House schedules debate on traffic cameras

By Rod Boshart ,

DES MOINES — Opponents of automated traffic enforcement devices
apparently have gotten the green light to debate a ban on red-light
cameras in the Iowa House.
House File 2214, a measure designed to ban cameras used to enforce
traffic laws at busy or dangerous intersections and monitor speeds on
streets and highways, was placed on Wednesday's House debate calendar.
The action is an 11th-hour effort to keep the issue from falling
victim to Friday's "funnel" deadline for non-money measures to clear
one legislative chamber and a committee of the other one to remain
eligible for consideration this session.
"Presently, I have more than 51 votes from both parties," said Rep.
Walt Rogers, R-Cedar Falls, floor manager of the bill. "I hope it will
be debated and passed."
House Speaker Kraig Paulsen, R-Hiawatha, said the bill's supporters
"have picked up votes," which increased the likelihood the issue will
get debated.
However, Sen. Tom Rielly, D-Oskaloosa, a former mayor who is chairman
of the Senate Transportation Committee and who believes the decision
whether to use traffic-enforcement cameras should be left up to local
officials, said he was uncertain whether the issue would be considered
by the Senate panel even if it is able to garner the minimum of 51
House votes needed for passage.
"We'll see what happens in the House," said Rielly, whose committee
tentatively is slated to meet Wednesday and Thursday. "Are we going to
take it up? I don't know, I haven't really thought about it. My
initial, knee-jerk reaction is probably not."
Supporters of traffic-monitoring cameras say they have dramatically
reduced the number of motor vehicle accidents and fatalities and have
encouraged drivers to be more conscientious about obeying the traffic
laws.
Opponents argue the cameras are a "big brother" infringement on
privacy rights and due process, and that the underlying motive for
local officials using the devices is to raise money by issuing more
traffic tickets. At a minimum, they say, traffic enforcement cameras
should be subject to uniform statewide standards and fine schedules if
they are allowed to operate in Iowa.
Gov. Terry Branstad has said he would sign legislation to ban
traffic-monitoring devices if the legislature sent him a bill this
session.
"If the General Assembly were to approve legislation banning this, I
would be pleased to sign it," Branstad said in January.
The bill slated for House debate requires that a local authority
currently using an automated traffic law enforcement system shall
discontinue using the system on or before the effective date of the
bill. The legislation, if passed by the House and Senate, would take
effect upon the governor's signature.
All automated traffic law enforcement system equipment would have to
be removed from Iowa roadways by July 1. A local authority's ordinance
authorizing the use of automated traffic law enforcement systems would
be considered void on the effective date of the bill, but notices of
violations mailed or citations issued under such an ordinance would be
valid and processed according to the prior law.
The House measure specifies that the term "automated traffic law
enforcement system" does not include a device operated in the presence
of a peace officer or a device mounted on a school bus and operated in
the presence of the school bus driver.

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What is Bail?

By Shaffer & Engle

The purposes of bail are to secure the accused's attendance, and avoid
the imprisonment of persons still entitled to a presumption of
innocence, among others. Since it is not the purpose of the criminal
law to confine a person accused of crime before conviction, bail is
allowed in recognition of the presumption of innocence until guilt is
proved, and is a necessary corollary to the constitutional concept
that persons may be imprisoned only after conviction.  Bail is
intended to enable an accused to remain out of jail until the next
proceeding in the case, or until there has been a final disposition of
the accusation, and to prepare a defense.
Another object of bail is to secure the presence of a person charged
with a crime at trial, or at any other time when his or her presence
may lawfully be required, and to provide adequate assurance that the
defendant will stand trial and submit to the sentence if found guilty.
What do the courts look at when determining what the bail amount will be?
Among many factors, the courts will often review the following when
determining how much the bail amount should be:
The nature of the crime(s) charged.  Certain crimes, such as murder,
may not allow for bail to be established.  Charges with more serious
consequences or mandatory jail terms will have higher amounts.
The criminal history of the accused.  Although bail is not to be
punitive in nature, the courts will often review the criminal history
of the defendant.  Certain crimes, such escape or fleeing and eluding
police will militate against a low bail amount.
The defendant's ties to the community.  Do they have a family, a job,
a home in the community?  A person is less likely to flee the
jurisdiction if so.
The position of the Commonwealth.  The police or prosecutors may
indicate to the court that they do not oppose low monetary bail for
many reasons, the least of which is cooperativeness of the defendant.
Any other factor that the court deems relevant to establish that the
defendant will abide by the terms and conditions of their bail.

