Blog Jay Leiderman Law

The fugitive disentitlement doctrine is discussed in detain in the case of People v. Kang (2d Dist. 2003) Cal.App.4th 43, the court recognized, in achieving a different result that: “If it is essential to vindicate judicial authority, the prosecution may charge Kang with failure to appear pursuant to Penal Code section 1320.5, although the penalty for that crime pales in comparison with the sentence imposed by the trial court. Put in perspective, disentitlement is largely symbolic. Also, any consideration that dismissal discourages escape is speculative at best.” (107 Cal.App.4th at 51-52.)  Kang fled to Korea after a guilty verdict and had to be extradited back to the U.S.

In this case, the prejudice suffered to the appellate process was less than that suffered in Kang.  “The most critical consideration is whether the absence of the appellant undermined the appellate process. Kang’s fugitive status prevented the consolidation of his appeal with the appeal of his codefendants.”  (Id. At 52)

Likewise, the summation of Kang is apposite:  “We agree with Clark II’s [People v. Clark (1927) 201 Cal. 474, 478] admonition that if the court has the power to reinstate the appeal “it should only be exercised in those cases where it is plainly made to appear that a denial of its exercise would work a palpable injustice or wrong upon the appellant.” (citation omitted)”  (Id. At 52-53)

Not only does the petitioner fit within the “palpable injustice or wrong” category, in light of the fact that his flight was coerced, but the appeal should be reinstated because Petitioner alleges that he fits within the fundamental miscarriage of justice exception to the fugitive disentitlement doctrine. Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507[1] tells us that when issues of great concern to the criminal justice system are raised, they should be dealt with by the trial court notwithstanding the fugitive disentitlement doctrine.

when issues of great concern to the criminal justice system are raised, they should be dealt with by the trial court

Accordingly, twice, in both Kang and Polanski our circuit has decided that it is best that courts resolve these issues rather than disentitle the litigant.  Indeed, a reading of Kang and Polanski together operates to create the rule of law that once a person is back in custody the court cannot disentitle the litigant from, his appeal.  Likewise, this court must reconsider its earlier position and reinstate the appeal.

Fugitive disentitlement, however much it may advance legitimate policies (United States v. Veliotis (S.D.N.Y. 1984) 586 F.Supp. 1512, 1515 (Veliotis)), is not an automatic rule but a discretionary tool of the courts that may only be applied when the balance of all equitable concerns leads the court to conclude that it is a proper sanction for a party’s flight. (United States v. Van Cauwenberghe (9th Cir. 1991) 934 F.2d 1048, 1054 (Van Cauwenberghe) [“The disentitlement doctrine . . . is not one of jurisdictional dimensions, but rather one based on equitable considerations”].) The doctrine is a blunt weapon, not appropriate in every matter in which a party has fled criminal prosecution. (Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507, 531)

California courts, too, have declined to apply the disentitlement doctrine when the equities did not support it. In Kang, supra, 107 Cal.App.4th at page 48, the Court of Appeal addressed the question of whether a former fugitive whose initial appeal had been dismissed could pursue an appeal anew after his recapture. Considering the factors traditionally evaluated in the disentitlement analysis, the court concluded that it should decide Kang’s appeal on its merits. (Id. at p. 51.) Enforceability was no longer a problem, because Kang was back in custody. (Ibid.) Moreover, “[i]t may be true that Kang flouted the authority of the trial court when he failed to appear for sentencing and became a fugitive, but disentitlement of Kang to foreclose appellate review is not desirable. If it is essential to vindicate judicial authority, the prosecution may charge Kang with failure to appear pursuant to Penal Code section 1320.5, although the penalty for that crime pales in comparison with the sentence imposed by the trial court. Put in perspective, disentitlement is largely symbolic. Also, any consideration that dismissal discourages escape is speculative at best.” (Id. at pp. 51-52.) The court considered the most significant factor to be the impact that Kang’s fugitive status had on the appellate process: his appeal could have been combined with that of his codefendants had he been present. (Id. at p. 52.) The court questioned whether there would be prejudice to the government because “it would be impossible to convene a new trial due to the unavailability of witnesses and other evidence,” but found no evidence of prejudice. (Ibid.) The court concluded, “Even though Kang’s fugitive status precluded consolidation of his appeal with his codefendants‟ appeals, which resulted in the loss of an efficient disposition of these related appeals, that is an inadequate basis by itself to disallow appellate review.” (Ibid.) (180 Cal.App.4th at 536-37)

