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  • 12 Aug 2016 3:35 PM | Anonymous member (Administrator)

    I Spent My Summer Tracking Down Government Records About the Red Cross by Clifford Michel, ProPublica,  Aug. 11, 2016

    (As a grant recipient of the Knight-CUNYJ Summer Internship Program, Clifford Michel had the opportunity to spend the summer working at ProPublica while attending seminars at the CUNY Graduate School of Journalism. The goal of the program, which was created last year, is to help "build a stronger pipeline of academically excellent, digitally trained minority journalists" into American newsrooms. Below is Michel's account of his contributions to the launch of ProPublica's Red Cross Reporting Network. The information he provided regarding his search for records may also be insightful to investigative professionals who are members of ISPLA)


    As the son of Haitian immigrants and a student at the College of Staten Island, I have been a close reader of ProPublica's dogged reporting on the Red Cross and its inadequate response to the earthquake in Haiti and to Hurricane Sandy. So when I found out that I would be spending my summer at ProPublica, helping to coordinate freedom of information requests concerning the charity, I was ecstatic. The task seemed daunting at first. My editor explained she was relying on me to file public records requests in more than a dozen states where major disasters occurred last year. Now that my internship is over, I am happy to say that I've come away with a deep understanding of FOI laws, sympathy for underfunded government agencies, and a few thousand pages of emails "regarding any reference to the Red Cross."

    Here are the most important things I learned:

    Always Insist That You Need All of It.

    Early on in my hunt for documents, I would almost feel guilty for asking the director of a local emergency management agency to mine their own email accounts for Red Cross-related emails. "Most of our communication is over the phone," one EMA director in Washington State told me. "Do you really need all of it?" He explained that it was the first time anyone had made a request to his office asking for emails. He was so confused that he even offered to do an interview with me in lieu of fulfilling the records request. By the time I got off the phone, I was convinced that I was burdening this county-level director for no good reason. My hunch seemed to be all but confirmed when I got a trove of seemingly useless emails from him a week later. But then, as I reviewed the documents, I noticed that an official from Washington's state-run emergency management agency was CC'ed frequently. I used that name to amend another records request I had submitted at the state level and didn't think much of it until I received a CD from the state two weeks later. It turned out that that very official coordinated directly with the Red Cross and other nonprofits. And those other nonprofits weren't thrilled about the Red Cross' efforts.

    Here are some highlights:

    "I have just contacted, via voice mail, the Department of Commerce and asked them to take Red Cross off the donation recommendation list until we can get some accountability and action."

    "With all of the funding being received by an organization that claims to be responsive, it appears that our community is at the bottom of the list for assistance."

    "Just one example is the Omak Shelter set up by Red Cross and an elderly man there for 3 days was unable to get a voucher for clean underwear."

    Real America Cares About Your Records Request

    Every reporter in the newsroom seemed to have a diary full of FOI nightmares to share whenever I told them what I was working on. But, despite a handful of tough cases, I found a tremendous amount of success. It was often the smaller counties, many without a designated records officer, that would get documents back to me the quickest. In a world where major government agencies can outright thwart a FOI request, it was refreshing to have so many local counties cooperate with my requests within a few short weeks.

    Real America May Not Know That You Have the Right to Make a Records Request

    While local counties processed my FOI requests fairly quickly, finding an individual who actually knew what I was trying to request was a challenge in and of itself. I followed a similar routine with almost every county. I'd call the county commissioner's office, who'd transfer to me the county clerk, who'd in turn transfer me to their emergency management agency. Then I'd have the pleasure of trying to explain to the agency's director why they'd have to get I.T. to dig through their work emails. One county clerk wrote, "Can you please give me the statute you are referencing for this request?" I responded with a brief explanation of her state's Open Records Act, to which she replied "Thank you!" Almost as if I had passed a test.

    When in Doubt, Find the Attorney

    A records officer in Missouri stopped replying to me after I pointed out that it seemed strange that their search for records came up completely empty. Especially since a virtually identical records request in another county showed the director, whose emails I was seeking, copied several times in emails clearly stating "regards the Red Cross." With radio silence from the records officer, I took my request to the county's attorney. One email outlining the state's statute and my request was enough to get the process moving along. A few days later, I finally heard back from the records officer. There was a misunderstanding and another search would be conducted, she told me. From that point on, county attorneys have been my go-to source for obtaining records in locales where I used to spend two days being transferred from office to office. It's awfully surprising how excited you can get from someone acknowledging that a "sunshine law," in fact, does exist. And it's even more exciting when that same person offers to explain it to the EMA director who had stopped returning your calls and emails.

    There's Value in Taking the Time

    Before ProPublica, I interned at Politico New York, a news outlet with as much fight as any New York City tabloid. If it moved and had anything to do with the nexus of New York politics, media and business, it was news. It was there that I learned how to turn an uninformative press conference into a story by asking just the right question. And that it's possible to do a write-up in the Bronx and Manhattan in the same day and still make it on time for your evening class in Staten Island. In almost every way, my experience at ProPublica has probably been the exact opposite, but it's been just as fun. I'd start off each day calling states and counties that had neglected to respond to me in the time specified by their public records laws, starting from the East Coast and shifting to the West Coast around noon.

    When the first files and packages began to come in, it was like piecing together a puzzle. I'd often have to expand the time frame I originally submitted, sharpen the language, or add additional officials 2014 all to the annoyance of some very testy records officers. Sometimes, it felt fruitless. I'd get back a request that had a Red Cross officer copied in one email and the rest would be an unnecessarily long PowerPoint presentation. But other requests peeled back layers that have yet to be explored. Look no further than the email I quoted earlier. The potential of other nonprofits feeling squeezed out due to the Red Cross's fundraising efforts and, at the same time, being overburdened by tasks they were never expecting to fill is absolutely newsworthy. I hope that ProPublica will find a home for those documents via our Red Cross Reporting Network, and I hope that many more journalists will sign up and report on the Red Cross's work in their own communities.

    Sometimes all you need to do is ask.

    ISPLA thanks ProPublica for permitting publication of this article.

    ProPublica is a Pulitzer Prize-winning investigative newsroom.  Sign up for their <a href="">newsletter</a></em>.</p><link rel="canonical" href=""><meta name="syndication-source" content=""><script type="text/javascript" src="" async></script>

  • 08 Jan 2016 4:48 PM | Anonymous member (Administrator)

     ISPLA was recently provided a copy of a December 18, 2015 EducationAlert by the employment and labor law firm Fox Rothschild LLP entitled How To Unravel background Checks and What Steps To Take Next by attorneys Bonnie A. Young and Jeffrey T. Sultanik. Although the report concerns employee background investigations at Pennsylvania public schools, investigative and security professionals engaged in conducting similar background checks should review this report and make certain that they are familiar not only with the federal Fair Credit Reporting Act regarding background investigations but state and municipal laws and regulations that may exist in the locales where they conduct such inquiries.

    In Pennsylvania the following background checks are required under the School Code: PA State Police Criminal History, Department of Human Resources Child Abuse History; and Federal Criminal History (FBI) Report.

    By December 31, 2015, employees of Pennsylvania public school entities were required to have had updated background clearances. There are likely to be criminal history reports that raise questions about the ability of some employees to continue working in a public school setting. School officials need to know what steps to take once they have such information in hand.

    Here are some of the questions that are likely to arise:

    1.   Whether an employee can continue to work if they fail(ed) to submit mandatory clearances by the December 31, 2015, deadline?

    2.   What options does a public school entity have where an employee fails to submit clearances by the deadline, such as placing the employee on a paid or unpaid leave of absence, allowing the employee to utilize accrued but unused leave, suspending the employee (with or without pay) or possible termination?

    3.   Whether an employee’s criminal history impacts their eligibility for continuing employment with a public school entity?

