In a much-anticipated lawsuit, the Department of Justice filed suit against Google yesterday, alleging the company is violating antitrust laws. Google has been the subject of bipartisan criticism for its alleged control of the Internet search market.
In a nutshell, the DOJ asserts that Google is illegally maintaining its dominant position in the Internet search market by paying companies like Apple billions of dollars to have its search engine set as the default search engine on its devices. Additionally, the DOJ is taking aim at Google’s Android operating system, which incorporates Google as the default search engine.
To prevail, the DOJ must prove that Google is dominant in Internet search searches, and that its deals with Apple and others stifle competition. In recent congressional testimony and other public statements, Google has claimed that it is not dominant and that consumers can easily change the default search engine. Additionally, Google asserts that examining only general searches is, “myopic” and points out that nearly half of online shopping searches begin with Amazon and not Google.
This will be a closely watched case — as articulated by The New York Times in a recent article, “a victory for the government could remake one of America’s recognizable companies and the Internet economy it has defined since it was founded …”
Admittedly, it is a little early to be reaching conclusions about the appropriateness of bringing criminal charges against the two former leaders of a state-run veterans’ home in Massachusetts where 76 veterans died from Covid-19. But this case — the first criminal case in the country stemming from a Covid-19 outbreak at a nursing home facility, appears to be part of an ongoing trend in our country to criminalize negligent or bad decision-making.
The criminal charges stem from a decision allegedly made by these two individuals, early in the pandemic, in March of 2020, to consolidate two dementia units into one. Apparently, this consolidation led to patients positive for the virus to be housed near non-infected patients, which led to significant spread and deadly results.
There is a lot that we don’t know. The lawyers representing the charged individuals have suggested that these charges are the result of an effort by state officials to scapegoat these two individuals who were placed in impossible situations. One of the lawyers was quoted in the Boston Globe as saying, “At all times, Mr. Walsh relied on the medical professionals to do what was best for the veterans given the tragic circumstances of a virus in a home with veterans in close quarters, severe staffing shortages, and the lack of outside help from state officials. The Attorney General should not be scapegoating Mr. Walsh, who was on the front lines trying his best to do whatever he could to help the Veterans of the Holyoke Soldiers Home, including asking for help from state officials and the National Guard, which arrived much too late.”
The sad truth is that periodically, reports surface alerting the public to lack of government funding of medical facilities for our veterans, which results in subpar and negligent medical treatment. That governmental negligence places the men and women charged with running these medical facilities in impossible situations. Inevitably, when tragedy strikes, the response of government officials is to blame the men and women who run the facilities without taking responsibility or acknowledging that, in large measure, it is the lack of adequate resources that resulted in the making of the tragic decision. In this instance, it appears that the state of Massachusetts has gone a step further by not only scapegoating these two individuals but attempting to turn them into convicted felons. It is worth noting that these two individuals are not crooks. They are people who appear to have distinguished careers grounded in service to the country. As pointed out by one of the lawyers, “Mr. Walsh has spent his entire life in the service of our country, first in active duty in the Marine Corps for 24 years and then serving other veterans as the Superintendent of the Holyoke Soldiers Home. He, like other nursing home administrators throughout the Commonwealth and nation, could not prevent the virus from coming to the Home or stop its spread once it arrived there.”
I will end as I began, with an acknowledgment that we don’t have all the facts, but we will continue to voice our concern and caution the public to be mindful that criminal sanctions are not intended to serve as punishment for all bad decisions. When people are hired to handle difficult jobs in challenging circumstances and with limited or inadequate resources, they are likely, from time to time, to make the wrong choice — that does not make them criminals.
We often find ourselves at odds with the Department of Justice but every now and then, we must tip your hat to them – especially when the target (pun intended) is a towing company and the victim a deployed member of the United States Armed Forces. Today, the Department issued a press release announcing it had reached a $20,000 settlement against Target Recovery Towing, Inc. (“Target”), a Tampa towing company, for unlawfully selling a vehicle belonging to a deployed service member. In addition to the monetary settlement, Target must adopt new policies and procedures, including reporting requirements, to ensure future violations do not occur.
Service members and their families who believe their rights have been violated should contact the nearest Armed Forces Legal Assistance Program Office. Office locations may be found at http://legalassistance.law.af.mil/.
Imagine this scenario, on a beautiful afternoon, a large group of Second Amendment supporters (presumably wearing Hawaiian shirts) peacefully gather in the downtown area of a large city to stage a demonstration. The city’s mayor, concerned that some of the demonstrators might include white supremacists or members of violence-advocating, right-wing groups, orders the police department to deploy a surveillance drone equipped with facial recognition software and recording capabilities. The protest ends peacefully and the mayor later claims the drone was deployed as a precaution for law enforcement to track the path of the demonstrators in order to be responsive in the event of violence and that neither the face recognition nor recording capabilities of the drone were activated.
