December 9, 2004  ·  Lessig

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Law enforcement is apparently busy keeping our borders and toystores safe from pirates (read: terrorists). US Customs agents, for example, reportedly seized “clearly piratical copies” of a Stripburger series called “Richie Bush,” a parody of Richie Rich. This followed a report that the Department of Homeland Security sent agents to a toy store to order them to remove a toy called “Magic Cube” from the shelf because it allegedly violated the trademark of Rubik’s Cube. (The patent protecting the cube has expired.) According to the Department’s spokeswomen:
“One of the things that our agency’s responsible for doing is protecting the integrity of the economy and our nation’s financial systems and obviously trademark infringement does have significant economic implications.”

Obviously. Just imagine the spike in GDP produced by the government’s efforts to eliminate competition in children’s toys. And just in time for Christmas no less.

  • http://www.boobam.org William Loughborough

    When I was in the satire industry we often noted the fact that political entities, while providing most of our targets, sometimes seemed to do stuff so out that we were left with nothing to do with it, besides point.

    That the cube toy even comes to the attention of an agency with “homeland security” in its title is just such a move likely to provoke a “jurisdictional dispute” encounter. As comics sometimes say “we’ll handle the jokes, folks” and the “rationale” tying the action to the war on terror ranks up there with the “can’t define obscenity, but I know it when I see it” zinger.

    Love.

  • Rolo Timassie

    “Law enforcement is apparently busy keeping our borders and toystores safe from pirates (read: terrorists).” You seem to be mocking not only these particular actions, but the very idea of Customs agents confiscating knock-off goods. Are you opposed to government enforcement efforts aimed at knock-offs? Why?

  • Tim Wu

    The customs confiscation system is indefensible. It is a cheap version of copyright & patent litigation available only against foreign defendants. It has already been shot down once by the WTO and should be shut down permanently.

  • http://www.jzip.org/ adamsj

    Hi, Rolo,

    Not to speak for our host, but I think the point is that these weren’t knockoffs or counterfeits, but legitimate items being seized on false grounds. (Why they can’t seem to find the convenience stores selling obviously counterfeited CDs is a puzzle to me.)

    The Richie Bush item is particularly noteworthy because an American publisher, Fantagraphics (and what great stuff they put out! Right now, they’ve started The Complete Peanuts), published an issue of Dan Clowes’ Eightball with a scabrous and wonderful parody of Richie Rich and his exploitation of all the Charlton characters to make his millions. (I’d cite the issue, if I had mine at hand–sorry, but they’ve gone missing in a good cause.)

  • http://url Max Lybbert

    While I think that the Customs agents were overreacting (and overreaching), it should be remembered that Customs was placed in the Department of Homeland Security, and deals with this kind of stuff. Lessig’s decision to not bring up that little fact smacks of the same kind of bias that Slate’s “Bushisms of the Day” column does. Clearly, Lessig is entitled to be biased, just as I am. I think it just needs to be recognized.

    It should also be remembered that first-year Poli-Sci courses make a big deal out of the fact that rank-and-file government employees often stay in their jobs longer than the President or any Cabinet members. This is considered a big limitation on the President’s power. Somehow, I don’t really think that Bush had his fingers in these actions.

  • three blind mice

    Not to speak for our host, but I think the point is that these weren’t knockoffs or counterfeits, but legitimate items being seized on false grounds.

    adamsj, as usual, not everyone shares your moral clarity. the issue with the magic cubes was a trademark violation and it is not at all clear that the actions of the US customs agents were illegitimate. (actually it was agents from the department of homeland security where some customs functions were re-organised by herr bush. we assume that professor lessig knows this and used the “terrorist” tag just for its inflammatory effect. a cheap rhetorical jab professor.)

    tim wu, you are exactly right about the increasing reliance on the ITC as a quick and inexpensive alternative to civil litigation. yet it should also be considered that ITC does not generally act where there is a colorable controversy. in such instances the ITC provides a useful and necessary alternative to a long and drawn out civil process. shutting it down “permanently” would deprive US IPR owners an important means to protect their businesses.

    that being said, we agree that it certainly has the risk of being used in an inappropriate manner and on that basis deserves your skeptical observance.