    4.   What options does a public school entity have where an employee submits a criminal history report containing information that may impact their eligibility for continuing employment?

    5.   Whether an employee can be disciplined or terminated for failing to report criminal history information identified on the 2012 “Arrest/Conviction Report and Certification Form” (PDE 6004) where the information is no longer an automatic bar to continued employment under the School Code?

    6.   If a public school entity decides to terminate an employee based on the employee’s criminal history, what steps are required to ensure due process, compliance with the School Code and employee rights arising from any applicable collective bargaining agreement?

    7.   Whether a public school entity can provisionally continue an employee’s direct contact with students if all mandatory background clearances are not received by the December 31, 2015, deadline?

    8.   Whether a public school entity is required to report the arrest or conviction of an educator to the Professional Standards and Practices Commission?

    9.   Whether an employee can be disciplined or terminated for failing to disclose criminal history information on an employment application where the information is not an automatic bar to continued employment under the School Code?

    10.   How will disputes be resolved involving employees who fail to file timely background clearances or who are involved in the situations set forth in the previous questions in this document?

    Q. Can an employee continue to work if they fail to submit mandatory clearances by the December 31, 2015, deadline?

    A. The law is very specific that updated clearances must be on file with the public school entity before January 1, 2016. If an employee fails to provide any of the mandatory clearances, the employee may not have direct contact with students. As a result, public school entities are required to take immediate action with respect to this group of employees. This applies across the board to all employees who have direct contact with students.

    Q. What options does a public school entity have where an employee fails to submit clearances by the deadline, such as placing the employee on a paid or unpaid leave of absence, allowing the employee to utilize accrued but unused leave, suspending the employee (with or without pay) or possible termination?

    A. In all likelihood, each situation is going to present a unique set of facts and circumstances surrounding why an employee failed to submit clearances by the deadline. Some examples include: waiting until the last minute to apply for the necessary clearances, being out on a medical or sabbatical leave of absence, encountering problems with submitting fingerprints through COGENT or simply not understanding the requirements. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee’s situation. You may wish to consider the logistics of scheduling these hearings in advance and discuss the procedure with your legal counsel and union leadership.

    Following the Loudermill, the public school entity should work with legal counsel to determine whether to: 1) place the employee on a paid or unpaid leave of absence while clearances are pending; 2) allow the employee to utilize accrued but unused leave that is permitted under the applicable contract, employment policy or handbook provision; 3) suspend the employee (with or without pay) while clearances are pending; or 4) take steps to terminate the employee if the employee ultimately refuses to submit clearances.

    (Note: Additional information about Loudermill hearings will be discussed below. Importantly, a public school entity may not suspend an employee without pay or unilaterally place an employee on an unpaid leave without conducting some form of Loudermill proceeding. If an employee is being evasive about scheduling the Loudermill, please contact legal counsel to discuss your options. Finally, an employee may voluntarily consent to being placed on an unpaid leave of absence.)

    Q. How do I determine whether an employee’s criminal history impacts their eligibility for continuing employment with a public school entity?

    A. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee’s situation. An employee may be placed on a paid leave, suspended with pay or permitted to use accrued but unused leave that is permitted under the applicable contract, employment policy or handbook provision while you review the situation and hold the Loudermill.

    The public school entity should review the specific charges involved and the grading of the offenses to determine the impact the arrest and/or conviction has on the employee under Section 111 of the School Code. We recommend reviewing the charges with your legal counsel because the nature of the offense and whether it is graded as a summary offense, misdemeanor or felony will have a significant impact on whether the employee remains eligible for continuing employment with a public school entity.

    Other important information to gather at the Loudermill hearing may include: 1) when and where the arrest and/or conviction took place; 2) the employee’s understanding of how the offense was disposed of, e.g., were the charges dismissed? Did the employee participate in ARD? Did the employee plead guilty? 3) What is the employee’s explanation for the arrest and/or conviction? and 4) Assuming an obligation to report, what is the employee’s explanation for failing to report the arrest or conviction to the public school entity?

    Following the Loudermill, the public school entity should work with legal counsel to determine whether the employee was obligated to report the arrest or conviction pursuant to Section 111 of the School Code and, if the employee was convicted of the charges, whether the conviction bars the employee from working for a public school entity.

    Q. What options does a public school entity have where an employee submits a criminal history report containing information which may impact their eligibility for continuing employment?

    A. Following the investigation described above, the public school entity may: 1) determine that the criminal history does not impact the employee’s eligibility for continued employment and find that no employment action is required; 2) determine that the employee willfully failed to report an arrest or conviction that does not bar continued employment and issue progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to report the offense; or 3) determine that the employee willfully failed to report an offense which bars employment with a public school entity and initiate steps to terminate.

    The public school entity should review this determination with legal counsel in order to adequately analyze the constitutional impact of barring an individual from current or prospective employment based on the employment restrictions contained in Section 111 of the School Code. PDE has published guidance to assist school administrators in applying the employment bans to current and prospective employees. Importantly, PDE directs public school entities to perform this analysis on a case-by-case basis with the advice of legal counsel.

    In deciding whether it would be unconstitutional to bar an individual from current or prospective employment, school administrators should consider multiple factors including: 1) the nature of the offense as it relates to student safety; 2) the relationship of the offense to the employee’s fitness to perform the job; 3) how much time has passed since the offense occurred; 4) the employee’s current position and job performance; 5) whether the offense was an isolated incident; 6) presence or absence of subsequent criminal history; 7) whether the offense occurred on school property; and 8) any evidence of rehabilitation provided by the employee since the conviction.

    PDE also directs school administrators to document the process used, along with their findings and analysis of whether it is constitutional to apply the employment ban to the current or prospective employee. If a public school entity determines that it would be unconstitutional to ban a particular individual from employment, the decision must be supported by a written opinion from legal counsel.

    (Note: PDE has issued detailed guidance on the considerations involved in applying Section 111 in a question and answer format entitled “PDE Guidance on Recent Commonwealth Court Rulings Concerning Act 24 of 2011 (Section 111(e) of the School Code)” that can be found on the PDE website.)

    Q. Can an employee be disciplined or terminated for failing to report criminal history information identified on the 2012 “Arrest/Conviction Report and Certification Form” (PDE 6004) where the information is no longer an automatic bar to continued employment under the School Code?

    A. Yes. Section 111 of the School Code states that a public school employee can be disciplined up to and including termination for willfully failing to report criminal history. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee’s situation.

    The public school entity will need to review the specific charge involved and the grading of the offense to determine the impact (if any) the arrest and/or conviction has on the employee under Section 111 of the School Code.

    Following the Loudermill, the public school entity should work with legal counsel to determine whether the employee willfully failed to report the arrest or conviction to the public school entity on the PDE 6004 form and, where appropriate, issue progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to report the information on the PDE 6004.

    Q. If a public school entity decides to terminate an employee based on the employee’s criminal history, what steps are required to ensure due process, compliance with the School Code and employee rights arising from any applicable collective bargaining agreement?

    A. A public school entity must follow all mandatory requirements of due process established by Pennsylvania law when terminating school employees for information contained in a criminal history report, for failing to disclose criminal history information on the PDE 6004 form or for failing to disclose criminal history on an employment application.

    When terminating teachers and other certified employees, public school entities are required to follow the procedures for terminating professional employees found in Section 1122 of the School Code. All other school employees are covered by the termination procedures found in Section 514.

    The public school entity should work with legal counsel to determine the appropriate process for terminating the employee and to ensure compliance with the School Code and employee rights arising from any applicable collective bargaining agreement.

    (Note: Section 514 does not apply to Intermediate Units and Vocational-Technical Schools.)

    Q. Can a public school entity provisionally continue an employee’s direct contact with students if all mandatory background clearances are not received by the December 31, 2015, deadline?