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--
Sincerely,

Tatiana, Restrepo, Front Office Manager
From the Law Office of Yoel Molina, P. A.
Office: 305-548-5020
782 NW 42nd Ave, Suite 343, Miami, Fl. 33126 in the "Ocean Bank" Building

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Legislature urged to amend current racial-profiling act

Connecticut lawmakers and civil rights leaders are once again urging
the state Legislature to amend the current racial-profiling act to
ensure that the law receives proper oversight and enforcement.
Under the current act, Connecticut police departments are not to
practice racial profiling and are required to submit annual
traffic-stop reports and complaints of alleged discriminatory stops to
the African-American Affairs Commission for review.
Since enacted in 1999, however, some say the law, championed by the
late Bridgeport Sen. Alvin W. Penn, has been largely unenforced by the
state due to budgetary and staffing concerns.
Glenn Cassis, executive director of the African-American Affairs
Commission, said that last year only about 27 of the state's police
departments collected and reported the data, which is mandated under
state law. Recently, he said, the number has gone up as more attention
has been focused on the issue due to the alleged police discrimination
in East Haven, where four police officers were arrested by the FBI.
And, a recent report by the Hartford Courant found racial disparities
in police traffic stops.
Cassis said Gov. Dannel P. Malloy's recent push toward enforcement in
response to the incidents could also have contributed to the rise.
In an attempt to ultimately strengthen the act, state lawmakers and
members of the Latino and Puerto Rican and African-American Affairs
Commissions are recommending changes to the bill that would shift the
responsibility of data reviewing and reporting to the state's Office
of Policy and Management.
Advocates of the amendment say OPM will be better equipped to process
traffic stop and other police data, as well as have the ability to
penalize departments that do not comply with the law.
Black and Puerto Rican Caucus Chairman Rep. Gary Holder-Winfield,
D-New Haven, said the renewed effort to pass the proposed changes this
session comes in response to the incidents in East Haven. He said he
is disappointed that similar legislation on the issue failed to make
it out of the General Assembly's Planning and Development Committee
last year.
"There is no one in this building who has any legitimate reason why
they would vote against or work against a bill to fix the bill that
passed in 1999," he said.
Holder-Winfield, however, acknowledged that the majority of
Connecticut police officers do not practice racial discrimination.
Redding police Chief Douglas Fuchs, the president of the Police Chiefs
Association, said in a statement that police chiefs throughout the
state are committed to protecting all citizens equally. He said his
association believes that "the entire data collection process is
inadequate and flawed" and does not accurately represent law
enforcement practices in the state.
He said his association has been in contact with the African-American
Affairs Commission regarding diversity training and data collection
and analysis.
In January, Malloy called for greater enforcement of the current
anti-racial profiling act, by directing his staff, along with the
Department of Transportation, to ensure the collection and submission
of traffic-stop data by police departments for analysis and report.
Isaias Tomas Diaz, the Latino and Puerto Rican Affairs Commission
chairman, said that despite the governor's push to enforce the current
law, the act has systematic problems that need to be addressed.
Because of this, the commission and other advocates say they would
like to see legislation passed that places the changes into law, so
that future administrations can follow suit.
Mike Lawlor, OPM undersecretary for criminal justice policy, said his
office has already begun work to implement some of the proposed
changes, due to a $1.2 million federal grant for traffic stop data
collection and analysis that has been sitting at the Department of
Transportation for the past five years. He said he believes confusion
over the grant left it untouched by previous administrations.
With the funding, OPM is creating an advisory group to oversee the
data collection, as well as continue expanding its criminal justice
information system -- an online system that streamlines data from all
police department and related agency computers. Lawlor said the
system, which will be fully integrated by the end of 2013, will allow
OPM to process data without having to wait for police department
submissions.
He said that although OPM is developing the processes, they will be
available to the African-American Affairs Commission if the amendments
do not go into effect this session.
Bridgeport Sen. Edwin Gomes said the Legislature's Judiciary Committee
is likely to raise a bill that would shift responsibility to OPM, as
well as set up an advisory committee, including stakeholders, to make
sure the law and racial profiling ban are enforced and develop a
standardized practice for all police departments to collect traffic
stop data.

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548 5020, option 1

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Traffic Talk: What are the rules about young kids in cars? At what age can a child ride in the front seat?

