Legal Loophole Offers Volkswagen Criminal Immunity 323
An anonymous reader writes: According to the Wall Street Journal (paywalled) a loophole in the 1970 Clean Air Act could make it impossible for U.S. prosecutors to subject Volkswagen to criminal charges over its use of standards-dodging 'defeat devices' in its emissions-testing software. Prosecutors are now reported to be considering alternative methods, including (considerably lesser) charges that Volkswagen lied to regulation authorities.
Well... (Score:3, Insightful)
So long as the evil sociopaths who run the company are able to evade any meaningful censure, all is well! Doubtless some simpering worthless patsies will be found to take the blame while the real instigators are not only allowed to go free, but doubtless profit immeasurably.
Re:Well... (Score:4, Informative)
Well it already got the CEO of the company to resign. I'm sure he's rich and not going to lose much, but he presumably didn't want to be forced to resign and go into retirement.
I suppose worse could have been done to him, but its hard to say that this had zero effect on upper management.
Re:Well... (Score:5, Insightful)
I heard he's getting a $32M pension. Poor guy, they sure made an example out of him.
Re:Well... (Score:4, Insightful)
I wonder if anyone dares to put this into perspective - i.e. in a comparison with Wall Street practices. Last time I heard, bonuses and pensions over there were at least one order of magnitude higher, and deaths (like suicides) following crises like Lehman Brothers and their followers were actually countable, not dubious statistical numbers.
Also, Mr Winterkorn is still facing charges in Germany, which could lead to his imprisonment (large-scale fraud). I haven't heard from many bankers going to jail.
Re: Well... (Score:2)
Not yet, but he is charged with fraud and might serve jail time one day. Germany is corrupt, but wonders happen sometimes (Hoeness, Middelhoff, Janssen).
Re: (Score:3)
That's why we have jail, because making him pay a few millions in fines would be little more than a "oh fuck, there goes my second yacht" moment. But if he spends his retirement years behind bars, that pension won't do him much good.
TFA, TFS (Score:5, Informative)
None of which explain what exactly is the loophole.
"There's a loophole there" - is all I could get. the WSJ article is paywalled.
Any ideas? IANAL so, to me, it's a mystery.
Re: (Score:3, Informative)
None of which explain what exactly is the loophole. "There's a loophole there" - is all I could get. the WSJ article is paywalled. Any ideas? IANAL so, to me, it's a mystery.
Yeah, basically "the clause in the act indemnifies car manufacturers against criminal penalties". A non-paywalled linked with a bit more info: http://www.wsj.com/articles/vo... [wsj.com]
Re: (Score:3, Informative)
Speaking of loopholes and the WSJ paywall, you can actually get around it by Googling part of the URL.
This is the WSJ URL: http://www.wsj.com/articles/vo... [wsj.com]
Google this: volkswagen-may-not-face-environmental-criminal-charges
Then just click the first link for WSJ. I assume they are blindly checking the referrer. I have tried this on various other news sites that paywall with success.
I briefly read the article though, nothing particularly useful.
Re: (Score:3)
I assume they are blindly checking the referrer.
I think it's not a matter of blindly allowing, IIRC google explictly said they would block any site that does not actually give the user the content that appeared in the search results. So a lot of news sites had to allow google referalls or else not show up in results. Also experts exchange had to start showing their answers (amusingly they would have at the top of the page a redacted 'pay to reveal answer' or something, but right underneath the answer was in the clear because of the google thing.
Re: (Score:2)
fwiw, that trick did not work for me. I have cookies turned off and lots of blockers active. nice try though.
Re: (Score:2)
Why play their game? Just pretend they don't exist and get on with your life.
Re: (Score:2)
Seems particularly appropriate. Too bad I couldn't use a loophole to get me a VW for free that actually works as advertised.
Comment removed (Score:5, Informative)
Re: (Score:2)
If by "absolutely massive" you mean "so small they can be considered an operating cost" then sure.
Re: (Score:2)
No, it's going to be a massive fine. They've already set aside over $7 billion for recalls and repairs over this. 2014 profit for VW was nearly EUR 11 billion. This is enough to hurt already. And that's before fines and penalties. Then count in the huge drop in stock price. US fines alone could get up to $18 billion. This goes way beyond operating costs.
