Monday Morning: So — We Meet Again

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[image (modified): Leo Suarez via Flickr]

[image (modified): Leo Suarez via Flickr]

Monday: the bad penny we never escape, turning up once again beneath our cart’s wheels just as we set in motion. Just give a hard shove, push on, and don’t look back.

Volkswagen’s bad news, good news as Detroit’s auto show opens
Bad news first: In news dump zone on Friday afternoon, we heard Volkswagen wasn’t going to release documents pertaining to the emissions control defeat scandal to several U.S. states’ attorneys. VW said it couldn’t due to privacy laws, which sounds dicey; why do corporations have privacy rights? You’d think only U.S. businesses would attempt such excuses.

The good news was held until VW’s CEO Matthias Mueller arrived in U.S. for the soft opening of the North American International Auto Show in Detroit. VW is working on a catalytic converter it believes will resolved the emissions problem for roughly 2/3 of the affected vehicles. I’m guessing this is fix is intended for the oldest vehicles, and that the newest ones are likely to be swapped with a new vehicle, or a sizeable discount on a replacement will be offered. Color me skeptical about the effectiveness of this fix; if this was such an obvious and easy solution, it would already appear on VW’s diesel-powered passenger vehicles. Fuel economy will likely diminish due to increased back pressure — but that’s why I think this fix is for the oldest cars. It would encourage VW loyalists to buy a new one.

Juniper Network shuts the (a?) backdoor
The network equipment company says it’s “dropping” NSA-developed code after the revelation of a backdoor into their network device software. Does anyone believe all covert access by NSA has now been eliminated, though, if Juniper’s source code isn’t open?

Apple’s devices monitoring your emotions soon?
Ridiculously cash-rich Apple snapped up artificial intelligence company Emotient, which makes an application to interpret users’ emotions based on their facial expressions — sentiment analysis, they call it. I call it creepy as hell, especially since smartphone users can’t be absolutely certain their cameras aren’t in use unless they physically cover the apertures.

And yes, I do cover apertures on my devices with low-tack adhesive tape. It’s the first thing I do after opening the box on any new camera-enabled device, even before charging the battery.

That’s enough to get your cart moving. I hope to have a post up later, on the recent power outage in Ukraine.

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55 replies
  1. blueba says:

    Emptywheel is a stickler for accurate detail, it is the most important contribution it makes to discourse on important issues.

    For that reason I would like to point out that in our “globalized” Western economy there is an established network of transnational corporations which operate above the laws and restraints put forth by governments. No large monopolist corporation such as VW – which is the property of one family – can be called “American” meaning falsely only the US or Japanese (see the US response to the hack of a “Japanese” company) they are transnational – that is above sovereign nations.

    The racketeering and fraud displayed by Pfizer, Johnson & Johnson VW and the rest of the transnational corporate network are rewarded over and over. The Porsche/Piëch bifurcated family has walked away with billions in profits from its criminal organization known as VW and their names are not even mentioned when it comes to liability.

    • Peterr says:

      As long as we’re being sticklers . . .
      .
      The corporations of which you speak are generally not operating above the law, but rather are using the various laws of the nations in which they operate to their best advantage. If you have to process raw materials and one aspect of the cheapest way to do so creates toxic waste, you do this in a country with lax environmental laws. If you have to employ large amounts of relatively unskilled workers, you look for a place with cheap labor and minimal labor laws. You employ armies of accountants and lawyers, to get you the most preferential tax treatments. Etc., etc., etc.
      .
      It’s not illegal or above the law. But unless countries are willing to take steps to address this (no importation of shrimp processed by virtual slave labor, for instance), it will continue.

      • Bay State Librul says:

        At least good news on the tax front — from the NYT

        BRUSSELS — The European Commission said on Monday that a corporate tax break that Belgium has granted to at least 35 companies, amounting to total reductions equivalent to about $765 million, was illegal.
        —

        The commission, the executive arm of the European Union, did not immediately identify the companies that benefited from the tax break.
        —-
        But one of the companies known to have used the technique is a Belgian subsidiary of the international brewing giant Anheuser-Busch InBev. Although Belgium’s official corporate tax rate is 34 percent, the subsidiary paid a rate of about 4 percent on annual profit of about 60 million euros, or $65.5 million, in 2013.

    • bmaz says:

      Just to be clear, Rayne is doing these wonderful morning posts lately, including this one. Let’s make sure she gets the credit. It is long due.