By Troy Reimink,

Today's Traffic Talk concerns a topic (children) about which I have as
close to zero knowledge as it's possible for a human being to possess.
So I'll dispense with my customary witty intro and get right to the
question, which comes from a reader named Dan:
"What are the actual laws regarding the location of children? I have a
five year old daughter. If she is in a booster seat that raises her to
proper height, is it illegal for me to drive with her in the front
seat?"
Actually, a primer on kids in cars – where they're supposed to sit
until what age, the rules for safety seats and so on -- might be just
as useful to those of us without children.
Hear me out. People with kids presumably are pros when it comes to
correctly getting them into a vehicle. (Right before that magical few
seconds comedian Louis C.K. talks about, when the parent closes the
door and is momentarily alone with his thoughts on the too-brief walk
around the car.)
Those of us without kids likely will be asked at some point by a
stressed-out parent or relative to pick up a young child, but we
probably – well, not probably, almost certainly – have not bothered to
familiarize ourselves with the rules.

So, rather than force a parent who merely wants a moment's peace to
give you the full rundown, we'll have our traffic experts take care of
that preemptively. Sgt. Jill Bennett with the Michigan State Police
Traffic Services section brought me up to speed on what we might call
The Parent's (Or Helpful, Well-Meaning Childless Friend Or Relative's)
Guide to Kids in Cars:

Children under 4 must ride in the rear (if there is a rear seat) in
the appropriate child restraint system. Children 4 through 7 (until
they reach 4'9" or turn 8) must ride in a booster seat. Children under
16 must be restrained no matter where they are seated in the vehicle.
Children 4 and over may ride in the front seat, however statistics
show that the rear is the safest seating position for all children 12
and under. If there is no rear seat, or if the rear seat has been
completely occupied by children under 4, then a child under 4 may ride
in the front. A child in a rear facing infant seat may only ride in
the front if there is no airbag or it has been deactivated.
According to the Michigan Vehicle Code section on safety belts, anyone
who does not properly secure a child by the specified guidelines,
meaning the parent or caregiver, has committed a civil infraction.
Dan, however, is in the clear if he wants to let his daughter ride up
front.

The American Academy of Pediatrics recommends children ride in a
rear-facing child safety seat until they turn 2 or outgrow the seat
itself, even though the law does not specify the age, height or weight
at which a child can be turned around to face forward. "This is a new
recommendation," Bennett said, "as it used to be one year and 20
pounds (both criteria must be met before turning them around), but
this is not the law. There are some child restraint systems that go
rear facing until 45 pounds.
"Properly secured," she continued, "refers to the vehicle and child
safety seat manufacturer's recommendations. You must buy the
appropriate seat for the height and weight of your child in order to
be compliant with the law."

For an older toddler, say a four-year-old that weighs at least 40
pounds, properly securing would mean a belt-positioning booster chair
that utilizes the vehicle's safety belt as shown in this illustration.
"My 4 year old is approximately 38 pounds and is still riding in her 5
point harness which goes up to 65 pounds," Bennett said.
In Michigan it is legal for a child of 4 to ride in the front seat,
though all children 12 and younger are safer riding in the rear,
according to the Centers for Disease Control.
For more tips and safety information about securing young passengers,
visit Safe Kids or the National Highway Traffic Safety
Administration's guide to child safety.
Got all that? Good. Keep those young'ns safe. Nothing less than the
future itself is at stake.
Got a question about the rules of the road? Leave a comment or email
treimink@mlive.com with "Traffic Talk" in the subject line.

For more information on these matters, please call our office at 305
548 5020, option 1.

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Trucking Industry Challenges U.S. on Driver Rest Rules