Re: (Score:3)
When this is combined with no effective personal responsibilities then nothing changes. No matter how badly management screws up at a big company, they always retire rich. There is no down side to breaking the law, because the chances of getting caught are non-existent and the penalty is getting to keep all the wealth gained by breaking the law,
Want proof
Re: (Score:3, Interesting)
NO it is not small, but it is not jail either, I think people should be furious when millionaires do not go to jail for something anyone else would easily be fucked for, but sure it will cost them lots of money.
Re: (Score:3)
It's just no VW executives, or for that matter software developers, will be going to jail.
Sure about that?
How about they charge them with XX million counts of fraud, instead of focusing on clean-air act in particular.. and the damages are whatever it costs to remedy by replacing or fixing all units and remediate / clean up pollutants released as a result of fraud? Systemic and automatic wire fraud, since it involves crafting digital systems to intentionally cause customers' vehicles to produce falsi
Re: (Score:2)
What fraud? The car performed as advertised, right? Got the advertised MPG and 0-60 times and whatnot, or at least as much as any car ever does.
Re:TFA, TFS (Score:5, Informative)
What fraud? The car performed as advertised, right?
Actually it didn't. Emissions are part of advertised specs. In the UK at least, this is an important figure because it determines how much annual road tax you have to pay to drive the thing - i.e. its important to consumers making the decision....and its really important to the UK government who have arguably been defrauded out of a whole bunch of tax revenue.
Re: (Score:2)
Ah, that makes sense then for the UK. Did VW do the same there? (I strongly suspect every German brand is doing the same thing in the US, but there's less reason to cheat elsewhere).
Mercedes probably isn't cheating (Score:3)
You know, Mercedes doesn't really sell many of their diesel passenger cars in the US like they do in Europe. I suspect the obstacle is the stringent EPA regulations limiting their ability to deliver a vehicle in the US with compelling gas mileage AND performance.
Mercedes management needs to be scrutinized by shareholders right now. While Volkswagen has been selling dozens of thousands of diesel vehicles in the US, Mercedes managem
Re: (Score:2)
Re: (Score:2)
No, but they're advertised as "Clean" vehicles. Sure the meaning is vague and fuzzy, but the whole intention is for consumers to believe the VW cars they were buying were better for the environment if they chose the diesel option.
The fact that under normal operations they emitted more than legal limits would mean that they are n
Re: (Score:3)
Emissions don't matter when it comes to the consumer end of such a fraud.
In the US, cars are certainly advertised as having certain efficiency and power ratings (normally expressed in terms of miles-per-gallon, brake horsepower, and torque in foot-pounds).
If the forced software upgrade happens (where "forced" means: if your car happens to be within twenty feet of a service bay and finds itself unattended for more than 3.2 minutes, it gets upgraded), which it will, these numbers are likely to change.
These r
Re: (Score:2)
I think there is an expectation that a new car pass emissions test without cheating, especially one that is advertised being cleaner than typical cars.
Re: (Score:2)
Re:TFA, TFS (Score:4, Interesting)
Come now, do you think those lawmakers made such a helpful clause without a couple of campaign contributions to grease the wheels? Sorry, but when laws are written like that, you can safely assume it's because someone wanted it that way.
For the exact reason the DMCA has no fangs when corporations misuse it; because they bloody well wanted it that way.
In fact, it would appear Former Rep. John Dingell (D., Mich.), a longtime congressman and auto industry ally gave them exactly what they wanted.
And, once again, corporations buy the laws that suit them best.
Re: (Score:3)
No, I'm saying that this streamlined civil penalties was selected by the auto industry to ensure they could never be subjected to criminal liability, and was delivered to them by 'tame' politicians who gave them what they wanted. That VW is a foreign corporation benefiting from this law is irreleva
Re:TFA, TFS (Score:5, Insightful)
Re: (Score:3)
This. Germany (home of VW) has already opened a criminal investigation against the former CEO, so maybe /. could step out of its US-centric world-view for a moment, especially when reporting about a foreign company?
Re: (Score:2)
The risk of them going out of business is very real.
