Quantum Meruit

As much information as you deserve

Month: August, 2013

‘Devices and Services’?

So, Steve Ballmer is retiring so Microsoft can focus on “devices and services“?

That’s a huge change. Microsoft has never been a “device” company; it’s been a “software” company. That’s how Windows became ubiquitous: “you make the hardware, we’ll make the software.” Of course, the reason for this change is simple: everyone else is becoming a device company. Apple has long been a device company—they’ve always made both the software and the hardware—but the success of the iPod and the iPhone prompted Apple to go so far as to change their name from “Apple Computer, Inc.” to “Apple, Inc.” to emphasize that they also made consumer electronics. Google now makes its own Android phones.

But Microsoft? The only success Microsoft had with “devices” was the Xbox. The Zune was a colossal failure. So, too, appears to be the Microsoft Surface RT, which has sold about two million units in eight months, compared to three million iPad Minis in three days last November. (Of course, this hasn’t stopped Microsoft from spending more money on jabs at Apple, but if they want to soak up their $900 million bath, they’re going to need to do better than making fun of Siri. Though note that in that ad, Windows 8—not the Surface specifically—is the focus. Hmm.)

I guess there are two business mantras in conflict here. One mantra is: do what you do better than anyone else. This requires sticking to one thing, or a few things. A company can’t do everything better than everyone else. Microsoft made boatloads of cash during the ’90s by doing one thing well: Windows. During the ’90s, computers became a standard component of the home and the office (though it’s hard to believe when computers were more than a novelty!). The question was, “What will these computers look like?” Microsoft’s business model made Windows-based computers cheaper than Macs, and so the answer was, “These computers will run Windows.” Microsoft succeeded by introducing Windows to the home user via their business influence; you use Windows at work, so why not use Windows at home? And Windows became ubiquitous at work because Microsoft’s business offerings (Office, Windows Server, Exchange, Active Directory) all played nicely together, so it made sense for companies to do full-on Microsoft everything. (This was especially beneficial for multinational companies, as Active Directory can scale to gargantuan proportions.)

But the blessing was also a curse. Everything Microsoft did was Windows-based. Everything revolved around Windows. With the iPod, Apple changed from being Mac-centric to being consumer-centric. iPod. Apple TV. iPhone. iPad. And so on. These devices can all exist separately, but they can also exist together in a harmonious, Apple-centered household where Mac OS is but one component of many.

Which brings me to the other mantra: change up the business model when it’s not working. Microsoft appears to want to try this one, even though they have yet to make a consumer electronic that people want (again, the Xbox is the outlier). It could be, though, that they just don’t know what people want. Windows 8 on the tablet is about the same as Windows 8 on the computer. I hate Windows 8 on the computer. It’s designed for a tablet, but a computer isn’t a tablet. I hate Windows 8 on the tablet. It’s designed for a computer, but a tablet isn’t a computer. By trying to create one operating system that does both things, Microsoft succeeded in creating an operating system that does neither very well. With iOS, Apple has acknowledged that different devices have different requirements; I’m going to interface with Mac OS differently from the way I interface with the iPad.

On the “services” front, Microsoft is actually doing pretty well. SkyDrive is very easy to use, and its integration with Office makes life easy. While I haven’t used the new Outlook webmail system, all the reviewers really like it. This, however, is software, and Microsoft knows how to do software. Unlike Windows 8, it’s device-independent software; email is email, and cloud storage is cloud storage, no matter what you’re using to access it.

Microsoft knows how to do software. Believe it or not, Windows XP has been around for twelve years, and it’s still around. It’s still a perfectly serviceable operating system. You’d be hard-pressed to say that about any twelve-year-old operating system. Windows XP still commands 39% of the the desktop operating system market. And Office? Well, “Word” is as synonymous with word processing as “Kleenex” is with facial tissue. Microsoft is good at software, and yet it continues to want to play with the other kids at hardware, which is something it’s generally failed at.

I suppose that’s the point of Ballmer leaving: Ballmer is part of the old guard, and on top of that, he’s not really an innovator. He’s a manager. Microsoft’s thinking must be that their failure so far in the hardware world has been because they don’t know how to make hardware that people want, and that’s because the people at the top don’t know how to make hardware that people want.

