Facebook downgrades privacy policy

Background checks are getting easier everyday. Without getting customer consent, and following a decision by the Federal Trade Commission finding that the company had engaged in "unfair and deceptive" trade practices, Facebook announced today that it would make old posts available--even if archived. The FTC had found many instances where Facebook made profile information that a user chose to restrict to “Only Friends” or “Friends of Friends” accessible to any Platform Applications that the user’s Friends had used. More here.

Restyled federal rules of evidence

Seeking to avoid the new Coke marketing fiasco of the 1980s, the feds are rolling out the clarification in terms as a “restyled” FRE. Not new, just better. Enjoy a sip from the folks at Federal Evidence Review.

Investigation New England Patriots defensive rankings

Crack research staff here at Nardizzi Inc took a break from murders, frauds, infringing websites and sexual harassers to examine the 2001 Patriot (aka Marshall Faulk-killing) team, which won the Super Bowl over the Rams. That team was ranked:

24th in total yards defense.
6th in scoring defense.

Oddly enough the offense had similar ranks: 6th in scoring, 19th in yards.
Point differential was 99.

This year the Patriot defense is:

32nd in total yards defense.
10th in scoring defense.

Offense is 4th scoring, 2nd yards
Point differential is 90.

Scent of a Super Bowl lingers in the winter air...

* 2011 team however no longer employs one Antwan Harris, who combined in the greatest backyard football play ever, taking a lateral from Troy Brown after Brown blocked a Steeler field goal attempt. Harris ran 49 yards for a touchdown in the 2001 AFC Championship game, sending waves of Steeler fans into an icy depression (and spiking a notable increase in the Pittsburgh crime rate as well).
Courtesy of the research staff...

Doctor complains; federal agency cripples public database

Interesting story about a database run by U.S. Department of Health and Human Services that maintains discipline and medical-malpractice information. Diligent journalists and investigators could reference the database and, via other sources, sometimes identify doctors with long histories of being sued or disciplined for medical malpractice. Neurosurgeon Robert T. Tenny of Overland Park, Kansas was identified in this manner. His complaints led to the database being shut down for a time, only to be relaunched --with users required to promise not to link information in the database with publicly available information, like court files. Congress is now looking at the agency’s role in restricting speech and use of public data.

No right of privacy in IP case

Judge Young in Liberty Media Holdings, LLC v. Swarm Sharing Hash File & Does 1 through 38, held "the constitutional presumption of openness of judicial proceedings" trumps the privacy claims of defendants, who swarmed to illegally download and distribute gay pornography. The film (with the winsome title “Corbin Fisher Amateur College Men Down on the Farm&rdquoWinking was downloaded illegally; the IP addresses of the downloaders was used to track and identify them. Young did leave an opening for defendants: “Nevertheless, should individual defendants be concerned about being publicly 'outed' as discovery proceeds, the Court will entertain those arguments on an individual basis.” 

FBI Stingray can track cell phones

The FBI pursued a man they called “the Hacker.” Using a cellphone-tracking device called Stingray, they focused on a California home and arrested the man. Stingrays can locate a mobile phone even when it’s not being used to make a call.

Oddly enough, a price list for Harris Corporation wireless surveillance products including Stingray was published on the website of the City of Miami. Cost is only $75,100.

Former SEC counsel Becker says ethics officer cleared him

Former Securities and Exchange Commission General Counsel David Becker has been criticized for making decisions on how victims of Madoff’s Ponzi scheme would recover assets because his family once had investment with Madoff’s firm. However, Becker said he disclosed the possible conflict of interest to the SEC chairman as well as the regulator’s ethics officer. Both cleared him to participate in the Madoff matter.

Glik wins; right to record police upheld in 1st Circuit

The Glik case has been resolved resoundingly in favor of the First Amendment right to publicly to record the activities of police officers on public business anywhere in the First Circuit. One quote summarizes the case best: "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum.  In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"

On the MA wiretap law banning secret recordings, the court wrote: “The presence of probable cause was not even arguable here. ... For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was 'secret' merely because the officer did not have actual knowledge of whether audio was being recorded.”

Beyond Bars: Dennis Maher moves on

In a Boston Globe piece, Dennis Maher has moved beyond the wrongful conviction that took prime years from his freedom. “I got over losing the 19 years of my life,’’ says Maher, 50, in an even tone. “I don’t try and make up for it because I can’t. The best that I can do is just go forward. Don’t hold the anger.’’

In addition to his job at Waste Management, where he started working one month after his release, Maher speaks publicly at conferences and other events involved with wrongful convictions and the importance of access to DNA testing. “It’s part of the healing process,’’ says Maher. “I enjoy it.’’