  • three blind mice

    Clearly, Lessig is entitled to be biased, just as I am. I think it just needs to be recognized.

    on review, max lybbert your post beat us by 15 minutes.

    must learn to think/type faster.

  • http://www.paultopia.org/blog/ Paul Gowder

    Uh, no, customs agents should NOT be seizing trademark infringements. Trademark infringement is a civil matter (as Tim pointed out), not a law enforcement or security matter. Customs officials should have better things to do, and I really don’t want my tax dollars being spent as a substitute for private litigation. It’s not just that. Customs officials really should have better things to do. For example, they could doing something about the woefully inadequate security in the nation’s commercial ports. The Customs Department of the Department of Homeland Security or whatever they’re called now would apparently rather guard the nation against out-of-patent toys than dirty nukes.

    (I’m biased because I grew up a mile, maybe two, from the Port of Los Angeles, and my mother still lives there.)

  • http://www.paultopia.org/blog/ Paul Gowder

    One more thing…
    Don’t you need a WARRANT to go into a toy store and force someone to remove products?? Now, I know the warrant requirement for a SEARCH is a little watered down for businesses that are open to the public — but surely ordering someone to take a product off their shelves constitutes a SEIZURE?!

    From reading that Oregonian article, it appears that the DHS has an “intellectual property rights center.”

    Does that scare ANYONE? I’ve got a craving to call and report Jack Valenti or someone, see what happens.

  • http://www.paultopia.org/blog/ Paul Gowder

    One more more thing.
    THIS is our new Fatherland Security Fuhrer. A high-school dropout deadbeat dad New York Cop.

  • http://www.cs.duke.edu/~justin/ Justin

    It should also be remembered that first-year Poli-Sci courses make a big deal out of the fact that rank-and-file government employees often stay in their jobs longer than the President or any Cabinet members. This is considered a big limitation on the President’s power. Somehow, I don’t really think that Bush had his fingers in these actions.

    I didn’t see Lessig point the finger at Bush or the Administration as a whole (or in part). He was just pointing out that the DHS should focus on criminal matters — particularly protecting the country — not playing private police force for civil matters.

  • Max Lybbert

    Customs was transferred into DHS by way of the Department of the Treasury, where it started. It was organized mainly to watch that imports didn’t violate various laws, especially tax laws. INS handles the parts of border security that involve people crossing the border. INS used to be part of the Department of Justice.

    I agree that law enforcement shouldn’t be dealing with what should be considered private disputes. Be that as it may, the agents in question were working within their job descriptions, and that description pre-dates both the Patriot Act and DHS (Word Doc, see date on directive, more documents are available). There is even a webpage devoted to the subject. I truly doubt that anybody high up was pulling strings to get these investigations — it’s more a question of reporting on the two really bad looking investigations out of a long list, and “forgetting” to admit that the list is so long.

    Could border security be improved? I’m sure of it. Could federal law enforcement be reorganized in a way to be more economical and effective? Yes. DHS was meant to do just that, and the Patriot Act was meant partly to make it unnecessary. Both had limited success.

    For the record, I grew up in Riverside California, and I still can’t figure out why INS has a border checkpoint in Temecula (at least an hour from the border). What’s more, I can’t figure out why the checkpoint closes down on a regular basis! Rather, I can’t figure out how the officers ever find anything, since the checkpoint closes down at certain times (generally during rush hour).

  • Max Lybbert

    You’re right, Justin. Although, I took the “Richie Bush” story the wrong way.

  • http://www.lessig.org/blog/ Paul Gowder

    As much as I like that first link of yours, Max, there’s a difference not only in degree but in kind between seizing 27,000 tablets of a schedule II controlled opiate at an airport, ordering domestic businesses to stop selling legal toys and confiscating core first amendment speech, that sounds from all available information like blatantly obvious fair use, on the high seas.

