Patterico's Pontifications


The IRS: A Scandal That Keeps On Giving

Filed under: General — Dana @ 7:11 pm

[guest post by Dana]

More on the IRS scandal… Due to that notorious computer crash that destroyed two year’s worth of Lois Lerner’s emails, Darrell Issa took action and subpoenaed Lerner’s hard drive. However, it looks like it might be a dead end:

Unfortunately, according to a source in the IRS’ IT department, that subpoena is unlikely to turn up much.

As a matter of practice, says the source, the IRS wipes damaged hard drives that are still operative. “If we can run them, we have to wipe them,” he says. If they will not run, they agency destroys them completely by magnetically degaussing them. In both cases, the hard drives are disposed of. “You’re not supposed to keep them around,” the source says. “You destroy the data.”

This is why the IRS should follow the rules…which are federal laws, actually:

The Internal Revenue Service is required by federal law to keep records of all agency emails and to print out hard copies of the emails to make sure they get saved in the event of a computer glitch.

And here is the relevant portion of the law per the IRS website:

“The Federal Records Act applies to email records just as it does to records you create using other media,” according to the IRS. “Emails are records when they are: Created or received in the transaction of agency business; Appropriate for preservation as evidence of the government’s function and activities; or Valuable because of the information they contain.”

“If you create or receive email messages during the course of your daily work, you are responsible for ensuring that you manage them properly,” according to the IRS. “The Treasury Department’s current email policy requires emails and attachments that meet the definition of a federal record be added to the organization’s files by printing them (including the essential transmission data) and filing them with related paper records. If transmission and receipt data are not printed by the email system, annotate the paper copy.”

“Please note that maintaining a copy of an email or its attachments within the IRS email MS Outlook application does not meet the requirements of maintaining an official record,” the IRS stated. “Therefore, print and file email and its attachments if they are either permanent records or if they relate to a specific case.”

Of course, this entire debacle at the IRS could have been avoided if the agency was not underfunded. Yep.

The IRS has been underfunded for years, and there’s strong reason to believe that it needs more money if it’s going to avoid issues like the one it ran into with conservative non-profits in the future.

Good lord. For a more thorough analysis of underfunding claims, check out Mark Hemingway. Of course Iowahawk had some fun with the underfunded claim, and was on a roll at the Vox Pitches hashtag :


Patent Office’s Rejection of Redskins Trademark Violates First Amendment

Filed under: General — Patterico @ 6:36 pm

As I said this morning, the Patent Office’s decision to invalidate the Redskins trademarks is an unconstitutional violation of free speech. Here’s more about that.

First, let’s hear from First Amendment expert Eugene Volokh from this morning, quoting an earlier post of his from May of this year, regarding the idea of “disparagement” as a justification for revoking a trademark:

My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination. But I’m not sure that courts will ultimately see this my way; so far they haven’t been inclined to do so, precisely because the exclusion of a mark from federal registration leaves people entirely free to use the mark.

Volokh links to today’s decision itself, which has absolutely no analysis of the First Amendment issues involved, but simply sets out to determine whether the trademark disparaged native Americans when the registrations issued. The majority says yay, the dissent says nay. But none of this is the real issue. The real issue is whether the Patent Office has the authority to invalidate a registration based upon a viewpoint restriction such as one against “disparagement” of a group.

The previous case that spurred Eugene’s initial opinion on the issue was a Federal Circuit case in which the court found that the “Stop the Islamization of America” trademark was disparaging to Muslims. That case, like today’s Patent Office decision, did not consider the First Amendment at all. It would seem that, if trademarks are being issued that praise Islam — and I’m sure such registrations exist, just like pro-native American registrations certainly exist — then it is a First Amendment violation to deny trademark protection to marks because they disparage those groups.

The only actual case on this issue cited by Eugene is Ritchie v. O.J. the Double Murderer (I have taken liberties with the caption), which offers up dicta (for non-lawyers: irrelevant comments regarding issues not litigated by the parties) to the effect that there is no First Amendment issue presented because the mark can still be used. As the dissent notes, though, unequal treatment regarding the issuance of government privileges, based on viewpoint discrimination, can violate the First Amendment. For example, a tax exemption may be a privilege granted by government — which government is not required to give out generally — but government cannot require you to sign a loyalty oath to claim the exemption.

I’m surprised at the apparent dearth of First Amendment challenges in this area — but then, invalidating trademarks because they are disparaging appears to happen rarely. I’m not surprised to hear that the Redskins are appealing the ruling — and I hope they win . . . and squash this precedent hard.

Patent Office Revokes Redskins’ Trademark

Filed under: General — Patterico @ 7:49 am

It’s been around for 82 years, but it turns out that the name was disparaging and illegal all along!

The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”

The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans. It was the second time such a case was filed.

No word yet on whether this will force a change to the name. If the team sticks with the name, fighting knockoffs will become well-nigh impossible.

If the fans were really offended by the name, the fans could have expressed that — and it would have changed. It didn’t take the NBA long to deal with Donald Sterling, and we didn’t need government to get involved — the NBA acted quickly because failure to do so would have had immediate market repercussions for the franchise and the league.

I don’t want to say that federal agencies simply do Obama’s bidding, but he didn’t like the name, you know.

He also said the IRS scandal was made up, and sure enough, Republicans have failed to find a single Lois Lerner smoking gun email.

Coming next: that grinning Cleveland Indians logo.

UPDATE: SPQR reminds us of the First Amendment implications here. I agree with him that this decision violates the First Amendment. This is unconstitutional viewpoint discrimination in a limited public forum. More on that in a future post.

Jimmy Fallon Does Great Impressions of Comics

Filed under: General — Patterico @ 7:16 am

Take a break from the news of the day and have a laugh. This is good.

Hillary: “I’m Still Looking for Answers” on Benghazi

Filed under: General — Patterico @ 7:08 am

There are still too many unanswered questions about the attacks in Benghazi, Libya, that killed four Americans, former secretary of state Hillary Rodham Clinton said Tuesday, even as she welcomed the capture of a suspected mastermind of the assaults.

“There are answers, not all of them, not enough, frankly,” she said of the September 2012 attacks on a diplomatic and CIA compound that killed Ambassador J. Christopher Stevens and three others.

I’m still looking for answers, because it was a confusing and difficult time,” Clinton said.

What difference, at this point, does it make?

Oh yes: Hillary’s running for president now.

Hillary’s looking for answers in the same place O.J. is searching for the real killer.

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