Wednesday, July 05, 2017

Another thought on ICE's statements

This isn’t specifically IP-related, but I’m pondering the part of my FOIA suit requesting training materials for ICE agents relying on case law, etc.  Initially, the ICE spokesperson who responded to my inquiry said that ICE based its seizure decisions on consultation with agency and Department of Justice attorneys, including consideration of “potential fair use provisions and federal circuit-specific case law.”  When ICE didn’t produce any documents relating to any of that, we used the initial statement as evidence that ICE hadn’t met its FOIA obligations.  The court found it perfectly plausible that all ICE used to determine counterfeit status were manufacturers’ guides, rather than materials of its own.

Now, I will admit that I too suspected that the initial claims were bullshit, in the specific sense of being made with complete indifference to their truth or falsity in order to achieve a non-truth-related conversational aim, that of getting me to shut up and go away.  (That worked really well, as you can see.)  But it’s depressing—I wish I could say extraordinary—that the court didn’t even count that statement as evidence that such guidance existed.  What does it mean for a democracy when a court tells us we shouldn’t take official statements seriously, even—maybe especially—statements made at such a low level about matters that are relatively low-stakes?  Is government only to be trusted when it's under oath?

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