This court, in 2003, was prevented from balancing “all equitable concerns” (180 Cal.App.4th at 533)

[1]  Polanski dealt with a writ of mandate, not a petition for a writ of habeas corpus.  Even so, the overarching principle is one of justice, and that applies to any type of proceeding.

fugitive dismantlement doctrine

When a fugitive fails to appear for court proceedings, he or she loses their right to appeal

The case of In re Grunau, though it discusses a habeas  proceeding and not a direct appeal, has considerable application herein.  In the case of In re Grunau (2008) 169 Cal.App.4th 997 the court excused a 10 year delay in bringing a habeas petition seeking to reinstate an appeal and found good cause for the delay after it was established appellate counsel had mislead his client into believing the appeal had been filed.

The new Polanski Case also has practical application herein.  Though movie director Roman Polanski remains a fugitive who is currently fighting extradition from Switzerland, the appeals court has stated that his claims should nonetheless be heard because they raise serious issues.  Polanski v. Superior Court (People) (2009) 180 Cal.App.4th 507:

“Polanski’s resistance to extradition does not automatically “disentitle” us from considering his petition. (United States v. Gonzalez (9th Cir. 2002) 300 F.3d 1048, 1051 [because fugitive disentitlement “is an equitable doctrine, application is discretionary”].) Because of the very serious allegations of judicial and prosecutorial misconduct raised by Polanski in this matter and their implications for the integrity of the criminal justice system, we decline the People’s request to apply the disentitlement doctrine to Polanski’s petition for writ of mandate and instead consider it on its merits. (See Eisler v. United States (1949) 338 U.S. 189, 196 (Eisler) (dis. opn. of Jackson, J.) [“I do not think we can run away from the case just because Eisler has.”].)” (180 Cal.App.4th at 530)

“[T]he disentitlement doctrine does not bar relief when a matter presents systemic issues and interests of higher importance than the values that would be advanced by disentitling a litigant because of his or her flight.” (180 Cal.App.4th at 554)

The disentitlement doctrine does not bar relief when a matter presents systemic issues and interests of higher importance

“As the trial court may use its inherent power to fashion “a remedy for deprivation of a constitutional right to suit the needs of the case” ([People v.] Flores, [ ], 214 Cal.App.3d at p. 144), the court may consider any suitable options.”  (180 Cal.App.4th at 556)

Suitable options in this case involve putting petitioner back in the situation he was in prior to the harm he suffered at the hands of his attorneys, ordering a new trial, conducting a new sentencing hearing, hearing and considering all of petitioner’s claims that are ordinarily suited for appeal in this habeas proceeding, or all of the above.

Habeas can be a substitute for appeal in certain circumstances, as here, where petitioner was denied an appeal because of the fugitive disentitlement doctrine, a doctrine that should have not been applied in this case because of the unique facts that led to petitioner’s flight, and the issues raised on habeas that are ordinarily suited for appeal go to the constitutionality of petitioner’s conviction and incarceration.

While habeas may not “ordinarily” be a substitute for appeal (In re Harris (1993) 5 Cal.4th 824), from the start, this has been anything but an ordinary case. That is not why petitioner is entitled to extraordinary relief.  Here, petitioner is entitled to the extraordinary relief that he requests because petitioner was acting under duress at times and out of necessity at others.  The duress and necessity that prompted petitioner’s actions was never explained to the appellate court that applied the fugitive disentitlement doctrine to strip petitioner of his appeal rights.  Accordingly, this court should either reinstate his appeal or consider all of the issues that would ordinarily be suited for appeal in this habeas.   Petitioner sets forth some more factual argument and case law to buttress this conclusion.

