The infamous soda battle of New York City

A recent ABC News story details the by-now-well-known proposal by New York City mayor Michael Bloomberg. From the article:

In his latest effort to fight obesity in this era of Big Gulps and triple bacon cheeseburgers, Mayor Michael Bloomberg is proposing an unprecedented ban on large servings of soda and other sugary drinks at restaurants, delis, sports arenas and movie theaters.

Drinks would be limited to 16 ounces, which is considered a small serving at many fast-food joints.

Now, let’s think about this for a minute: A 16-ounce (473 mL) limit would even ban 20-ounce (591 mL) bottles. A typical medium-size drink in most national chains is 20 ounces, sometimes up to 24 ounces (710 mL). (I say “national” because at Taco Cabana and Whataburger, 20 ounces is the small, 32 ounces (946 mL) is the medium, and 44 ounces (1.3 L) is the large. But what do you expect from Texas companies? We’d never let some Yankee tell us 16 ounces is as big as you can go.)

Once upon a time, sodas were commonly available in 16-ounce (glass) bottles. I’m not sure of the exact year of the change, but the common size for bottles now is the 20-ounce size (with some locations offering 1-liter bottles in some flavors). I know at least Coca-Cola offers aluminum bottles in 8.5 ounce (251 mL) which roughly correspond to a former glass bottle size (which I’m not sure if it’s still being made), but this is a specialty item that’s not sold very widely. The ones I bought were mainly purchased for the package design (that, and I was at a hotel and I didn’t feel like going all the way back down to the gift shop on the first floor).

Not surprisingly, it didn’t take long for a major soda company’s PR department to fire one right back:

“The people of New York City are much smarter than the New York City Health Department believes,” Coca-Cola Co. said in a statement. “New Yorkers expect and deserve better than this. They can make their own choices about the beverages they purchase.”

Kudos to Coca-Cola for striking back against this insanity. To be fair, they’ll feel anything that would kill sales in a city the size of New York, so it’s in their interest to say this is dumb. But I’m sure their customers feel the same way.

The article goes on to cite this nugget of dubious wisdom:

Bloomberg said people who want to guzzle soda would still be free to order more than one drink. But he said restricting servings to 16 ounces each could help curb consumption.

Now, I doubt this is actually true, and I’ll explain why. For one, most fast food restaurants allow free refills. Even some movie theatres allow free refills, which to be honest, at the prices charged is the least they can do. It’s not clear from everything I’ve read whether or not Bloomberg plans to ban those as well. If so, this is even worse than I could have imagined, and I would even say it could be considered restraint of trade if looked at in the right way.

Second, what I predict will happen is that people will start becoming less restrained about bringing in their own drinks. The sale on two 12-ounce cans or two 16-ounce fountain drinks will be lost to the convenience store with no limit. And the restaurant owners, rather than risk irking their customers and losing the sale entirely, will grow accustomed to seeing someone bring in a soda from the convenience store around the corner and just not say anything.

It’s obvious why Mayor Bloomberg is floating such an outrageous policy: in New York, the term limit for mayor is three terms, and this is his third term. So, not surprisingly, voters have little recourse should they feel he stepped over the line. However, it would not surprise me in the least if Bloomberg’s successor decides to repeal this law should it pass very early in the term.

So my response to this short-sighted proposal is this: If Mayor Bloomberg really cares about health, how about an aggressive tax against tobacco products (cigarettes, cigars, smokeless tobacco, etc)? Make it so expensive to smoke in New York that people will have to quit due to financial reasons. That will do far more for health than any silly “you can only have a small soda” law. And if for some reason cities can’t tax cigarettes in New York State, then the law up there is even more broken than I thought.

Why asset forfeiture laws need to be repealed

It pains me to say this, and I hope nobody out here ever needs this advice. If you ever get arrested in Wisconsin, don’t post bail in cash. In fact, if you cannot post bail with a bail bondsman (Wisconsin is one of four states that don’t allow them; Illinois, Kentucky, and Oregon) and most post using actual money, pay with a registered check, cashier’s check, or a credit/debit card.

This recent Huffington Post story tells the tale of Joel and Beverly Greer. The timeline of the events is as follows: Joel gets arrested for a drug charge (not specified in the story), Beverly (his wife) goes to post the $7,500 bail in cash, the cops have drug dogs sniff the money, and then use the dog alerting on the presence of narcotics on the bills as a pretext to keep the money under asset forfeiture laws–without accepting it as bail for Joel.

Something similar happened to Jesus Zamora, who was arrested on a drug possession charge and a gun charge. From the article:

“My girlfriend borrowed some money from her sister and mother and a few friends, and they came to bail me out,” Zamora says. “But then they started asking her if she had brought drug money. They took the money away and said they were going to have the drug dogs sniff it. She asked them when I would be let out, and they told her, ‘He isn’t going anywhere’.”