    I hope the comic book people, in particular, slap the DHS with a Bivens action based on this trashing of the First Amendment.

  • http://url Max Lybbert

    I agree, Paul, that the first link covers a very different event. It’s hard to defend importation of a schedule II controlled substance. I picked that link only because it came up pretty high on Google.

    I don’t think all of the nearly $400 million in various “IP” Customs has seized in the last five years was controlled substances. In fact, I’m sure of it.

    Can Lessig be expected to know all of this? No. But I learned this by spending five minutes at Google, and less than five on the Customs website. I would expect a Stanford Law Professor to know more about effective research than I do. I would also expect a Stanford Law Professor to be curious enough to find out exactly why Customs would get involved in a trademark dispute before judging Customs so harshly, or accusing Customs of being politically-motivated.

  • http://www.jzip.org/ adamsj

    Hi, Mr. mice,

    That’s a fair point on the cubes. There’s still no justification I can see for the seizure of the comics.

    Hi, Max,

    The point you (and similarly made by Mr. mice) make that “Customs was placed in the Department of Homeland Security, and deals with this kind of stuff” is exactly what concerns me. Should we really define most of the business of Customs as a Homeland (that word has bothered me since I first heard it in reference to the Hart-Rudman report) Security concern? The move of Customs functions into Homeland Security was done under George Bush, as you both point out, and is his responsibility. Note that our host never makes that point, or even refers to Bush.

    What these days isn’t a Homeland Security concern, anyway? How is this creep of Homeland Security into non-security matters all that different from how a stop on suspicion and a subsequent Terry search turns into a sanctioned violation of Fourth Amendment rights? Or how the movement for medical marijuana elides into legalized marijuana? (Well, that would be different, as a bad argument that achieves a good end.)

    If I’m going to sign off on security measures that infringe on civil liberties, I’ll have to be convinced they are narrowly focused to hit exactly their targets. I’m skeptical that can be done, since it so seldom is, and we have here examples of that.

  • http://www.jzip.org/ adamsj

    I’d intended to put a link to this Washington Post Op-Ed in my entry above, but couldn’t find where I’d blogged it, and then it serendipitously turned up elsewhere.

  • http://www.paultopia.org/blog/ Paul Gowder

    I would also expect a Stanford Law Professor to be curious enough to find out exactly why Customs would get involved in a trademark dispute before judging Customs so harshly, or accusing Customs of being politically-motivated.

    Lord knows Larry Lessig can defend himself… but I gotta say… if one’s position is that, fundamentally, federal cops ought not to be involved in trademark disputes, one doesn’t need to know why. One needn’t know WHY the Soviet Union invaded Afghanistan in order to condemn it…

  • Max Lybbert

    Well, Adamsj, for the record, I believe the Department of Homeland Security was a missed opportunity. Instead of streamlining the bureaucracy in federal law enforcement, DHS simply added another layer. Yes, this layer makes it more likely that the various agencies will work together, but I think better solutions existed. Customs and INS are conceptually-related. I believe they’ve been kept separate “for historical reasons.” Both deal with things crossing the border, and I would have loved to see them combined.

    So, no, I don’t really like DHS, but I recognize that it’s all-encompassing mission includes enforcing trademark and copyright laws. Should it? I’m not so sure. I can understand copyright infringement, since that only enters criminal territory when the amount of infringement goes far beyond ridiculous. The trademark issues from the original post don’t sound like they should truly be considered criminal infringement, but I haven’t looked all that far into the facts of this particular case.

    The Terry search question is very relevant, since law enforcement keeps coming up with new ways to “observe” suspects. In this particular case (Kyllo v. the US), the rule of thumb the Supreme Court used is if “the Government uses a device that is not in general public use, to explore details … that would previously have been unknowable without physical intrusion,” it needs a warrant (at least for a private home). So we’re safe from thermal imaging, until it enters “general public use.” Does that mean when every citizen has such a device, or when private investigators can find thermal imagers relatively cheaply? FLIR isn’t in general public use. Is it unreasonable to use when tailing a suspect?