Getting rid of Ballmer might solve the ossification problem, but here’s another problem: does Microsoft want to play along with the other kids, or does it want to destroy them? If Microsoft wants to create an “iPad killer” or an “iPhone killer,” it needs some truly creative people. Apple’s hegemony in mobile devices is largely because it got there first. With the iPhone and the iPad, Apple framed the debate in terms of what such a device is expected to look like and how it’s expected to work, because, really, there was no all-touchscreen phone before. There’s a reason why most of the smart phones out there look like iPhones: Apple got there first and set the expectations. Once someone else has defined what a product category looks like and does, a new thing in that category can’t go too far toward upending people’s expectations; otherwise, it will be too strange and weird to buy. This means that hardware competitors (like Microsoft) either need to stick with the established design or not only revolutionize the design, but also convince consumers that this revolutionary design is something they want. That’s a pretty tall order. Steve Ballmer couldn’t do it; they’re hoping there’s someone else out there who can.

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Cell Phone Search Incident to Arrest Coming to a Supreme Court Near You

The Justice Department has filed a petition for a writ of certiorari in the Supreme Court, arguing that police should be able to search the contents of the cell phones of arrestees as part of a valid search incident to arrest.

This brings the federal government into a conflict that has been going on for some years now, as cell phones have become ubiquitous. Different states have different rules, and so do different federal circuits. Some states’ rules are judicially prescribed, while others are legislative.

What a country!

United States v. Wurie, the case at issue, begins like this: an officer spotted someone making what appeared to be a drug sale from his car. After the transaction was complete, the driver left and police arrested the buyer. The buyer told the police that he had purchased the drugs from the driver of the car, a crack dealer in South Boston. Police followed the driver, then arrested him. At the police station, they confiscated his keys, a significant amount of cash, and two older flip-style cell phones. On one of the cell phones, there were repeated calls from a contact labeled “my house.” Police found out that the number associated with “my house” was an address in South Boston close to where the defendant parked his car. They drove to the house and saw a mailbox with the defendant’s name on it. Police then obtained a search warrant and found drugs, cash, and guns inside.

The legal theory on which the government hangs it hat is the search incident to arrest (SIA) doctrine. A valid arrest allows an officer to conduct a warrantless search of the arrestee’s clothing and anything associated with the arrestee or within the arrestee’s immediate control. The purposes of this search are: (1) officer protection, to make sure the arrestee doesn’t have anything dangerous on his person; and (2) evidence preservation, to make sure the arrestee doesn’t destroy evidence within his control.

To be sure, if the Supreme Court does take up Wurie, there will be a lot of talk about the reasoning behind SIA. In its petition, the government makes a deceptively simple argument: “Look, Supreme Court, in prior cases dealing with SIA, you said the police can search anything on the arrestee’s person. A phone is anything on the arrestee’s person. So therefore you can search it. Seacrest out.”

Wurie, though, will be making the same arguments made by defendants in prior state-level cell phone search cases, including People v. Diaz (California), State v. Smith (Ohio), and Hawkins v. State (Georgia). The argument is this: “Supreme Court, back when you decided all those SIA cases, we were talking about wallets, purses, and cigarette packs. Those can only hold a finite amount of stuff. But a cell phone can store way more stuff; therefore, there’s too great a risk of an officer going on a treasure hunt on a cell phone. Therefore, you can’t treat a cell phone like a wallet just because it’s the same physical size and is on the arrestee’s person.”

In Smith, the Ohio Supreme Court held that a cell phone was unique when it came to SIA and couldn’t be searched absent a separate warrant. In Diaz, the California Supreme Court basically punted on the issue because California’s Fourth Amendment case law comes from the U.S. Supreme Court, and since the U.S. Supreme Court hasn’t given a special exemption to cell phones, California didn’t, either. In Hawkins, the Court of Appeals of Georgia held that police could examine some, but not all, of the files on a cell phone, where the scope is limited to files that might reasonably contain the object of the search.

There’s also a federal circuit split. In United States v. Finley, the Fifth Circuit characterized a cell phone as no different from any other container on an arrestee’s person. Now, with Wurie, we have the First Circuit saying something else. Because there’s a circuit split, the Supreme Court has little choice but to take up the issue.

The government has an uphill battle when it makes the “just keep doing what you’ve been doing” argument. One of the major reasons why SIA exists is to prevent spoliation of evidence. Why can’t the police just take the cell phone and search it later? The government contends that there’s a possibility the phone could be remotely erased, but that’s not a terribly realistic possibility. As the First Circuit pointed out, the police could take the battery out. Or put the phone in a Faraday cage, where it would be shielded from electromagnetic waves. And police don’t have to take that much time when searching a phone, either; the Cellebrite UFED is a device police departments use to extract the contents of a cell phone in minutes. The police could seize the phone without searching it and have ample time to get a warrant. Once the phone is away from the arrestee’s immediate control, the exigency that gives rise to the SIA (fear of spoliation of evidence) vanishes. The government will have to address this problem.