    • Rayne says:

      blueba — We haz snark at this site. We’re known for it. This — “You’d think only U.S. businesses would attempt such excuses” — is tongue in cheek.

      With regard to VW, the U.S. should have expected a pointed initial rejection of any request for documents under Germany privacy laws after the NSA was caught spying on German leadership and communications. And the NSA as U.S. adjunct got away with violating German’s privacy.

      I don’t want to have to explain the snark very often.

  2. Peterr says:

    VW citing German privacy laws is an opening negotiating ploy. If they don’t cooperate, the EPA will likely refuse to certify ANY of VWs vehicles for sale in the United States. “Serious questions have been raised about millions of VWs vehicles and the culture of the company that produced them. Until those questions are resolved, we would be remiss in allowing they to sell additional new vehicles whose compliance with US law is suspect.” Of course, VW would immediately file suit and ask for an injunction, but this would open the whole can of worms in federal court — which is exactly what VW is seeking to avoid. That’s the big club that the US government holds over VW, to compel their cooperation.
    .
    I wish I were more hopeful that they would actually wield it.

  3. haarmeyer says:

    If it were that easy to design a cat that complied with the specs for the VW diesel, we’re supposed to believe that they wouldn’t have done it before? And it’s not only supposedly easy, but they can design one to meet specs that retrofits into the original form? Doesn’t pass the smell test.

    • Rayne says:

      haarmeyer — Yeah. Exactly. STG the catalytic converter is merely a Hail Mary pass to keep the media off VW’s back during the trade show. If they’d had working tech, it’d have been implemented on other diesel vehicles long ago; it’d have been a last-ditch fix for lemons which resisted passing states’ emissions tests.

      • lefty665 says:

        Early on I remember reading that when the new 2.0 engine failed to meet emissions expectations that VW had the option to use a more involved (read as more expensive) set of controls to meet emissions standards. VW chose software defeats instead. The alternate set of controls was not specified. If that involved a different converter, the form factor would not be an issue and the cat would be an off the shelf item today.
        .
        I say f*ck backpressure, headers, glass pacs and lakes pipes rule. Small blocks and rat engines forever.
        .
        @A20 plus iBinders for 50 shades of Jobs.
        .
        @21 old spooks mantra “If you don’t want to let people in don’t install doors and windows.” Of course if you take out the mic it makes it hard to use as a phone.
        .
        Thanks again Rayne for your morning ray of light.

      • haarmeyer says:

        Not new ones. I worked on cars as a mechanic (as in professionally, 48 hrs/wk) many years ago. I know a fair amount about cats, re-beading, aftermarkets from that era from the diagnosis and R&R point of view. Also a few things more about the beads, since I was close in to physics and to ChemE rheology back when the cold fusion debates were raging.

        They are not easy devices to work with/around, and much more than just the cat itself needs to be redesigned, some in hardware and some in software, there are 2 oxygen sensors and their software interaction with most of the onboard computer to re-design and develop, it all needs to fit into the proper space, and there needs to be a way to get at it easily and most exhaust systems come welded from the factory. As I said, and Rayne agreed, it needs to also have the same form factor as the old one, which presumably was part of the problem that lead to the fraud.

        BTW, to a certain extent, Juniper has the same problem with their code. They are supposedly pulling two random number generators and replacing them with a third, and it has to fit in the old space and service the same internal jumps and calls and API. So again, the question is why they wouldn’t have done that in the first place. Some of which is always about money maybe, but it can also be because of hellish design restraints.

        But then again, I may have missed the intent of your question.

        • orionATL says:

          comes again

          trudging thru the middle of the town

          haarmeyer the peddler

          pulling his cart of bullshit

          crying

          “more shit. more shit.

          who will buy my shit. ”

          do you really expect us to find credible your excuse that physical space constraints excuse both vw’s and jupiter’s behavior?

          go sell that shit to somebody else.

        • haarmeyer says:

          If you say so. Your poetry seems a bit too Philip Roth.

          Not getting the part about voiding skepticism.

        • orionATL says:

          “Not getting the part about voiding skepticism.”

          oh you get it alright haarmeyer.

          pretending not to is necessary for your purpose.
          .
          .
          as for the style of my comment, it is common medieval peddlar’s pattersong.

          phillip roth is known for his novels.

    • orionATL says:

      “If it were that easy to design a cat that complied with the specs for the VW diesel, we’re supposed to believe that they wouldn’t have done it before? And it’s not only supposedly easy, but they can design one to meet specs that retrofits into the original form? ”

      both those questions are setups to allow you to reach the conclusion you wanted.

      both allow you to draw conclusions clearly intended to void scepticism about both company’s motives.

