Thursday, February 20, 2020

Kevin R. Brock: Roger Stone, Andrew McCabe and The Danger of A Double Standard of Justice

Roger Stone
A tale of two lies: Stone, McCabe and the danger of a double standard for justice

America is now officially more confused than Boris Johnson’s barber.

President Trump’s campaign adviser, Roger Stone, was arrested by an FBI SWAT team, tried and convicted for lying to Congress and messing with a witness, and nearly had a book the size of a blue state thrown at him at sentencing. Meanwhile, Andrew McCabe, the fired FBI deputy director who, while in his official capacity, lied under oath in violation of a federal statute, won’t be charged by the Department of Justice (DOJ) for any criminality. Go forth, Andrew, and make more money as a CNN analyst.

What seems confusing is really becoming quite plain to all of America: Those on one side of the political aisle are feeling the heat of the justice system, while those on the other side are not. It’s kind of like political “stop and frisk” enforcement: “Hey, Republican, what are you doing in this neighborhood? Up against the wall. Let’s see what we can find on you that we can take to court.”

Yet, while frisking, the enforcers ignore the well-heeled looters behind them, destroying records, selling pay-for-play access, seeking Russian propaganda for political dirty tricks, lying to Congress and the FBI — all activities which, to date, seem consequence-free.

Stop and frisk is a perilous policy, whether practiced on the street or for political advantage. It exposes the justice system to unconstitutional overreach and perceptions of an unfair two-tiered approach to certain citizens.

Most don’t know Roger Stone from Roger Ramjet, who was popular long ago, when Stone started practicing political sleaze for Richard Nixon. Oh, we’re somewhat aware that Mr. Stone is mixed up in the whole Russia-Trump collusion thingy, but not many of us are exactly sure what he did wrong.

What he did wasn’t good. He blatantly and provably told lies to Congress, and he meddled with another potential witness. Both are foolish with a capital “F.” Some Stone supporters are claiming his trial was rigged by an Obama-appointed judge and a Democratic apparatchik moonlighting as the jury foreman. Well, shame on Stone’s counsel for not Googling the foreman, but that argument ultimately won’t hunt. Justice Clarence Thomas and a jury of Young Republicans would have had to convict him on the considerable evidence.

So shed no tear for Roger Stone. He’s a lifelong political hack, and who among us objects to political hacks spending some time in prison orange? His main mistake was not being a senior executive of a large law enforcement or intelligence agency, where you can lie under oath but not much happens to you. Sorry, Roger, you’re just a party operative. You don’t get those courtesies.

But even political tricksters, painful as it might be, deserve considerations of fairness, and Stone’s case raises some troubling questions.

It is well-established case law that a defendant cannot be convicted on evidence that was wrongfully collected by law enforcement. The interesting and equitable question is whether Congress and, subsequently, the special counsel had a sufficiently justifiable reason to investigate Stone in the first place. The same question can be asked regarding those other Trump campaign associates George Papadopoulos and Carter Page, former Trump national security adviser Michael Flynn, and possibly Trump campaign manager Paul Manafort.

The DOJ inspector general’s sterile report notwithstanding, I don’t believe — based on considerable experience conducting and managing counterintelligence investigations — that McCabe and fired FBI director James Comey had sufficient legal basis to open the original FBI investigation, particularly one to target U.S. persons, and from which flowed the prosecution of Stone. There is a reasonable chance that U.S. Attorney John Durham may reach the same conclusion as a result of his investigative efforts.

That original FBI investigation was subsumed by special counsel Robert Mueller who determined that the ostensible reason for starting the investigation — namely, collusion between the Russian government and the Trump campaign — didn’t actually exist.

In other words, there is a strong argument that the government had no legal basis or right to reach out and frisk Roger Stone in the first place and subsequently place him in a position of legal peril of the government’s making.

Roger Stone shouldn’t have lied. If lying is not confronted always and everywhere, we have no credible system of justice. But, equally, it is at least plausible that he was wrongly placed in a position to lie absent a legal reason to confront him. That erodes faith in our justice system just as much.

The decision not to charge or prosecute Andrew McCabe has conservatives rending their garments across the country. It is, admittedly, a jarring and puzzling juxtaposition to the whole Roger Stone and Michael Flynn episodes.

In the middle of all of this is Attorney General William Barr, who seems to have been forced into a three-dimensional chess game given the mess he inherited from the special counsel and a president whose tweets do indeed make Barr’s job harder. (Contrary to some opinion spinners, the president cannot say anything he wants simply because he’s the nation’s top law enforcement officer. No one in law enforcement leadership has that liberty, including the president. The risks to due process are too great.)