    A. Under Section 111 of the School Code, provisional employment is only authorized for “applicants.” We believe the term “applicant” here will be interpreted by a court to mean only a prospective employee and not a current employee with lapsed background clearances. However, while strict construction of the statute does not really allow for the use of “provisional employment” under these circumstances, PDE has indicated (informally) that it will likely permit it on a case-by-case basis.

    With that said, the requirements for provisional employment for a single period, not to exceed 90 days, include: (1) all applications for clearances are submitted; (2) no knowledge by the administration of information that would disqualify the applicant from employment; (3) a sworn statement that the applicant is not disqualified from employment; and (4) the applicant is not permitted to work alone with students and a cleared person must be in the immediate vicinity.

    Please be advised that we view PDE’s guidance to be at odds with the statutory language in Section 111 and if a public school entity elects to follow PDE’s guidance, it will be subject to challenge in the courts. Further, it may be difficult to justify why a public school entity is permitting an employee without updated clearances on file to have direct contact with students.

    Q. In the context of reviewing an employee’s criminal history, when is the public school entity required to report the arrest or conviction of an educator to the Professional Standards and Practices Commission (PSPC)?

    A. Public school entities are required to report any certified employee who is arrested or convicted of any crime that is graded a misdemeanor or felony to the PSPC within 15 days of discovering the offense. Arrests must be reported regardless of disposition and reports must be made regardless of the date of the offense. The public school entity should work with legal counsel to review the specific charge involved and the grading of the offense to determine whether it is obligated to report the arrest or conviction to the PSPC.

    (Note: Basic Education Circular 24 P.S. § 2070.9a entitled “Educator Misconduct – School Entity Mandatory Report Procedures and Form” provides detailed guidance on the reporting procedures that should be used by the public school entity including the School Entity Mandatory Report Form.)

    Q. Can an employee be disciplined or terminated for failing to disclose criminal history information on an employment application where the information is not an automatic bar to continued employment under the School Code?

    A. Yes. We recommend conducting a Loudermill hearing (including field level union representation) to assess the individual employee’s situation.

    The public school entity should review the specific charge involved and the grading of the offense to determine the impact (if any) the arrest and/or conviction has on the employee under Section 111 of the School Code.

    Following the Loudermill, the public school entity should assess the situation with legal counsel and, if necessary, institute progressive discipline (such as a letter of reprimand, suspending the employee (with or without pay) or moving for termination) for failing to disclose the criminal history information on the employment application.

    (Note: The public school entity may also be required report the criminal history of a certified employee to the PSPC consistent with the information described above.)

    Q. How will disputes be resolved involving employees who fail to file timely background clearances or who are involved in the situations set forth in the previous questions in this document?

    A. In our view, PDE will not be the ultimate decision-maker for these matters. We have received good word that the Pennsylvania State Education Association intends to challenge all adverse employment actions that result from disciplinary actions taken against their bargaining unit members through the arbitration process. This means that labor arbitrators will ultimately decide the propriety of the public school entity’s action. Arbitrators almost universally apply progressive discipline and often invoke implied equitable principles when reviewing employer discipline. This is why we are recommending a fact-specific and case-by-case approach.

    For more information about this alert, please contact Bonnie A. Young at 215.299.2076 or, Jeffrey T. Sultanik at 610.397.6515 or or any member of the firm’s Education Practice

  • 19 Nov 2015 7:39 PM | Anonymous member (Administrator)

    Investigative & Security Professionals:

    During November 10-13 in New Orleans I had the pleasure as the sole elected board member representing the private investigative profession's interests to attend the annual meeting and conference "Regulation in the Eye of the Storm" of  the International Association of Security and Investigative Regulators.

    Additionally, I was a moderator and presenter addressing the subjects of Unmanned Aerial Systems or UAS (commonly called Drones) and the current legal/licensing status of Trustify, formerly known as FlimFlam, a company claiming to be nothing more than an App based electronic referral platform connecting consumers with vetted and licensed private investigators. More on Trustify in a subsequent piece. This article will concentrate on the commercial use of drones by investigative and security professionals. The issues surrounding the use of drones and the emergence of a "Uber PI" type business plans could be viewed as disrupters in our profession.

    IASIR is an association representing state and provincial regulators from the U.S., Canada and the United Arab Emirates having governmental jurisdiction over private investigators and security, alarm and armored car companies. ISPLA board members Jim Olsen and Nicole Bocra Gray were also speakers on "When Disaster Strikes: The Investigator's Role" and "Using Social Media."

    The Federal Aviation Administration has deemed commercial use of UAS or drones without first obtaining a special waiver under Section 333 of the FAA Modernization and Reform Act of 2012 (FAA Act) to be illegal and subject to a $10,000 fine per violation. However, for recreational use of drones, Section 336 of the FAA Act has established that as long as the drone is "operated in accordance with community based guidelines, weighs 55lbs or less, does not interfere with manned aircraft, and avoids flying within five miles of an airport unless certain notice is given, then such use is legal.

    Thus far, at least one licensed private investigator has been granted a waiver from the FAA to operate a drone for commercial purposes. However, most waivers have been granted to the motion picture and TV film industry, real estate businesses, aerial photographers, agriculture and forestry purposes and pipeline inspection firms. 

    Pilots have reported a thousand incidents of near-misses with drones. Drones have hindered firefighters and rescue operations; a drone operator was killed in a New York City park when his UAS landed on his head and the propellers removed the top of his skull; and a Moslem man in Connecticut pled guilty to an attempted act of terrorism in planning a drone attack with explosives against that state's capitol building in Hartford and undertaking a similar plan against Harvard University.  

    UAS sales, according to the Consumer Electronics Association are estimated to top 700,000 for recreational drones alone, a 63 percent increase over last year. On October 18, 2015, the FAA announced that it will require all drones, commercial and recreational, to be registered. Rulemaking  is presently in the works on this with recommendations scheduled to be completed by November 20, 2015. The FAA is also working to enact additional rules with regard to commercial drone use to be finalized in June 2016.

    One should keep in mind that there are also state laws relative to privacy issues and trespass on property. Intrusion upon secion and publication of private facts are tort causes of action with respect to protecting privacy. Thus far forty-five states have considered 165 bills regarding drones in 2015.

    On November 19, 2015  House Committee on Energy and Commerce  held a hearing entitled "The Disrupter Series: The Fast-Evolving Uses and Economic Impacts of Drones." In an opening statement one House member estimated that one million drones are expected to be sold in the Christmas season this year. Below are links to testimony taken at the hearing, if interested.

    Opening Statements: 

    Commerce, Manufacturing, and Trade Subcommittee Chairman Michael C. Burgess (M.D.)


    Joshua M. Walden

    • Senior Vice President
    • General Manager, New Technology Group
    • Intel Corporation
    • Witness Testimony (CV)

    John Villasenor

    Brian Wynne

    Margot Kaminski

    - See more at: The Disrupter Series: The Fast-Evolving Uses and Economic Impacts of Drones | Energy & Commerce Committee

    We will continue to keep our colleagues apprised of further developments on UAS regulations of the FAA and proposed federal and state legislation affecting such use by investigative and security professionals. Please consider donating to ISPLA to assist us in our continuing mission at:

    Thank you for supporting ISPLA.