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Washington Post

Can the government use the fugitive disentitlement doctrine to prevent residents of foreign countries from contesting the seizure of their property? (“In an important case currently before the US Court of Appeals for the Fourth Circuit, the federal government is claiming that they can use the ‘fugitive disentitlement’ doctrine to prevent criminal suspects living abroad from contesting the seizure of their property by asset forfeiture. They argue that this doctrine applies even if the suspects are not fugitives at all, but merely exercising their legal right to contest extradition to the United States….Cato, the Institute for Justice, and the National Association of Criminal Defense Lawyers have filed a joint amicus brief which explains why the government’s position is dangerous and unconstitutional.”)

fugitive dismantlement doctrine

When a fugitive fails to appear for court proceedings, he or she loses their right to appeal

“[A]n appellate court may employ dismissal as a sanction when a defendant’s flight operates as an affront to the dignity of the court’s proceedings.” ( Ortega-Rodriquez v. United States (1993) 507 U.S. 234, 246 [l22 L.Ed.2d 58l, 595].)  The United States Supreme Court is clear on the issue.  “It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” The explained rationale for this rule is that there could be no assurance that any judgment the appellate court issued would prove enforceable. [like the restraining order in this case has proven to be]  The court concluded that it is ” ‘clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render.’ ” Id. at 239-240.

the court, independent of statutory authority, has power to dismiss the appeal

“That the court, independent of statutory authority, has power to dismiss the appeal of an appellant who is a fugitive from justice has long been accepted as a proper exercise of the jurisdiction of the appellate courts of this state.” (People v. Clark (1927) 201 Cal. 474, 477 [259 P. 47].) The fugitive disentitlement doctrine dates back to 1880 in California with People v. Redinger (1880) 55 Cal. 290 [ ], in which the Supreme Court dismissed an escaped defendant’s appeal because “[i]t would be a farce to proceed in a criminal cause, unless the Court had control over the person charged, so that its judgment might be made effective.” (Id. at p. 298.)[1] The California disentitlement doctrine is frequently explained in these terms: “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277 [89 P.2d 382].)

[1]People v. Redinger (1880) 55 Cal. 290 is the seminal authority in California for the proposition that a convicted fugitive defendant has no right to appeal.”  People v. Kang (2003) 107 Cal.App.4th 43, 48.

 

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There are numerous TV series about computer hackers who have failed to draw a large audience, let alone portray computer hacking with any degree of authenticity. CSI: Cyber (2015 – 2016) used to hack the code gibberish and animations to explain. Scorpion (2014 -) had a notorious scene that included gratuitous action to make the hack seem more interesting to see. In contrast to these other shows, Mr. Robot (2015 – ) finally made hacking approachable for the average viewer while still remaining smart and realistic. This is because Mr. Robot uses actual hackers to review the authenticity of the actions taken to advance the hacks in the show.

Mr. Robot follows the hacker ethic or the common philosophy of hackers. Steven Levy first defined the hacker ethic in 1984, and that ethic is still widely followed today. In his book Hackers: Heroes of the Computer Revolution, Levy describes the philosophy through six key principles:

  • Access to computers and anything you something about the way the world works should be unlimited and might teach in total. Always yield to the Hands-On Imperative!
  • All information should be free.
  • Mistrust authority-promote decentralization.
  • Hackers should be judged by their hacking, not bogus criteria such as degrees, age, race or position.
  • You can create art and beauty on a computer.
  • Computers can change your life for the better.

While Mr. Robot expresses all of these principles to a certain extent, the showcases show some more than others. Perhaps the most obvious principle, the show highlights are “Mistrust authority-promote decentralization.” The show focuses on the hacker group fsociety led by the mysterious anarchist Mr. Robot (Christian Slater) whose purpose is to liberate the masses from their “corporate overlords” and remove all debt.

Hacks

Fsociety bears a great resemblance to Anonymous

“When Mr. Robot first premiered, 2600: The Hacker Quarterly editor and hacker Eric Corley gave a glowing review of the show and the portrayal of hackers. He praised protagonist of the show, Elliot (Rami Malek). In the fall 2015 edition of 2600, Corley (under the sobriquet Emmanuel Goldstein) wrote: “”Elliot is the type of person you would pass on the street and never think twice about, apart from maybe wondering if he might be some sort of garden variety lunatic. No, Elliot is far from such mainstream hacker characters as David Lightman, Lucas Wolenczak, or Wesley Crusher—about as far as you could imagine. And it’s about time.”