Barr’s past week was breathtaking. He rightfully questioned the unprecedented sentencing sought by Stone’s prosecutors after being blindsided by them. He promptly suffered the indignity of being labeled the president’s lapdog, with calls for his impeachment. A few days later, his department declined prosecution of McCabe, one of the president’s most reviled targets. If he was ever on the presidential lap, he just got booted off.

And that may have been part of the strategy regarding the McCabe decision. The Democrats want a discredited Barr; they want him perceived as doing the president’s bidding. That way, Durham and his whole investigation, which probably won’t turn out well for their party, becomes discredited as well. Exonerating McCabe throws a wrench into that calculus and helps protect Durham’s efforts.

Besides, Barr may have been persuaded that there are greater legal jeopardies awaiting Mr. McCabe as a result of Durham’s investigation, and so the prosecution declination for lying was made more palatable.

Others have speculated that the president’s tweets about McCabe made a successful prosecution less likely. Perhaps; I’ve seen prosecutors chicken out for lowlier reasons. But it’s hard to believe that would be the ultimate driver behind the declination.

Another possibility is that Andrew McCabe and DOJ reached a deal based on his cooperation with ongoing inquiries. McCabe’s public statements on CNN following the DOJ declination, however, would seem to downplay that possibility, at least on its face.

But he logically would be motivated to cooperate especially after his former boss, James Comey, publicly threw him under the bus during one of Comey’s town-hall spa treatments on CNN. The firing and loss of full pension for both McCabe and former FBI official Peter Strzok sounded “just about right” to the disgraced former FBI director. Don Corleone couldn’t have distanced himself from his “made men” any better. 

The dangerous perception, however, is that we truly do have a dual system of justice, an unequal application of law and penalty. This we cannot afford. This we must fight against every day. The attorney general’s chess game cannot end in checkmate to the politically motivated who like a double standard, two-tiered system just fine.

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public-safety agencies on strategic mission technologies.

Monday, January 13, 2020

National Labor Relations Board Revises Pro-Union Employer-Employee Relations

Huge Setback as Labor Board Revises Joint Employer Standard

Last week was a dark week at the National Labor Relations Board (NLRB). In a series of major and somewhat unexpected split decisions, the Board overruled five significant pro-worker precedents and set in motion the undoing of the Board’s election rule. These decisions touch upon major aspects of the employer-employee relationship, including employer handbooks, when two or more employers can be considered a joint employer, what constitutes an employee bargaining unit, and when companies can make unilateral changes in a contract. In each instance, they tilt the already employer-friendly balance heavily in favor of employers. 

These precedents took years to develop, and the results of many have not yet become evident. So, why the rush to overturn them by last Friday? The following day, on December 16, Chairman Miscimarra’s term expired. It appears that rather than consider these important matters in a deliberate and proper process that meets the purposes of the National Labor Relations Act (NLRA), they were rushed through in order to avoid a temporary lapse in a conservative majority. Years of carefully considered decisions by the Obama (and Bush) Labor Boards have been undone in a week, with the result that workers who have traditionally faced an uphill path to organizing and bargaining collectively will have even less power.

In 2014, the NLRB made a public announcement that it was considering revising its joint employer standard. At that time, the number of workers at temporary agencies reached an all-time high of 2.87 million and was expected to reach 4 million by 2022. Many of these workers ostensibly work for an employment agency, but they are placed by and actually work for another company. During the period when the number of temporary employees grew, the NLRB incrementally made it more and more difficult to determine that two companies constituted a joint employer. 

As a result, when these temporary employees—and sometimes permatemps—wanted to form a union, many of them would find that only their staffing agency was required to bargain with them, and not the company that co-determined many of their terms of employment. This was because employees had to prove that the putative joint employer exercised “direct and immediate” control over employment matters.1 

Even when employees were able to meet this high bar, they would then have to show that the control was not “limited and routine.”2 Therefore, such unionization efforts were often fruitless, because an important player in the employment relationship was absent.

So, in late 2015, in a decision called Browning-Ferris, the NLRB created a new joint employer standard that more accurately determined who constituted an employer. The decision stated that “We will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry.” In determining whether two employers are joint employers, the Board would look at the management structure and the relationships between the companies’ supervisors and HR managers; how decisions regarding hiring, discipline, and termination are made; how wages and benefits are set; the types of training conducted; how work processes are governed; and other terms of the agreements regarding employees between the two entities.

Browning-Ferris took a clear-eyed approach to how power works in the relationship between a staffing agency and the company it staffs. It acknowledged that reserved power and control is still power and control, and that in reality, many of these companies controlled and determined the wages and terms of employment for their temporary workers.

