cause to obtain a warrant for a buccal swab from OPD’s client. OPD’s client was later criminally charged.

This is a public records lawsuit, filed in conjunction with the New Jersey Monitor after the Department of Health refused to turn over records detailing the frequency of requests for blood samples by state law enforcement agencies, as well as the names of the agencies engaging in this unconstitutional dodge.

Now, it’s being sued by parents who did not realize their infants’ blood samples would not only be held for nearly a quarter century, but were accessible with nothing more than a subpoena. The Institute for Justice is representing two mothers (so far) who were never told this sort of thing was happening, nor given any opportunity to opt out. Here’s IJ’s Daryl James and Brian Morris with the details for the Daily Beast.

Without telling parents, the state has stored samples from each baby born since the 1970s, creating a secretive database with millions of entries. Blood samples stay on file for 23 years. DNA data might last longer on third-party servers.

New Jersey does not say precisely what happens to the data, but the state gives itself permission to share the genetic markers it collects with anyone it wants for any reason, including law enforcement. The risk is not just hypothetical. New Jersey already has turned over infant blood samples to police agencies without a warrant, leading to criminal charges for at least one father.

Technically, parents can opt out of the screening if they object on religious grounds. But hospitals hide this option, and some families report threats of being reported to Child Protective Services if they refuse. A half-page handout from the New Jersey Department of Health claims “all” infants are “required by law” to give blood to the state.

The handout says nothing about long-term storage.

As the article points out, New Jersey isn’t the only state doing questionable things with infants’ blood and/or DNA samples. The thing about those states is that they’re no longer allowed to do these things, thanks to successful lawsuits.

The case builds on earlier lawsuits exposing invasive uses of baby blood samples without parental consent. Plaintiffs caught Texas turning over DNA data to the Pentagon for a national registry. Michigan was selling newborn blood for research. So was Minnesota. Court rulings forced all three of these states to stop.

New Jersey’s effort, however, raises multiple constitutional issues. First, there’s the bypassing of warrant requirements with the use of subpoenas issued to another government agency. Then there’s the storage of the blood for twenty-three years — something that allows the state to build a database of DNA samples just in case they might prove useful to law enforcement at any time in the future.

But that’s not how the Fourth Amendment works. Government agencies don’t get to stockpile potential evidence in hopes that it might help in investigations, including investigations that haven’t even been initiated yet. Even similar stockpiles — like plate/location info gathered by automatic license plate readers — are purged far more frequently of their data.

The lawsuit [PDF] filed by Institute for Justice asks for the court to order the state to either end the program or continue this collection only if parents are fully informed of the program’s details. It also asks for this program — if it’s allowed to continue — be opt-in only.

As it stands now, the program that was created to screen newborn babies for certain diseases has become just another way for cops to sidestep constitutional protections… for up to twenty-three years after a child is born. That’s downright dystopian and the state should have altered or ended this program long before being sued.

Filed Under: 4th amendment, dna, new jersey, njsp, police, subpoenas, warrant

Lawsuit Says Hudson County Jail Recorded Calls With Attorneys, Gave This Info To Prosecutors

from the a-snoop-too-far dept

Everyone’s aware (or should be) that all calls made from jail are monitored. Not all calls are recorded. There are exceptions, with the biggest being the one for calls made to attorneys representing jailed people.

Those are completely off-limits. These are privileged communications that cannot be monitored or recorded by the government. And yet, it seems to happen disturbingly frequently.

Part of the problem is that, in most cases, the monitoring of calls is automated and handled by third parties. The third parties make good money on every outgoing call. And if jail officials aren’t staying on top of things, everything gets collected. Once it’s collected, there’s really no reason to not take a listen to attorney-client calls (I mean, other than the rights violation). All you have to do then is just not get caught doing it.

For Securus and its incarceration customers, “getting caught” happened. A massive trove of hacked data included 14,000 recordings of calls between prisoners and their legal reps. Securus settled the inevitable class-action lawsuit five years later, covering 840,000inlegalfeesandshellingoutupto840,000 in legal fees and shelling out up to 840,000inlegalfeesandshellingoutupto20,000 to each affected inmate. It could easily afford to buy its way out of this since it has been known to charge upwards of $14 a minute for calls using its service.

