New civil asset forfeiture nightmare -- ERAD

Discussion in 'privacy general' started by hawki, Jun 8, 2016.

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  1. hawki

    hawki Registered Member

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    "...The Oklahoma Highway Patrol has a device that also allows them to seize money in your bank account or on prepaid cards.

    It's called an ERAD, or Electronic Recovery and Access to Data machine, and state police began using 16 of them last month.

    Here's how it works. If a trooper suspects you may have money tied to some type of crime, the highway patrol can scan any cards you have and seize the money..."

    http://www.news9.com/story/32168555...e-money-used-during-the-commission-of-a-crime

    For those of you not residing in the US, here is what civil asset forfeiture is:

    http://www.heritage.org/research/reports/2014/03/civil-asset-forfeiture-7-things-you-should-know

    I guess the collapse in oil prices having killed Oklahoma's economy, the state, county, and local governments are desperate for revenue.

    I don't know how much y'all know about the huge number of cases of abuse of civil asset forfeiture that has been going on throughout the nation during the past several years, but as a lawyer I have been horrified by it. I find this new ERAD to be terrifying. It means that a LEO for no good reason can seize your entire bank account if you carry a debit card without charging you with a crime and even if you are totaly innocent it is a long and costly procedure to recover your assetts. The case would be named something like "The State of Oklahoma v. $15,000."

    Generally, the assets seized have been those on the scene, such as your car or cash on your person or in your car. This adds a frightening new dimension to it.

    While it is somewhat vague in the article it appears that the scanning is being used to snoop on your assets and then the OHP is demanding that peeps justify the amount of cash they have in the bank. This is way over the top.

    Recently the Justice Department Issued a New Policy that it was terminating its civil asset foreiture program and equitable sharing with the States, but within a week there were reports that this was not fully put into practice.
     
    Last edited: Jun 8, 2016
  2. mirimir

    mirimir Registered Member

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    Back in the day, we never carried more than we were willing to lose. That's still prudent, if there are robbers about.
     
  3. zapjb

    zapjb Registered Member

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    Unless you're a prepper or of little means just about everyone is "carrying" more than they're willing to lose.
     
  4. haakon

    haakon Registered Member

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    That would mean you had no where to go or where ever it was you went to wasn't worth going to in the first place.

    Back in the day? When you were a primate gatherer? :D

    Otherwise, one might draw on the ancient Norse:
    One should not go about unarmed,
    But to always have weapons at hand:
    Knowing not when arms may be needed,
    For what menaces might be encountered.

    -Hávamál verse 38

    Back on topic: Oklahoma State Police... unacceptable but are preferable to ISIS.
     
  5. mirimir

    mirimir Registered Member

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    Going downtown to buy drugs and party ;)
    There is that too. But it doesn't work well against government criminals.
    They're a lot better than ISIS. But that's not sayin' much.
     
  6. driekus

    driekus Registered Member

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    Advice still holds, it is just the robbers that have changed.
     
  7. login123

    login123 Registered Member

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    hawki, I find this development particularly disturbing.
    Edit: because of the potential for abuse or mistakes.
    If you know, what standard of suspicion must the LEO be able to demonstrate in order to seize & scan one's cards?
    Would it be probable cause, reasonable suspicion, or some other level?
    Is a court order required? Is the forfeiture procedure carried out right there on the road, or after an investigation?
     
  8. Palancar

    Palancar Registered Member

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    So many thoughts here and some questions:

    First, I wonder if this device can only extract accounts "linked" to the debit card? e.g. - as a security measure I only allow a small amount of cash to remain in my debit card checking account. I specifically disallow that debit card to see (or link) any of my other accounts. When I need substantial cash I then log into my bank and transfer funds while pulling up to the ATM for cash. It would be nice to know if this is effective as a counter-measure against this device. Obviously, my main reason for this is to avoid a bad merchant being hacked, and then fight my bank for the return of funds. Takes a few seconds to move $$ on my Android using 2FA for security.

    I know some of you will think this is over the top but a future with Bitcoins would avoid all these type things as long as the user knows his stuff!! Maybe someday, maybe not!!
     
  9. itman

    itman Registered Member

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    Hum ........... Looks like I will take the "high road" to California next time.
     
  10. SouthPark

    SouthPark Registered Member

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  11. login123

    login123 Registered Member

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    ERAD deployment seems to be fairly recent.
    May be that hawki can not know the answer to the questions in post #7, as nobody has put it to trial yet.
    It will be interesting to see how the case law shakes out around this.
     