Most alarming, however, is this quote later in the story:

Brown County Drug Task Force Director Lt. Dave Poteat says the dog alerts were not the only factors. According to Poteat, the Greers and Zamora’s girlfriend appeared nervous when they brought in the bail money. “Their stories didn’t add up. Their ATM receipts had the wrong times on them. And they were withdrawing from several different locations. The times just didn’t correspond to their stories.”

My question for Lt. Poteat: Who would not be a little nervous holding that kind of cash? Should I have my family send in an android to post my bail (that I have programmed never to appear nervous)?

Poteat says an additional reason Zamora’s bail money was confiscated was because during calls from the jail to multiple people, he indicated that the money was drug-related. “Mr. Zamora made a number of calls in which he appeared to be trying to disguise or hide where the money was coming from,” Poteat says. “At one point, he even said to another party, ‘of course the money is dirty.'”

Now, Jesus has a reason to say that, given that numerous studies have indicated that well over a majority of the bills in circulation–a 1994 ruling from the US 9th Circuit Court of Appeals cited studies showing 75%, more recent studies in 2008 and 2009 have found as many as 90%–have traces of drugs on them. But, taken out of context, ‘of course the money is dirty’ is a convenient excuse to say it’s drug money.

Here’s one for Lt. Poteat: Go take $500 or more out of your bank account, and see if the drug dogs alert on it. Now, imagine you’re just an average citizen without a badge, and that’s $500 you are using to post bail for a family member, and the cops take that $500 and keep it under the pretense of it being drug money, without releasing the person you’re trying to make bail for.

But the real reason we need to get rid of asset forfeiture laws: especially in cases like this, the amount most attorneys want to take the case exceeds the amount at stake. And, at least in Wisconsin, an indigent defendant in an asset forfeiture case is not entitled to a public defender.

Basically, for law enforcement agencies, it’s a license to steal. They won’t call it that, but that’s what it is. Arrest the money, the owner has no right to a public defender; arrest the suspect, he does. (Of course, there’s nothing stopping them from arresting both.)

Attorney Steven Kessler is quoted later in the story on contested asset forfeiture cases:

“I would think that one of these cases would be the perfect opportunity for a court to impose punitive damages against the police department[.] … You need to make it clear that it would be damaging for the police to attempt this sort of thing in the future. Considering how appalling these cases are, I don’t see why a court couldn’t do that.”

Of course, the problem is that it usually doesn’t come to that. And in a lot of these smaller counties, the cops, the prosecutors, and the judges are often on a first-name basis with each other. In theory, the judges are impartial. In practice, the judge, DA, and police chief are often fishing buddies. How often do you think a judge is going to fillet his fishing buddy in open court? Honestly, I think I have better chances of winning a large lottery prize.

Due process? What due process? – The story

While the story is a bit stale, I wasn’t able to blog about it when it was first published, and the possibility of this happening again is still very timely.

Techdirt reported last November on the seizure of a popular music blog’s domain and its eventual return to its rightful owners. What’s alarming here is the length of time that the government was able to unilaterally deny a legitimate blog of its traffic, and the profits from that traffic.

The introduction paragraph to the story is so well written that I’m going to quote it in its entirety here. The parallels to the digital world should be relatively obvious:

Imagine if the US government, with no notice or warning, raided a small but popular magazine’s offices over a Thanksgiving weekend, seized the company’s printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine’s lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

The story involves, a hip hop blog well known enough to make Vibe’s list of top blogs in the category. So this is not just some small hip hop fan blog off in the corner of the Internet that nobody cares about, this is a relatively well known and popular blog.

Again, quoting the story:

Despite all of [the evidence that the site was not infringing copyright], the government simply seized the domain, put up a big scary warning graphic on the site, suggesting its operators were criminals, and then refused to comment at all about the case. Defenders of the seizures insisted that this was all perfectly legal and nothing to be worried about. They promised us that the government had every right to do this and plenty of additional evidence to back up its claims. They promised us that the government would allow for plenty of due process within a reasonable amount of time. They also insisted that, after hearing nothing happening in the case for many months, it meant that no attempt to object to the seizure had occurred. Turns out… none of that was true.

I’ll summarize the rest of this, because I don’t want to quote the entire story here. First the facts about the rather messed-up seizure and forfeiture laws we have in the US. The Federal government has 60 days to notify the owners of the reason for the seizure. As an example, today is 2012 April 22, so if one of my domains (or one of your domains, or someone else’s domain) was seized today, they would have until 2012 June 21 to actually notify me (or you or whoever) of the seizure.