  5. orionATL says:

    “I do cover apertures on my devices with low-tack adhesive tape.”

    depending on the size of the device, various shape small band-aids can work, too. if suitable, avoids adhesive on lens.

    • bloopie2 says:

      If I say, “Siri, turn off camera”, might that work? Or might that send a red flag to … whoever is watching me? Just a thought.

      • orionATL says:

        of course it would work, if siri is not on strike.

        but the real problem then becomes – who is siri working for? you or the nsa or those russian bandits susan hennessey worries about. :)

    • Rayne says:

      orionATL — WRT camera apertures: Bandaids leave adhesive residue, unfriendly to plastics/plastic coatings. I use blue painter’s tape, put a small piece nonsticky-side down over lens.

      WRT Jupiter: I wondered previously about Jupiter network equipment possibly being used in the 2012 Syrian internet outage. Would be more than Treasury/FBI spying, if so.

        • Rayne says:

          orionATL — It’s unsightly, but I’m not a diva, more worried about security than appearance. One small piece upside down, larger piece to hold it in place, turned corner to make it easy to lift when camera needed. I try not to use my phone in front of my kids’ friends so as not to embarrass them. LOL

          I should design something attractive like this for pricey, glitzy iPhones, huh? An iBlinder? Heh.

        • orionATL says:

          fortunately i dont have to consider appearance, but i did learn to worry about camera security since some years back when i had to waste good time dealing with the “fbi” virus.

          if there is any one moral to the nsa spying drama it is to always use physical controls/blocking if possible (snowden put reporters’ phones in fridge). never rely on electronic controls because

          – you dont know if they are working for sure

          – you dont know whose working them for sure.

  6. orionATL says:

    re jupiter systems.

    http://www.wired.com/2016/01/new-discovery-around-juniper-backdoor-raises-more-questions-about-the-company/
    .

    [… But a researcher discovered last month that Juniper made a grave error in how it implemented this. Willem Pinckaers, an independent security researcher in California, found a bug in Juniper’s software that actually caused it to ignore the ANSI algorithm altogether and only use that initial raw output from Dual_EC. Researchers have called it a “catastrophic failure” for Juniper and big win for the attackers who inserted the backdoor in Juniper’s software. It was this failure on Juniper’s part that allowed the attackers’ backdoor to work…]

    question in my mind – was juniper systems acting as agent or facilitator for the nsa/fbi/treasury electronic spying, especially on business-to-business type vpn’s.

  7. scribe says:

    Re: German privacy laws.
    .
    A good bit of my work involves electronic discovery in litigation involving German companies and German-language documents. What you have to recognize is that German privacy law is much more stringent about protecting personally identifiable information than is ours. Moreover, they do not have “discovery” in litigation the way we do here.
    .
    On the privacy laws, there are some which (in sum and substance) make it a crime to have personally identifiable information cross the German national border. There are further laws which make it a crime in some contexts to have personally identifiable information cross the interior Land (state) borders within Germany. Please understand that these privacy laws were enacted by a country with a bad, recent history with secret police, surveillance states, and bad things being done with personal information. For example, the Stasi routinely hoovered up medical records and doctors’ counseling notes on their patients for inclusion in the patients’ Stasi surveillance files. So, I suspect VW’s invoking privacy laws is on behalf of the individuals they employ, either as employees or contractors. And to keep their lawyers from getting themselves in criminal trouble for sending that information out of the country.
    .
    One effect of these privacy laws is that once or twice a year a job involving German-language documents and litigation will be posted where the work will have to be done in Germany for litigation going on in an American court. You get sent there, put up in a hotel in some German city, and work there. (I never get hired for these, in part because I don’t have work authorization for the EU, i.e., their analog to a green card or H-1B. I’m also not going to leave my elderly dog in someone else’s care an ocean away for 2-3 months.) This rigamarole goes on to preclude liability for allowing personally identifiable information to leave Germany – it gets redacted there, first.
    .
    Please also note that the Germans are still mightily pissed about the NSA revelations. There has been a long-running (since the story broke) parliamentary inquiry into how deeply the NSA has co-opted the German BND, and how deeply the NSA’s tentacles have reached into German society. They are decidedly Not Happy. But what the NSA did is qualitatively different than a litigation dispute between VW and our EPA, so please don’t confuse the two.
    .
    There may also be a requirement that their corporations do something along the lines of invoking Miranda on behalf of their employees, at least until the contours of the dispute become clearer. I am not absolutely sure on that point. There is a strong prejudice there – socially and legally – against informers and informing (snitching). Again, this is a reaction to their history with secret police, surveillance, informers in every bedroom, and the like.
    .
    You should also be aware that VW had, as a part of its internal reaction to the story breaking, issued an “amnesty” to its employees (and, I believe, contractors) to have them come forward to the company with what they knew about this. This was, in effect, furthering their internal investigation. The “amnesty” allowed them to come forward to the company without fear of retribution from the company. It ended on 11/30. But VW would be in a very hard place vis-à-vis their employees – on multiple levels not the least of which would be the legal one – if they were to turn around and dump all their internal investigation to the USG. At the very least they would be publicly castigated as informers with all the downsides that come with that.
    .
    I have no doubt this is VW’s opening gambit, but it’s one they have to make. Not some dick move.