“Elliot is not the typical “computer nerd,” nor are his hacks overly flashy. The creators of Mr. Robot consult with several tech advisors and hackers to makes sure all the hacks are extremely detailed and accurate. This means all of the code seen on the computer screens is real. In a Reddit AMA, staff writer and tech consultant Kor Adana said, “We shoot all of our screens practically, so I create detailed breakdowns with video samples and screenshots of how the screen would actually look if the hack were taking place for real. Then, we have a flash animator (the amazing Adam Brustein) create an animation for the actors to interact with. After we go through some revisions, I work with the actors to practice running through the animation. For example, I’ll work with Rami to make sure he’s typing the right keys at the right time (i.e. an alt/tab when we see him change windows).”” (id.)

Most shows that have to do with technology lose their grip when they try to go deep or detailed. Viewers who manage to keep up with the high level computer intrusion field Aaffirm the authenticity of the code and procedure used to complete the hacks portrayed in Mr, Robot; those who do not still feel that something is likely genuine.

The creators of Mr. Robot-showrunner Sam Esmail and his crew of consultants-get these things, large and small, just about perfect. When typing the characters commands and codes on their laptops, what we see on their monitors is the real thing: no post-production green-screen nonsense here. At the beginning of season one, we join Elliot (or we realize that he leads his schizoid self) into a digital revolution, he interacts with his few friends, his boss, and his psychiatrist, as well as a few miscreants (a child pornographer, a drug dealer, and his psychiatrist philandering boyfriend) whom he blackmails or turns into the authorities. The techniques he uses to crack passwords or otherwise gain access to their files are real, and are derived from proven tools. It is so easy for Elliot (and for many hackers in real life) and so shocking to his victims when they realize how wide open they have left themselves.

The hacks are done by Elliot and fsociety frighteningly realistic fashion. In an interview with Fusion, NSA whistleblower Edward Snowden related that he was impressed by the technology in the show, which is “more accurate than what you usually see on TV.” It’s the little details that portrayal of hackers Mr. Robot to make it as authentic. Elliot and Tyrell use Linux operating systems. The hackers communicate via IRC (Internet Relay Chat). Elliot puts social engineering attacks using SET (social engineering toolkit).

In fact, Mr. Robot relies heavily on social engineering as a form of “human hacking.” Most media representations of hacking tend to neglect social engineering, but it is one of the simplest but most effective ways to hack. In an interview with Co.Create show creator Sam Esmail said: “Hacking requires a lot of social engineering It is not just about a boy on a keypad code or break into a system, it is a lot of figuring out human behavior and; try to find and take advantage of the susceptibility of human behavior system. For whatever reason, TV programs about hacking kind of always miss that large component, which is where the drama is. “Instead of relying on using the technology, characters such as Elliot and Tyrell use human interaction to trick people into giving personal information to crack passwords.

Mr. Robot relies heavily on social engineering as a form of “human hacking.”

However, not everything in the series is realistic. Hacking someone from prison in 24 hours is unbelievable (even Elliot said so). Prejudice webcams and attaching unauthorized USB drives systems do not make it seem as simple as the show. A nitpick tech consultant named Jeff Moss, aka Dark Tangent (the founder of DefCon), told us “the characters do not wear gloves, and everywhere leave their fingerprints. On USB sticks, RasPiis, etc.” However, this may be intentional fault since Season Two will focus on the FBI investigation into the 5/9 hack and trace the members of fsociety.

“Even with some of these inaccuracies, Mr. Robot maintains an authentic depiction of the hacking community, not only with its hacks but also with its hackers. Eric Corley of 2600 said, “For that, Mr. Robot succeeds in bringing forth the most truly human portrayal of a hacker I’ve seen outside of real life itself.” The show upholds the hacker ethic and the beliefs of the hacking community. Though Levy’s final principle of the hacker ethic is “Computers can change your life for the better,” we’ll see if this holds true for Elliot and the rest of fsociety in the coming season.” (Id.)

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Why Apple / iPhone were right not to cooperate with the FBI in the San Bernardino Terrorism case; viewed in Light of the NSA hack

A while back, Apple had been ordered by a US court to help the FBI access data – or, in other words, hack their own device – on an iPhone belonging to San Bernardino gunman Rizwan Syed Farook. Farook and his wife killed 14 people in the California city and were subsequently shot dead at the scene by the police. This occurred late last year.