Now, for a site maintained as a hobby, this would be at worst a significant annoyance. For a site that’s intended to generate profit? Basically, this is a license to kill a business based on mere suspicion, without due process, without a proper trial.

The property owner, once notified, has 35 days to file a claim requesting the return of the property. It’s of course not to the government’s advantage for everyone to contest the seizure, of course, so usually they threaten to file charges or make similar intimidation attempts against those they have stolen, er, seized property from. The seizures are supposed to be temporary, to preserve evidence and/or stop criminal activity. Once a claim is filed, the government then has 90 days to start the full forfeiture proceedings. So, that’s about 150 days total that the government can drag their feet, or to carry the previous example further using today’s date, until 2012 September 19. (The time the property owner delays in filing the claim is the property owner, not the government, dragging his/her/its feet, though the total time could add up anywhere between 150 to 185 days, which using the same example could be as late as early November.)

The lawyer representing Dajaz1, Andrew P. Bridges, aggressively contested the seizure and forfeiture on the site’s behalf. The deadline for forfeiture on came and went, and, quoting the story:

Bridges contacted the government to ask what was going on, and was told that the government had received an extension from the court. […]

He also asked for a copy of the the court’s order allowing the extension. The government told him no and that the extension was filed under seal […]

He asked for the motion papers asking for the extension. The government told him no and that the papers were filed under seal […]

He again asked whether he would be notified about further filings for extensions. The government told him no.

He then asked the US attorney to inform the court that, if the government made another request for an extension, the domain owner opposed the extension and would like the opportunity to be heard. The government would not agree.

So, in summary, Dajaz1 was told, through their attorney, “sorry, you can’t have any documentation, it’s all under seal, and we’re not going to tell you if we decide to drag our feet even longer, and we’re not even going to let you be heard in court.” This case was kept under a veil of secrecy that would make some people think someone who owned had ties to a major terrorist cell (which of course was not and is not the case).

Further extensions were made, and once the last one expired, finally, Counselor Bridges asked again for the return of to its rightful owners, which happened the date of the story, 2011 December 8. That’s just over a year’s worth of profits the site’s owners are out, an amount that can’t even be calculated with any degree of certainty.

Simply put, this is outrageous, and cannot be allowed to continue happening in a sane society. We, the taxpayers, are out that money should Dajaz1 choose to sue for it due to the gross incompetence with which the government agencies involved chose to handle this case. I certainly don’t want my tax dollars being spent to fix these mistakes which could easily have been avoided or at the very least mitigated months earlier.

If we are going to keep the seizure and forfeiture laws (and to be honest, that’s a big, huge if), this is a list of things I can see doing to make them much more fair to the property owners (who should always be assumed innocent until proven guilty and granted due process):

  1. Seizure and forfeiture proceedings cannot normally be filed under seal without just cause. Any sealed filing will need to be reviewed by an independent judge or arbitrator assigned solely to the task who can decide if the cause is justified. If not justified, the filing is immediately unsealed, it cannot be withdrawn prior to unsealing.
  2. There needs to be a real risk of sanctions against the government agencies who completely screw up and rob legitimate website owners of revenue, whether negligently or willfully. To some, the income from a website is how they stay fed and housed. My understanding is that those who work for the government, who robbed’s owners of a year’s worth of advertising revenue as well as causing huge damage to their reputation, have not been sanctioned at all. (I would love to be wrong about this, so please let me know if this is indeed not the case.)
  3. The length
    of time the government has to notify seized property owners, 60 days, is way too long and practically encourages the government to drag its feet. This should be no longer than 7 days unless the government cannot locate the owner during that time, then a maximum of 30 days with an exception if there is emergency.
  4. The length of time the government can wait to start forfeiture, 90 days, is also way too long and again practically encourages the government to drag its feet. This should be shortened to 30 to 60 days, with no extensions unless there is an emergency (such as a natural disaster).
  5. The tactic of intimidating or threatening owners who contest a seizure should be banned by a specific law against the practice. (“When governments fear the people, there is liberty. When the people fear the government, there is tyranny.” — Thomas Jefferson)
  6. If no criminal case is filed, return of the property
    should be automatic. An attorney should not have to ask for the property’s return. This is condescending and an insult to those who have already been wrongfully deprived of their property. (The Jefferson quote applies somewhat here too.)
  7. Courts should be allowed to severely sanction a government agency involved in a seizure or forfeiture proceeding who causes a delay the proceedings without just cause. Ideally, the law would say in as many words that in such a proceeding “time is of the essence.”

As a rule, I don’t support seizure and forfeiture laws, but any law should be fair to everyone. Maybe it would make seizure and forfeiture proceedings so much trouble to use that they wouldn’t be used as often anymore. I don’t necessarily think that would be a bad thing.