    I don’t know. I think the Supreme Court’s decision jives with my own personal “expectation of privacy,” and makes sense. Although, legally determining that I have no reasonable expectation of privacy in certain ares (most famously in my car) does give law enforcement a big blank check on what devices it can use to observe me.

  • http://www.jzip.org/ adamsj

    Max, to me the problem (okay, the problem at hand–there are others) is “say one thing and do another”.

    At the airport or in Customs, we say we’re protecting homeland security, but we’re really engaging in general searches for all sorts of contraband. On the street, we say we’re looking for weapons, but we’re really looking for whatever we find.

    It doesn’t encourage rule of law for law not to rule itself.

    The Washington Post Op-Ed I linked to above is quite good on this, pointing out that implied consent and plain sight are each, by themselves, not unreasonable doctrines, but that together, they pretty well eliminate the right to be secure in one’s person, papers, and effects.

    (I once had my lab notes gone through during a purported Terry search. I’d been randomly stopped on campus after a very long day of programming and, when told I’d been stopped without cause, declined to identify myself. My notes were taken, supposedly to look for weapons–those sheets of paper could, in the right hands, have inflicted fatal paper cuts on those five fearful officers–then gone through to look for my name. As I was in the right, the resulting charges were dropped, but it cost me a night in jail and three court appearances.

    (The last court appearance was most instructive. I arrived early and got to overhear the prosecutor explaining to the two officers who’d arrived for the trial how to justify a random search as though they had cause to stop a person. Then he noticed me, and told me the charges were dropped.

    (Hard to chalk that one up as a victory for the right to walk down the sidewalk undisturbed.)

    The author’s proposed solution? Allow either to apply to a specific incident, but not both. In particular, when implied consent is used broadly for purposes of security, questionable items found in plain sight which raise no security questions must be ignored.

    This has ranged a bit from the original discussion, I suppose.

  • http://url Max Lybbert

    Adamsj, your experience is interesting, and I’ve filed it with a few others that I’ve heard. For instance, I have a friend who swears up and down that he was taken into custody, and held for 72 hours (permitted under state law), and then released without ever being charged with anything. From what I understand of arraignments, this is legal, although I would consider it an abuse (in this case, my friend claims that the police knew there was no case within 24 hours of taking him into custody, but decided to hold him in case something else showed up, although they weren’t looking for anything else).

    When discussing law enforcement abuses, it’s important to recognize that some “short hand” we use may disguise important points.

    For instance, Terry searches can be summarized as “when police officers feel threatened, they can search a suspect without a warrant.” Plain view searches could be summarized as “police don’t need warrants when looking for things in plain view.” Both of these summaries are oversimplified, and the best way to explain that oversimplification is to bring out the fact that Grand Juries can look at information that can’t be admitted into court.

    The important point being disguised by “short hand”? Terry searches and plain view searches are guidelines on searches that can be presented in court, and outlawing (or limiting) their use for court cases wouldn’t necessarily affect their usefulness for Grand Juries. This is because Grand Juries are meant to determine whether the government attorneys should spend tax money pursuing a case — the standard of evidence is lower than it is for determining guilt, just as its lower when money’s on the line but imprisonment or execution isn’t.

    So, a change to the Terry search or plain view search procedures may make them less useful, but police officers may still conduct warrrantless searches — fully expecting the search to be thrown out court — if they believe that they can find something to present to a Grand Jury. In the end, police still have the ability to abuse their authority.

    Couple that with our general hope that police deal with people less trustworthy than themselves (that is, with our desire to be able to trust police more than criminals), and most tales of abuse will be thrown out of the system without evidence beyond “he said, she said.”

    The anwer? I have no clue.