The latest lawsuit to allege illegal recording of privileged communications has the potential to be another class-action lawsuit. It has been brought by a man currently serving time in a New Jersey correctional facility, who claims his attorney calls were not only recorded, but their content used against him by state prosecutors. (NJ.com was the first to report on this lawsuit, but while it can apparently erect a paywall, it apparently doesn’t have the capability to embed a copy of the lawsuit, much less link to it. So, Gothamist gets the leading link and the blockquotes.)

A man who was incarcerated in Hudson County, New Jersey, alleges jail officials and prosecutors there illegally listened to private conversations he had with his attorney while awaiting trial.

Yursil Kidwai says in a federal class-action lawsuit that jail officials secretly monitored phone conversations between him and his lawyer, which are privileged under New Jersey law, and then prosecutors used information shared in those calls to help build a sexual assault case against him.

The tech for recording calls en masse has existed for years. Plenty of players in the jail tech market have capitalized on this to extract exorbitant per-minute fees from a truly captive market. Correctional facilities not only benefit from the off-loading of this task to third parties, but they often directly benefit from the per-minute extortion racket by receiving a cut of every dollar generated by companies like Securus.

No third-party provider is being sued here. Just several facility officials and government prosecutors. As was stated above, listening in on privileged calls is super-easy. All that’s needed to get away with this is to not do anything stupid.

But everyone involved in this violation of rights screwed up, at least according to Yursil Kidwai’s lawsuit [PDF].

[Kidwai] learned of Defendants’ unconstitutional conduct only when Defendant HCPO [Hudson County Prosecutor’s Office] inadvertently produced in discovery copies of [HCPO Detective Ashley Rubel’s] memorandum to [Assistant Chief Hudson County Prosecutor Jane Weiner] and [HCPO Detective Sergeant Leslie Murphy] digesting the substance of Plaintiff’s attorney-client telephone calls.

At best, this could be charitably described as “sloppy.” This opens up the jail and the prosecutor’s office to all sorts of speculation, if not actionable claims. The inmate also claims other inmates have experienced the same sort of forbidden snooping, although the other person named was not so fortunate as to have been the beneficiary of an unforced error.

Since this is a proposed class-action suit, Kidwai is not seeking suppression of this evidence or a reversal of his conviction. (Reports suggest the case against Kidwai was so strong prosecutors definitely didn’t need to use anything obtained illegally, which makes you wonder why they chose to do so.) Instead, he’s seeking a court order blocking the HCPO and correctional facility from doing something they’re already not allowed to do. He’s also seeking unspecified monetary damages, but if it’s true this conviction wasn’t predicated on illegal monitoring of calls, it seems unlikely he’ll be able to demonstrate any monetary loss from these illegal actions.

Without a doubt, this sort of thing is common. What’s uncommon is the government getting caught doing it. Discovery — should the case get to that point — might prove to be very interesting.

Filed Under: attorney client privilege, hudson county, jail phone calls, new jersey, phone calls, prison phone calls, yursil kidwai

New Jersey Is The Latest To Push A Harmful Moral Panic ‘Think Of The Kids’ Social Media Bill

from the stop-falling-for-stupid-moral-panics dept

It seems like the only “bipartisan” support around regulations and the internet these days is… over the false, widely debunked moral panic that the internet is inherently harmful to children. Study after study has said it’s simply not true. Here’s the latest list (and I have one more to write up soon):

And yet, if you talk to politicians or the media, they insist that there’s overwhelming evidence showing the opposite, that social media is inherently dangerous to children.

The latest to fall for this false moral panic is the powerful Herb Conaway, a New Jersey state representative who has been in the New Jersey Assembly since 1997. He has a bunch of moral panic related quotes. He’s claimed that the mental health epidemic among children “can be laid at the feed of social media” (despite all the studies saying otherwise). He also has claimed (again, contrary to the actual evidence) that social media “really has been horrific on the mental health and the physical health of our young people, particularly teenagers and particularly young girls.”