    Bruce H. Hulme, CFE, BAI

    ISPLA Director of Government Affairs

    Resource to Investigative and Security Professionals  



  • 20 Oct 2015 2:40 PM | Anonymous member (Administrator)

    Madoff Trustee Requests Release of $1.5 Billion from Customer Fund

    Supreme Court Decision Permits Request for Court Approval of Sixth Interim Pro Rata Distribution to Bring Aggregate Customer Payout in Global Madoff Liquidation to Approximately $9.13 Billion

    Nearly 57 Percent of Losses Will Be Returned to Customers

    Oct 20, 2015 - NEW YORK & WASHINGTON--(Business Wire)--Press release from the offices of Irving H. Picard, SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS), and Stephen P. Harbeck, President and Chief Executive Officer of the Securities Investor Protection Corporation (SIPC)

    Irving H. Picard, Securities Investor Protection Act (SIPA) Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS), filed a supplemental motion today in the United States Bankruptcy Court for the Southern District of New York seeking approval for an allocation of recoveries to the BLMIS Customer Fund and an authorization for a sixth pro rata interim distribution from the Customer Fund to BLMIS customers with allowed claims. A hearing has been scheduled for Wednesday, November 18, 2015 at 10:00 a.m.

    Plans for a sixth interim pro rata distribution may now proceed after the Supreme Court’s decision on October 5, 2015 not to review lower court decisions regarding the applicability of so-called “time-based damages” in the ongoing liquidation of the Madoff firm. The Court’s action affirmed the SIPA Trustee’s position on this issue. In the motion, the SIPA Trustee seeks the release of funds that include reserves held under a September 2012 Bankruptcy Court order and more than $345 million in settlements and new recoveries that have been secured since the fifth distribution, which commenced in February 2015.

    If the motion is approved, the SIPA Trustee will allocate $1.5 billion, with $1.18 billion available for immediate distribution to customers with allowed claims and approximately $320 million held in reserve for claims that are deemed determined pending the resolution of litigation, as well as other issues. This will bring the amount distributed to eligible BLMIS customers to approximately $9.13 billion, which includes more than $827 million in advances committed by the Securities Investor Protection Corporation (SIPC).

    Stephen P. Harbeck, President and CEO of SIPC, said, “The courts have upheld the Trustee’s and SIPC’s application of SIPA. The Supreme Court’s decision not to review the Second Circuit’s decision allows Irving Picard to move forward with the distribution as soon as possible, while his global legal team continues to pursue additional, significant recoveries for BLMIS customers.

    “Recoveries for the BLMIS Customer Fund now total nearly $11 billion,” continued Mr. Harbeck. “That is much more than anyone could have expected at the start of the case in 2008. The legal strategy, and the execution of that strategy by the SIPA Trustee and his counsel, led by David J. Sheehan, will maximize the return to Madoff’s customers. The result here, fully funded by SIPC at no cost to customers, shows that the Securities Investor Protection Act functions as Congress intended. I congratulate the SIPA Trustee and his counsel as they continue to make distributions and increase the return to the victims of this enormous theft.”

    The sixth pro rata interim distribution will result in the return of 8.186 percent of the allowed claim amount for each individual account, unless the allowed claim has been fully satisfied. The average payment for an allowed claim issued in the sixth distribution is $1,110,423.34. The smallest payment totals $1,286.84 and the largest payment is $200,367,708.98.

    Currently, the SIPA Trustee has allowed 2,564 claims related to 2,227 BLMIS accounts. Of these accounts, 1,264 accounts with allowed claims totaling $1,161,193.87 or less – or more than 56 percent – will be fully satisfied following the sixth interim distribution. The sixth interim distribution, when combined with the prior interim distributions, will satisfy up to 56.988 percent of each customer’s allowed claim unless the account is fully satisfied. In addition, SIPC will be reimbursed for its advances to accounts that the sixth interim distribution fully satisfies.

    As of October 20, 2015, the SIPA Trustee has recovered or reached agreements to recover approximately $10.9 billion since his appointment in December 2008. These outcomes exceed similar efforts related to prior Ponzi scheme recoveries, in terms of dollars and percentage of stolen funds recovered.

    Ultimately, 100 percent of the SIPA Trustee’s recoveries will be allocated to the Customer Fund for distribution to BLMIS customers with allowed claims. Prior distributions as of October 20, 2015 are as follows:

    ·         The first pro rata interim distribution, which commenced on October 5, 2011, has distributed approximately $675.3 million, representing 4.602 percent of the allowed claim amount of each individual account, unless the claim is fully satisfied.

    ·         The second pro rata interim distribution, which commenced on September 19, 2012, has distributed approximately $4.906 billion, representing 33.556 percent of the allowed claim amount of each individual account, unless the claim is fully satisfied.

    ·         The third pro rata interim distribution, which commenced on March 29, 2013, has distributed approximately $686.1 million, representing 4.721 percent of the allowed claim amount of each individual account, unless the claim is fully satisfied.

    ·         The fourth pro rata interim distribution, which commenced on May 5, 2014, has distributed approximately $461.4 million, representing 3.180 percent of each individual account, unless the claim is fully satisfied.

    ·         The fifth pro rata interim distribution, which commenced on February 6, 2015, has distributed approximately $397.5 million, representing 2.743 percent of each individual account, unless the claim is fully satisfied.

    There are 109 deemed determined claims still subject to litigation. Once litigation is resolved or settlements reached, these claims may be allowed and would therefore become eligible for all pro rata distributions to date. For that potential scenario, as of October 20, 2015, the SIPA Trustee has reserved approximately $1.706 billion. The ultimate amount of additional allowed claims depends on the outcome of litigation or negotiation and could add billions of dollars to the total amount of allowed claims.

    All administrative costs of the SIPA liquidation of Bernard L. Madoff Investment Securities LLC and its global recovery efforts, which make the distributions possible, are funded by SIPC.

    Upon approval, record holders of allowed claims as of November 18, 2015 will be eligible to receive payments from the sixth interim distribution.

    The supplemental Sixth Customer Fund Allocation and Distribution Motion can be found on the United States Bankruptcy Court’s website at; Bankr. S.D.N.Y., No. 08-01789 (SMB). It can also be found on the SIPA Trustee’s website along with more information on the BLMIS liquidation at:

    Messrs. Harbeck, Picard and Sheehan would like to thank Seanna Brown and Heather Wlodek of BakerHostetler, who worked on the sixth pro rata interim distribution and its related filings, as well as the legal firms of BakerHostetler and Windels Marx, and all of the attorneys and professionals whose work has led to the distribution. They would also like to thank Vineet Sehgal and his colleagues at AlixPartners, as well as Josephine Wang, Kevin Bell and their colleagues at SIPC, for their ongoing work and participation in the Madoff Recovery Initiative distributions.

    Bruce H. Hulme, CFE, BAI - ISPLA Director of Government

  • 10 Sep 2015 11:54 AM | Anonymous member (Administrator)

    BMW to Pay $1.6 Million and Offer Jobs to Settle Federal Race Discrimination Lawsuit

    Company's Criminal Background Policy Disproportionately Affected African-American Logistics Workers, EEOC Charged

    The U.S. District Court for the District of South Carolina on September 8 entered a consent decree ordering BMW Manufacturing Co., LLC (BMW) to pay $1.6 million and provide job opportunities to alleged victims of race discrimination as part of the resolution of a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit, details about which have been previously reported by ISPLA, had been filed by the EEOC on June 11, 2013. The suit alleged that BMW excluded African-American logistics workers from employment at a disproportionate rate when the company's new logistics contractor applied BMW's criminal conviction records guidelines to incumbent logistics employees. 

    More specifically, the complaint alleged that when BMW switched contractors handling the company's logistics in 2008 at its production facility in Spartanburg, S.C., it required the new contractor to perform a criminal background screen on all existing logistics employees who re-applied to continue working in their positions at BMW. At that time, BMW's criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony. According to the complaint, after the criminal background checks were performed, BMW learned that approximately 100 incumbent logistics workers at the facility, including employees who had worked at there for several years, did not pass the screen. EEOC alleged that 80 percent of the incumbent workers disqualified from employment as a result of applying BMW's guidelines were black. 

    Following an investigation, EEOC filed suit alleging that blacks were disproportionately disqualified from employment as a result of the criminal conviction records guidelines. EEOC sought relief for 56 African-Americans who were discharged. BMW has since voluntarily changed its guidelines.  