The largest U.S. trucking group filed a legal challenge to
Transportation Department driver- fatigue rules that the industry says
focus on the wrong safety problems and don't meet legal requirements.
The American Trucking Associations, based in Arlington, Virginia,
filed a petition today challenging the regulation at the U.S. Court of
Appeals in Washington.
"We cannot allow this rulemaking, which was fueled by changed
assumptions and analyses that do not meet the required legal
standards, to remain unchallenged," Bill Graves, president and chief
executive officer of the American Trucking Associations, based in
Arlington, Virginia, said in a statement today.
While the final rule maintained an 11-hour limit on truckers' driving
day, instead of shortening it to 10 hours as proposed, the industry
objects to a requirement of a 34-hour rest period each week that would
require drivers to be off two consecutive nights, said Sean McNally, a
spokesman for the trucking group.
Many more fatalities and injuries are caused by speeding than fatigue,
making the department's focus on driving hours misplaced, the group
said in its statement. The industry supports regulations that would
require installation of speed- limiting devices on trucks, the group
said.
Restart Period
Werner Enterprises Inc. (WERN) and C.R. England are among trucking
companies that have objected to a government requirement that the
weekly time off include the periods between 1 a.m. and 5 a.m. on two
consecutive days. Trucking companies describe the rest as a restart
because it resets drivers' weekly limits of time on duty.
The trucking regulator underestimated the cost of the restart
requirement, McNally said. It will reduce flexibility and may
undermine safety by forcing drivers onto the road during rush hour, he
said.
The group cited the Hobbs Act, a U.S. law that establishes the
jurisdiction of the D.C. court of appeals.
The original proposal by the Federal Motor Carrier Safety
Administration required two 12 a.m. to 6 a.m. rest periods during the
restart. Groups such as Advocates for Highway and Auto Safety had
argued that loopholes in previous rules let drivers average 82 hours
of work in seven days when they were supposed to be limited to 60
hours.
11 Hours
The trucking regulator is also facing criticisms from safety groups
and the International Brotherhood of Teamsters union for sticking with
the 11-hour driving maximum. The government was sued in 2003, 2006 and
2009 for allowing 11-hour driving shifts. The third lawsuit was
settled with an agreement that FMCSA would redo the regulation.
There were 3,675 truck-related fatalities in 2010, up 8.7 percent from
3,380 in 2009, according to preliminary data from the National Highway
Traffic Safety Administration. As recently as 2006, there were 5,027
fatalities.
The hours-of-service rule as proposed in December 2010 was one of
seven regulations President Barack Obama's administration said would
cost companies at least $1 billion. Trucking companies opposed it,
saying the shorter hours would force them to rework routes and hire
more drivers.
The final regulation, which takes effect July 1, 2013, has annual
costs of about $470 million and benefits of around $630 million, the
Transportation Department said in a statement today.
Justin Nisly, a Transportation Department spokesman, didn't
immediately respond to an e-mail seeking comment on the filing.
The case is American Trucking Associations v. Federal Motor Carrier
Safety Administration, 12-1092, U.S. Court of Appeals for the District
of Columbia (Washington).

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Cameras protect our ‘right’ to safe travel

By Jerry A. Vander Sanden

I  hope local efforts to promote traffic safety do not take a back
seat to politics as the Iowa Legislature debates a proposal to ban the
use of automated traffic enforcement devices.

The empirical evidence clearly shows traffic cameras have dramatically
reduced the number of motor vehicle accidents and fatalities. They
have encouraged drivers to be more conscientious about obeying the
traffic laws. Anyone who regularly drives the S-curve on I-380 through
the heart of Cedar Rapids will tell you they have noticed a dramatic
difference in driving behavior since they were installed.

I have yet to hear a compelling argument against the traffic cameras.
The "big brother" or infringement on privacy rights argument seems
spurious given that streets and highways are public places. Has anyone
given up shopping now that retail and convenience stores have
installed surveillance cameras? What is so invasive about taking a
picture of a vehicle's rear bumper?

I also don't buy the "right to confront your accuser" argument.
Whether a traffic camera or an officer with radar is involved, it is
the mechanical device that is recording the speed of a vehicle. The
offender is provided with visual proof of the infraction and there is
an appeal process.

Local government should be given some latitude in finding the fairest
and most efficient means to enforce traffic laws. Traffic cameras help
local law enforcement agencies concentrate their efforts on what some
euphemistically refer to as "real crime." I prefer that police
concentrate on investigating crimes of violence. Why deny police the
technology that helps them make the best use of their limited
resources?

Traffic cameras should not be used to raise revenue for local
government and the fine should be proportionate to the offense.
However, the traffic camera $75 speeding citation is a relative
bargain compared to the regular state traffic ticket. The total cost
for a state-issued citation for speeding 11 to 15 mph over the limit
is $168 ($80 fine, $28 surcharge and $60 court costs). A stop sign or
signal citation would total $195, and both would go on your driving
record. Which is more onerous?

Some who gripe about the traffic cameras are really complaining
because they can no longer exercise what they consider to be their
"right" to disregard traffic laws with impunity. What is truly at
stake is the motoring public's "right" to expect that others drive
safely and obey the law.