This is not, in fact, what the evidence shows. But it is how the moral panic has been passed around.

And so, the greatly misinformed Assemblymember has successfully been pushing Bill A5750, which requires age verification and parental consent for use of any social media platform with 5 million or more accounts worldwide. It has just passed out of committee and has a very real chance of becoming the law in New Jersey (until a federal court throws it out as unconstitutional —but we’ll get there).

Before we get to the legal problems with the bill, let’s talk about the fundamental problems.

Age verification is a privacy nightmare. This has been explained multiple times in great detail. There is no way to do age verification without putting everyone’s privacy at great risk. You don’t have to take my word for it, the French data protection agency CNIL studied every available age verification method and found that they were both unreliable and violate privacy rights.

Why would Assemblymember Conaway want to put his constituents’ privacy at risk?

Age verification only works by requiring someone to collect sensitive private data, and then hoping they can keep it safe. That’s… bad?

Next, parental verification is crazy dangerous. It can make sense in perfectly happy homes with parents who have a good relationship with their children but, tragically, that is not all homes. And if you have situations where (for example) there is an LGBTQ child in a home where the parents cannot accept their child’s identity, imagine how well that will go over.

And that’s especially true at a time when we’re seeing social media operations being created to specifically cater to marginalized groups. For example, the Trevor Project, the wonderful non-profit that helps LGBTQ youth, has their own social media network for those kids. Can you imagine how well that will work if parents of those kids had to get permission before they could make use of that site?

This law would put the most marginalized kids in society at much greater risk and cut them off from the communities and services that have been repeatedly found to help them the most.

Why?

Because of a moral panic that is not backed by the actual evidence.

The fact that this bill applies to any social media with greater than 5 million accounts means it would sweep in tons of smaller sites. Note that it’s not even active accounts or active monthly users. And it’s not just accounts in New Jersey. It’s 5 million global accounts. There are many sites that would qualify that simply could never afford to put in place age verification or parental controls, and thus the only answer will be to cut off New Jersey entirely.

So, again, the end result is cutting off marginalized and at-risk kids from the services that have repeatedly been found to be helpful.

On the legal front, these provisions are also quite clearly unconstitutional, and have been found by multiple courts to be so. Just in the past few months federal courts have rejected an Arkansas age verification bill and a California one. Neither of these were surprising results as they had been litigated in front of the Supreme Court decades ago.

The parental controls mandate is equally unconstitutional. In Brown v. EMA the Supreme Court noted that the 1st Amendment does not allow for the government “to prevent children from hearing or saying anything without their parents’ prior consent.” Children have 1st Amendment rights as well, and while they are somewhat more limited than for adults, the courts have found repeatedly that children have the right to access 1st Amendment-protected speech, and to do so without parental consent.

And, in cases like this, it’s even worse than in Brown, which was about a failed attempt by California to restrict access to violent video games. Here, the New Jersey bill attempts to limit access to all social media, not just specifically designated problematic ones. So it’s an even broader attack on the 1st Amendment rights of children than Brown was.

So, in the end we have a terribly drafted bill that will sweep in a ton of companies, even ones with limited presence in New Jersey, ordering them to invest in expensive and faulty features that have already been shown to put private info at risk, while doing so in a way that has also been shown to put the most marginalized and at-risk children at much greater risk. And all of this has already been found to be unconstitutional.

All based on a moral panic that has been widely debunked by research.

Yet the bill is sailing through the New Jersey legislature, and almost guarantees that the state of New Jersey is going to have to spend millions in taxpayer funds to defend this law in court, only to be told exactly what I’m telling them for free.

This is a bad, dangerous, unconstitutional bill.

Filed Under: a5750, age verification, for the children, herb conaway, kids, new jersey, parental consent, protect the children, social media

Taxpayers Paid $500/Officer For Cops To Be Taught How To Be More Bigoted, Sexist, And Ignorant

from the making-good-cops-bad-and-bad-cops-worse dept

It’s not like cops needed any more help being intolerant. It seems to come with the job. A badge, a gun, and a sense of superiority tends to turn even marginal cops into people who spend their entire careers adding to the “us vs. them” chip on their shoulders.