    BMW will pay a total of $1.6 million to resolve the litigation and two pending charges related to the company's previous criminal conviction records guidelines that had been filed with EEOC. In addition to monetary relief, BMW will offer employment opportunities to the discharged workers in the suit and up to 90 African-American applicants who BMW's contractor refused to hire based on BMW's previous conviction records guidelines. BMW also will provide training on using criminal history screening in a manner consistent with Title VII.  Additionally, BMW will be subject to reporting and monitoring requirements for the term of the consent decree.

    According to the EEOC, after learning of convictions, BMW responded by denying access to its facilities by anyone who had been in trouble with the law in the past.  "Claimants were denied access to the BMW facility without any individualized assessment of the nature and gravity of their criminal offenses, the ages of the convictions, or the nature of their respective positions," the complaint said. "Moreover, they were denied plant access without any assessment or consideration of the fact that many had been workings at the BMW facility for several years without incident for UTi and prior logistics service providers."

    Of those denied access to the plant because they had a criminal record, 80 percent were black and 18 percent white.  The EEOC characterized those numbers as "statistically significant."

    "EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job related and consistent with a business necessity," said P. David Lopez, EEOC's General Counsel. 

    "We are pleased with BMW's agreement to resolve this disputed matter by providing both monetary relief and employment opportunities to the logistic workers who lost their jobs at the facility," said Lynette Barnes, regional attorney for the Charlotte District Office. "We commend BMW for re-evaluating its criminal conviction records guidelines that resulted in the discharge of these workers." 

    EEOC enforces federal laws against employment discrimination. The Commission issued its first written policy guidance regarding the use of arrest and conviction records in employment in the 1980s. The Commission has since considered this matter in 2008 and updated its guidance in 2012. This is one of the first cases involving the use of arrest and conviction records that EEOC has filed since the Commission issued the updated guidance.

    Bruce Hulme, ISPLA Director of Government Affairs

    Resource to Investigative and Security Professionals


  • 07 Feb 2015 4:49 PM | Anonymous member (Administrator)

    Five Important Questions about DEA's Vehicle Surveillance Program

    ISPLA is grateful to the Brennan Center for Justice in furnishing us with a recent article by Rachel Levinson-Waldman. Her informative article and the privacy questions which will affect this and other issues no doubt be addressed at some point during the 114th Congress. - Bruce Hulme, ISPLA Director of Government Affairs

    "Five Important Questions About DEA’s Vehicle Surveillance Program" by Rachel Levinson Waldman, originally published on on January 30, 2015.

    With each week, we seem to learn about a new government location tracking program. This time, it’s the expanded use of license plate readers. According to The Wall Street Journal, relying on interviews with officials and documents obtained by the ACLU through a FOIA request, the Drug Enforcement Administration has been collecting hundreds of millions of records about cars traveling on U.S. roads. The uses for the data sound compelling: combating drug and weapons trafficking and finding suspects in serious crimes. But as usual, the devil is in the details, and plenty of important questions remain about those details.

    First, who approved the program, and under what circumstances? We don’t know. The DEA is an arm of the Department of Justice, so presumably the Attorney General’s office has been involved, but details aren’t yet available. Also unknown is whether there has been any judicial oversight.

    Second, are there any limitations on how the data can be used? This is also unknown. The emails obtained by the ACLU indicate that the main purpose of the program was to assist in seizures of cars, money, and other assets, often from people not charged with any crime, a program that has come under withering criticism. But the history of data collection programs is that information collected for one purpose quickly becomes attractive for other purposes. And the more information available (even for proper purposes), the more is available for misuse as well. Indeed, license plate information has been abused in the past, with peaceful protestors’ data shared with the FBI.

    Third, how long can it be kept? The article reports that the DEA holds the data for three months, a significant drop from its previous two-year retention period. Much of this data is coming from readers set up by state and local law enforcement, though, and the retention periods for those jurisdictions are an inconsistent patchwork, with deletion times ranging from immediate (Ohio state patrol) to 90 days (Boston) to two years (Los Angeles County) to five years (New York City) to never (New York State Police). This is especially alarming given that a vanishingly small percentage of the millions of license plates scanned are actually connected to any crime or wrongdoing. At the same time, data collected by DEA reportedly goes back to state and local jurisdictions as well, setting up an endless loop of information with inadequate oversight. 

    Fourth, where else does the data go? Some of it is sent to fusion centers, which are state- or regional-based hubs that centralize information for sharing among the federal government, states, and private partners. Originally established in the wake of 9/11, fusion centers have largely abandoned their focus on terrorism for want of credible threats; they have instead transformed into an “all threats” model. In the process, they have been roundly criticized for wasting money, contributing little to counterterrorism efforts, and endangering both civil liberties and Privacy Act protections. Maryland and Vermont are known to feed their plate data to fusion centers, and the numbers are likely higher, given fusion centers’ voracity for data.

    Finally, which other federal agencies are using license plate readers? We know that the Department of Homeland Security is using them as part of their border enforcement. As of early 2009, nearly 100% of cars crossing the border were scanned with a license plate reader. And both DEA and DHS license plate readers can be coupled with cameras that provide pictures of the occupants of vehicles being scanned.

    Of course, the DEA database is only the latest in a string of disclosures that, taken together, reveal a web of powerful surveillance capabilities. Late last year, The Wall Street Journal revealed that the U.S. Marshals Service is using a secretive technology that sweeps up information about thousands of innocent Americans’ cell phones in the process of searching for suspects. As with the license plate reader scheme, little is known about the specifics of this program.

    And just last week, USA Today revealed that at least 50 law enforcement agencies, including the FBI and the U.S. Marshals Service, have obtained radar devices that allow them to detect any human movements inside a house, even motion as minimal as breathing, from more than 50 feet away. In at least one case, the device was used without a warrant to case a home for the presence of a suspected parolee.

    Senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.) have already expressed concern about this technology, and it’s hard to see how its use without a warrant passes constitutional muster. As the Tenth Circuit observed in a recently published case weighing the use of the radar technology, the Supreme Court has already disapproved of the use of a thermal imaging device to capture details of life within a home. Perhaps even more salient, the Court earlier established that tracking technology (known as a beeper) cannot be used without a warrant to confirm a person’s presence inside a private home, if obtaining that information would otherwise require entry into the home. It’s a little mystifying that using a high-powered radar for the same purpose would be kosher.

    Taken together, these stories suggest a zone of privacy that is narrowing so much as to be almost imperceptible. Separate from the question of how these technologies are actually being used, the breadth of surveillance capabilities they provide are staggering. You can be tracked on the streets; in your home; on your phone; and almost anywhere else. We seem to forever be caught in a kind of vicious cycle: it’s too early to criticize or critique technologies when they’ve just been introduced and there’s no record of misuse, but once they’ve been in place for even a year or two, they take on an air of inevitability. Indeed, the USA Today article calls the radar technology “hardly new” by virtue of the fact that the Marshals Service had started buying the devices in 2012 – but two plus years is nothing, especially when (as the story’s author notes) the federal government has played hide-the-ball with other surveillance technologies.

    There are many layers between us and a police state. But just as Bruce Schneier has written that it is “poor civic hygiene to install [online] technologies that could someday facilitate a police state,” so too is it poor civic hygiene to deploy a suite of physical surveillance technologies that could do the same.