  • PrivacyHound

    I�m really shocked at the lack of outrage shown here at the ability of the DHS to seize ALLEGED IP infringing property without a warrant or any judicial review. Once an item has cleared customs, customs has no business seizing property. If the items are infringing, then civil proceedings should be implemented.

    In the case of the Magic Cube, the dispute was over whether �Magic Cube� infringed on the trademark �Rubik�s Cube�.� Personally I would not confuse the two. It is a cube, darn it, and there are only so many ways to say �cube.� Clearly this is a matter for the courts to decide and pre-emptive seizures are a frightening prior restraint on speech and conduct carried out by our new IP Gestapo. (Is �Gestapo� an over the top comparison? Sure, but seizing a stores �Magic Cube� toys without justification is also over the top and an abuse of authority. The same applies to the Ritchie Rich parody. When the government starts seizing legitimate free speech (the parody in this case, not the cube) using IP as an excuse we should all worry.)

  • Max Lybbert

    Thinking over what I wrote to Adamsj, I think the point is that abuse of authority has little to do with the amount of authority. If you limit the authority police have, the ones that abuse their authority today will abuse their lessened authority in the future.

    What’s more, the other police will be put in a worse situation because there is a reason they have that authority. Terry searches, IIRC, exist because police sometimes storm a hideout, and ask “where are the weapons?” while things are still dangerous. Without the Terry search rule, police would have to yell out “you have the right to remain silent, where are the weapons?” during a gun battle.

    Plain view searches are required so that a police officer who happens to see a revolver on the front seat of a car can use that knowledge, and bring it up in court later. Limit either, or both, and you’ll hurt the cops that need this authority, and you won’t affect the ones who abuse their authority.

    How do you stop abuse of authority? You have to find the abusers. Since nearly every police department has an internal affairs division, and nearly every police department also has abusive officers, I really don’t know what more can be done.

  • Max Lybbert

    PrivacyGuard, the reason I’m not outraged is because such seizures aren’t new, and have nothing to do with DHS or terrorism. One of my earlier posts linked to a 1992 memo about Customs’s ability to seize various items infringing various IP laws, including trademark, patent, and copyright.

    /* Once an item has cleared customs, customs has no business seizing property. If the items are infringing, then civil proceedings should be implemented.
    */

    What if the item doesn’t go through Customs originally? I don’t know the facts of this case. However, I doubt that Customs agents could sign off on items as they cross the border, and then seize those same items after the’re in stores.

    /* In the case of the Magic Cube, the dispute was over whether �Magic Cube� infringed on the trademark �Rubik�s Cube�.� Personally I would not confuse the two. It is a cube, darn it, and there are only so many ways to say �cube.�
    */

    I haven’t seen the package, so I can’t say how likely it is I’d be confused. I think the issue isn’t over “cube,” but “magic” vs. “Rubik’s.” You’ll notice that the words are similar. If the packaging were also similar, you would have a potential for confusion.

    /* Clearly this is a matter for the courts to decide
    */

    Exactly. I wish the company marketing Magic Cube the best, since I support a healthy market, which includes viable competition.

    /* … pre-emptive seizures are a frightening prior restraint on speech and conduct carried out by our new IP Gestapo.
    */

    Except that such seizures (1) aren’t new, and (2) aren’t about speech (they’re about trade).

    /* When the government starts seizing legitimate free speech (the parody [of Bush], … not the cube) using IP as an excuse we should all worry.
    */

    Is there any reason to believe that the parody was seized because it was a parody of Bush? There have been nearly $400 million of “IP” seized over the last five years. That’s quite a list. Why should I believe that “Richie Bush” was targetted by Bush, when it could simply be a single item on a very large list. I’d bet that religious books were also on that list. Should I believe that Bush called Ridge and said, “Ridge, I’m a little worried about the amount of pirated religious material entering the country; please do something about it”?

  • PrivacyHound

    [quote]Except that such seizures (1) aren’t new, and (2) aren’t about speech (they’re about trade).