I say this someone who has owned original Bugs, Rabbits (including a GTI!), and, after a long absence from VW-ownership currently own a 2009 Jetta that is not affected by the emission issues: it would be a far greater loss to society as a whole for VW to pay such a large fine that it goes out of business than for a compromise to be reached that allows it to continue to produce absolutely great gasoline-powered cars, and continue to contribute in a very positive way to Germany's economic engine.
Yes, VW likel
Re: (Score:2)
Re: (Score:2)
Re: (Score:2)
It's not black and white. VW could go under, be forced to sell the company to new owners, who may or may not decide to keep the VW workers and name. In the end it's possible that all the same workers are still making good cars, but just with new owners and new management. It might even still be called VW.
VW makes fantastic cars. Punishing the company so deeply that we lose VW, and Audi, and Porsche to boot? To what end? Who is going to benefit, other than lawyers?
A lot of people profited from VW while it was cheating. It seems only fair that those profits be used to restore those who were defrauded. It seems the best outcome would be to cut the head off VW and
Re: (Score:2)
I agree that VW should not be punished to the extent that they go out of business. They should, however, be punished to a degree that is proportional to the willful disregard of the rules and regulations by which they're supposed to be bound. It's this notion of intentional and blatant cheating, I think, that everyone is so upset about, not the actual damages incurred, which, honestly, are probably minimal.
Note that you can draw some interesting comparisons over the $900 million in fines and millions of v
Re: (Score:2)
So prosecute as fraud, without bringing the clean air act into it?
and that applies to US only (Score:2)
They might be protected in teh US, but german politician and other german firms are hating right now to be associated with cheaters. Germany is a big exporting country. And VW is making them look very very bad. I am just guessing and a bit making a CT here but I would say the german prosecutor WILL have carte blanche to investigate this thoroughly and show the world they will not stand for it. Thus protectin
Re: (Score:2)
There's always the standard "Laws are for the little people" loophole. And if that fails, you can always pull out "It was the underling's fault."
Re: (Score:2)
Or it could be that there is source code that looks like: if (emmissionsTest.isDetected()) engineMode.set(PROFILE_CLEAN);
Good software developers usually have very descriptive source code.
What exactly is the law/rule? (Score:4, Interesting)
If the rulebook says "When we plug in our testing machine, your car needs to be emitting X, Y and Z", then they were totally within the rules.
Re: (Score:3, Insightful)
No defeat devices. They violated that rule by having a mode specifically for the testing environment that defeated the testing of emissions during normal operation.
Rather crucial data is paywalled (Score:2)
improper claims/illegal advertising (Score:3)
Beyond the emissions stuff what about their claims to the public?
Mileage. Emissions. All those consumers have valid legal claims that they were lied to. Regardless of cheating the emissions test, the consumers were told something that it turns out VW knew was a complete lie.
Re: (Score:3)
Civil Fraud.
No jail. And corporate bankruptcy can get them out of paying fines.
Re: (Score:2)
The US isn't going to be the only nation making claims, so you're dreaming if you think the US legal bill would be paid above and before every other nation's. There are a lot of seriously pissed off people, organizations, and governments out there getting in line.
VW had this "end game" planned out, too (Score:5, Informative)
Remember the "up to $18B fine"?? (Score:2)
I knew that bull would never happen...
Re: (Score:2)
They're still on the hook for civil penalties. It may or may not be $18B, but this wasn't about the fines, it was about the jail time. Although how they were planning to imprison German nationals is still beyond me.
CARB is worse though (Score:2)
I'll bet l that California and the dozen or so other CARB states could still prosecute. At minimum they could change the smog test methodogy to defeat the defeat so that the cars cannot get a smog cert and could not be registered. This would open the door to civil suits for sure.
Who wrote the software? (Score:2)
This is terrible (Score:5, Insightful)
And not because it lets the car companies get away with something.
The prosecutor is considering prosecuting Volkswagen for "lying to the authorities". "They lied to the authorities" is a catchall crime that the government often brings when it finds itself unable to convict someone for an actual crime. This is a bad, bad, thing because you can't just refuse to speak to the government, and pretty much anyone is going to say something when questioned by the government that can be spun as a "lie", even if they just forgot, were misheard, or told an actual lie but one that has no bearing on the case.