Setting witnesses at ease: one question to avoid

A former cop turned PI introduced himself to a witness during an interview. Case involved a contract dispute in the business session in Suffolk Superior Court. Within 10 second of the introduction, he said: “I’ve been doing this for a while so let’s start from the top: what is your Social Security Number?”

Asking someone a question like that does not make them feel warm and secure. A question like that makes people shut down. It suggests that the questioner is a clueless conversationalist or a creepy stalker. Not sure when the trend began for opening with such questions (“Nice to meet you. How big is your pancreas?&rdquoWinking. But stop it. Now.

Chinese reverse mergers a growing problem

The number of lawsuits against Chinese reverse merger companies nearly tripled since 2010, according to a study by Stanford Law School Securities Class Action Clearinghouse and Cornerstone Research. "Securities Class Action Filings: 2011 Mid-Year Assessment," reports that 24 class action lawsuits were filed against Chinese reverse merger companies in 2011. Reverse mergers work as follows: a Chinese business is acquired by an American shell company that is publicly traded. The board then resigns, a Chinese-appointed board takes control and changes the company name. Voila: it now can issue new stock to investors, all without IPO costs and paperwork.

News of the World PI apologizes for phone hack

British private investigator Glenn Mulcaire is at the centre of the News of the World phone-hacking scandal. He issued a public apology and attributed mistakes made at the behest of News as due to "constant demand for results". He released the statement after his "vilification" following the revelation of the hacking of a missing schoolgirl's voicemails.

Federal agents get more leeway to investigate

The FBI: the Vault has a redacted but still interesting fact-filled guide on its website: FBI Domestic Investigations and Operations Guide (DIOG. It is undergoing a significant new change granting more power and less oversight to agents conducting the lowest category of investigations (termed an “assessment&rdquoWinking. Assessments allow agents to look into people and organizations without any evidence of criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search databases without making a record.

FBI received Santa Monica tip--in 2008

The Santa Monica Times reporting an intriguing story that a Las Vegas man vacationing in California recognized Whitey Bulger sitting on a park bench at historic Santa Monica Pier, chatting with a kid wearing a Boston T-shirt about city neighborhoods-- in 2008. The man recognized Bulger because he'd just seen the FBI corruption story featured on an episode of "America's Most Wanted."

Steve Katz, the show's co-executive producer, confirmed that the show did get a tip in 2008 that Bulger was in Santa Monica. He added that the information about Bulger being in Santa Monica was turned over to authorities. The FBI couldn’t confirm Thursday whether the agency ever received such a tip.

Massachusetts access to DNA testing

Client Dennis Maher wrote an op-ed in the Herald and testified this week on a Post-conviction DNA Access Bill pending before the Joint Committee on the Judiciary. Maher was exonerated by DNA testing after spending close to 20 years in prison for rapes he did not commit. This firm later investigated on his behalf in a civil action, resulting in a multimillion dollar settlement.

Russian police officer cleared in prison death of lawyer

A senior Russian police officer was cleared of wrongdoing in prison death of lawyer Sergei Magnitsky, a lawyer working for UK hedge fund Hermitage Capital Management. A human rights commission appointed by President Dmitry Medvedev concluded the police had fabricated the charges against Magnitsky.

Wiretaps for suits

The recent insider trading conviction of billionaire Raj Rajaratnam shows that federal prosecutors will increasingly be using wiretaps to build fraud cases involving Wall Street executives. It also signals the growing acceptance by federal judges that, despite the extraordinary cost and invasiveness of such procedures (agents are directed to stop listening when talk turns from business to private--yes, stop the laughter), wiretaps have reached a kind of critical mass of acceptance in the surveillance nation we now inhabit.

In a related matter, Massachusetts law enforcement officials are pushing for a change to antiquated state wiretap laws. An interesting side note is that if the law is changed, it should signal the end to a large number of frivolous wiretapping charges brought against Mass. citizens who are documenting police activity. The Boston Police Dept. is being sued in a major case on that exact issue. The case is Glik v. Cunniffe et al., Civil Action No. 10-10150.
The story and video from the arrest is available here.

Yahoo joins Google: We want to stalk Americans for 18 months

Yahoo has announced that it will join Google in stalking Americans electronically in some form for 18 months (Yahoo had in 2008 reduced the amount of time it retained users’ Internet search data to a mere 90 days). Yahoo plans to extend the retention period this summer. Retained search data will include user’s IP addresses and cookies, which means data can be linked to individual devices or people. After 18 months, Yahoo will retain most of the data, but anonymize it so it cannot be linked to individuals.