But it doesn’t end there, of course. As I note in my recently published law review article, things get dicier still when police are accessing data that are not stored on the phone but is instead stored with a remote computing service, like Google or Apple. That issue isn’t before the Court now, but it will be in a few years.

The status quo argument is both a blessing and a curse. It’s an argument that succeeds only if the justices accept the premise; i.e., that a cell phone is no different from a wallet or a pack of cigarettes. This means that they’ll have to address why a cell phone is the same as a wallet and a pack of cigarettes, which—given the storage capacity of a wallet compared to that of a cell phone—will be an unenviable task. The majority/concurrence split in United States v. Jones, the recent GPS-tracking case, suggests that the Justices are prepared to engage with the substance of the technology, rather than relying on the old tried-and-true (and increasingly threadbare) method of analogizing the technology to something found at common law. With Wurie, or any other cell phone search case, there’s actually the possibility of a meaningful technology-centered decision.

The Myth of the ‘Consensual’ Police Encounter

As far as the Supreme Court is concerned, you’re in police custody when (1) the police physically restrain your liberty; e.g., by placing you in handcuffs, or (2) when you’re in a situation where a reasonable person wouldn’t feel free to leave. When you’re in the back of a squad car, in a jail cell, or in handcuffs, you’re clearly “in custody.” But what about when police are in your living room? Or when they’re on a bus, blocking the exit? Are you in custody then?

The answer is important. Police don’t have to read the Miranda warning unless you’re both in custody and being interrogated. Appellate lawyers argue all the time about whether the defendant was “in custody” at the time of the questioning, meaning the confession should have been suppressed at trial. Custody is also helpful for determining whether you’re involved in a Terry stop. New York’s “stop and frisk” law—recently ruled unconstitutional as applied—is a form of the Terry stop, which is a brief detention an officer uses to confirm or deny that the target of the stop is about to be, or recently has been, involved in criminality. If you’re being “detained”; i.e., a reasonable person wouldn’t feel free to leave, then during the Terry stop, police can conduct a limited pat-down of your outer clothing if they have reason to believe you’re armed and dangerous.

You’re not in custody, however, if your interaction with the police is consensual. A consensual stop is the flip side of a detention or being in custody. The Supreme Court has always maintained that there are situations in which a reasonable person would feel free to leave. If you continue the police encounter even when a reasonable person would feel free to leave, then guess what? You’re not in custody anymore; now you’re in a “consensual encounter,” which sounds more like a really lame erotic lawyer thriller. And that means a whole host of prophylactic measures designed to prevent police abuse of authority (including the Miranda warnings) no longer apply. Because, hey, you’re choosing to be there. It’s not like the police are forcing you to stay.

But the authors of a new article in Florida Coastal Law Review conducted a semi-scientific survey of eighty-three undergraduates at a “medium-sized, southern private university” in which the students were approached by campus security and asked what they were doing there. All eighty-three students answered the officers’ questions. After the encounter, they were asked why they didn’t leave. Routinely, their reasons centered around the officers’ authority.

It would be even more interesting to do this experiment again with students of different races and look at the race breakdown. As LeVar Burton mentioned on CNN a few months ago, as a black person, he’s got to be extremely conscious of his actions when he’s stopped by police. He has to acquiesce to authority in a way that no white person will ever have to; otherwise, the officer could perceive his actions as a threat and use deadly force.1 In the real world, a well-mannered white person could get away with asking, “Am I being detained?” and then walk away. But a black person? These days, just about anything innocuous counts as a “furtive movement.” Being shot by the police is probably a statistically unlikely scenario, but being booked on the often-specious charge of “obstruction of justice” or “resisting arrest” is much more likely.

In any case, the acquiescence to authority is alarming, especially as the Supreme Court continues to chip away at Miranda and especially as multiple big-city police departments use “stop and frisk” in unconstitutional ways. Back when Miranda was decided, the Court used contemporary statistics and other information (including police department manuals advising officers on the finer points of coercive interrogation) to conclude that police interrogation had gotten out of hand. This law review article is hopefully the beginning of more data-driven analysis about the existence (or not) of the reasonable person who would feel free to leave.


1. Critics who sniff at the existence of “white privilege”—almost all of whom are conservative white men—don’t believe this is a thing because the pre-textual stop is something they’ll never, ever experience in their lives. Ever. Never. In holding part of New York’s stop and frisk policy unconstitutional, Judge Scheindlin noted that 87% of stop and frisk targets were either black or Hispanic. To say nothing of state “immigration” laws that allow officers to ask suspects for proof of immigration status. How many of them are white?