Therefore, Browning-Ferris created a two-part test to determine if two employers were joint employers: first, the Board would ask if there was a common-law employment relationship with the employees in question. If there was such a common-law relationship, then the Board would look at the specific facts of the case to determine if the putative joint employer “possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.”
Business groups were outraged by the new Browning-Ferris test and worked diligently to try to get it reversed by whatever means possible. They argued that the NLRB’s new test was something that all businesses should be concerned about and that it would kill major aspects of the American economy. However, despite the parade of horribles predicted by the business community, the Board applied the new rule in a measured way, and the sky did not fall. In the two years since the Browning-Ferris decision, there have been nine decisions throughout the country by Regional Directors of the NLRB that have used the new test in a joint employer analysis. These cases involved the relationships between construction companies, security and detention guards, casino employees, and employees in the airline industry.
In four of those decisions, the Regional Director found that a joint employer relationship existed. In three of those decisions, the Regional Director found no joint employer relationship. And in three of the decisions, the airline employers argued that they were joint employers in order to argue that they were under the Railway Labor Act and not the NLRA, but the issue was found to be irrelevant. During the two-year period, only one Board case made a determination regarding the joint employer relationship, when it found that a construction company and staffing company were joint employers.3
Despite the lack of any negative effects stemming from the Browning-Ferris decision, in its December 14 Hy-Brand decision, the NLRB overruled its precedent and returned to the previous standard. The decision was a surprise for several reasons. First of all, other than political considerations, there was little reason to reconsider Browning-Ferris so soon. Second, the Hy-Brand case involved the question of two companies acting as a single employer, not joint employers. Indeed, the parties in the case never asked the Board to reconsider its Browning-Ferris precedent, because it did not matter for the disposition of the case. Third, the Board did not solicit briefs or otherwise make the public aware that it was reconsidering Browning-Ferris so that its decision could be fully informed by all interested parties. The dissenting Board Members explain that “not surprisingly, a deeply flawed process leads to a deeply flawed result.” Unfortunately, we already know what the results will be from the Board returning to its previous standard: workers will continue to have little voice in the workplace.
Airborne Express, 338 NLRB 597, fn. 1 (2002).
TLI, 271 NLRB 798, 799 (1984).
Retro Environmental Inc./ Green Jobworks, LLC, 364 NLRB No. 70 (2016).

Trump administration rolls back Obama era 'joint employer' rule
The White House has formally rolled back one of the Obama administration's most ambitious attempts to rewrite federal labor law to benefit unions, the so-called joint employer rule.
The Trump administration on Sunday said that businesses shouldn't be held liable for violations by other companies if all they share is a corporate brand.
The Obama administration had sought to make franchiser corporations such as McDonald's legally responsible for workplace violations by their franchisees, even if the latter were legally independent businesses. The previous administration based this on the theory that a corporation was a "joint employer" with the other company even if the former only had "indirect control" over the latter company's policies.
Trump administration has been working to roll back the "joint employer" rule since President Trump took office. The Labor Department on Sunday issued an official rule that corporations were only liable when they had "direct control" over the other company's policies. The administration clarified that to be joint employers, both businesses had to be able to: hire or fire an employee; have control over their work schedule; control the workers' pay; and maintain the workers' employment records.
"This final rule furthers President Trump’s successful, government-wide effort to address regulations that hinder the American economy and to promote economic growth,” said Labor Secretary Eugene Scalia. The rule will go into effect in 60 days.
Business groups had staunchly opposed the Obama administration effort, saying it would push many corporations out of franchising altogether rather than risk the additional liability. Unions had cheered the Obama rule since it made corporations more vulnerable to pressure campaigns and organizing efforts.
The Trump administration said the Obama administration's "indirect control" standard was far too vague.
"The changes in this final rule break down barriers that keep companies from constructively overseeing, guiding, and helping their business partners,” said DOL Wage and Hour Division Administrator Cheryl Stanton.
The National Labor Relations Board, the main federal labor law enforcement agency, late last year, settled a long-running "joint employer" case against McDonald's Corporation by announcing the company was not a joint employer with its franchise restaurants. The case had been launched in 2013 by the Obama administration.

Sunday, November 17, 2019

Michal Bloomberg Apologizes For Setting Up His Discriminatory Harassment Policy Known as "Stop and Frisk"

There is no chance that Mike Bloomberg will/could/would win the Presidency of the United States, in our opinion. 

Of course this is the same thing people said about Donald Trump before he was elected. But there is one big difference: Bloomberg openly showed his disdain for African Americans in his highly discriminatory policy called "Stop and frisk" in New York City when he was mayor.