Google has a slight variation in their policy which is being misreported in wake of this story: From Google: “We believe anonymizing IP addresses after 9 months and cookies in our search engine logs after 18 months strikes the right balance.” Stalkers do have some sense of decorum after all.

Judge refuses to snip non-compete

A Massachusetts court in Zona Corp. v McKinnon upheld a 1 year non-compete signed by a hair dresser who had been fired from the salon. The fact that the hair dresser employment came to end involuntarily did not affect the enforcement of the clause. At stake was the usual scenario that investigators are called upon to prove: the former employee was using confidential information to make contact with former customers. Some memorable situations at this firm have involved men who are violating a non-competition agreements and can't help bragging at the hotel bar to the lovely and attentive brunette--who is, of course, a private investigator.

Federal conviction rates remain high

Mass Lawyers Weekly reports again on the high conviction rates in federal court. In Massachusetts, federal court conviction rates are 89% in 2010. For that year, federal conviction rates were 87% nationwide. Some federal prosecutors attribute this to working closely with investigators from the beginning of a case. Others point out that federal prosecutors have greater leeway on picking which cases--especially white collar cases--to prosecute than do state prosecutors

By comparison, a 2006 article in the Pittsburg Tribune reported: “Between 2000 and 2005, 99 percent of the 435,000 federal criminal defendants prosecuted nationwide were convicted. The conviction rate was the same for the 2,130 criminal defendants prosecuted during that period in the Western District of Pennsylvania.
A defense lawyer had a different take: “A 90-plus percent conviction rate isn't something that should be applauded. I think it's something you should worry about," Boas said. "That's what you see in totalitarian regimes."

Offshore firms promised 318% return--in 190 day period

Mass. Sec. of State Securities Division filed a complaint against offshore firms Eagle Trades Ltd. and controlling member Terrance Osberger, as well as Osiris FX and FX Capital Services (and Osiris' Evan Andersen, Glenn Manterfield and Alberto Sciola). All are accused of violating state securities laws and, in some instance, defrauding investors. Eagle Trades claimed return rates between 299% and 318% --in just 190 days. The firm’s promotional literature included remarks like “ . . . we have reengineered the mold regarding HYIPS...think of it as a full-throttle upgrade to the typical HYIP routine you may or may not be familiar with....”

Due diligence by investors would have easily raised red flags: Andersen had been barred for life from the securities industry in Massachusetts after he and Manterfield were charged both by Massachusetts and the Securities and Exchange Commission with defrauding investors in 2007.

Case on scope of DPPA appealed to Supreme Ct.

A Texas case, Taylor v. Acxiom et al. is under appeal to the Supreme Court to clarify opposing rulings in federal courts about the scope of the Driver’s Privacy Protection Act (18 U.S.C., Chapter 123, §§ 2721-2725. While the DPPA has specific provisions for law enforcement and private investigators to access the data, the state of Texas has allowed mail order businesses to purchase driving records. The plaintiffs in Taylor argue that neither type of defendant has access to the records.

Lumping the two types together seems a weak position given the specific exceptions of the statute. The crux of the dispute lies in the Taylor court’s determination that an authorized recipient of DMV records is not required to show that it is also an authorized user of the data. “Instead, an authorized recipient is authorized to resell to individuals for one or more of the specific purposes under section 2721 (b),” Judge William L. Garwood wrote on behalf of the 5th Circuit. The interpretation allows for an “authorized recipient to mean something different than one who has a permissible actual use.”

A case going the other direction was in Missouri. In 2008, Judge Nanette K. Laughrey found in Roberts, et al.  v. The Source for Public Data, et al., that defendants did not qualify as “authorized recipients” of DMV records under the DPPA.

Whistleblower protections

Talking with some investigators who attended a qui tam conference, and one highlighted a good breakdown of protections and substantial cash rewards available to whistleblowers who provide the Securities and Exchange Commission with information relating to corporate and securities fraud.  So remember, if you have evidence that a Wall Street boy is a dirty rogue, call the SEC and help yourself to a chunk of his year end bonus.

Surveillance drones hovering over a backyard near you

Washington Post reports that in Texas, the Department of Public Safety used a small bird-size device called a Wasp to float over a backyard and beam video to agents before a search warrant was executed. As is typical in these scenarios, the technology has migrated from military use to law enforcement. Obvious problems with privacy laws, and the FAA is limiting use to emergency situations. But at a cost of just $50,000, the civil sector will be next.