    /* When the government starts seizing legitimate free speech (the parody [of Bush], … not the cube) using IP as an excuse we should all worry. */[/quote]

    You’ll note that I didn’t claim the cube was speech in my post, only the parody.

    [quote]
    /* In the case of the Magic Cube, the dispute was over whether �Magic Cube� infringed on the trademark �Rubik�s Cube�.� Personally I would not confuse the two. It is a cube, darn it, and there are only so many ways to say �cube.� */

    I haven’t seen the package, so I can’t say how likely it is I’d be confused. I think the issue isn’t over “cube,” but “magic” vs. “Rubik’s.” You’ll notice that the words are similar. If the packaging were also similar, you would have a potential for confusion. [/quote]

    I�m no IP expert, but I�d say the case is about the phrase all together. A �Magic Puzzle,� for instance, couldn�t be considered the same as a �Rubic�s Cube.� The fact that we are arguing over it shows that it is not the kind of clear cut case that would warrant a seizure without a court order.

    [quote]Is there any reason to believe that the parody was seized because it was a parody of Bush? There have been nearly $400 million of “IP” seized over the last five years. [/quote]

    I never said that the parody was seized because of bush. As for the IP seizures over 5 years, I’m fairly sure that DHS/Customs counts a $5 “Rolux” as a $2,995 seizure. I really doubt that $5 dollar street corner watches displace any Rolex sales. There might be some degrading of the brand, but not at a one to one ratio.

    I also disagree with your premise that the abuse of power requires the finding of individual rouge abusers. In this case, the abuse of power is written into the law and the abusers are not necessarily in violation of the law. Thus, the solution is to not have laws that grant such overbroad power.

  • http://www.jzip.org/ adamsj

    Max, I think to some extent we have incompatible views of the world.

    When you say “our general hope that police deal with people less trustworthy than themselves”, I stand instead with George Bernard Shaw, whose Lord Summerhays said (speaking, I believe, for Shaw), “Anarchism is a game at which the police can beat you.”

    Now, I’d never read Terry vs. Ohio before. It makes for interesting reading–and I wish Douglas had written a more substantive dissent!

    Seems the court tried to lay out a narrow exception, understanding fully that a search, any search, is a real violation. It’s not unreasonable for a police officer to not get blown away by some punk with a gun, and the court allowed limited (still intrusive) searches to prevent this.

    What I think the court failed to do was understand that the difference between the “good faith” of the officer, which they correctly rejected as subjective, and the standard it set, “specific reasonable inferences which [the police officer] is entitled to draw from the facts in light of his experience” is, in practice, pretty thin. As you say, people hope the police officer is more trustworthy than those he stops–thus it’s a rare person who would not nod when a police officer says, “I searched that man because I felt threatened.”

    (Have there ever been studies of how often, in encounters between police and citizens, a Terry search is made? How often a weapon, but no other contraband, is found? How often contraband, but no weapon is found? How often both, or neither, are found?)

    Anyway, the Terry search was incidental to the legalities of my arrest. The officer who first stopped me insisted, when I asked him why he’d stopped me, that he could stop me and ask for my ID whenever he wanted. I made a point of repeatedly telling him that, although he couldn’t stop me for no reason, I’d gladly show him my ID if he’d give me a reason for stopping me. He refused, as did the rest of the officers with whom I interacted that night. I was on the verge of giving in and showing my ID when the Terry search took place.

    Really, that’s what tore it. It’s one thing to frisk me for weapons–it was in our mutual best interest that they knew for a fact I was unarmed. It was another thing altogether to take a couple of sheets of paper, folded in quarters, out of my back pocket and look through them for my name.

    That’s not a search for weapons. In my opinion, few Terry searches are.

    Again, how does one develop respect for the rule of law when the law can’t rule itself?

    Anyway, I think after reading the Terry decision, your observation about grand juries isn’t really on point.