I spoke with many African American professionals and non-professionals in the past several days (ergo, not a scientific study) and 100% told me they would NEVER vote for Bloomberg because of "Stop and frisk".

I do not think that Mike's apology in all the major media today, November 17, 2019, will help him.

Credit...Mary Altaffer/Associated Press
Michael Bloomberg Apologizes for Stop-and-Frisk: ‘I Was Wrong’
New York Times, November 17, 2019

Ahead of a possible Democratic run for president, the former mayor of New York City reversed himself before an important party constituency: black voters.

Ahead of a potential Democratic presidential run, former Mayor Michael R. Bloomberg of New York reversed his longstanding support of the aggressive “stop-and-frisk” policing strategy that he pursued for a decade and that led to the disproportionate stopping of black and Latino people across the city.

“I was wrong,” Mr. Bloomberg declared. “And I am sorry.”

The speech, Mr. Bloomberg’s first since he re-emerged as a possible presidential candidate, was a remarkable concession by a 77-year-old billionaire not known for self-doubt that a pillar of his 12-year mayoralty was a mistake that he now regrets.

Speaking before the congregation at the Christian Cultural Center, a black megachurch in Brooklyn, Mr. Bloomberg delivered his apology in the heart of one of the communities most impacted by his policing policies and at a location that nodded to the fact that should he decide to run, African-American voters are a crucial Democratic constituency that he will need to win over.

Until Sunday, Mr. Bloomberg had steadfastly — and his critics say stubbornly — defended stop-and-frisk, which gave New York police officers sweeping authority to stop and search anyone they suspected of a crime. Mr. Bloomberg stood behind the program even after a federal judge ruled in 2013 that it violated the constitutional rights of minorities and despite the fact that crime continued to drop even after the program was phased out in recent years.

Mr. Bloomberg’s policing record is seen as one of his biggest vulnerabilities in 2020, given that black voters have helped determine the winner in the last nomination contests, elevating Barack Obama in 2008 and Hillary Clinton in 2016.

Moments after services ended, Mr. Bloomberg called the Rev. Al Sharpton, a prominent civil-rights leader who sparred with Mr. Bloomberg over stop-and-frisk during his mayoralty, to ask if he had watched his speech.

“You can’t expect people like us to forgive and forget after one speech,” Mr. Sharpton said he told Mr. Bloomberg, promising to hold him to the same standard as other politicians, such as former Vice President Joseph R. Biden Jr., who has walked back his past support for tough-on-crime drug legislation.

At the peak of stop-and-frisk, the racial disparities in its enforcement were jarring. Of 575,000 stops conducted in 2009, black and Latino people were nine times as likely as white people to be targeted by the police (even though, once stopped, they were no more likely to actually be arrested). In 2011, police stopped and questioned 684,330 New Yorkers; 87 percent of those stopped were black or Latino.

Proudly technocratic and data-driven, Mr. Bloomberg had long resisted what the numbers showed so starkly: Even as the stops were phased out toward the end of his administration and decreased sharply under his successor, Mayor Bill de Blasio, crime rates continued to plunge new lows unseen since the 1950s.

“I now see that we should have acted sooner, and acted faster,” Mr. Bloomberg said on Sunday.

Mr. Bloomberg acknowledged that the program had led to an “erosion of trust” and said that he hoped to “earn it back.”

“Over time, I’ve come to understand something that I long struggled to admit to myself: I got something important wrong,” he said. “I got something important really wrong. I didn’t understand back then the full impact that stops were having on the black and Latino communities. I was totally focused on saving lives — but as we know: good intentions aren’t good enough.”

After Mr. Bloomberg stepped down from the pulpit and returned to his seat in the front row, the church’s pastor, the Rev. A. R. Bernard, a longtime ally and former adviser to Mr. Bloomberg, shook the former mayor’s hand.

“Come on C.C.C., show some love and appreciation,” Rev. Bernard said, amid tepid applause.

For 2020, the critical question is whether Mr. Bloomberg’s reversal will be received in the black community as one of pure political expediency or genuine remorse.

“After years of running the Apartheid-like policy of stopping and frisking millions of people of color throughout New York City, and then defending it every day in office, then every day he was out of office up until this week, @MikeBloomberg now admits he was wrong,” Shaun King, a racial justice activist and a supporter of Senator Bernie Sanders in the presidential race, said on Twitter.

“You defended it for a whole generation,” he said. “Now you know you need Black votes and you have a change of heart.”