The FBI said that the phone contained information crucial to the investigation into the terrorist incident and that they needed Apple’s help to unlock it. Apple devices are encrypted by default – and have been since September 2014 – and no one other than the owner of the device can gain access without the passcode. The encryption Apple uses is one of the top in the world and that is great news for anyone who appreciates their privacy, but not such good news for law enforcement agencies.

iphone

Once a device is locked, the only way to open it is by entering a password or by using the biometric finger scan.  If the erase setting is on, the data will be deleted once ten incorrect attempts have been made. The FBI wanted access to the contents of Farook’s iPhone and wanted Apple to do two things:

  • Make changes to the device Farook used, such it would be possible to make unlimited attempts at unlocking it.
  • Make it possible for the FBI to “brute force” attack the phone to speed up the time it takes to find the correct unlock code. Brute force (also known as brute force cracking) is a trial and error method used by application programs to decode encrypted data such as passwords or Data Encryption Standard (DES) keys, through exhaustive effort (using brute force) rather than employing intellectual strategies.Farook uses a four digit PIN code, which means there are 10,000 possible combinations.

Apple contested the court order, which was based upon a statute from the 1700’s and Tim Cook wrote an open letter to customers explaining the attitude of the company. The letter, in part, reads as follows:

The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.

This moment calls for public discussion, and we want our customers and people around the country to understand what is at stake.

The Need for Encryption

Smartphones, led by iPhone, have become an essential part of our lives. People use them to store an incredible amount of personal information, from our private conversations to our photos, our music, our notes, our calendars and contacts, our financial information and health data, even where we have been and where we are going.  [see Riley v. California, 573 U.S. ___ (2014), was a landmark United States Supreme Court case in which the Court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.]

All this information needs to be protected from hackers and criminals who want to access, steal, and use it without our knowledge or consent. Customers expect Apple and other technology companies to do everything in their power to protect their personal information, and at Apple, “we are deeply committed to the protection of their data.

Compromising the security of our personal information may ultimately put our personal safety. That is the reason why so important for all encryption has become for us.

“Compromising the security of our personal information may ultimately put our personal safety. That is the reason why so important for all encryption has become for us.

“For many years we have used encryption to protect the personal information of our customers because we believe it is the only way to keep their information secure. We even we found this information from our own range because we believe that the contents of your iPhone are none of our business.”

The Terrorism Case in San Bernardino

“We were shocked and outraged by the deadly act of terrorism in San Bernardino last December. We mourn the loss of life and want justice for all those whose lives were affected. The FBI asked us for help in the days after the attack, and we have worked hard to support the efforts of the government to solve this terrible crime. We have no sympathy for terrorists.” Said Apple.

“They went on: “When the FBI data requested in our possession, we have the information. Apple complies with valid subpoenas and search warrants, as we have in the case of San Bernardino. We also have Apple engineers to advise available to the FBI, and we have our best ideas on a number of investigative options offered at their disposal.

“We have great respect for the professionals of the FBI, and we believe that their intentions are good. Up to this point, we do everything within our power and done within the law to help them. But now the US government has asked us to something we simply cannot, and something we consider too dangerous to create. They have asked us to build a backdoor for the iPhone.

“In particular, the FBI wants us to make a new version of the iPhone operating system, bypassing some important security features, and install on an iPhone recovered during the investigation. In the wrong hands, this software – which does not exist today – would have the potential to unlock an iPhone in one’s physical possession.

“The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use is limited to this case, there is no way to guarantee such control.”

The Threat to Data Security

Some argue that the construction of a backdoor for just an iPhone is a simple, clean-cut solution. But it ignores both the basics of digital security and the sense of what the government requires in this case.

In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protection around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by someone with that knowledge.

Apple has the right to reject this judgment, because what it says is too valuable to lose the game. The government essentially asking Apple to eliminate a crucial feature of the iPhone security and create a key that can unlock any Apple device.

The government wants us to be confident that it will only use this power for good – to protect its citizens against the bad guys – but there is no way this backdoor will not be misused and abused.

While Apple has argued the government’s request could endanger consumer privacy at large, the U.S. has said that it’s asking the company for something quite narrow: tools to crack one iPhone. FBI director James Comey wrote earlier this week that the agency “doesn’t want to… set a master key loose on the land.”

In its new filing, Apple says the U.S. is making that claim even though “the government itself falls victim to hackers, cyber-criminals, and foreign agents on a regular basis.”