The 50 dirty things you can’t say in a standardized test in NYC

A recent CBS New York news story just has to be seen to be believed, and I quote:

Fearing that certain words and topics can make students feel unpleasant, [New York City Department of Education] officials are requesting 50 or so words be removed from city-issued tests.

The reasons behind some of these give me considerable pause to question whether or not the Department is a drug-free workplace. The complete list, quoting the story (and note some of these aren’t really words as such, but closer to things):

  • Abuse (physical, sexual, emotional, or psychological)
  • Alcohol (beer and liquor), tobacco, or drugs
  • Birthday celebrations (and birthdays)
  • Bodily functions
  • Cancer (and other diseases)
  • Catastrophes/disasters (tsunamis and hurricanes)
  • Celebrities
  • Children dealing with serious issues
  • Cigarettes (and other smoking paraphernalia)
  • Computers in the home (acceptable in a school or library setting)
  • Crime
  • Death and disease
  • Divorce
  • Evolution
  • Expensive gifts, vacations, and prizes
  • Gambling involving money
  • Halloween
  • Homelessness
  • Homes with swimming pools
  • Hunting
  • Junk food
  • In-depth discussions of sports that require prior knowledge
  • Loss of employment
  • Nuclear weapons
  • Occult topics (i.e. fortune-telling)
  • Parapsychology
  • Politics
  • Pornography
  • Poverty
  • Rap Music
  • Religion
  • Religious holidays and festivals (including but not limited to Christmas, Yom Kippur, and Ramadan)
  • Rock-and-Roll music
  • Running away
  • Sex
  • Slavery
  • Terrorism
  • Television and video games (excessive use)
  • Traumatic material (including material that may be particularly upsetting such as animal shelters)
  • Vermin (rats and roaches)
  • Violence
  • War and bloodshed
  • Weapons (guns, knives, etc.)
  • Witchcraft, sorcery, etc.

Some are admittedly somewhat understandable (bodily functions, pornography, sex, alcohol/tobacco/drugs, cigarettes) but then we go off the deep end. Seriously, no mentions of homes with swimming pools? Rock music? Weapons? Witchcraft? Religion and religious festivals? Halloween?! Birthday celebrations?! Rats and roaches?!

I see a certain parallel with the Kurt Vonnegut short stories Harrison Bergeron and The Sirens of Titan. The more we attempt to shield our kids from the reality that yes, some people will have their own swimming pools and nicer cars, and the real world has things like gambling, alcohol, rats, roaches, and homelessness, the bigger shock they will get when they finally figure out that it does.

The last thing we need to do is set our kids up to fail the biggest test of all, the final examination that is their adult life. And I believe by taking all these things out of standardized tests is a huge step in that direction. As the saying goes, why be politically correct when you can be right?

The Amanda treatment: another drug prohibition horror story

I was in shock when I first read this.

CopBlock reports on the nonsensical arrest of Amanda, who I would assume for privacy reasons has been identified only by her first name. From the article:

Amanda, a mother of 2 who has already been forced to live with her ex due to the housing bubble and the recession is scheduled to be arraigned on April 10th for felony possession of ephedrine with intent to manufacture.

That’s legal speak for they believe she was trying to make meth. Never mind that she has never manufactured meth nor ever intended to. […] [A] box of Sudafed she had allegedly purchased was found at a meth lab the cops raided last month. She was never seen at the meth lab. […]

This gross miscarriage of justice is attributed to a single box of Sudafed found in the meth lab, which authorities traced back as having been purchased by Amanda. […] Ultimately, Amanda’s real crime was that of being a good neighbor. She thought nothing of it when a friend asked for some cold medicine during cold and flu season (and why would she?). She gave him some Sudafed, a decongestant, which can also be used in the manufacture of the drug known as methamphetamine or crystal meth.

For those that aren’t aware, in 2006 a Federal law came into effect requiring stores to log and limit sales of products containing ephedrine, pseudoephedrine, or phenylpropanolamine. This is how the box Amanda gave to her neighbor was traced back to her. Several states enacted similar less stringent laws prior to the Federal law. These laws are, of course, an attempt to hinder the manufacture of methamphetamines, yet another battle in this so-called “war on drugs.”

Do the cops really expect the average person who just wants to help their neighbor say “sorry, I can’t do that, you might be trying to make meth” or something similar? I think the majority of well-meaning people will happily hook up their neighbor with a bottle of cold medicine, especially during the middle of flu season. And any one of them could easily get what I’m going to call “the Amanda treatment.” And that’s wrong, and that shows just how flawed drug prohibition is.