‘Amish Mafia’ Is the Tawdriest of the Tawdry

You’d have thought reality TV exploitation had hit bottom with Here Comes Honey Boo Boo, a show designed so that the rest of America gets could laugh at the backwoods, rural hickness of Honey Boo Boo, Mama June, and the rest of the family. Presenting rural Americans as exotic and worthy of gawking at is nothing new to the United States, but Honey Boo Boo is at its most crass because, even if Mama June is in on the joke, it’s clear that the show contributes greatly to their income, making it coercive in a way that Duck Dynasty—another rural American sideshow—isn’t.

Anyway, I thought I’d seen the bottom of reality TV until I watched an episode of Amish Mafia. The show purports to be about a secretive cabal of Amish “enforcers” in Lancaster County, Pennsylvania, and the reason why you’ve never heard of these enforcers before is that the Amish don’t like to talk about it and actively cover up its existence. Intriguing!

There’s another reason you’ve never heard of the Amish mafia: it’s all made up. Because I apparently have nothing better to do, I checked in on the Amish mafia and found it lacking in veracity.

  • The show itself begins with a disclaimer that some scenes are recreated so as to respect the “innocent” Amish who may have been involved. There’s a tip-off right there.
  • David Weaver-Zercher, a professor at Messiah College in in Pennsylvania, has written several books about the Amish and maintains that an “Amish mafia” doesn’t exist. Ditto, says Donald Kraybill, a professor at Elizabethtown College in Pennsylvania, who studies the Amish and other Anabaptist groups.
  • But that’s just what you’d expect from a conspiracy, right? Of course no one would be able to find evidence of the conspiracy’s existence. However, in one scene, the main character—”Lebanon” Levi, the godfather of this organization—collects “protection” money from a store in Lancaster. The store is not named, but is identifiable. According to the store’s owners, the idea that the Amish would collect protection money is chuckle-worthy. Discovery Channel did film there, but got permission by telling the owners that they were shooting a documentary about the Amish.
  • It may certainly be true that the cast members used to be Amish. Or maybe they never were. According to Weaver-Zercher, a person is “Amish” only if he or she is baptized into the church, which is to say that there’s no such thing as being “ethnically” Amish. The cast members of Amish Mafia don’t appear to have been so baptized. In any case, the cast seems to be recruited from around town. Lebanon Levi is Levi Stoltzfus, who may be a member of the Neptune Fire Co., the fire department in Richland, Pennsylvania.

Of course, if Discovery Channel is foisting a ruse on the viewers of Amish Mafia, who gets hurt? Even if the show is a ridiculous, over-the-top, and unbelievable ruse, as when Lebanon Levi decides that a “barn fight”—a transparent appeal to fans of mixed martial arts, who may share demographic characteristics with fans of this show—would be a great way to raise cash. Michael Shank, who criticized Amish Mafia in November, says it’s the actual Amish who get hurt because they’re being misrepresented. And because the Amish don’t deal with outsiders, they really have no way to defend themselves. And even worse than that, there are real problems within the Amish community that could be the focus of greater scrutiny, but are overlooked in favor of hyperbolic, fictional problems.

What could be worse than that? Maybe name-dropping some horrible real-life stuff in order to build up a character. A character identified as “Merlin Miller” from Holmes County, Ohio comes into Pennsylvania with the intention of taking over Levi’s operation. Merlin claims to run the Amish mafia in Ohio, and the scriptwriters have him referring to the real-life case of Samuel Mullet, an Amish religious fanatic who was convicted last year of hate-motivated crimes against other Amish. He also sexually assaulted the members of his little group. Amish Mafia uses the Mullet story as a grotesque jumping-off point for the Merlin character to claim that he is even worse than Mullet, so look out!

Putting aside the offensiveness of Amish Mafia, we’ve really come full circle with reality television, haven’t we? Amish Mafia is a fully scripted television drama that tries to pass itself off as a “reality” show. Why not cut out the conceit and just call it a fully scripted television drama about a made-up thing called the Amish mafia? Of course, that wouldn’t engender as much interest, but the preposterousness of the whole idea makes one wonder how many people out there really do tune in because they’re entranced by this apocryphal cabal that no one is willing to talk about. Then again, there are still people out there who think that “professional” wrestling is real.

I had hoped that once we got through our fascination with reality TV, we’d go back to scripted TV. Turns out the next iteration of reality TV is just badly scripted reality TV presenting itself as unscripted reality TV. I guess the soap opera hasn’t died out, after all.