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548 5020, option 1.

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Defining Identity Theft

Identity theft is a serious crime that is not punished lightly. A
person convicted of identity theft can face thousands of dollars in
fines and years in a state prison. With modern technology, identity
theft has become easier to commit by the minute.
Identity theft refers to when someone uses someone else's personal
identifying information such as their name, social security number,
checking routing number, or their credit card number, without their
consent with the intention to commit fraud or any other crime.

According to the Federal Trade Commission (FTC), approximately 9
million Americans have their identities stolen each year. Often times
the victim is not aware they are the victim of identity theft until
months or years afterwards, when their credit and their reputation
have already been damaged.

Identity theft thieves use other people's identifying information to
commit a broad range of crimes. They may use the information to rent
an apartment, obtain a credit card or checking account, or establish a
cell phone or cable account in the victim's name. The victim doesn't
usually find out they have been a victim of identity theft until it's
too late, or until they have been contacted by a creditor.

Identity theft begins when the thief acquires personal identifying
information such as another person's social security number, driver's
license number, or credit card. It doesn't matter if the victim is
dead or alive; it's still a criminal offense and is prosecuted to the
full extent of the law when the perpetrator is caught. Personal
information can be illegally acquired in a variety of ways including:

Skimming – This occurs when a special devise is used to steal a credit
or debit card number when processing the person's card.

Changing the Victim's Address – The person changes the victim's
address by mailing in a change of address form. As a result, the
billing statements are diverted to another location.

Theft – This is the oldest type of theft in the book. This refers to
stealing the victim's purse, or wallet, pre-approved credit card
offers, new checks or other tax information.

Dumpster Diving – This refers to rummaging through someone's trash to
find bills, bank statements, voided checks etc. with identifying
information on them.

Phishing – The thieves pretend to be a financial institution such as
the victim's bank, or a credit card company and send spam to try and
get the person to reveal their social security number or bank account
information etc.

Pretexting – The thief uses false pretenses to obtain personal
information from a bank, credit card company, telephone company and
other sources.

Identity theft is taking very seriously in all fifty states. In
Washington, there are two levels of identity theft. How they are
prosecuted depends upon value of the credit, money, goods, or services
that were taken. If the value of the goods or services etc. obtained
through someone else's identity were valued more than $1500, it is
prosecuted as a Class B felony. For any goods or services obtained
below the value of $1500, it is prosecuted as a Class C felony and the
penalties range from up to 10 years imprisonment, a fine up to
$20,000, or both.

If you have been charged with identity theft, it's critical to enlist
the services of an aggressive defense attorney as early as possible.
An attorney will be able to investigate every aspect of your case and
negotiate with the prosecutor, the judge, or jury on your behalf when
it comes to sentencing.

For more information on these matters, please call our office at 305
548 5020, option 1.

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Paris cyclists given right to break traffic laws

By Henry Samuel

Breaking traffic rules, almost a national sport in France, has just
been legalised – but only for Parisian cyclists.

A new government decree has just authorised cyclists in the French
capital to go through red lights, after road safety experts deemed the
measure would cut road accidents.
It follows a fierce three-year campaign by cyclists' associations.
Under the new system, which will be first tested on 15 crossroads in
the East of the French capital, cyclists are allowed to turn right or
go straight ahead even when the lights are red.
They must, however, make way for pedestrians and incoming traffic on
the left and will be held responsible in the event of an accident.
Red and yellow signposts posted on traffic light poles will inform
cyclists that they can ignore the lights in designated 30km per hour
zones. If judged feasible, the scheme will then be rolled out to 1,700
crossroads in Paris.

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Wash. considers collecting DNA upon arrest

By GENE JOHNSON
Associated Press

A bill before the Legislature would have Washington join a growing
number of states that automatically collect DNA from people when
they're arrested for a serious crime, rather than waiting until
they're convicted.

Anthony Dias is the poster boy for why police and prosecutors hope
Washington will join a growing number of states that require people to
give DNA samples as soon as they're arrested for a serious crime,
rather than waiting until they're convicted.

In 2005, Dias was released on bail while facing a felony hit-and-run
charge in Pierce County. He went on to commit crimes against 19 more
people before the year was up, including a half-dozen rapes. If he had
given a DNA sample after his hit-and-run arrest, detectives could have
caught him after the first rape - not the last.