    To the court, the Terry search was a limited search for weapons, but in practice, as the author (Peter Moskos, “a former Baltimore police officer, [now a] professor of law and police science at John Jay College of Criminal Justice in New York”) says in the op-ed I linked above:

    Police officers are experts at bending rules, particularly in the “war on drugs.” As a police officer, I was taught to push the rules of the “Terry search,” which meant that if I articulated fear that a suspect might harm me, I could legally frisk suspects for weapons without probable cause. I know officers who towed cars, again legally, simply so they could “inventory” the contents (technically for safekeeping). In both cases, the real goal was to find illegal drugs and make an arrest.

    One must expect law enforcement to use all its available tools. As a law enforcement officer, why deal with the tedious process of probable cause, judicial approval and paperwork?

    Over the years–I remember the day it started–on the subject of rule of law I’ve come to sound like a reformed drunk preaching abstinence. Still, what does this approach do for respect for rule of law, both in citizens and, perhaps more importantly, in police, prosecutors, and judges?

    What can be done?

    Given that the Terry search is supposed to be a limited search for weapons, apply the exclusionary rule to anything found in the course of a Terry search which is not a weapon. (Why the Supreme Court didn’t do this, I don’t know, but they should have.) The Terry search could still be used for harrassment, which could still be effective in the case of people carrying large amounts of expensive contraband (and such material gathered could still go to the Grand Jury you postulate), but would no longer be a way to get quota arrests of non-dangerous people.

    That still doesn’t meet my standards–it’s still say one thing and do another–but I could live with it. It keeps the bending of the law out of the court system and at street level, and gives the policeman a small handicap in playing the game of anarchism.

  • Max Lybbert

    Well, PrivacyHound and Adamsj, you both seem to have read and understood my posts, so if we disagree there isn’t much I can do in response but shout.

    So instead, I’ll concede a few points (or at least point to where we agree) (two posts because of length):

    PrivacyHound:

    /* I�m no IP expert, but I�d say the case is about the phrase all together.
    */

    I agree. I think the phrase itself isn’t enough to claim confusion, but there may be information not presented in the article.

    /* I never said that the parody was seized because of bush.
    */

    I appologize. I understood the claim that the seizure was a violation of free speech to mean that the item was seized due to content, and on orders by Bush.

    /* As for the IP seizures over 5 years, I’m fairly sure that DHS/Customs counts a $5 “Rolux” as a $2,995 seizure. I really doubt that $5 dollar street corner watches displace any Rolex sales.
    */

    That’s true. One of the earliest cases of international trademark infingement (Steele vs. Bulova) had very little to do with free-riding or trademark dillution. Of course, as far as I can tell, it wasn’t a criminal case. I would like more information on the Magic Cube case, since from where I stand, it’s looking less like a criminal case as well.

    /* In this case, the abuse of power is written into the law and the abusers are not necessarily in violation of the law.
    */

    I agree that when the law is overbroad, then abuse of authority will always occur. I simply don’t believe that we can give police meaningful authority, while determining every case where that authority must be curtailed. Imagine a police officer making a traffic stop and running through a 50-page checklist to determine what exact authority he has on that particular traffic stop!

  • Max Lybbert

    Adamsj:

    /* Seems the court tried to lay out a narrow exception [in permitting Terry searches], understanding fully that a search, any search, is a real violation. It’s not unreasonable for a police officer to not get blown away by some punk with a gun, and the court allowed limited (still intrusive) searches to prevent this.
    */

    I agree. The Constitution prohibits all unreasonable searches and seizures, but that doesn’t mean all searches must have a warrant (but when the law requires a warrant, then the Constitution puts out certain minimum requirements).

    /* (Have there ever been studies of how often, in encounters between police and citizens, a Terry search is made? How often a weapon, but no other contraband, is found? How often contraband, but no weapon is found? How often both, or neither, are found?)
    */

    This is an interesting question. I have never heard of such research. I understand that police have an incredible amount of paperwork that must be filled out with any enforcement activity (such as a traffic stop), so the data should exist for this kind of study.