A Dangerous Precedent
“Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.

[28 U.S. Code § 1651 – The All Writs Act]

the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.]

“The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by “brute force,” trying thousands or millions of combinations with the speed of a modern computer.

“The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

The recent NSA disclosures of hacking tools

One Saturday in August came breaking news that a mysterious group of hackers calling themselves “The Shadow Brokers” claimed to have hacked an NSA-linked group and stole several NSA hacking tools with a promise to sell more private “cyber weapons” to the highest bidder. This mysterious online group claimed to have stolen US “cyber weapons” of a hacking team named Comparison Group. The claims have proven true.

The stolen hacking tools are used by the National Security Agency and the violation of its systems and tools led to a boast by the Shadow Brokers that it has access to a number of secret tools of the agency. In the latest twist, the group is now selling copies of these tools online.

Here are the things you need to know about the fallout

“We will give you some free Equation Group Files,” the Shadow Brokers proclaimed in messages online that offer downloads for the code of the pilfered files. These include malware and hacking tools that are terrifying out in the open for anyone to use. Gone are the days of security thanks to a lack of proper security by the NSA and it’s contractors. Again (read: Edward Snowden). The reason for this, the Shadow Brokers say, is to prove that the information was real and devastating before they sell out the rest of the NSA hacking instruments gathered in the hack. The Shadow Brokers also said the Equation Group “do not know what is lost” and would offer the group the hacking tools for a price, so it will not disclose the data.

“do not know what is lost” and would offer the group the hacking tools for a price, so it will not disclose the data

“The first file contains close to 300MBs firewall exploits, tools and scripts under cryptonyms as BANANAUSURPER, BLATSTING, and BUZZ DIRECTION,” Kaspersky said in a detailed blog post. However, that post made clear that Kapersky saw file logs dated as far back as October 2013.

It is not quite known exactly what the group has access to, but it has a number of images of the files (and their structures) posted on social media. These are believed to come from the comparison group and is claimed to be a small part of what the Brokers have opened. Although messages on Pastebin, Tumblr, and Github have been removed, that still exists by the group on Twitter and Imgur.

Another hacker has claimed to have more of hacking tools stolen from the NSA. According to another technical report published again by security firm Kaspersky Labs, the leaked sophisticated hacking tools include digital signatures that are identical to those in the hacking software and malware that have been previously used by the Equation Group.

“Although we have neither the identity or motivation of the attacker, nor where or how they came to be stolen treasure, we can say that a few hundred tools from the leak share a strong bond with our earlier findings from the Equation Group,” said Kaspersky researchers in a blog post. More than 300 computer files found in the online Shadow Brokers archive have a common implementation of RC5 and RC6 encryption algorithms – which are known to have been used extensively by the Equation Group.

So, it appears that the NSA is working on tools that would access everything in the world.  Apple was right to keep our data secure.  Privacy may be a quaint notion, but it is the last refuge from an ever-encroaching government. Apple doesn’t need to help the US Government violate the privacy of our cell phones.  They seem to have that well in hand all by themselves.

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Medical Marijuana Issues that Have Arisen in Ohio as a Result of their New Program

When Ohio Governor John Kasich last month effectively legalized medical marijuana in Ohio with his signature, the state became the 25th in the United States to legalize an extensive medical cannabis program, according to a count by the National Conference of State Legislatures. With D.C., that is more than half of the jurisdictions in the US that have legalized medical marijuana.

With the big move in Ohio, nearly 175 million Americans will have quick access to medical marijuana – put differently, that is more than half the population of the United States. Republican Gov. John Kasich signed a bill to legalize medical marijuana in Ohio, but patients should not expect to get it from dispensaries in Ohio anytime soon.

medical marijuana

Lawyer and author Jay Leiderman on medical marijuana law

The bill lays out a number of steps, for the first time in Ohio history, to guide the establishment of a medical marijuana program of the state. The medical marijuana program is expected to be fully operational in about two years. The law could allow patients to use marijuana in vapor form for certain chronic conditions, but bar them from smoking it in the classic “Pipe,” “joint” or “bong” manner, as well as barring patients from growing it at home.