  • 23 Jan 2015 5:49 PM | Anonymous member (Administrator)

    New York State Assembly Speaker Sheldon Silver Arrested On Corruption Charges

    Thursday, January 22, 2015

    Allegedly Used Official Position to Obtain $4 Million in Bribes and Kickbacks Concealed as Income From Outside Law Practice

    Preet Bharara, the United States Attorney for the Southern District of New York, and Richard Frankel, Special Agent-in-Charge of the Criminal Division of the New York Field Office of the Federal Bureau of Investigation (“FBI”), announced today that New York State Assembly Speaker SHELDON SILVER was arrested this morning on charges that he used his official position to receive nearly $4 million in bribes and kickbacks from people and businesses in exchange for his official acts, and that SILVER masked these payments from public view by disguising the payments as income from what he claimed was a law practice primarily focused on personal injury matters. SILVER was placed under arrest at the FBI in lower Manhattan, this morning, and is scheduled to appear before U.S. Magistrate Judge Frank Maas in Manhattan federal court later today. Judge Maas also issued seizure warrants to prevent SILVER from accessing approximately $3.8 million in proceeds alleged to be traceable to the charged corruption offenses until the case is resolved.

    U.S. Attorney Preet Bharara said: “Over his decades in office, Speaker Silver has amassed titanic political power. But, as alleged, during that same time, Silver also amassed a tremendous personal fortune – through the abuse of that political power. All told, we allege that Silver corruptly collected some $4 million in bribes and kickbacks disguised as ‘referral fees.’ Those disguised bribes and kickbacks account for approximately two-thirds of all of Silver’s outside income since 2002.

    “As today’s charges make clear, the show-me-the-money culture of Albany has been perpetuated and promoted at the very top of the political food chain. And as the charges also show, the greedy art of secret self-reward was practiced with particular cleverness and cynicism by the Speaker himself. Among other things, we allege that Sheldon Silver, Speaker of the New York State Assembly, was on retainer to a mammoth real estate developer at the very same time that the chamber he dominates was considering and passing legislation vitally affecting the bottom line of that developer; at the very same time that he was hearing out lobbyists paid by that developer and at the very same time that he was deliberately keeping secret from the public any information about this lucrative side-deal, in violation of the law.

    “Politicians are supposed to be on the people’s payroll, not on secret retainer to wealthy special interests they do favors for. These charges go to the very core of what ails Albany – a lack of transparency, lack of accountability, and lack of principle joined with an overabundance of greed, cronyism, and self-dealing.”

    FBI Special Agent-in-Charge Richard Frankel said: “As alleged, Silver took advantage of the political pulpit to benefit from unlawful profits. When all was said and done, he amassed nearly $4 million in illegitimate proceeds and arranged for approximately $500,000 in state funds to be used for projects that benefited his personal plans. We hold our elected representatives to the highest standards and expect them to act in the best interest of their constituents. In good faith, we trust they will do so while defending the fundamental tenets of the legal system. But as we are reminded today, those who make the laws don’t have the right to break the laws.”

    According to the allegations contained in the Complaint unsealed today in Manhattan federal court:

    For more than two decades, SHELDON SILVER has served as Speaker of the Assembly, a position that gives him significant power over the operation of New York State government. SILVER used this substantial power – including, in particular, his power over the real estate industry and his control over certain health care funding – to unlawfully enrich himself by soliciting and obtaining client referrals worth millions of dollars from people and entities in exchange for SILVER’s official acts, and attempting to disguise this money as legitimate outside income earned from his work as a private lawyer. In particular, SILVER claimed on financial disclosure forms required to be filed with New York State and in public statements that the millions of dollars he received in outside income while also serving as Speaker of the Assembly came from a Manhattan-based law firm, Weitz & Luxenberg P.C., where SILVER claimed to work “representing individual clients” in “personal injury actions.” These claims were materially false and misleading – and made to cover up unlawful payments SILVER received solely due to his power and influence as an elected legislator and the Speaker of the Assembly.

    The scheme provided SILVER with two different streams of unlawful income: (i) approximately $700,000 in kickbacks SILVER received by steering two real estate developers with business before the state legislature to a law firm run by a co-conspirator, and (ii) more than $3 million in asbestos client referral fees SILVER received by, among other official acts, awarding $500,000 in state grants to a university research center of a physician who referred patients made ill by asbestos to SILVER at Weitz & Luxenberg.

    Unlawful Income From the Real Estate Law Firm

    SILVER entered into a corrupt relationship with a co-conspirator (“CC-1”) who had been SILVER’s counsel in the Assembly and operated a real estate law firm (the “Real Estate Law Firm”) that specialized in making applications to the City of New York to reduce taxes assessed on properties.

    Beginning in at least 2000, SILVER approached two prominent developers of properties in Manhattan, one personally and one in part through a lobbyist, and asked the developers to hire the Real Estate Law Firm. The developers – both of whom lobbied SILVER on real estate issues because their profits depended significantly on state legislation favorable to their business– agreed to use the Real Estate Law Firm as SILVER had requested. Over the years, these developers paid millions of dollars in legal fees to the Real Estate Law Firm. SILVER received a cut from the legal fees amounting to nearly $700,000. SILVER had no public affiliation with the Real Estate Law Firm and performed no legal work at all to earn those fees, which were simply payments for SILVER having arranged the business through his official power and influence.

    While continuing to receive the fees and in furtherance of the scheme, SILVER took official action beneficial to the developers. For example, while SILVER was publicly associated with advocating for tenants, a proposal made by the one of the developers who sent work to the Real Estate Law Firm was in substantial part enacted in real estate legislation in 2011 with SILVER’s support.

    Unlawful Income From Asbestos Client Referrals

    SILVER also entered into a corrupt arrangement with a leading physician who specialized in the treatment of asbestos-related diseases (“Doctor-1”) through which SILVER issued state grants and otherwise used his official position to provide favors to Doctor-1 so that Doctor-1 would refer and continue to refer his patients to SILVER at Weitz & Luxenberg, a firm with which SILVER was affiliated as counsel. Specifically, SILVER arranged for the State of New York to fund two state grants – each for $250,000, and paid out of a secret and unitemized pool of funds controlled entirely by SILVER – for a research center Doctor-1 had established. SILVER used his official position to provide Doctor-1 with other benefits as well, including helping to direct $25,000 in state funds to a not-for-profit organization for which one of Doctor-1’s family members served on the board, and asking the CEO of a second not-for-profit to hire a second family member of Doctor-1.

    From 2002 to the present, SILVER received more than $3 million from legal fees Weitz & Luxenberg received from patients Doctor-1 had referred to SILVER at the firm while SILVER was taking official actions to benefit Doctor-1. SILVER did no legal work whatsoever on these asbestos cases, his sole role having been to use his official position and access to state funds to induce Doctor-1 to provide him with these lucrative referrals.

    Silver’s Efforts to Cover Up the Scheme

    SILVER took various efforts to disguise his unlawful outside income and prevent the detection of the scheme. SILVER listed on his official public disclosure forms that his outside income consisted of “limited practice of law in the principal subject area of personal injury claims on behalf of individual clients,” which was false and misleading. Beginning in 2010, SILVER’s disclosures changed to state that the source of his legal income was a “Law Practice” that “includ[ed]” being of counsel to Weitz & Luxenberg. SILVER never disclosed his relationship with the Real Estate Law Firm or any work beyond what he claimed was a “personal injury” practice.

    SILVER also repeatedly made false statements about his outside income in his public statements, including the following:

    • SILVER claimed he performed legal work consisting of spending several hours each week evaluating legal matters brought to him by potential clients and then referring cases that appeared to have merit to lawyers at Weitz & Luxenberg. In fact, SILVER did no such work on the asbestos cases and obtained those referrals to Weitz & Luxenberg based on his corrupt arrangement with Doctor-1.
    • SILVER claimed his law practice involved the representation of “plain, ordinary simple people.” In fact, SILVER represented some of the largest real estate developers in the State of New York, whose interests are in many ways dependent on state legislation.
    • SILVER claimed through his spokesperson that SILVER found clients by virtue of his having been a “lawyer for more than 40 years,” in a manner that was “not unlike any other attorney in this state, anywhere.” In fact, SILVER found his lucrative asbestos and real estate developer clients solely by virtue of his official position.
    • SILVER recently stated through his spokesperson that “[n]one of his clients have any business before the state.” In fact, SILVER’s outside income included millions of dollars of fees obtained through real estate developers with significant business before the state and a prominent physician to whose benefit SILVER provided state funding and other benefits related to SILVER’s official position.