Mr. Bloomberg did not shy away from the fact that he was reconsidering his record in his last job as he eyed a potential new one. “In recent months, as I’ve thought about my future, I’ve been thinking more about my past — and coming to terms with where I came up short,” he said.

Mr. Bloomberg had consistently stood behind the program until now. “I think people, the voters, want low crime,” Mr. Bloomberg told The New York Times last year. “They don’t want kids to kill each other.”

In fact, Mr. Bloomberg had gone to this very same church, located in East New York, in 2012 to defend the stop-and-frisk program and answer mounting criticism around it.

“There is no doubt those stops have saved lives,” Mr. Bloomberg declared then. He tried to link the stops to a 34 percent crime rate drop at the time. “When you consider that 90 percent of all murder victims are black and Hispanic, there is no doubt most of those victims would have come from communities like this one,” he said then.

But on Sunday, he acknowledged that the community around the church had experienced the program very differently. The church is situated at the edge of the 75th Precinct in New York, which the New York Civil Liberties Union said led the city with 265,393 stops between 2003 and 2013.

“Our focus was on saving lives,” Mr. Bloomberg said. “But the fact is: Far too many innocent people were being stopped while we tried to do that. And the overwhelming majority of them were black and Latino. That may have included, I’m sorry to say, some of you here today, perhaps yourself, or your children, or your grandchildren, or your neighbors or your relatives.”

The reversal on stop-and-frisk was the starkest in a series of steps that Mr. Bloomberg has taken in the last two weeks to lay the groundwork for entering the Democratic presidential primary, a step that appears increasingly imminent.

He has already filed to be on the primary ballot in two states, Arkansas and Alabama. His advisers have outlined a strategy that would circumvent the four states that vote first in the 2020 nomination contest in favor of the broader map on Super Tuesday, when he could leverage his personal fortune.

And he announced plans to spend $100 million on digital ads against President Trump in key general election battleground states, blunting criticism that he could spend his money better elsewhere. Those ads would not feature him, advisers said, and the spending would be in addition to what he might spend on his own candidacy.

Mr. Bloomberg played coy about his plans from the pulpit. “I don’t know what the future holds for me,” he said.

Credit...John Locher/Associated Press

Where Michael Bloomberg Stands on the Issues

Friday, October 4, 2019

Federal Judge Elizabeth Wolford Grants Trump's Executive Orders Weakening Government Unions

Service Employees International Union (SEIU)

The issue:

Can Trump weaken the power of government unions?

The executive orders, signed last year, would make it easier for underperforming federal employees to be fired. They would also direct federal agencies to renegotiate labor contracts with unions, including SEIU, and limit how much time workers can use for union business.

Federal Judge Rejects Last-Ditch Effort to Halt Trump Executive Orders on Government Union Clout

U.S. District Judge Elizabeth Wolford of the Western District of New York allowed the orders to take effect, but said she will consider another effort to strike them down later this month.

| October 04, 2019 at 02:41 PM

A federal judge in Rochester has rejected a last-ditch effort by one of the country’s largest unions to bar the Trump administration from enforcing a series of executive orders the group said is designed to weaken the power of government unions and make it easier to have their members fired.
U.S. District Judge Elizabeth Wolford of the Western District of New York allowed the orders to take effect but said she will consider another effort to strike them down later this month.
That’s when she’s scheduled to consider another motion to halt the executive orders from the Service Employees International Union, who’s one of a handful of unions suing the Trump administration over the new rules.
The executive orders, signed last year, would make it easier for underperforming federal employees to be fired. They would also direct federal agencies to renegotiate labor contracts with unions, including SEIU, and limit how much time workers can use for union business.
Wolford wrote in her decision that, since she’s scheduled to consider a preliminary injunction against the orders in a few short weeks, it’s unlikely unions will be harmed in the meantime.
“The bureaucracy of the federal government is anything but fast-moving and the Court is hard-pressed to conclude that Plaintiffs’ collective bargaining rights will be irreparably harmed immediately after the stay with respect to the Executive Orders is lifted,” Wolford wrote.
SEIU had filed the lawsuit in U.S. District Court for the Western New York on behalf of its members that work at Veterans Health Administration hospitals in Buffalo and Canandaigua, New York. Scott Phillipson, the local affiliate’s president, said he was disappointed in Wolford’s ruling but said they’re not giving up.