  12. driekus

    driekus Registered Member

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    Very scary and it does remove the presumption of innocence.

    It sounds very much like trial by police to me.
    Given that I am in Canada, white, well dressed and do nothing to draw attention to myself I am not concerned for myself. However, this is likely to be used to target minorities and those less able to defend themselves. Also police arent always the smartest. I could see them pulling over Tony Gauda (African American CEO Bitcasa) driving a Porsche and having to explain how he makes money.

    They really need to include some immediate judicial oversight to this. Particularly when the seizure could create undue distress to the individual.
     
  13. login123

    login123 Registered Member

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    In many situations the suspect has the option to just refuse a police request, say for information or to search something.
    Nevertheless they often do not have the courage to say it, or don't know it's an option.
    There are some situations, like a request for a drivers license if you are driving, where one must comply of get in trouble.

    It will be interesting to see what happens when a suspect says no you can't have my credit cards, nor any more proofs of identity.

    I certainly don't want to be the test case, but will be watching for it. :cautious:
     
  14. driekus

    driekus Registered Member

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    My concern would be refusal would interpreted by the officer as guilt.
     
  15. login123

    login123 Registered Member

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    Yes it might be so interpreted.
    That's probably why many people agree even when they shouldn't.
     
  16. hawki

    hawki Registered Member

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    The standard for civil forfiture is "The Preponderance of The Evidence". That is the standard in civil jury trials. It's kinda BS standard. Technically it means that over 50% of the believable evidence is in the plaintiff's/LEO's favor. Now you tell me how a jury is supposed to do that, let alone an abusive LEO. The major point is that it is far less of a burden to prove than "Beyond a Reasonable Doubt", the burden of proof in a criminal case.

    But if you follow the abuse of civil forfeiture cases it seems that the standard is you are carrying more cash than the average bear.

    The bottom line to your question is that in practice there is no standard. It's been a notorious abusive practice of generating revenue for local governments.

    There are several groups that have been fighting this practice for years, including the ACLU.
     
    Last edited: Jun 10, 2016
  17. hawki

    hawki Registered Member

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    That's precisely what it is, with a biased judge and jury and no right to a lawyer.
     
  18. driekus

    driekus Registered Member

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    Next up roadside credit checks sponsored by Visa? If you arent a good corporate slave with a lot of debt they assume you must be dealing drugs. ;)

    I hope this gets challenged. Interested in whether this is constitutional. In particular the fourteenth amendment and either the due process and/or equal protection clause.
     
  19. hawki

    hawki Registered Member

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    That's correct. In particular you are under no obligation to answer the LEO if asked if you are carrying a large amount of cash, and barring something unusual like a budy smoking a joint in the back seat, the LEO has no right to search your car. But then they call in the sniffing dogs who some corrupt LEOs have trained to react on cue rather than react to the smell of drugs. Then they search your car. I suppose the next development will be dogs trained to smell cash and magnetic strips.

    The ERAD can be a highly useful investigative tool when used for legitimate purposes and in a lawful way. The OHP is using it in abusive way for a purpose for which it was not intended. I believe it is way over the top and will not be used in this way for much longer. (We can only hope). It's a disgrace and reflects poorly on the State.
     
    Last edited: Jun 10, 2016
  20. driekus

    driekus Registered Member

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    Too late on the cash sniffing dogs http://www.dailymail.co.uk/news/article-197623/Dogs-help-sniff-crime-cash.html . Magnetic stripe sniffing may take a while longer.
     
  21. hawki

    hawki Registered Member

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    FWIW: From Snopes"

    "While Oklahoma police did get a new device to make civil forfeitures, this device cannot empty anybody's bank account.....

    While the state of Oklahoma has purchased ERADs, the devices are not capable of taking money directly out of bank accounts; according to a FAQ section on the Texas-based ERAD group's web site, the devices only work with prepaid cards:...."

    http://www.snopes.com/oklahoma-police-erad-civil-forfeitures/
     
  22. hawki

    hawki Registered Member

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    The news story in my OP which was published on June 7 and which I posted on June 8, was substanially changed on June 9 to reflect the accurate facts.

    I posted after reading the June 7 version. It was on the internet, it must have been true.

    My apologies to the Wilder Community for posting an innacurate news story posted on the website of a major CBS affiliated Oklahoma City TV Station - KWTV
     
  23. JRViejo

    JRViejo Global Moderator

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    Let's Close This Thread. Thanks!
     
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