    /* Anyway, the Terry search was incidental to the legalities of my arrest. The officer who first stopped me insisted, when I asked him why he’d stopped me, that he could stop me and ask for my ID whenever he wanted.
    */

    I believe this is governed by state law. When I was a rebellious high school student, I skipped school one day, and was turned in by a mall employee (I really didn’t look all that old, so going to the mall was something of a giveaway). The school I went to had a cop assigned to it, and he came to pick me up. I asked how he could determine who I was, since I may not have a drivers license, and he responded that California had a law that I could be punished (fined, etc.) for “failure to identify.” I don’t know the specifics of the law, or where it comes from, but it sounds like something of a limited search without warrant when the officer’s judgement justifies it.

    Is it a just law? Well, that depends on the circumstances, doesn’t it? And abuse of such a law will occur, no matter how narrowly tailored it is.

    /* Given that the Terry search is supposed to be a limited search for weapons, apply the exclusionary rule to anything found in the course of a Terry search which is not a weapon. (Why the Supreme Court didn’t do this, I don’t know, but they should have.)
    */

    I believe the reason was that the Court recognized that a cop searching for weapons (out of fear for his life), shouldn’t be required to pretend that he didn’t see the bag of crack cocaine that also turned up. Or could the crack be submitted as “probable cause” to get a warrant for a repear search? If so, what’s the difference? If not, then could the crack be admitted in court at all? If the crack can’t be admitted as evidence, the criminal may only get a weapons charge (and possibly only a “carrying a concealed weapon without a permit”) because there wouldn’t be a related crime (possession) to link it to.

    /* The Terry search could still be used for harrassment,
    */

    Exactly. I can’t think of a way to define search authority down to such a narrow tool that it could still be effective. Yes, I know it is better for a guilty person to go free than for an innocent one to be jailed, but I believe we need to limit the number of guilty people going free as well. So, yes, the question is something of how to limit the authority so that inevitable abuses aren’t horrible, and at the same time the authority is still useful.

  • http://www.paultopia.org/blog/ Paul Gowder

    Adamsj — what play was that from?! (the Shaw quote — I love it!)

    The terry search process is so widely and blatantly abused as a tool of the drug war, so far beyond its supposed original purpose of keeping officer’s safe that the proposal you mention seems not only wise but absolutely necessary.

  • Max Lybbert

    Perhaps I made a mistake in using a drug crime in my example.

    Consider a case where an officer turns up evidence linking a suspect with a violent crime (ski masks, bags of money, and map from a local bank to a remote hideout, for instance, or perhaps something linking the suspect to a local rapist) during a justified Terry search. What should be done with that evidence?

    I know, at some point the court does have to draw a line. And, I realize that sometimes the line will seem ridiculous. This is where attorneys make lots of money. I believe the Supreme Court tried to not shut off using evidence that turns up during a Terry search because it recognized that some cases exist where such evidence really ought to be permissible in court and not just for Grand Juries.

    The current line, of course, is whether the police officer feels threatened. And, of course, that is being abused. But the abuse isn’t in what can be brought up in court, it’s in the search itself. (Imagine a law permitting police to stop and search anyone, so long as nothing found can be used in court). And I can’t think of a way to give police meaningful authority while guaranteeing that the authority will never be abused.

  • http://www.paultopia.org/blog/ Paul Gowder

    I can’t think of a way to give police meaningful authority while guaranteeing that the authority will never be abused.

    How about reforming 1983 to provide massive civil liabilty? Treble damages, no qualified immunity defense, etc. etc.

  • Max Lybbert

    Actually, Paul, that makes sense. Allow police permission to use authority, but raise the penalties for abuse. I’ll have to think about that some more.

  • http://www.paultopia.org/blog/ Paul Gowder

    Woa. We agree on something? Cool! I agreed with Posner’s last blog post too.

    I must be slipping. :-)