"By the time he committed his next rape crime, he could have been
identified, arrested and taken off the streets," Charisa Nicholas, who
was tied up and forced to watch as her roommate was raped, told
lawmakers recently. "My case would have been the first case
prevented."

Nevertheless, the rush to expand DNA's use in criminal investigations
worries privacy advocates, and courts around the country have
disagreed about whether such laws violate the 4th Amendment to the
U.S. Constitution, which protects people from unreasonable searches
and seizures. Many judges have found that routinely collecting DNA
from convicts is OK because, among other reasons, committing a serious
crime reduces their expectation of privacy. It's not clear that
reasoning would extend to people who have not been convicted and who
are presumed innocent.

"The way judges come out depends in a sense on how much trust they
have in the government," says Penn State Law School professor DH Kaye,
who tracks the issue. "Some judges say, `What's the big deal? It's
like a fingerprint.' But DNA samples contain a lot of information, and
other judges say that sooner or later somebody is going to abuse the
system."

Under bills before Washington's Legislature, the state would collect
DNA from people when they're arrested for nearly all felonies or for
violating a domestic violence protection order. Once a judicial
officer finds that the arrest was supported by probable cause, the
State Patrol crime lab could test the DNA to create a profile and
enter that profile in a nationwide database used to help solve crimes.
The cost of the measure - more than $400,000 a year - would be paid
with money from traffic tickets.

If the person is exonerated or not charged, they could petition to
have the crime lab destroy their sample and profile. The lab would be
obligated to do so, but could run a check on the profile first.

About half the states and the federal government have similar laws.

The 3rd U.S. Circuit Court of Appeals in Philadelphia, the highest
federal court to rule on the issue so far, closely upheld the federal
law 8-6 last summer in a case that could be headed for the Supreme
Court. The majority found that although crime labs typically maintain
the actual DNA samples, the profiles entered into the national
database comprise only a small portion of the information available in
the sample. There's no indication that the government has any intent
to use the full samples, judges said.

The judges reasoned that the government has a right to confirm the
identities of the people it arrests, and there are two parts to
someone's identity: who they are, and what they've done. Using the DNA
profile to see if arrestees have committed other crimes is a part of
the government's interest in their identities, the judges said.

The dissent argued that the government doesn't need the DNA profile to
identify arrestees. Officials want to be able to conduct an intrusive
search of a person's body - taking their DNA - without a warrant and
without suspicion, in hopes of finding evidence unrelated to what the
person has been arrested for.

"We do not view a finding of probable cause for one crime as
sufficient justification to engage in warrantless searches of
arrestees' or pretrial detainees' homes for evidence of other crimes,"
the dissent noted.

That's one of the analyses offered by Doug Klunder, privacy counsel at
the American Civil Liberties Union of Washington.

"It's collecting really sensitive information about an individual
without there being reason to suspect that person of a crime," he
says. "There are many ways that law enforcement could collect
information that would help solve crimes. They could rifle through my
house every day and maybe they'll find it, but we don't allow that
without a warrant. Certainly going into my body is as intrusive as
going into my house."

Virginia's Supreme Court has upheld that state's law, and an appeals
court in Arizona has OK'd the law there. However, California and
Minnesota appeals courts have rejected their laws, and a panel of the
9th U.S. Circuit Court of Appeals has yet to rule on a federal
challenge to California's law, even though the arguments took place 18
months ago.

Washington's proposal could face an even tougher legal road if passed,
because the state Constitution is even more protective of people's
right to be free from intrusion by the government.

"There's not a definite answer on the constitutional questions," says
Pierce County Prosecutor Mark Lindquist. "But the merits of this are
so obvious it's worth having it go up to the courts."

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International Privacy Day: Fighting Data Retention Mandates Around the World

This January 28 marks International Privacy Day. Different countries around the world are celebrating this day with their own events. In EFF, we are calling on governments to repealmandatory data retention schemes. Mandatory data retention harms individuals' anonymity, which is crucial for whistle-blowers, investigators, journalists, and for political speech. It creates huge potential for abuse and should be rejected as a serious infringement on the rights and freedoms of all individuals. 

It has been six years since the highly controversial Data RetentionDirective (DRD) was adopted in the European Union. Conceived in the EU and steamrolled by powerful U.S. and U.K. government lobbies, this mass-surveillance law compels EU-based Internet service providers to collect and retain traffic data revealing who communicates with whom by email, phone, and SMS, including the duration of the communication and the locations of the users. This data is often made available to law enforcement. Europeans have widely criticized the DRD, and year after year, it has inspired some of the largest-ever street protests againstexcessive surveillance.