Are you comfortable with this scenario? Do you find the actions of the mayor and the police reasonable? I suspect your answer might depend on where you stand politically. As we have become more tribalized, it seems that our analysis of the use of technology in ways that invade our privacy and freedom of political expression is driven by whether we agree with the cause being advanced.
Let us take it look at a different scenario.
On a beautiful afternoon, a large group of racial justice reform advocates peacefully gather in the downtown area of a large city to stage a demonstration. The city’s mayor, concerned that some of the demonstrators might include communists, anarchists, and violent looters, orders the police department to deploy a surveillance drone equipped with facial recognition software and recording capabilities. The protest ends peacefully and the mayor later claims the drone was deployed as a precaution for law enforcement to track the path of the demonstrators in order to be responsive in the event of violence and that neither the face recognition nor recording capabilities of the drone were activated.
Do you view this differently? The answer should be, “no.” Both scenarios should be equally troubling, and we should advocate for the passing of laws that set standards for the use this type of invasive technology. There is simply no reason for drones with facial recognition capabilities to be deployed to monitor political protest. Our silence to the use of this type of technology will inevitably lead to the watering down of our right to political protest and expression.
China is the poster child for the use of facial recognition software and hardware to deter political expression. In China, law enforcement drones equipped with facial recognition software were deployed this year, during the Covid-19 pandemic, to enforce compliance with quarantine and social distancing requirements. But the trend of increased use of this technology by law enforcement is not limited to China. The Department of Homeland Security deployed drones equipped with facial recognition capabilities, in Minneapolis to monitor protests in that city, in the aftermath of the George Floyd killing (although the agency asserted that the facial recognition capability was not used). Prior to 2014, only a handful of public safety agencies in the United States had drones. Five years later over 1,500 police departments now have drones. Despite this increase, virtually no regulation has been enacted to govern their use. This must change, if we are to protect our political freedoms and our privacy.
Privacy attorneys point to the Illinois model as an appropriate statutory model, balancing public safety and privacy concerns and encourage its framework for broader adoption. The Illinois Freedom from Drone Surveillance Act, passed in 2014, prevents a police department from gathering, “evidence images, sound data or other information” using a drone. The act provides exceptions to this prohibition for emergency situations, such as terrorist attacks, or through judicially approved warrants.
It is time for our communities to demand the adoption of appropriate regulation. It is also time for our local news reporters to more actively track and report on the use of drones as police surveillance tools. A simple online search of media stories on the use of drones by law enforcement will yield very few stories but, in contrast, dozens of stories abound about the danger of unregulated use of drones by private citizens. This needs to change. States must develop appropriate statutory frameworks that balance the appropriate use of drones by law enforcement agency with the need to protect the privacy and political expression of citizens.
Law school graduates have earned an opportunity to work. In response to the Covid-19 crisis, the Florida Board of Bar Examiners postponed the exam once, in order to develop an online version. When the company contracted to develop the online exam was unable to perform in every other jurisdiction, the Board of Bar Examiners refused to critically examine those failures and develop a contingency plan. When the deans of Florida’s law schools wrote a joint letter suggesting an alternative proposal, they arrogantly refused to consider it.
So here we are, three days before the rescheduled examination, at 10:49 PM on a Sunday and the Board of Bar Examiners decides it is appropriate and reasonable to inform applicants that the exam will not go forward with no plans on how these young people should earn a living. These applicants have worked hard not only to earn their law degrees, but to prepare for the exam — they have earned the right to seek employment in the profession they have worked so hard to enter. Postponing the exam, at the last minute, with the promise of beginning the process of developing a “supervised practice program” is outrageous — such a program should have already been developed. It is difficult to fathom a more cavalier and arrogant attitude being displayed by the examiners.
The reality that the contracted company would be unable to develop an online version of the exam on a timely manner was apparent to everyone (except apparently the Florida Board of Bar Examiners). To fail to prepare for what was apparent to everyone and either allow for diploma privilege or an alternate means of examination, as proposed by the law school deans, is either grossly incompetent or evidence of a more nefarious motive. Either way, our law school graduates deserve better!
We will keep saying it until our courts come to their senses!!! Holding “virtual” jury trials, particularly in criminal cases, is a dangerous move that should not be countenanced. Let’s begin with the basics by reviewing the definition of the word, virtual. According to Dictionary.com, virtual means, “something that exists in essence but not in actuality.” In other words, it’s not real — it is something similar to a jury trial, but not really. When we are talking about depriving someone of their liberty, we must insist on the real thing.