  8. earlofhuntingdon says:

    There is extensive criticism in the EU that protections for the data of EU persons in the US are weak, poorly enforced, and do not meet EU standards (an almost British understatement). But that runs up against the standard exceptions in EU date protection rules allowing the transfer of data for judicial and law enforcement purposes. Those exceptions (and others, such as national security exceptions) apply to data use by EU member states. Use by other states in which EU-based companies do business would seem readily possible; its refusal in the case of the US would seem politically impossible.

    So it’s hard to imagine Germany legitimately allowing VW to refuse to send to the US relevant data in a major civil regulatory or criminal enforcement case. It would be legitimate, mandatory even, to negotiate limits on its preservation, use and disclosure. It seems possible, too, that a governmental reluctance to rule on the matter, when asked, might be used as a form of informal state aid to VW in its no doubt complex negotiations with US and state environmental and law enforcement authorities. The billions of dollars at stake could theoretically make or break a major German and global economic power. That’s even more true if VW handles those negotiations and litigation as poorly as it managed its decision to pollute.

  10. jerryy says:

    Since this is Monday and it has been awhile since there has been any posts about music, …
    .
    Hats off to The Man Who Fell To Earth. Ziggy, I hope you find your way back home.

  11. scribe says:

    I think you’re misunderstanding me.
    .
    If a German company has information with personally identifiable information (PII) in it and sends it out of Germany, then the company and the employees of the company involved in sending it, and likely the lawyers and their helpers involved in sending it, are exposed to criminal liability under German privacy law. It does not matter that the sending of the information might have been done in response to properly-issued legal process (e.g., grand jury subpoenas, civil/administrative investigative demands, discovery demands in civil litigation) in the foreign country where the data was sent. The sending of the PII across the national boundary is the crime.
    .
    Indeed, and setting aside the issue of PII, merely attempting US-style discovery in Germany can get you arrested. You are not allowed to issue and serve a civil discovery subpoena, for example, like you would in the States. You have to get an order from a German court permitting you to do that.
    .
    I do civil discovery involving German companies as part of my work and have made more than a few thousand dollars doing it. There are things you can do, and things you cannot. And what VW is doing is trying to navigate a minefield of laws in a bunch of countries so as to both meet its legal obligations AND protect its brand as much as possible. This is the kind of thing which will take months, if not years, to work its way through. (And I welcome that, once I can get myself on the case(s) – they pay well. I have not yet worked on anything involving VW and would not have posted anything had I been working on VW.) But Manichean good-and-evil thinking and yelling aside, it’s a godawful mess and one which will keep a lot of lawyers working a long time to resolve. It won’t be over in a week, a month or a year and there’s no point in whining when it isn’t over already, the “good guy” vindicated and the “Evildoer” punished.

      • scribe says:

        You’re making the funny, conflating the German “redaktion” with the English “redaction”.
        .
        The former, as you’re surely aware, means “editing”; you see it in the credits of every German-language film.
        .
        The latter means what we all know it to mean, excising and/or concealing part of a document.
        .
        The biggest similarity is that both are completely hand work, one document or item at a time.

        • Rayne says:

          scribe — The appropriate response from VW should have been, “We will cooperate with U.S., EU, and German requests for documents, while remaining in compliance with privacy laws. We expect [X] amount of time before documents will be available, in order to complete redaction of personally identifying information.”

          That’s not what was offered, and Mueller’s bullshit “It’s a technical problem, not an ethical problem” only makes it clear they have no intention of playing this straight.