When the law comes into force, which could move as quickly as 90 days for the beginning stages, cities and counties will be able to ban dispensaries or to limit the number of dispensaries in any one area. This has become a fairly common provision and is the law in many of the “medical” states.  Licensed growers, processors, dispensaries and testing laboratories could not be within 500 feet of schools, churches, public libraries, playgrounds, and parks. Employers can continue to drug testing to enforce and maintain drug-free workplaces, per federal law. Banks, whose services should be protected as they relate to marijuana-related entities, are immunized against criminal prosecution on the state level.  Of course, the Federal problem of banning FDIC insured banks from dealing with businesses that involve Schedule I controlled substances still overshadows and blocks any meaningful banking transactions.  Every year a bipartisan group of Senators pass a bill that would allow banks to be exempted from the aforementioned regulations in “medical” or even “legalized” states, and every year the Republican-controlled House refuses to vote on the bill.  And so we have it.  Washington.

The law could allow patients to use marijuana in vapor form for certain chronic conditions

Back to the Ohio program: A newly created Ohio Medical Marijuana Advisory Committee will assist in the development of regulations and recommendations. The governor and legislative leaders are to appoint people to the 14-member panel no later than 30 days after the bill date. The members; employers, labor, local police, health care providers, patients, agricultural workers, people in mental health treatment are to be involved in the process, along with people representing groups and workers involved in the treatment of alcohol and drug addiction. Others are a nurse, researcher, two practicing pharmacists and two practicing physicians. No more than six members can be of the same political party. The bill mandates the commission sunset after five years and 30 days. Reports should be submitted no more than one year after the effective date. Rules for the licensing of farmers must be promulgated a few months earlier than that. The legislation also stipulates that the medical marijuana program is to be fully operational within two years after the bill.

The Ohio Department of Commerce, State Medical Board and the Board of Pharmacy will all play a role. The Commerce Department will oversee the delivery of marijuana growers, processors and testing laboratories. The Pharmacy Board has licensed pharmacies involved and will register patients and their caregivers.  They will set up a hotline to take questions from patients and caregivers.  The Medical Board would issue licenses to physicians who recommend the treatment with medical marijuana.

medical marijuana

Jay Leiderman is a California State Bar Board of Legal Specialization Certified Criminal Law Specialist

Based upon the legislative passage of the medical marijuana program, the backers of a ballot initiative set to be voted on this November have withdrawn the measure.  At long last, progress has made its way to Ohio.  Let’s hope the program is successful and sick people get some of the valuable medicine they are so in need of.

The latest development

On 26 September 2016, the Ohio State MEdical Marijuana Board, described in detain above; dealt a blow to patients looking to begin accessing medication while the full regulations were being promulgated.  Now it looks like patients in need will have to wait until the Board is finished with all of their work before they may lawfully access their medicine.  This is yet another example of a State that isn’t familiar enough with what medical marijuana is, to the point where they will let people suffer while they get their act together.  See: Another Child Dies Waiting for Access to Medical Marijuana in New York.  Here is an excerpt from the Ohio article:

COLUMBUS — The State Medical Board of Ohio dealt a blow today to those who hoped they might be able to legally use medical marijuana before the state put its own system of growing and dispensing pot into place.

”A physician is not permitted to issue a state of Ohio approved written recommendation to use medical marijuana until the physician has obtained a certificate to recommend from the State Medical Board of Ohio,” the board advised Friday.

Such a written recommendation is necessary in order for a patient to be able to assert the “affirmative defense” provided under the new state law if the event a patient is caught in possession of cannabis before he or she can legally buy it from Ohio’s state-run system.

Update: 10 October 2016

A new panel is taking shape that will help guide Ohio agencies as they build a system of growing, testing, and dispensing marijuana for medical use.

The 14-member Medical Marijuana Advisory Committee — heavy on representation from central Ohio, including its chairman — will exist for five years to help the Ohio Pharmacy Board, State Medical Board, and Department of Commerce as those members create rules for a new medical cannabis industry.

The panel will be chaired by Curtis L. Passafume, Jr., of Hilliard near Columbus, vice president for pharmacy services at Ohio Health and a member of the state pharmacy board.

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On the other hand, two days ago I published a post discussing the progress New York is making with their medical marijuana program.  See: “The Expansion of the Medical Marijuana Program in New York.”  One can only hope Ohio steps before too much damage is done.

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