But even cops with the best intentions will soon find themselves persuaded to treat the people they serve as people who are beneath them. Shows of compassion — much less demonstrations of base-level humanity — are few and far between.

It shouldn’t be this way. But it is. Police trainers tell officers civil rights are just impediments to efficient policing and should be brushed aside whenever possible. Cop trainers tell cops they’ll have the best sex of their lives after gunning down someone in the street. Supposed medical experts tell cops “excited delirium” is not only a real thing, but an extremely handy excuse any time they have a dead body on their (bloodied) hands.

The end result is the amplification of the worst aspects of cop culture. Those who have the “training and experience” to provide others with training and experience are often those who have spent years — if not decades — soaking in the rot created by the worst apples in the barrel.

There’s not much that’s surprising about this new report from Tracey Tully for the New York Times. About the only thing capable of lowering a jaw into pre-drop mode is the fact that video evidence of this harmful mode of teaching exists online.

At a police training seminar in Atlantic City, N.J., one instructor flashed a photo of a monkey while telling participants about his interaction with a 75-year-old Black man, video shows. Another appeared to mock the L.G.B.T.Q. community: “He or she, him, her, she, him” — whatever “you want to call people now.” Several instructors referred to the size of their genitals in lectures that glorified violence.

And Dennis Benigno, the founder of Street Cop Training, which led the seminar and describes itself as the fastest-growing private police training company in the United States, told the attendees that he looked forward to vacations in Colombia surrounded by cocaine, “hookers” and poor girls who “need to do things to make money.”

There will be those who dismiss this sort of thing as “humor” or locker room talk or whatever. That might be true if this were happening in the relative vacuum of the precinct, behind closed doors and away from the public. (That wouldn’t make it right. It would just make it a bit more understandable, as in “pretty sure we won’t get caught if we do this here.”)

But this happened during supposedly professional law enforcement training classes that cost taxpayers $500 per attending officer. And that’s just the cost of admission. The additional cost of shipping and housing officers takes this well over the $500/per baseline.

In addition to being taught to dehumanize the people they serve and further dehumanize anyone sitting outside their binary sexuality preconceptions, these officers were also partook of, um, “wisdom” handed down by people like Fox News host Tomi Lahren (cue Wikipedia):

Some of Lahren’s commentaries on race issues have been described by critics as racist or race-baiting, which she disputes.

And Medal of Honor recipient Dakota Meyer:

_“Crucial parts” of the story that Marine Corps officials told about Medal of Honor recipient Dakota Meyer’s bravery in Afghanistan are “untrue, unsubstantiated or exaggerated, according to dozens of military documents”_…

And yet another quasi-celebrity, UFC fighter Tim Kennedy, who managed to piss off plenty of people in the armed forces with his take on how to get over PTSD (with his [paid-for] help):

I’ll tell you how to get better. You stop being a pussy.

These are the celebrities-for-hire willing to talk to cops for a cut of the take. They may seem controversial to me and you, but they seem pretty fucking mainstream to those blowing bucks on questionable training from questionable individuals. They’re getting what we pay for, including a misspelled promise to thrill, entertain, and (possibly) educate those in attendance.

You will leave this event with the training you would expect from a professional law enforcement conference. AS ALWAYS, WE WILL NOT DISSAPOINT!

The training is so questionable the New Jersey State Comptroller said it likely made everyone who attended it worse.

In a 43-page report, the comptroller’s office recommended that all New Jersey officers who participated in the seminar be retrained, and it urged the State Legislature to create licensing rules for private training companies.

Specifically, the state agency listed these complaints about the training provided by this collection of officers, semi-celebrities, and other professionals who seemed to feel the best way to impart knowledge is by peppering instruction with off-color comments and bigoted slurs.