The European Commission has begun mounting a defense for this highly controversial mass-surveillance scheme, though they have thus far been unable to show that the DRD is necessary or proportionate. For the DRD to be legal in the EU, any limitation to the right to privacy must be "necessary" to achieve an objective of general interest and "proportionate" to the desired aim. This requirement is important to ensure that the government does not adopt severe measures to address a problem that could be otherwise solved in a way that is less harmful to civil liberties.  But the Commission has been arguing that all uses of retained data illustrate that the Directive is "valuable." This doesn't meet the legal standard. Instead, the Commission should provide evidence that in the absence of a mandatory data retention law, traffic data crucial to the investigation of "serious crime" would not have been available to law enforcement.

Despite the European Commission's efforts to preserve the Directive as-is, a leaked letter confirms that the Commission has been scrambling to conjure evidence for the "need" of a DRD scheme in the European Union. It also underscores the fact that there is no system of oversight that would allow citizens to monitor the impact of the proposed program on their privacy rights. Perhaps the most disquieting detail that has been confirmed by the letter is that service providers have already been storing instant messages, chats, uploads, and downloads. This type of data collection falls outside the scope of the DRD. Moreover, the letter indicates that "unnamed" players seek to broaden the uses of the DRD to include prosecution of copyright infringement including "illegally downloading." Since this is not a serious crime, this legally falls outside the scope of the DRD.

In response to this leak, EDRI stated, "The leaked document however shows that the Commission can neither prove necessity nor proportionality of the Data Retention Directive - but still wants to keep the Directive." The leaked letter also disclosed that the EU Commission is evaluating the possibility of amending the Directive. The Commission has commissioned a study into data preservation in the EU and around the world. According to the letter, this exercise is to be completed by May 2012.

Ending Data Retention: Constitutional Challenges

Constitutional courts have begun weighing in on the legality of this mass-surveillance scheme. In a decision celebrated by privacy advocates, the Czech Constitutional Court declared in March 2011 that the Czech data retention law was unconstitutional. Earlier this month, the same Court dealt another blow to data retention by annulling part of the Criminal Procedure Code, which would have enabled law enforcement access to data stored voluntarily by operators. Most importantly, the Czech Court used compelling language in articulating the importance of the protection of traffic data. The Court stated that the collection of traffic data and communication data warranted identical legal safeguards since both have the same "intensity of interference".

We couldn't agree more. Sensitive data of this nature demands stronger protection, not an all-access pass. Individuals should not have to worry whether one sort of private information has less protection than another.

Jan Vobořil of Iuridicum Remedium, which led the legal complaint against the Czech data retention law, told EFF:

I believe that both decisions will help ensure that new legislation enforces the same restrictions as exist for use of wiretap. These include strong privacy safeguards for government access to citizen's data, the obligation to inform individuals about the use of their data, and so on.

Several other courts in EU member states have also ruled on the illegality of data retention laws. Earlier in 2009, the Romanian constitutional Courtrejected the imposition of an ongoing, sweeping traffic data retention program. The Court rightly emphasized that mandatory data retention overturns the presumption of innocence in a way that treats all Romanians like potential suspects. Despite this court decision, a new draft data retention bill was introduced in the Parliament, but the Senate finally rejected it at the end of 2011.

In March 2010, the German Court declared unconstitutional the German mandatory data retention law. The Court ordered the deletion of the collected data and affirmed that data retention could "cause a diffusely threatening feeling of being under observation that can diminish an unprejudiced perception of one's basic rights in many areas." The lawsuit was brought on by 34,000 citizens through the initiative of AK Vorrat, the German working group against data retention.

Over in Ireland, the Court is referring to the European Court of Justice the case challenging the legality of the DRD, thanks to the complaint brought by Digital Rights Ireland. The Irish Court acknowledged the importance of defining "the legitimate legal limits of surveillance techniques used by governments", and rightly emphasized that "without sufficient legal safeguards the potential for abuse and unwarranted invasion of privacy is obvious". The Courts in Cyprus and Bulgaria have also declared their mandatory data retention laws unconstitutional.