NYC’s Stop and Frisk Policy Unconstitutional. Obvee.

NYT: “Stop-and-Frisk Practice Violated Rights, Judge Rules.” New York City’s stop and frisk policy was racist and unconstitutional. Judge Scheindlin did the right thing. I like this zinger:

Blacks and Hispanics were stopped about 88 percent of the time, a disparity that the Police Department has sought to explain by saying that it mirrored the disproportionate percentage of crimes committed by young minority men. In severe language, Judge Scheindlin dismissed the Police Department’s rationale.

“This might be a valid comparison if the people stopped were criminals,” Judge Scheindlin wrote, explaining that there was significant evidence that the people being stopped were not criminals. “To the contrary, nearly 90 percent of the people stopped are released without the officer finding any basis for a summons or arrest.”

The purpose of the Terry stop is to confirm or deny an officer’s reasonable suspicion that a person is about to be, or has recently been, involved in criminality. The purpose of the Terry frisk is for officer safety only when the officer has reason to believe the person he’s stopping for brief questioning is armed and dangerous. But if you give a mouse a cookie, then he’s going to want some milk … and pretty soon, a Terry stop becomes carte blanche for dragnet investigations.

From The Atlantic: Friday’s Speech ‘A Low Point in Barack Obama’s Presidency’

This article in The Atlantic by Conor Friedersdorf fisks President Obama’s Friday speech, concluding that “President Obama spoke to us about surveillance as though we were precocious children. He proceeded as if widespread objections to his policies can be dispatched like a parent answers an eight-year-old who has formally protested her bedtime.”

Friedersdorf also provides a thorough debunking of President Obama’s chuckle-inducing claim that he hasn’t changed his stance on government surveillance (even though Senator Obama supported rollbacks of the USA PATRIOT Act and greater oversight on surveillance).

In fact, parts of Friday’s speech reminded me of the good old days in which President George W. Bush said things like, “We do not torture,” even as the U.S. government engaged in, at best, questionable interrogation practices and, at worst, kidnapped and shipped terrorism suspects off to countries like Egypt where the U.S. government knew, expected, and ordered that they would be tortured.

And as I pointed out on Friday, the fact that we’re having a discussion about the scope of government surveillance is a result of Edward Snowden not playing by the rules.

When Whistleblowing Is ‘Orderly and Lawful,’ There Is No Whistleblowing

President Obama loves transparency. He just doesn’t love it when it’s irresponsible, as in the case of Edward Snowden’s leaks. It’s got to be “orderly and lawful.”

Of course, the reason that electronic surveillance is even a topic at a press conference, and President Obama has to be defensive about surveillance, and even acknowledge that some degree of surveillance is happening and reforms are required, is because of Edward Snowden’s leaks.

The problem is that whenever we use an “orderly and lawful” method of challenging electronic surveillance, the result is that there is no challenge because the government stops it.

It does so in court by alleging that, because providing proof of the plaintiff’s surveillance would endanger national security, the government can’t allow discovery of surveillance, and because of that, the plaintiff can’t prove that he was surveilled, and because of that, there’s no way the plaintiff can show an injury, and because of that, the suit should be dismissed. And these suits are routinely dismissed due to “national security,” which is not in itself an illegitimate reason, but its consistent use to dismiss cases where American citizens are monitored by their government while engaged in lawful speech activities raises the question of whether the “national security” justification is being abused.

It does so in Congress by explicitly preventing lawsuits regarding surveillance against named defendants; i.e., telecommunications companies that knowingly and willingly (and sometimes eagerly) gave private information to the government and in some cases actively helped them, as in the case of AT&T by building a special surveillance room just for the NSA in one of its San Francisco switching centers.

President Obama’s post-speech Q&A confirms that his definition of “orderly and lawful” consists of “just trust me on this.” There’s no other way it could be: citizens are locked out of determining what their government is doing to them in all three branches of government, and oversight is reserved for the Executive Branch alone; even members of Congress whose job it is to oversee these classified programs are not given the whole story.

Again, it’s worth pointing out: if Edward Snowden had pursued an “orderly and lawful” dissemination of information, there would have been no dissemination of information at all and this story would have died, as it has many times before throughout the Bush administration and in President Obama’s first term. The government would have denied that it monitored Americans’ communication (just as NSA Director General Keith Alexander did, under oath, in March) while in fact it was monitoring Americans’ communication. There would be no way to substantiate crazy conspiracy-theory claims and the government wouldn’t be forced to justify monitoring huge swaths of private communication. That President Obama must now go on record and justify his actions to his constituents is the result of whistleblowing that didn’t follow the rules.