The people cheering for this are really cheering for the idea that the government can put anyone in jail at a whim, because that's what the crime of "lying to the government" amounts to. It makes a mockery of the idea of a fair trial, and the fact that in this case the government decided to use this trick on a deserving target doesn't make it any less horrible.
So, what if you own one of these cars? (Score:3)
I for one am glad I didn't buy a diesel car in the last 10 years, sounds like a nightmare for those who did.
By Raise of Hands... (Score:2)
who didn't see this one coming?
I'm not a lawyer (Score:4, Informative)
But section 203(a)3(B) of the Clear Air Act is the one that mentions defeat devices.
and the punishment for violating that,
SEC. 205. CIVIL PENALTIES. .....
any person who violates section
203(a)(3)(B) shall be subject to a civil penalty of not more than
$2,500
No criminal charges, only $2,500 per car.
My $0.02 (Score:2)
Not pretty, or elegant or sensible, let alone honourable what VW did. I wish for a better environment. VW sort of cheated and I'm not happy about it.
In a legal sense however VW committed crimes when and if they acted against the law. We know that law and common sense do not always coincide.
The questions I have not seen yet are to establish whether case will actually stick. Was it unlawful of VW to rig the tests the way they did? Did laws make make provisions for such rigging? Or did the law provide tes
Re:Just makes them look even more guilty (Score:5, Insightful)
Who's worming their way out?
Sounds like the prosecutors are trying to make a case that won't get thrown out.
You can't just make up law as you go along because it's morally wrong.
Re: (Score:2)
Who's worming their way out?
Sounds like the prosecutors are trying to make a case that won't get thrown out.
You can't just make up law as you go along because it's morally wrong.
The RCMP do this all the time...
Re:Just makes them look even more guilty (Score:5, Insightful)
The classical purpose and function of US government regulatory agencies is to indemnify the industries which they are charged with regulating from any legal repercussions resulting from egregious and outlandish acts of greed and irresponsibility.
This is just another case.
wut (Score:5, Insightful)
a legal loophole?
found by corporate lawyers?
I'm shocked. SHOCKED.
I'm going to go home, re-evaluate my life, and stop selling death sticks.
Re: (Score:3)
The prosecutors work for a corporation?!? Might I ask which one?
Re: (Score:2)
There are probably prosecutors specialized in company crimes.
Re: (Score:3)
The prosecutors work for a corporation?!? Might I ask which one?
The prosecutors work for the corporations, which buy the laws. The prosecutors can only prosecute people for violations of those laws, so when the corporations buy laws to shield them from prosecution... you work it out. Laws tend to provide lesser or no effective protection for up-and-comers, guess why.
Re: (Score:3)
The classical purpose and function of US government regulatory agencies is to indemnify the industries which they are charged with regulating from any legal repercussions resulting from egregious and outlandish acts of greed and irresponsibility.
This is just another case.
Actually, in this case the US government seems to have failed in it's primary purpose. Now that this loop hole has been used it will have to be closed because of public outrage and I'm pretty sure the senators who created this loop hole intended that it should be used by a US car manufacturer, not a European one. Heads must be rolling on capitol hill.
Could send them to jail (Score:5, Interesting)
Who's worming their way out?
Sounds like the prosecutors are trying to make a case that won't get thrown out.
You can't just make up law as you go along because it's morally wrong.
You could send them to jail if you wanted to. Fraud, false statements to government, criminal conspiracy, etc...
Just maybe not under the clean air act.
Re: (Score:3, Informative)
Re: (Score:3)
I think you don't know how the legal system works. Prosecutors file an arm long list of plausible charges, hoping than one or two will stick...
Unfortunately, that is quite true. And that is definitely not the way that a legal system should work.
Re: (Score:2)
I think you don't know how the legal system works. Prosecutors file an arm long list of plausible charges, hoping than one or two will stick...
No, I actually know a lot about how it works, I'm just calling BS on the idea that this one "loophole" necessarily makes them immune from prosecution.