While historians may argue its origin, we can safely say that since 1066 jury trials have been used as a means of protecting citizens from the power of the sovereign. People have died for us to have this right and we should not give it up lightly.
We are not being hyperbolic when we suggest that having “virtual” jury trials for criminal cases will bring us closer to tyranny. People need to sit across from other people and make determinations regarding bias, motives, and overall credibility. This cannot be done effectively through a television screen. Additionally, there is something unique and essential to communicating with someone in person.
While we recognize that technology has a place in our justice system and can provide an effective tool to assist in the orderly dispensation of justice during a pandemic, to adopt the use of “virtual” trials in criminal cases, particularly when a defendant objects, is an exceedingly dangerous idea.
The Sixth Amendment to the United States Constitution establishes the right of a citizen accused of a crime to a public trial. Obviously, the founders of our republic had no way of envisioning technology such as we have today, but we are confident, given their vigilance and fear of a tyrannical government, that they would disapprove of a “virtual” public trial. Again, we are not being hyperbolic when we warn of the immense powers of the sovereign, and limiting the right to be tried by our peers, in person, is an affront to that basic right — juries are the last line of defense between the power of the government and the accused citizen. Jury trials in criminal cases must be done in person — period.
Friends, we commend to your reading this informative article from our friend and colleague, Jason Mehta of Bradley Arant Boult Cummings LLP, ( https://www.bradley.com/people/m/mehta-jason-p) discussing the relaxation of requirements associated with Medicare’s coverage of telehealth visits during the COVID-19 pandemic. This article not only informative but provides valuable practical advice for medical providers.
In a recent speech to the U.S. Chamber of Commerce, Institute for Legal Reform, Principal Deputy Assistant Attorney General for the Department of Justice Civil Division, Ethan Davis, elaborated on the enforcement priorities for the Department’s Civil Division for foreseeable future and specifically addressed the DOJ’s focus on enforcement of fraud related to the various relief programs designed to assist with the economic damage resulting from the COVID-19 pandemic.
In his remarks, Davis referred to the False Claims Act as, “one of the most effective tools in our arsenal” and suggested it would be a priority of DOJ to “aggressively use the False Claim Act against those to commit fraud related to the various COVID-19 stimulus programs, like the Paycheck Protection Program and the MainStreet Credit Facility.”
Of interest was Davis’ warning to private equity firms. “When a private equity firm invests in a company in a highly regulated space like healthcare or other life sciences, the firm should be aware of laws and regulations designed to prevent fraud.” Davis referenced the pre-pandemic, False Claim Act case brought by the Department against the private equity firm, Rotdan, Lewis and Halden for an alleged kickback scheme of prescription referrals.
Whether the Department’s professed efforts actually materialize and lead to increased False Claim Act enforcement, or righteous criminal prosecutions remains to be seen; however, given the amount of taxpayer funds injected into the various COVID-19 relief programs and the likelihood of further taxpayer-funded efforts, the Department’s vigilance is warranted and necessary.
I hope this doesn’t come across as disrespectful to anyone but all you have to do is spend a couple of minutes watching this to recognize that moving forward with these virtual, Zoom “jury” trials will be devastating to our justice system.
I encourage every lawyer and every citizen to loudly voice opposition to this ridiculous notion. If this is ever adopted in our criminal courts, it is not hyperbole to suggest that it will bring us significantly closer to tyranny. I hope this ridiculous experiment ends now.
We commend to your reading this interesting article by journalist, Liz Brody. https://onezero.medium.com/googles-geofence-warrants-face-a-major-legal-challenge-ac6da1408fba
In this article, Ms. Brody highlights the increased used by law enforcement of geofence warrants. A geofence warrant requires a company, such as Google, to provide information regarding any Google-associated account located in a specific graphical area and timeframe. Ms. Brody illustrates the use by law enforcement of this intrusive investigative tool used in an pending bank robbery case in Virginia. Using a quote from a motion to suppress filed in that case, Ms. Brody crystallizes the privacy implications to innocent citizens whose devices are in use in the timeframe and location described in a geofence warrant. “’Geofence warrants like the one in this case are incapable of satisfying the probable cause and particularity requirements, making them unconstitutional general warrants,’ the lawyers argued in a motion to suppress evidence. The brief goes on to describe them as ‘the digital equivalent of searching bags of every person walking along Broadway because of a theft in Times Square.’”
The motion to suppress can be found here: https://www.nacdl.org/getattachment/a16a7368-3691-4b32-b479-ad8128c53016/5f0ba578-cfe1-4fb9-9e76-5d40778f3f40.pdf (Our never-ending gratitude to the National Association of Criminal Defense Lawyers for allowing access to important legal briefs such as this one and for their tireless efforts to protect our constitutional rights and the support they give to criminal defense practitioners).