In addition, the comptroller (which did not recommend handing out refunds to New Jersey taxpayers) said the cost of attending a conference this horrendous goes far beyond the $500 admission fee. The office notes state taxpayers will bear the financial burden of retraining officers to undo the damage done by this conference, foot the bill to defend officers, cities, and law enforcement agencies against civil rights lawsuits, and pay the costs of all settlements related to these lawsuits.

The report also points out instructors told cops to use an RAS (reasonable suspicion factors) checklist to justify traffic stops — a checklist that treats everything as suspicious, even the stuff that contradicts the others stuff. For instance:

There’s more. Stopped drivers spreading their arms while directly facing officers? Suspicious. Holding arms close by their side and turning their bodies perpendicular to officers (i.e., “blading”)? Equally as suspicious.

Then there’s the insularity, one cultivated by police instructors and internalized by pretty much everyone who dons a cop uniform:

A major theme with many speakers at the Conference was an “us versus them” mentality—law enforcement officers versus civilians, liberals versus conservatives, or those officers who follow Street Cop’s teachings versus those who do not. Instructor Tom Rizzo, current Captain, Howell Township Police Department, even referred to Street Cop as “starting a god damn army.”[ Instructor Kivet, current Sergeant, Robbinsville Township Police Department, called the Street Cop logo a “family crest” and Benigno stated during his presentation that if an officer is at the Conference they know the officer is “on our side.”

None of this makes law enforcement better. It only makes existing problems worse. It’s great the state comptroller has problems with this, but forcing attending officers to retrain won’t undo this damage, largely because attending officers view the conference as the “right” way to be a cop and will view any mandated follow-up training as an unnecessary waste of time.

Unfortunately, it’s not just a New Jersey problem. It’s a nationwide problem. Back to Tully and the New York Times:

The company estimates it trains 25,000 to 30,000 officers nationwide every year, court records show. In one month last year, it advertised courses in Texas, South Carolina, Massachusetts, Michigan, Indiana and Colorado.

In all, public agencies in 46 states have provided “direct payment” to Street Cop Training since 2020, the comptroller’s office found.

If we want to stop making cops worse, we need to do better vetting of law enforcement training and instruction. Law enforcement agencies have already demonstrated they can’t be trusted to do this job. Anyone offering training for law enforcement officers — especially those who are paid with public funds — needs to be subject to a certification process that involves non-law enforcement agencies and taxpayers themselves.

While law enforcement input is needed to determine what might be useful to officers, they should not be the only input considered, much less given the privilege of making the final call. If they wanted to be trusted to choose the instructional sources, they’ve had decades to prove they’re worthy of this trust. Instead, they’ve constantly demonstrated their inability to make good choices, much less be trusted with the billions they take from taxpayers every year.

Filed Under: new jersey, police, training
Companies: street cop training

Finally: Our National Taco Tuesday Nightmare Is Now Fully, 100% Over

from the let's-taco-bout-it dept

It’s over. It’s finally over. The battle to end the trademark registrations for “Taco Tuesday” began years and years ago, mostly after Taco John’s wielded the trademark haphazardly to occasionally threaten other taco joints with legal action. Less spotlighted was Gregory’s Bar & Restaurant, which held the trademark for the phrase in the one state that Taco John’s didn’t, New Jersey. But, and if you haven’t been following this story I swear to god this next collection of words forms a true sentence, LeBron James teamed up with Taco Bell to launch a public campaign to get both trademark registrations rescinded by the USPTO. As a result, Taco John’s finally agreed to just give up this fight it was doomed to lose. But the owner of Gregory’s Bar & Restaurant, who’s name is — sigh — Gregory Gregory (duplicate is not a typo), vowed to fight to keep his trademark in New Jersey.

But now that fight is over, too. Taco Bell released a statement indicating that Gregory’s has relinquished its trademark as well.

After a months-long battle with a Jersey Shore bar and restaurant over the trademark for Taco Tuesday, fast food giant Taco Bell said in a press release Tuesday that the trademark to the name had been relinquished.

“When we set out to free Taco Tuesday, we did it for all who make, sell, eat and celebrate tacos,” said Taco Bell Chief Global Brand and Strategy Officer and incoming Chief Executive Officer, Sean Tresvant. “Taco Bell wants everyone to have the opportunity to celebrate Taco Tuesday.”