Re: (Score:3)
Fraud is not illegal in off iself. Fraud is a class of laws covering types of crime or civil laws. Basically, fraud is just a type of crime and the crime itself needs defined by law.
I see a lot of people who do not understand this. But ask yourself, does a magician face criminal penalties for doing tricks? That's fraud by definition. How about a 12 year old who tricks her brother into doing the dishes by saying her parents told her to tell him that.
Now something that is fraud is your ISP saying your servi
Re: (Score:3, Informative)
Re: (Score:2)
I downmod people who accuse others of being paid shills. dont like it? stop with the ad hominem attacks
Just out of curiosity - why don't you don't you just down mod ad-hom attacks?
Re: (Score:2)
Re: (Score:3)
A lot of laws have loopholes and some are also inconclusive in their writing where punctuation can change the meaning of the law entirely. Realize that in some cases the law that was registered may have been changed by a clerk around the time of the voting of the law so that what the voters think they vote for isn't what they really vote for. (See another article about the need for signing of proposed law texts to prevent this)
Re:Just makes them look even more guilty (Score:5, Insightful)
So charge them with fraud if they can't be charged under the clean air act. They deliberately misrepresented their product to customers to make greater profits, seems like a textbook case of fraud to me. Of course, since they are a large corporation they will probably skate with a small fine. You get the government you voted for, I hope all the people who vote for the corporatists each election are happy with the outcome.
Re:Just makes them look even more guilty (Score:5, Insightful)
If an individual did this, they would have manufactured a list of charges a mile long by now based on the craziest of legal theories.
Here, fraud presents itself quite naturally and they can't seem to find it.
Re: (Score:2)
One of the sticking points though is the individual doesn't have an army of lawyers to argue their case.
Nope, this is systematic of getting the best justice money can buy, and governments having to grapple with the fact that some pockets are deeper than theirs, and weighing the pros and cons of funding they can extract now through fines relative to tax revenue that could be had later on (certainly don't want to kill the golden goose in this case).
But let's not forget that it was the purse of government that
Congress can lie (Score:5, Informative)
Here, fraud presents itself quite naturally and they can't seem to find it.
Perhaps they are worried that the US government could be charged with fraud too since it seems they passed an act which they said would make it illegal for car manufacturers to make highly polluting cars but which, it appears, does nothing of the sort.
Congress has immunity from lying. No, really. https://en.wikipedia.org/wiki/... [wikipedia.org]
Re: (Score:2)
Huh. That's a weird statement to make considering the obvious and overwhelming improvement to air quality since big government started regulating car (and other) emissions, and in the case of one exception which was discovered after a handful of years.
You know that nobody expects laws to be 100% effective right? I can't even think of a law that is 100% effective.
Re:Just makes them look even more guilty (Score:4, Interesting)
I'm not sure about the precise legal definition of racketeering, but the Wikipedia definition [wikipedia.org] of a racket is:
That sounds a lot like what Volkswagen did to me. And RICO is often used to go after organizations that weasel out of responsibility for their misdeeds through loopholes. And, of course, there's the second part: Corrupt Organizations. And that fits Volkswagen to the tee... corrupt as hell and rotten to the core.
Re: (Score:3)
Re: (Score:2)
Sorry, which political party aren't full of corporatists again?
Re: (Score:2)
Re: (Score:3, Interesting)
Indeed. It's just awful that people who didn't break the law can't be punished for not doing so.
Re: (Score:3)
They committed a few million counts of fraud.
Re: (Score:3)
Well... if there's no crime to charge them with, they're not technically guilty of anything.
Except for being lying asshats.
Seriously though, they already admitted to what they did. They're not trying to hide it, everyone knows they're guilty of something, it's just that what they are guilty appears to be not as serious a breach of the law as people thought it would be. Sort of like finding out that if you're caught doing 100 mph in a school zone, the ticket is the same as if you'd done 5 over. Oops.
Re: (Score:2)
Re: (Score:2)
They are definitely guilty of something. It just might not be a criminal offense. Just like how speeding tickets are not criminal offenses. That doesn't mean they are not guilty of breaking any laws.
They are guilty of meeting the letter of the law and not the spirit of the law.