    Finally, SILVER thwarted the Moreland Commission to Investigate Public Corruption so that it would not learn of his illegal outside income, first by filing legal motions on behalf of the Assembly and taking other action to block the Moreland Commission’s investigation into legislative outside income and then by negotiating with the Governor of New York to prematurely terminate the Moreland Commission.

    *                      *                      *

    SILVER, 70, of New York, New York, is charged with two counts of honest services fraud, one count of conspiracy to commit honest services fraud, one count of extortion under color of official right, and one count of conspiracy to commit extortion under color of official right. Each of these five counts carries a maximum penalty of 20 years in prison. The maximum potential sentences in this case are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant will be determined by a judge.

    U.S. Attorney Bharara praised the work of the Criminal Investigators of the United States Attorney’s Office and the FBI, who jointly conducted this investigation. Mr. Bharara also noted that the investigation is continuing.

    This case is being prosecuted by the Office’s Public Corruption Unit. Assistant U.S. Attorneys Howard S. Master, Carrie H. Cohen, Andrew D. Goldstein, and James McDonald are in charge of the prosecution.

    The charges contained in the Complaint are merely accusations, and the defendant is presumed innocent unless and until proven guilty.


    U.S. v. Sheldon Silver Complaint(PDF)

    U.S. v. Sheldon Silver Seizure Affidavit(PDF)


  • 15 Aug 2014 2:40 PM | Anonymous member (Administrator)

    NJ “Ban-the-Box Law” Update

    The Opportunity to Compete Act (“Act”), more often called the “Ban the Box” law will become effective March 1, 2015 in New Jersey. The Act will prohibit employers with 15 or more employees from having any questions inquiring about an applicant’s criminal convictions on job applications. Employers also may not ask applicants about criminal convictions until after the first interview is completed.

    The law defines an applicant as any person inquiring about employment or a job vacancy and includes a current employee. That means that if a current employee is seeking a promotion or posting for a vacant position, the employer cannot ask about criminal convictions until after a first interview for the position. If an applicant voluntarily discloses information about a criminal history prior to the completion of the first interview, the employer is permitted to ask for details about the applicant’s criminal history.

    Employers may still refuse to hire applicants who either refuse to consent to the criminal background check or who have certain criminal convictions. The law does not set forth specific time limits for how far back an employer can consider a conviction or which convictions may be considered, except that any records expunged or pardoned may never be considered by the employer. 

    This new law preempts the Newark Ban the Box Ordinance, which has much more onerous requirements for employers who use criminal convictions in deciding not to hire certain individuals. Newark employers will no longer have to provide applicants formal documentation of the consideration given to certain factors nor provide an appeal process. All employers should, however, continue to make sure that they are using the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance for the use of criminal background checks to determine if a conviction is job-disqualifying.

    The law explicitly states that there is no private cause of action, but enforcement is solely by the Division of Labor and Workforce Development. There are provisions for civil penalties of up to $10,000 per violation.

    ISPLA thanks Fox Rothschild for this important New Jersey labor and employment law update.

    Bruce Hulme, ISPLA Director of Government Affairs

    Your Proactive Voice from State Capitols to the Naion’s Capitol

  • 23 Jan 2014 8:56 PM | Anonymous member (Administrator)

    ISPLA is grateful to Stateline, a nonpartisan, nonprofit news service of Pew Charitable Trust that provides daily reporting and analysis in state policy, for allowing us to publish their article below by staff writer David C. Vock

    Nearly a decade after Congress passed the Real ID Act to thwart terrorists from getting driver’s licenses, the law will finally go into effect in April. But 13 states still are not ready.

    The U.S. Department of Homeland Security repeatedly put off enforcement of the law, as states complained about its costs and civil rights groups objected to it as an invasion of privacy. But in December, while DHS was temporarily headed by counterterrorism expert Rand Beers, the agency unveiled a gradual rollout for enforcing the law.

    Brian Zimmer, president of the Coalition for a Secure Driver’s License, which supports Real ID, praised the agency for its “deliberate approach.” The slow ramp-up will give the agency time to address practical problems and avoid technical or training snafus before the requirements affect the general public, he said.

    “Nobody has ever done this before… so enforcing this law is going to be a major challenge,” said Zimmer, who helped draft the law’s provisions on driver’s licenses as a congressional committee staffer.

    But Chris Calabrese, a lawyer for the American Civil Liberties Union, said the new timetable will do little to convince holdout states to comply with the law.

    “Nothing has changed,” he said. “It is impossible to imagine DHS keeping the citizens of any of those states off of airplanes…I don’t see that most of these states are going to have a whole lot more incentive than they have ever had to do this, which is to say, none.”

    Alaska, Arizona, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, Oklahoma and Washington state do not currently meet the law’s standards, according to DHS.

    Another 15 states do not yet meet the requirements but have asked the federal government for more time to do so. They all have extensions through October and can renew those extensions.

    Soon after Real ID became law, 17 states passed laws restricting or banning its implementation within their borders, according to the National Conference of State Legislatures. Liberals and conservatives alike recoiled at the law in its early years. They objected to the law's costs, federal pre-emption of state practices and the potential threat to personal privacy.

    But two of those statesundefinedGeorgia and Utahundefinednow issue Real ID-compliant licenses. Seven more are among those granted extensions to comply with the law.

    The controversy over Real ID faded in most state capitols as DHS repeatedly delayed enforcement. Technically, the law does not impose new rules on states. But by requiring Real ID-compliant licenses to board commercial aircraft, the law could put a lot of public pressure on states to issue licenses that meet its standards.

    Slow Rollout

    In the final report it issued in July 2004, the 9/11 Commission recommended that states improve driver’s license security, because four of the 19 hijackers in the terrorist attacks used state-issued driver's licenses to board the planes they later crashed.

    The Real ID Act, which President George W. Bush signed into law in May 2005, requires states to verify that an applicant is in the country legally, using federal databases and original documents such as birth certificates and Social Security cards. It also imposes security measures for workers who handle driver’s license information or who produce the physical documents.

    The federal government has delayed enforcement of Real ID four times since it was originally supposed to go into effect in May 2008.

    As those deadlines neared, the law’s proponents raised the specter of residents in noncompliant states not being able to board flights with their state-issued identification. New Mexico Gov. Susana Martinez, a Republican, often cited that as a reason to bar unauthorized immigrants from getting driver’s licenses there.

    The federal government’s new open-ended schedule would put off that type of widespread enforcement until the waning days of the Obama administrationundefinedat the earliest.

    The consequences for residents living in holdout states will be minimal, at least at first. They will have to present alternate forms of identification (such as a passport) to get into Washington, D.C. headquarters of DHS, nuclear power plants and restricted federal facilities.

    But sometime after 2016, they will no longer be able to board commercial aircraft with only their driver’s license.

    Gradual Compliance

    The federal government relies on information from states to determine whether they comply with 43 requirements under Real ID. In a statement, the agency said states’ progress so far shows that the law’s requirements are achievable.

    Vermont first started issuing Real ID-compliant licenses at the beginning of this year. Michael Charter from the Vermont Department of Motor Vehicles said his agency gradually put in place more and more security measures over the years to comply.

    “It’s been easier to accomplish than we initially thought it might be. There really hasn’t been tremendous backlash from the public up to this point,” he said.

    The state had to add facial-recognition technology to the computers that store photos from driver’s licenses. The software alerts workers if a new photo matches one that is already in the database for a different person. DMV employees follow up on the potential matches to determine whether there is any fraud.