“These Union members work every day to make the VA the best it can be for our nation’s veterans,” Phillipson said. “We will keep on fighting to protect the rights of these workers and the veterans they serve.”
The union, which was represented on the motion by Danielle Leonard, an attorney from Altshuler Berzon in San Francisco, said it was still confident in its legal position.
The group is also represented by attorneys from Creighton Johnsen & Giroux in Buffalo and Mairead Connor, a solo practitioner in Syracuse.
The decision from Wolford was the last hurdle between the implementation of the executive orders, which took effect late Thursday. They were previously put on hold by a federal judge in Washington, D.C., but that decision was reversed by the D.C. Circuit U.S. Court of Appeals.
The D.C. Circuit issued its mandate late Thursday, which lifted the injunction from the trial court. Wolford said she didn’t expect any irreparable harm to come to the unions challenging the orders between Thursday and the arguments scheduled later this month.
“The Court is hard-pressed to conclude that irreparable harm will inure pending the return date of Plaintiffs’ motion for a preliminary injunction on October 21, 2019,” Wolford wrote.
She also addressed, briefly, the arguments from SEIU against the legality of the executive orders, themselves. SEIU is challenging both the actual content of the orders, and how they were implemented.
Wolford wrote that it was outside her purview to hand down a ruling on the actual content of the executive orders, or what they were intended to do. That authority rests, she wrote, with the Federal Labor Relations Authority, a federal, bipartisan entity that reviews such claims.
The same position was taken by the D.C. Circuit in its decision this year. That litigation, which was brought by the AFL-CIO, ended with the federal appellate court directing the unions to take their claims to the FLRA, rather than challenge them in court.
But that was only half of Wolford’s position. She said she may not be able to rule on the actual content of the orders, but that she could evaluate whether they were promulgated lawfully.
Her position on that issue, though, did not appear to be in favor of the unions, according to the decision.
Federal rulemaking usually requires a period of notice and comment for the public. Wolford wrote that Trump wasn’t required to take that step, in this instance, because he was prescribing regulations for employees of the executive branch, not creating a broader rule.
“There is simply no plausible basis for the Court to conclude that President Trump was required to engage in notice-and-comment rulemaking before issuing the Executive Orders pursuant to § 7301,” Wolford wrote.
Representatives from the U.S. Office of Personnel Management, which is tasked with implementing the executive orders, did not immediately respond to a request for comment on Wolford’s decision.

Sunday, September 15, 2019

Carrie Goldberg: Revenge Porn and The Lives Destroyed By Google

Carrie Goldberg
How Google has destroyed the lives of revenge porn victims
NY POST, By Carrie Goldberg, August 17, 2019

I’m a lawyer who fights for victims of online harassment, sexual assault and blackmail. When I first started my Brooklyn firm five years ago, I was known as “the revenge-porn lawyer,” and indeed many of my clients were young women whose naked pictures had been posted on the Internet without their consent for the world to see.

My clients — nurses, students, teachers, moms, lawyers, dominatrices, celebrities — suffered horribly from their most intimate pictures being shared publicly. In my book, “Nobody’s Victim,” I discuss stories of my clients who were humiliated, harassed and stalked online by people who viewed nonconsensual material and photos of them on the Internet. Without exception, my clients’ No. 1 urgency was always the same — their horrific Google results!

At this point in time, nobody accepts a date, new hire, roommate or even college applicant without first doing a Google search. Google, with its 5.6 billion searches a day and ownership of 92.19 percent of the search-engine market share worldwide, enjoys a virtual monopoly on all of our reputations. It used to be that our reputations developed organically and locally through firsthand encounters and normal word-of-mouth gossip. Now Google’s PageRank algorithms determine what — and how much — people around the world know about us.

In 2016, I pleaded with Google’s “Legal Removals” team to show mercy on 15 women I represented in a case against a porn company. My clients, all aged 18-22, had answered deceptive bikini-model ads and had become embroiled in a conspiracy to perform porn that resulted in some of them being raped before and during the shoots. These nonconsensual sex videos were then shared hundreds of thousands of times on popular porn sites.

The women were mercilessly exposed online — their names, schools, family members posted alongside the porn. The consequential harassment was horrific. Many victims changed their names, moved, were dumped, kicked out of their social organizations and fired from their jobs. One of our clients was 20 and a junior in college when she responded to the ad for bikini models and flew to San Diego to shoot the video.

After her video was posted online, she told us, “I had to change my major and career choice. I lost a lot of friends, and my family wouldn’t talk to me for a while. I have had nightmares about it and dreams that it never happened or that it was somehow erased completely. It was one of the worst things I have ever done and not just because it showed up on the Internet. I wish I could erase that memory out of my mind forever. I was spit on while making the video, and I have never felt more disrespected or devalued in my entire life.”

We sent affidavits to Google urging them to remove the videos.

Google’s policies dictate only two instances when they will remove content — child pornography and copyright-infringement requests.