  12. orionATL says:

    “… German weekly Bild am Sonntag reported that VW’s internal investigation has found a 2007 letter from parts supplier Bosch warning Volkswagen not to use the software during regular operation…”

  14. earlofhuntingdon says:

    There’s a difference between private civil litigation and actions involving state enforcement of regulatory rules and criminal laws.

    EU privacy rules, implemented through state legislation and regulations, protect personally identifiable information of natural persons. They apply to obtaining, storing, processing, using and retaining such information and its transfer to others. An EU data controller who proposes to transfer data outside the EU is obligated to impose limitations on the party(-ies) receiving it which obligate that the handling of that data be done in a manner comparable to that permitted in the EU.

    There are exceptions to the obligations imposed on the data controller. Among them are where the data is to be used in various core regulatory functions of state, and in the detection, prevention or prosecution of fraud or crime.

    Disclosure aside, there are still limits on the use and onward disclosure of such data and the length of time such data can be retained. Other rules, too, outside of the data protection scheme, are likely to apply. The transfer of data to the US will require extensive negotiations regarding its permitted use, disclosure and retention. Anonymization would be one obvious issue.

    The VW case will indeed drag on for years. It is big ticket, bet-the-company stuff which appears to involve intentional, multi-year violations of law, and serial denials regarding such violations. Only one aspect will be obtaining access to corporate records that may include personal data, such as on named VW and supplier company employees. These talks will be a subset of negotiations concerning the underlying claims that such data might document or contradict.

    Given the stakes, the parties, and the poles-apart differences concerning the protection and use of personal information in the US and EU, those negotiations will be complex. Only a portion of the data and settlement is likely to make it into the public record.

    • Rayne says:

      earlofhuntingdon — There’s a simple method to expedite discovery and solutions: stop sales of VW vehicles in the U.S. until they offer both documentation and a satisfactory technical fix.

      • earlofhuntingdon says:

        Lacks nuance. Germany is not quite the overeager partner the UK often is. There are a host of legal and political issues here. EU data protection rules would seem only first tier objections.

        If the US is serious, it would move on multiple fronts, from relatively low level lawyers attempting to orchestrate and comply with myriad rules, to talks among permanent secretaries and senior elected officials, to direct talks with VW and any other implicated persons. All conversations couched in appropriate language so as not to prejudice a case sub judice. There might even be the kind of not so polite arm twisting that helped build the US’s coalition of the billing.

        But the issues remain what did VW do, when and for how long, what are the harms done, who knew it and when, and what did they do about it. What consequences would restrain a large multinational from repeating similar failures, ones the US would be willing to see imposed on its own multinationals?

        The US is not solely an aggrieved party. The US and US-based companies are among the world’s largest polluters. We often put narrow self-interest first, and treat facts as what we say they are. The US will also be concerned about any procedural or substantive precedents it sets in resolving this case. It would seem most productive and most protective of US companies own failures, if the US does this right.

        • Rayne says:

          earlofhuntingdon — Nuance? like that Mueller used in his interview with NPR? Like VW used in its response to regulators? Nope.

          VW’s diesel-powered passenger vehicle sales represent less than 1% of passenger vehicles sold in the US over the last handful of years. If we don’t stand firm on this puny number, what will manufacturers of the other +99% vehicles attempt? We’ve already seen too much nuance on safety wrt GM and Toyota. We’ve seen what nuance has done with regard to climate change.

          If anything, we should be the hegemonic badass here. The entire EU would benefit from it. Nearly half of the passenger vehicles on the road in Germany are diesel; in some countries, the number is as high as 74%. They can blame us for our usual ham-handed lack of nuance while they benefit from disclosures and ultimately forced improvements to their emissions controls. They can even piss and moan about bloody Yanks a little louder once they can breathe a little easier.

        • bmaz says:

          Yeah, Rayne is right. An example could pretty easily be made of VW here, and should be. Keep in mind though that Mueller was appointed by the court, and his job is to make peace and settle the matter as to civil claims.
          .
          Is Mueller the right guy for this job? I don’t know, but at least it is someone different from Ken Feinberg, who is always a popular go to stooge for these things. A lot of people get screwed under Feinberg, no clue why plaintiff types keep agreeing to him (and he was nominated here on the VW case).
          .
          We shall see how it goes. Thing is, the better Mueller is at his job, the less likely there will be criminal charges against specific key VW personnel. DOJ is chomping at the bit to get their claws into El Chapo, but I bet they let VW execs, that (if you know the culture at VW) had to know and sign off on these acts, get off scott free.

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