    The state also had to change how it screens and trains workers who handle driver’s license data, Charter said. The agency lets police and prosecutors use the data, but only if they submit requests to the agency with documentation of ongoing investigations. DMV workers run the actual queries.

    The biggest change to the physical ID cards is for unauthorized immigrants. Vermont has always required driver’s license holders to show they are in the country legally, but the legislature decided last year to grant driving privileges to undocumented immigrants.

    So Vermont lawmakers decided to issue two forms of cards: the typical driver’s license and a separate driving privilege card for the immigrants. The second card states that the ID is not valid for federal identification or official purposes, so that the state would meet the requirements of Real ID.

    In fact, all nine states that passed laws allowing unauthorized immigrants to drive last year specified that cards for those immigrants must have marks to distinguish them from licenses for people in the country legally, according to the National Immigration Law Forum.

    Before last year, only three states allowed unauthorized immigrants to drive, and only one of themundefinedUtahundefinedincluded physical distinctions for the immigrants’ licenses. New Mexico and Washington still do not.

    Remaining Obstacles

    Many technical, legal and philosophical obstacles remain for states that have not complied with Real ID.

    For many, meeting the law’s requirement that states secure the locations where driver’s licenses are produced can be challenging. Many states, such as Tennessee, now issue licenses from a single, secure location. That means applicants get their licenses in the mail, rather than at a state office.

    The law’s many security provisions have prompted states such as California and Texas to consolidate facilities where residents can get driver’s licenses, said Zimmer, from the Coalition for a Secure Driver’s License.

    A legal challenge doomed New Jersey’s TRU-ID program in 2012. The ACLU sued to block the state’s rollout of Real ID-compliant licenses, because, the group said, the state did not follow state law for getting public feedback before putting its new license rules into effect. New Jersey officials said they would include the public if they try to roll out similar changes in the future.

    Ohio officials decided last year to stop work on Real ID compliance, because of privacy concerns. They were especially concerned about storing digital copies of sensitive documents and about the use of facial recognition technology, according to The Columbus Dispatch.

    The state’s facial recognition technology generated controversy last year, when it came to light that as many as 26,500 people could access the state’s database of driver’s license photos, far more than in other states. 



  • 20 Nov 2013 2:49 PM | Anonymous member (Administrator)

    ISPLA is grateful to Stateline, the Daily News Service of The Pew Charitable Trust and its staff writer Maggie Clark for this informative article below on license plate readers and emerging privacy issues....

    Police have used cameras that read the license plates on passing cars to locate missing people in California, murderers in Georgia and hit-and-run drivers in Missouri.

    The book-sized license plate readers (LPRs) are mounted on police cars, road signs or traffic lights. The images they capture are translated into computer-readable text and compiled into a list of plate numbers, which can run into the millions. Then police compare the numbers against the license plates of stolen cars, drivers wanted on bench warrants or people involved in missing person cases.

    Privacy advocates don’t object to police using LPRs to catch criminals. But they are concerned about how long police keep the numbers if the plates don’t register an initial hit. In many places there are no limits, so police departments keep the pictures with the date, time, and location of the car indefinitely.

    The backlash against LPRs began in earnest this year, as three more states limited law enforcement use of the systems and in some cases banned private companies from using the systems, for example, to track down cars for repossession. So far, five states limit how the cameras are used, and the American Civil Liberties Union anticipates that at least six other states will debate limits in the upcoming legislative session.

    In New Hampshire, police and private companies (with the exception of the tolling company EZ Pass) are forbidden from using license plate readers. Utah requires police to delete license plate data nine months after collection. In Vermont, the limit is 18 months and in Maine it is three weeks. Arkansas police have to throw out the plate numbers after 150 days and parking facilities are the only private companies allowed to use the technology. 

    “It’s been surprising to find out how license plate readers are being used and how long the data is being kept,” said Michigan state Rep. Sam Singh, a Democrat, who is sponsoring legislation to limit police in his state from keeping license plate numbers for longer than 48 hours. Police are using the cameras in a handful of Michigan cities, including Detroit and East Lansing.

    Singh’s legislation would also make the license plate data exempt from public records requests so that, for example, divorce attorneys couldn’t request license plate reader data to confirm where a spouse was at a particular time. The bill, which is still in committee, also would limit how private companies can use license plate readers to track down cars for repossession. 

    “We just fundamentally believe that Americans don’t need to be watched unless there’s probable cause of wrongdoing,” said Shelli Weisberg, legislative director for the Michigan ACLU, which supports Singh’s bill.   “We don’t need a ‘just in case’ database. That just turns democracy and our sense of due process on its head.”

    NSA Fallout

    The debate over license plate readers and other law-enforcement technologies is a local expression of a national wariness about government spying in the wake of revelations about the National Security Agency’s far-reaching data collection on ordinary citizens across the world.

    “People are saying, ‘I can’t control the NSA, but I can rein in what local law enforcement agencies are collecting,’” said Allie Bohm, an advocacy and policy strategist at the ACLU. Last July, the ACLU released a report warning about the lack of policies for license plate reader programs. The group also has promoted model legislation to limit how long police can keep license plate data.

    For proponents of the technology, the timing of the NSA leaks couldn’t have been worse. “I would hate to see that because of bad timing, a great technology is banned or didn’t rise to the level it could have,” said Todd Hodnett, the founder and chairman of Digital Recognition Network, a license plate reader manufacturer which sells the cameras to private companies, including towing firms, banks and insurance companies. An LPR system, which typically includes four cameras, costs between $15,000 and $18,000.

    Lumping license plate readers in with the NSA surveillance system creates a false equivalency, according to Hodnett. “The NSA revelations have created an environment that has people on edge, but it’s unfortunate and quite scary that someone could compare listening to a phone call to photographing a publicly visible license plate,” he said.

    Hodnett also argued the focus on data limits is misplaced, because matching a license plate to a person’s DMV records or driver’s license record is a two-step process governed by the Driver’s Privacy Protection Act passed by Congress in 1994. When law enforcement officers want to make a query of DMV records using a license plate number, they have to show a “permissible purpose,” which includes public safety, motor vehicle theft, court proceedings or notifying owners of towed or impounded vehicles.

    Until a license plate number is matched to DMV data, it’s as anonymous to officers as it is to a person standing on a street corner. That two-step process is what keeps the technology from infringing on privacy, said Robert Stevenson, the executive director of the Michigan Association of Chiefs of Police and the retired police chief of Livonia, Mich.

    “There’s an additional step that has to be taken to find out who the drivers are,” said Stevenson. “People’s pictures and names don’t just pop up when they drive past license plate readers.”

    The U.S. Supreme Court and multiple federal courts have affirmed there is no expectation of privacy for a publicly visible license plate. Hodnett is building a case to argue that prohibiting license plate readers from taking photographs of publicly visible license plates is a violation of the First Amendment.

    Tracking the Marathon Bombers

    In the hunt for the Boston Marathon bombers, police used license plate reader data to establish where the Tsarnaev brothers had traveled and where they might be headed, based on places they’d already been. Police used license plate readers to track Dzokhar Tsarnaev to Watertown, Mass., where police found him hiding in a boat in a resident’s backyard.

    Even though LPR data was used in that investigation, Watertown’s state representative is pursuing legislation to limit license plate readers. Under Democratic Rep. Jonathan Hecht’s legislation, police would be required to delete license plates collected after 48 hours, but they could hang on to data longer if it was specifically part of a criminal investigation, like the search for Tsarnaev.

    “Public safety is very important and we want to use new this technology for safety,” said Hecht. “But as has been true throughout our history, public safety has to be balanced against other important privacy values. In wake of the revelations about the NSA, people are concerned that we’re letting technology get away from us.”


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