The current policy says Google may remove nude or sexually explicit images that were shared without consent, but the company maintains sole discretion about when to remove nonconsensual pornography. If Google decides it will keep linking to a website that contains your nude images, victims are just out of luck. And there’s no appellate body. There is no law, only corporate policy, that protects (or fails to protect) victims’ most private information. Not even New York’s new revenge-porn laws help here because they are aimed at punishing the individual who nonconsensually shared the material and not the search engines that drive views.

Google knew these women had been tricked, held captive, sexually assaulted and humiliated and were suffering because of the exposure it was causing, but corporate interest dictated total indifference. To this day, Google will not remove those links from their search-engine results. The graphic evidence of abuse now haunts these women as they apply for jobs, use social media, seek roommates, date. Most of these women remain underemployed, terrified and unable to lead normal lives because Google won’t lift a finger on the basis of its cynical corporate policy.

In several other cases, porn sites have found a workaround for when Google removes a revenge-porn link from the search engine result. The site changes the URL. Even when the URL has the same root address and pornographic words with our clients’ names in the URL, Google won’t suppress the new URLs.

One of the few rules on the Internet is the sanctity of copyrights. Yet, when it comes to porn, Google sometimes defies its own terms of service and ignores even that. In one case, our 18-year-old client “Anna” was horribly exploited by older men three times her age who videoed themselves having violent sex with her. It wasn’t long before the videos began to populate the first five pages of her search-engine results. Over the next several years, the stalking, harassment and death threats from her “fans” became unbearable. My client moved and everybody in her family changed their names, yet somebody found her new name and posted that online. The video followed her because of Google.

Initially, Google refused to remove the video because they said she didn’t own the copyright and their revenge-porn policy, they say, doesn’t apply to what they call “regret porn.” So we helped her obtain the copyright through a lawful transfer from the original producer. Yet, Google surprised us with a new refusal — they didn’t believe she owns the copyright.

Shocked, Anna asked, “Why can’t we just sue the websites?” I explained federal law protects the websites that post the information revealing her identity and disseminating her video. Anna’s parents were thinking even bigger, “If they won’t remove the videos voluntarily, why can’t we sue Google?”

I explained to Anna’s mom, as I have to so many clients whose lives are rerouted because of negative Google results, that Google is immune from legal liability because of a federal law from 1996 called the Communications Decency Act Section 230, which effectively immunizes tech companies for content created by a third party. So long as a website or Google did not post or create the material, even if it’s illegal, they can still post it on their site or search engine and even profit from it.

During a congressional hearing with Google CEO Sundar Pichai in December 2018, Pichai said Google’s big objective was “to provide users with access to the world’s information.” While excellent for finding store hours and movie reviews online, the company’s limitless definition of “information” sweeps in pernicious websites devoted to fake news and conspiracy theories, publishing illegal nonconsensual pornography, accusing named individuals of extramarital affairs, sexually transmitted diseases and pedophilia; mug-shot sites that extort money from people — often individuals never charged with a crime — for the picture to be removed; and databases maintained by anti-abortion activists that publish intimate details about abortion providers including their medical licenses, transcripts and home addresses.

Still, at the hearing, Representative Ted Lieu (D-Calif.) said, “[If] you want positive search results, do positive things. If you want negative search results, don’t do negative things.” But it’s not that simple.

So long as anybody with an Internet connection can create content, and websites have no liability regarding the truthfulness of that information, our so-called “positive actions” can’t ensure “positive search results.” As I say at my firm, we are all a moment away from having our life overturned by somebody hell-bent on our destruction. If somebody wants to take us down, they use the Internet to spread inescapable lies. But even if we do something “negative,” to use Lieu’s term, should that mean we deserve to be connected to it for the rest of our lives?

Not too long ago, we could escape our pasts by moving, changing jobs and transferring schools. Because of Google, that’s now impossible. Google’s algorithm controls the ranking of everything anybody sees.

Many people accept the ranking of search-engine results as a naturally occurring phenomenon. But deliberate decisions go into the algorithms that decide who sees what. They are business decisions. They are value decisions. They are decisions made by people in an industry known for its sexism with a disproportionate number of men in leadership roles.

The vast majority of Google’s revenue comes from ads, thus requiring that its traffic stay high and that it not upset the industries — especially the always-profitable porn industry — that pay handsomely for ads.

It’s no coincidence that Google quietly removed their “don’t be evil” motto from its corporate code of conduct in May 2018. Its recent and past treatment of sexual privacy proves that Google is finally willing to embrace its policy of being evil.

Carrie Goldberg owns victims’ rights law firm C. A. Goldberg, PLLC and is the author of “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls” (Penguin Random House), out now.