Well, that’s almost certainly bullshit, of course. Taco Bell wants to be able to use the phrase “Taco Tuesday”, that’s why it fought this fight. But here’s the thing: it should be able to. As we’ve talked about at length in previous posts, these trademarks never should have been granted in the first place, and certainly became totally generic after years and years of use by multiple other parties in a multitude of ways.

And here’s the really frustrating thing: Taco Bell’s fight to overturn these trademarks has probably generated more business for Gregory’s than the stupid trademark it had in the first place.

Despite his frustration with the recent battles over the name, Gregory also acknowledged the publicity his fight with Taco Bell has generated for his business.

“We have gotten a lot of customers that were new because they saw it,” he said.

I’m not typically in the business of cheering on big companies defeating small companies at, well, mostly anything, frankly. But this whole things was dumb from the jump. Taco Tuesday is free for all to use. It’s finally over.

Filed Under: gregory gregory, new jersey, taco tuesday, trademark
Companies: gregory's bar & restaurant, taco bell, taco john's

New Jersey Appeals Court Says Even Some Forms Of Harassment Are Protected Speech

from the bad-laws,-bad-judges,-bad-outcomes dept

Like it or not, there are a lot of unconstitutional harassment laws on the books. While it’s always nice to see the First Amendment protect speech we like, it’s just as likely to protect speech we don’t like. And harassment laws are often written far more broadly than they should be, given the First Amendment implications.

In this case, brought to us by Keith Kaplan and his extremely informative Twitter thread, a whole lot of things are going on at once. It’s not often you see a state harassment statute, a string of court-enabled First Amendment violations, and Jewish divorce law all in the mix at the same time.

Yet, that is what we have here. And it all begins with an attempted divorce, which is vastly complicated by the Jewish religion’s rules and regulations. The decision [PDF] from the New Jersey appeals court explains a bit of the relevant law, as well as the relevant practices of members of the Jewish faith, before getting to the First Amendment issues.

The plaintiff and defendant (the one-time husband and wife) are known simply by their initials: S.B.B. and L.B.B. The defendant is the estranged wife, L.B.B., who was hit with a FRO (final restraining order) in the lower court, predicated on that court’s misunderstanding of the First Amendment, as well as two New Jersey laws: its harassment statute and the Prevention of Domestic Violence Act (PDVA).

We glean these facts from the record. Following a twenty-year marriage that produced four children, the parties, both practicing members of the Orthodox Jewish faith, separated and have been in the process of obtaining a divorce since mid-2019. The process has been contentious and acrimonious and further complicated by a dispute over a get—a religious bill of divorce.

In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a “get” (pluralized as “gittin”), which must, in turn, be signed by an “eid,” or witness. A woman who attempts to leave her husband without obtaining a get becomes an “agunah” (pluralized as “agunot”), which subjects her to severe social ostracism within the Orthodox Jewish community. Agunot may seek relief in a “beth din,” a rabbinical court presided over by a panel of three rabbis. The beth din may then issue “psak kefiah,” or contempt orders authorizing sanctions, which include, but are not limited to, the use of force against a husband to secure a get.

So, refusing to hand over a “get” can result in all sorts of bad things for the person refusing to do so. And that’s just within this community. But technological advances have ensured those who feel wronged by the lack of a get have plenty of options to pressure the opposing party into delivering this needed bill of divorce.

That’s what happened here:

Sometime in March 2021, defendant made a video addressing the get dispute. In the video, defendant asserted plaintiff had refused to give her a get and asked anyone who could to “press” plaintiff to give her a get. On March 19, 2021, after the video was made, plaintiff obtained a TRO against defendant based on a domestic violence complaint alleging harassment. To support the complaint, plaintiff testified at an ex parte hearing that beginning around 3:00 p.m. on March 12, 2021, he received numerous phone calls from unknown numbers, a photograph of himself identifying him as a get refuser and calling on others to “tell him to free his wife,” and, ultimately, the actual video defendant had composed.