Re: (Score:2)
Re:Just makes them look even more guilty (Score:5, Insightful)
When the EPA tested the vehicles they did not assume that there would be this level of overt lying and manipulation. There have been other instances of bad behavior in the past, but these were caught in the normal course of events. This was deliberately intended to evade regulations, and VW has already admitted as much. So if management admits they were breaking the rules, how can you try and blame the EPA?
If the EPA or other government agencies did their job correctly, they would start with the assumption that the companies they deal with are run by degenerate psychopaths who will do anything, up to and including mass murder to make a buck. That certainly describes Ford and their failing key ignition switch, which by Ford's own estimate killed around 200 people. It is certain that the death toll is higher; given the money at stake, why should they stop lying now if they can get away with it? And previous to that there was Toyota and the cover-up of their sudden acceleration problem. So it's not like WV is that exceptional.
But when the regulators try and do a thorough job then business interests start squealing like stuck pigs and scream about how "ebil gomment is distroying the free interprize". Then they go out and buy a few more congress critters, and keep on lying and stealing for profit. And asshats like you are always there to cheer them on. Too bad you didn't die in a defective Ford or Toyota; it might have taught you something about how the world really works.
Re: (Score:2)
In our system of government, it is Congress that determines whether something is a felony or not. In this case, Congress decided this ought not to be a felony. Regulators shouldn't be able to change that, and they certainly shouldn't be a
Re: (Score:3)
That was GM, not Ford.
Re: (Score:3)
Utter bullshit.
You could blame the EPA if their testing procedures were faulty, e.g. they only test the car at low speed or with special fuel or whatever.
In this case, the only problem with the test procedure was that it was known to the manufacturer. In fact, that the testing procedure is consistent (i.e. always the same) is an absolute requirement because you want consistent, i.e. comparable, results. Maybe you could have kept the exact conditions a secret, but even then they would be fairly easy to guess
Re: (Score:3)
So no criminal liability in that particular Act. However, never underestimate the ability of an awful lot of Americans behind a class action suit to make a company wish it had never been incorporated. Well, at least for a few months until the coffers are replenished.
I also suspect that in the absence of reprisal under the specific legislation, that other less specific legislation may apply. I doubt that "conspiracy to poison US citizens" will get very far but there is lots of case law to dig through. M'
Re: (Score:2)
Now, who else makes diesel cars: I doubt that VW is the only firm to do this ...
Hmmm . . . how about . . . Mercedes-Benz . . . ? They make Turbo Diesel Injection cars . . . .
You can bet that they have already started an internal investigation . . . not to be surprised by anything that pops up in the news.
Re: (Score:2)
"keep in mind, their cars are 100% legal in the much stricter European market"
Will do. However you might like to know that our (UK) Road Fund (annual tax for owning a car) is https://www.gov.uk/calculate-v... [www.gov.uk] based on emissions.
I haven't looked too deeply into this and CO2 is not the same as NOx but I suspect there is a vague correlation. Anyway, 1.2M cars are earmarked for recall in the UK alone.
Re: (Score:2)
I'm sure VW doesn't have the same "get out of jail free" card in Europe. This means there could be cases filed by *every single country*...
Re: (Score:3)
IIRC, as a rule of thumb, California emission standards follow pretty closely the European ones. If VW is prosecuted in CA, then it is likely to be prosecuted in EU too.
Historically, California and Japan have vied for the title of nation with the most restrictive emissions testing laws. Yeah, I said it, I meant it. However, these days the US federal emissions standards are very strict, especially when it comes to diesels. There is some debate over whether the ultra-low NOx emission requirements are necessary given the reduction in fuel consumption (and thus in production of both particulates and CO2) which comes with small diesels which produce a bit more NOx, but perhaps
Re: (Score:2)
Fraud can be very hard to prove. There is already a lot of small text when it comes to emissions, even when they aren't blatantly installing cheating devices.
Re: (Score:2)
The Clean Air Act specifically describes that they did and outlines that it is a civil liability of $2500 per vehicle.
If the prosecution tried to go after then for fraud, their lawyers will turn around and say "Sorry, we broke this law, not that one."
The judge will then have to say "Case closed, next please"