Tuesday, September 10, 2019

Crain's NY Business: NY State Gov. Andrew Cuomo Begins a $2 Billion Fight Against Opioid Producers and Providers

Bottles of Purdue Pharma L.P. OxyContin medication sit on a pharmacy shelf
Cuomo launches his own $2 billion legal action against opioids

WILL BREDDERMAN, Crain's New York Business, September 10, 2019

Gov. Andrew Cuomo wants to inflict some pain on the producers and providers of dangerously addictive opioids.
Alleging an "industry-wide conspiracy," the governor announced on Tuesday that his Department of Financial Services had issued subpoenas to dozens of individuals, insurers and drug providers. These range from Oxycontin creator Purdue Pharma and members of its controlling Sackler family, to pharmacy benefit managers such as CVS Caremark and Navitus Health Solutions, to insurance giants such as Emblem Health and Aetna. Even New York City's Health+Hospitals' insurance arm Metro Plus falls under the probe's scrutiny.
Cuomo said his intention is to recover $2 billion he asserts New Yorkers overpaid in premium costs as a consequence of fraudulent activity in relation to opioids. State law authorizes DFS to regulate fraud in the insurance industry and to issue fines of up to $5,000 for every infraction, on top of recovering damages.
"I've seen a number of schemes and frauds, but the opioid scheme is as diabolical, as brazen, as obnoxious and as offensive as anything I've seen," Cuomo said, referring to the misrepresentation of the addictive qualities of opioids.

Cuomo stressed that this action is distinct from the lawsuit the attorney general's office lodged against Purdue Pharma last year. It is also separate from the case Mayor Bill de Blasio's administration has brought against the Sackler family, which founded and owns Purdue, and against chain pharmacies that supplied Oxycontin, including CVS and Wal-Mart.
It comes as a number of states have successfully sought damages or settlements from Purdue and Johnson & Johnson.
Ironically, Crain's found Cuomo's campaign has received $51,000 from Connecticut-based Purdue Pharma heir Jonathan Sackler, who resigned from the firm's board earlier this year and who is among those subpoenaed. The donations date as far back as 2011 and as recent as 2017.
Another subpoena went out to Crystal Run Healthcare, which is the subject of a federal probe into the funneling of hundreds of thousands of dollars to Cuomo's political efforts.

Report: Purdue Pharma owners offer to give up company that makes OxyContin

STAMFORD — OxyContin maker Purdue Pharma’s owners have reportedly agreed to give up “the entire value” of the company to settle lawsuits alleging that the company fueled the opioid crisis with deceptive marketing of its top-selling pain drug.
The Sackler family members who own Purdue have also offered “$3 billion in cash as part of the global resolution,” Josephine Martin, Purdue’s head of corporate affairs and communications, said in an email that was first reported by NPR. The Sacklers have also offered to contribute another $1.5 billion from the sale of their international prescription-drug business Mundipharma, Martin told NPR.
Those purported terms would mark the first time that the company or the Sacklers have outlined their conditions for resolving some or all of the approximately 2,000 lawsuits filed against the company by local governments across the country and nearly every state. Purdue reportedly offered last month $10 billion to $12 billion to settle the complaints, but it neither confirmed nor denied that account.
A message left Tuesday for Purdue was not immediately returned.
The office of Connecticut Attorney General William Tong, who attended a meeting in Cleveland last month with Purdue representatives and other state attorneys general, declined to comment.
Last week, Tong said he would accept a settlement if Purdue not only made a multibillion-dollar payout, but were also shut down. He also wants the Sacklers barred from selling prescription opioids.
Tong has also signaled his intent to continue pursuing Connecticut’s claims against Purdue and the Sacklers, if the company files for bankruptcy.
“It will not change how aggressive we are going to be,” he said Sunday. “We cannot predict how it will go, if it will go that way (to bankruptcy) at all. All I can tell you is we are ready.”
Amid growing signs that the company would file for bankruptcy, Purdue issued Sunday a statement that reiterated its desire to settle the lawsuits. The company has denied those complaints’ allegations.
“We have been actively working with numerous state attorneys general and other plaintiffs on solutions that have the potential to save tens of thousands of lives and deliver billions of dollars to the communities affected by the opioid abuse crisis,” the statement said. “Those negotiations continue, and we remain dedicated to a resolution that genuinely advances the public interest.”
Last week, Purdue and the Sacklers had rejected two offers from the states over how settlement payments would be handled, according to an email sent out Saturday by the attorneys general of Tennessee and North Carolina. The Sacklers purportedly declined to offer counter-proposals.