That’s how the TRO (temporary restraining order) was obtained. S.B.B. (the husband) was also subjected to other forms of harassment that may or may not have included his estranged wife. An amended request for a restraining order added cyber harassment to the mix. Testimony from S.B.B. asserted that he had also been subjected to multiple FaceTime calls from numbers he didn’t recognize, as well as one allegedly generated by his wife but that was “joined” by thirty phone numbers he didn’t recognize. Things along this line (posting of his photo while labeled a “get refuser,” videos sent to S.B.B.’s rabbi about his get refusal, etc.) continued for a few more weeks.

L.B.B. (the wife) argued her video and other online communications were protected by the First Amendment. The lower court disagreed, finding S.B.B. credible in his allegations and, without seeking any outside expert to testify on the specifics of Orthodox Judaism, awarded a permanent restraining order to the husband on the grounds that these communications and postings constituted harassment under state law.

[T]he judge rejected defendant’s free speech claims, explaining that “one cannot hide behind the First Amendment when that communication is invasive of the recipient’s privacy. The First Amendment cannot protect this kind of communication to incite, which is clearly invasive of [plaintiff’s] safety and privacy.” In assessing the threat to plaintiff’s safety associated with being labeled a get refuser, the judge noted:

Now there was no expert that came into this court to explain what a get is or the realities of the get. This [c]ourt is not taking judicial notice of . . . what a get refuser is. But in listening to the testimony of both parties it’s clear that it is something serious in the Jewish community. [Plaintiff] testified that he watched his father be beaten because he was a get refuser. And I believe . . . defendant testified . . . that you can go to jail for being a get refuser.

So the [c]ourt does glean from the testimony that being a get refuser in the Jewish community is a very serious allegation with substantial consequences, which is clear from the testimony under the totality of this case.

The appeals court, however, welcomed the contributions of several experts when taking its pass at this case.

We subsequently granted motions by seven organizations to appear as amici curiae and participate in oral argument in support of defendant’s position. The organizations are: (1) the American Civil Liberties Union of New Jersey; (2) the American Civil Liberties Union; (3) the Jewish Orthodox Feminist Alliance; (4) Sanctuary for Families; (5) Unchained at Last; (6) the Organization for the Resolution of Agunot; and (7) Shalom Task Force.

The appeals court says not only did the lower court use the wrong First Amendment standard, it used the wrong standard when applying the state’s harassment law.

Here, the judge’s finding of the predicate act of harassment in violation of N.J.S.A. 2C:33-4(a) was based exclusively on defendant’s creation and dissemination of the video. A person commits harassment if, “with purpose to harass another, he [or she] . . . [m]akes, or causes to be made, one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.” N.J.S.A. 2C:33-4(a).

The lower court chose to focus on the catch-all phrase at the end of the statute: “any other manner likely to cause annoyance or alarm.” That’s far too vague to be constitutional, at least as applied by the lower court.

Thus, as with any speech-regulating statute, the reach of N.J.S.A. 2C:33-4 is cabined by the federal and state constitutions. The First Amendment to the United States Constitution provides in part that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” Similarly, Article I, Paragraph 6, of the New Jersey Constitution proclaims in part that “[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.”

[…]

As such, “[t]here is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Burkert, 231 N.J. at 281 (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001)). “Speech . . . cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt.” Ibid. “The First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society.” Ibid. To that end, the right to free speech also includes the right to exhort others to take action upon that speech. “It extends to more than abstract discussion, unrelated to action.” Thomas v. Collins, 323 U.S. 516, 537 (1945).

Here’s how the lower court should have handled this:

Applying these principles, we are convinced that the video, whether viewed on its own or in the context in which it was disseminated, does not fall outside the First Amendment’s protection. The judge concluded that the video was not protected by the First Amendment because members of the Jewish community would respond violently to plaintiff being identified as a get refuser. The judge stated that “[t]he First Amendment cannot protect this type of communication to incite, which is clearly invasive of [plaintiff’s] safety and privacy.” However, such an unspecified general history of violent treatment to which get refusers were subjected was insufficient to render defendant’s video a true threat or an imminent danger to satisfy the incitement requirement.