The DRD compels EU member countries to implement the Directive into national law. Fortunately, many member states have not yet done so. The Czech Republic, Germany, Greece, Romania, and Sweden have not adopted this piece of legislation, despite pressure from the European Commission to do so. In Austria, the data protection law will take effectin April 2012.  AK Vorrat Austria plans to use all legal means to challenge the legality of the DRD. They have also handed over a petition to the Austrian Parliament asking the government to fight against the DRD at the EU level and to review all existing anti-terror legislation. (If you are Austrian, sign the petition today at zeichnemit.at.) In Slovakia, the NGOEuropean Information Society Institute is opposing the Slovakian data retention implementation law.

Meanwhile, civil society groups are resisting and campaigning against this oppressive data retention law. EDRI, along with EFF and AK Vorrat, has fought to repeal the DRD in favor of targeted collection of traffic data. EDRI has previously reported that Deutsche Telekom, a German telco, illegally used telecommunications traffic and location data to spy on roughly 60 individuals including journalists, managers, and union leaders. They also reported that two major intelligence agencies in Poland used retained traffic and subscriber data to illegally disclose journalistic sources without any judicial oversight. These are only a few examples in which data retention policies have directly threatened individuals' expression and privacy rights.

The DRD is a threat to Internet privacy and anonymity, and has been proven to violate the privacy rights of 500 million Europeans. EFF, together with EDRI, will keep fighting to repeal the DRD in favor of targeted collection of traffic data.

Mandatory Data Retention in the United States

Two bills introduced in the U.S. Congress in 2009 would have required all Internet providers and operators of WiFi access points to keep records on Internet users for at least two years to assist police investigations. Neither bill became law. Some legislators and law enforcement officials continue to argue, however, that mandatory data retention is necessary to investigate online child pornography and other Internet crimes. In January 2011, the U.S. House of Representatives Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held a hearing that discussed whether Congress should pass legislation that would force ISPs and telecom providers to log Internet user traffic data. In May 2011, H.R. 1981, which would require retention of such traffic data, was introduced in the House of Representatives. This bill is still alive and continues to be a threat to the privacy and anonymity of all Americans. EFF has joined civil liberties and consumer organizations in publicly opposing H.R. 1981. Please join EFF, and help us defeat this bill before it is made law. Contactyour Representative now.

Fore more information on these matters, please call our office at 305-548-5020.

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Hitting a Parked Car and DUI Charges

Hitting a parked car while under the influence is not as serious as causing injury to a person yet can still place you in the position of potentially being arrested for a DUI. The implications on your license and your freedom are similar, so here is crucial information to consider if you find yourself in this position.

Crashing Into a Parked Vehicle Under the Influence

If you are under the influence, and hit a parked car, you can be arrested and charged with driving under the influence. The good news is that the potential for witnesses to the accident are greatly lessened, which makes the prosecution's job of proving that you were under the influence more difficult. To justify a conviction, the court must determine that you were driving, operating, or in control of a motor vehicle while intoxicated, which can be done either by a direct admission from you or other evidence that would show that you were intoxicated when you hit the parked car.

Dealing with the Police

You are required to give the officer common identification information such as your drivers license, insurance, and car registration. However, you are not required to and should not tell the officer that you were drinking. Let them reach this conclusion on their own. The prosecution must prove that you were intoxicated- don't make this easier on them by admitting it.

Being on Public vs. Private Property

If you are on private property when you hit a parked car, i.e. restaurant or shopping center, certain state laws will prevent you from being able to be charged with driving under the influence, because their wording focuses on individuals driving on public streets, highways, and interstates. Also, implied consent to Breathalyzer tests will sometimes hinge on whether or not you are on private vs. public property.

Breathalyzer tests

Your being required to submit to a chemical test to keep your license will depend on whether you are residing in a state with implied consent laws. Usually you actually have to be under arrest before you can lose your drivers license for refusing to submit to a Breathalyzer test. It is also important to note that if you hit the parked car while you are on private property, implied consent laws might not apply.

Field Sobriety Tests

An officer must have either probable cause or reasonable suspicion that you are under the influence before requesting that you take a field sobriety tests. Factors that might influence this include:

• Odor of alcohol
• Your demeanor
• Admission of drinking

Help from a DUI Lawyer

The information provided in this article is for general use only, and should not be taken as legal advice. There are severe penalties associated with any Driving Under the Influence charge; an attorney will have knowledge of defenses available to you as well as ensuring that your rights are in no way violated. Make sure to have someone on your side, if you ever find yourself in this situation and seek legal counsel from a licensed attorney.

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