The video that resulted in the defendant being hit with a permanent restraining order did not even approach the outer limits of First Amendment protection.

If the literal threat “to break . . . necks” in Claiborne, against a backdrop of actual acts of retaliation and violence committed by boycott supporters against boycott violators, was not outside the First Amendment’s protection, it is hard to see how defendant’s video, with, at most, only nonspecific threatening connotations, could be unprotected.

And you can’t take away one person’s First Amendment rights just because other people got a bit too carried away in their “support” of the estranged wife.

The judge’s suggestion that plaintiff had a right to not be subjected to anonymous phone calls, threats, or picketing at his house—especially absent evidence that defendant made calls herself or distributed plaintiff’s contact information—is likewise insufficient to render defendant’s speech unlawful. […] [T]he acts of identifying an individual, encouraging others to call them and urge them to change their behavior, and picketing in their hometown are protected activities under Keefe, 402 U.S. at 417, 419.

The First Amendment still protects some forms of harassment, even those state statutes might attempt to (unconstitutionally) regulate. Nothing in this case suggests L.B.B. did anything more than engage in protected speech.

Without credible evidence that the video incited or produced imminent lawless action or was likely to do so, defendant’s speech does not fall within the narrow category of incitement exempted from First Amendment protection. Likewise, because the judge’s finding of a privacy violation relied upon the same factual finding, the record does not support the finding that the manner of defendant’s communication violated subsection (a) of the harassment statute. As our Supreme Court explained, N.J.S.A. 2C:33-4 criminalizes only those “private annoyances that are not entitled to constitutional protection.” Hoffman, 149 N.J. at 576. Defendant’s communication does not meet that criteria.

That’s the end of all the restraining orders and their accompanying restrictions on L.B.B.’s speech. What remains is an enshrined right to engage in speech others may not like and, in fact, maybe suffer negative consequences as a result of it. But just because someone is on the “losing” end of a private dispute that spilled out onto social media doesn’t mean they have the right to ask the government to shut up the person currently on the winning end.

Filed Under: 1st amendment, divorce, free speech, harassment, new jersey, pdva

Correction: Our National Taco Tuesday Nightmare Is Over, Except In New Jersey

from the doomed dept

It appears I slightly exaggerated the state of the Taco Tuesday trademark saga in my last post. After decades of ridiculous bullying coming from Taco John’s concerning the trademark it somehow was granted on “Taco Tuesday” — a term that is generic on its face, became more generic over time, and is also at least partially descriptive — Taco Bell’s war on the trademark finally caused Taco John’s to relinquish the trademark entirely. And, in that post, I declared the whole saga over.

But that’s because I forgot that New Jersey exists. See, Taco John’s held the trademark for “Taco Tuesday,” yes, but only in 49 states. In Jersey, the trademark holder for the term is a small restaurant owned by Gregory Gregory (not a typo) and named, you guessed it, Gregory’s Restaurant.

And, according to all accounts and statements from Gregory, he plans to fight Taco Bell’s attempt to vacate his trademark.

A New Jersey restaurant is fighting what it calls a “David and Goliath” battle over the trademark for Taco Tuesday. Gregory Gregory owns Gregory’s Restaurant in New Jersey. He said he started Taco Tuesday in 1979 and trademarked the phrase a few years later. But now he’s in a battle with national chain Taco Bell over the trademark.

That leaves Gregory’s the lone holdout against Taco Bell. The restaurant doesn’t have the same financial power as the chain, but Gregory hopes they can prevail against the larger company.

Indeed, but financial power isn’t really the problem here. The problem is that all the reasons that would have been laid out in court against Taco John’s would apply in New Jersey as well. And the fact that Taco John’s lawyers ostensibly looked at all this and advised their client to run away instead should tell Gregory all he needs to know. The term was generic and descriptive to start with and only became more and more generic over time.

Resistance on this is doomed, in other words. One way or the other, the term Taco Tuesday will be freed.

Filed Under: new jersey, taco tuesday, trademark
Companies: gregory gregory, taco bell, taco john's