Author: TSA Press

Hopefully, the country will continue to learn about the odiousness of nondisclosure agreements and non-disparagement clauses. Whatever other utility they serve, they’re being used to silence victims at the behest of more powerful interests. People have started thinking about these agreements a lot in light of #MeToo. Yesterday, the Fourth Circuit struck down gag orders as part of police settlements, opening a small window for more coverage of police brutality.

The case, Overbey v. Baltimore, arose after Ashley Overbey called the police to report a burglary. The police beat her up and arrested her.

I suppose I should say that Overbey is a black woman, but if you’ve been paying attention to America, you don’t really need me to tell you that.

Overbey settled her case for $63,000, and signed a non-disparagement agreement. Courthouse News Service picks up the story from there:

Overbey’s story was featured in a 2014 Baltimore Sun article about the city’s excessive-force settlements, and when Overbey defended herself from racist trolls commenting on the newspaper’s now-shuttered online public comment forum, the city withheld half her settlement for violating the nondisparagement clause.

To recap: black woman who called police for help was beat up by police, settled, then got beat up by racist trolls, defended herself, and the police tried to withhold half of her settlement.

The Fourth Circuit did not like this:

“We hold that the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void,” U.S. Circuit Judge Henry Floyd wrote, joined by Judge Stephanie Thacker. Judge Marvin Quattlebaum dissented.

The city’s argument — that Overbey was merely exercising her right to refrain from speech in exchange for money — turns previous free speech precedent on its head, the majority ruled.

“At its heart, the right to refrain from speaking is concerned with preventing the government from compelling individuals to mouth support for views they find objectionable,” Floyd wrote, citing the 1988 U.S. Supreme Court decision Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc.

“Overbey’s promise not to speak about her case cannot be fairly characterized as an exercise of her right to refrain from speaking, because none of the interests protected by the right to refrain from speaking were ever at stake in the case.”

These gag orders have to stop. Whatever public interest is derived by encouraging parties to settle is outweighed by their use to silence victims, especially in a social media infused world where victims can be bullied and ostracized without even being able to speak up in their own defense.

And that’s just generally. When it comes to the police specifically, nothing is gained from letting them to continue to hide their brutal actions from the general public.

Gag Order Not Enforceable in Police Brutality Settlement [Courthouse News Service]

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

WASHINGTON: A federal judge rejected Oracle’s arguments that it was improperly excluded from the Pentagon’s $10 billion JEDI cloud computing competition, denying Oracle’s lawsuit against the Pentagon.

The ruling vindicates the father of the Joint Enterprise Defense Infrastructure plan, former Defense Digital Service director Chris Lynch, and clears the way for a final showdown between Amazon Web Services and Microsoft Azure. Oracle has not said whether or not it might appeal.

[Click here for our in-depth analysis of the JEDI debate]

Judge Eric Bruggink ruled on two key grounds — technical requirements and conflict of interest — but he was silent on a third: whether the Pentagon’s plan to award the JEDI contract to a single vendor is fundamentally flawed.

071219 JEDI Ruling by BreakingDefense on Scribd

First, the judge says Oracle had conceded that, at the time it submitted its JEDI proposal, the company could not meet one key requirement — one of seven mandatory “Gate Criteria.” Specifically, Oracle didn’t have enough data centers in enough widely separated locations to keep the cloud service operating in case of a massive disaster. As the official solicitation puts it under Sub-Factor 1.2, a qualified bidder must show its “data centers are sufficiently dispersed and can continue supporting the same level of DoD usage in the case of catastrophic data center loss”; other documents strongly imply that one of the catastrophes JEDI must endure is a limited nuclear strike.

That’s not the kind of thing most commercial customers think about — but it’s entirely relevant to a system that will provide intelligence data to combat units worldwide, all the way down to foot troops carrying backpack mini-servers. Since the judge found this requirement to be reasonable, and since failing any of the seven Gate Criteria would disqualify the entire bid, he ruled it doesn’t matter whether or not Oracle was treated unfairly on any other grounds. It would have lost regardless.

“Because the court finds that Gate Criteria 1.2 is enforceable, and Oracle concedes that it could not meet that criteria at the time of proposal submission, we conclude that it cannot demonstrate prejudice as a result of other possible errors in the procurement process,” Bruggink wrote in his preliminary ruling this morning.

Second, Bruggink rejected Oracle’s claim that the selection process was biased against Oracle by Defense Department employees with ties to presumptive favorite Amazon Web Services. New revelations about one official in particular, Deap Uhbi, had delayed the trial so the Pentagon’s Inspector General could investigate the matter. The IG ultimately ruled Uhbi and others had not improperly influenced the competition.

Interestingly, however, Bruggink doesn’t refer to the IG investigation, only to an earlier investigation by the JEDI contracting team itself: “We conclude as well that the contracting officer’s findings that an organizational conflict of interest does not exist and that individual conflicts of interest did not impact the procurement were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” That implies he doesn’t think the late-breaking evidence is relevant.

A third area where Bruggink was silent — as our colleagues at FedScoop were the first to point out — is whether the Pentagon has the right to award the entire JEDI contract to a single vendor. Congress had earlier required multiple awards on this class of contract, to ensure competition. But the law left the Defense Department the right to waive that requirement in certain cases, which it did on JEDI. Some prominent lawmakers felt the Pentagon had abused the privilege, arguing that leading businesses now routinely rely on multiple cloud providers.

JEDI defenders retorted that it will not replace all of the Defense Department’s current 500-plus cloud contracts, leaving plenty of room for other providers where appropriate. Even Oracle’s own bland statement this morning acknowledges those other opportunities: “We look forward to working with the Department of Defense, the Intelligence Community, and other public sector agencies to deploy modern, secure hyperscale cloud solutions that meet their needs.”

How many cloud providers JEDI actually requires is the kind of technical and operational question where federal judges are loathe to second-guess executive branch experts. If an agency says “we need this to work this way,” it’s a steeply uphill battle to convince a judge to rule “no, you don’t.” So while Bruggink’s silence on this matter is worth noting, it probably reflects his reluctance to say anything about it if he didn’t have to.

Congress, however, need not show deference to the Defense Department.

• Zimbabwe adopted the Zimbabwean dollar, and banned the use of the US dollar and the rand, at the end of June.
• We went shopping in Bulawayo to see what impact the currency change has had.
• We found widespread price confusion, many closed outlets and early-morning buying of basics as shoppers worry that their money will lose value during the day.

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Last month, Zimbabwe banned the use of the rand, the US dollar, and other currencies as legal tender in the country.

For the past decade, the government has allowed these currencies as legal payment after its own dollar became worthless.

Its interim currency – the Real Time Gross Settlement dollar (RTGS) or “zollar” – was renamed the Zimbabwean dollar, and is now the only legal currency that can be used in the country.

This has sparked renewed fears of hyperinflation and is creating confusion among shoppers.

Business Insider South Africa went shopping in Bulawayo, Zimbabwe’s second largest city, this week to see first-hand the impact of the currency change.

We found that businesses are struggling to operate after the currency change – and that many have closed up shop.

All of the formal and informal retailers we spoke to are struggling to adapt to the new currency regime. Because many consumers are stuck with foreign currencies they are not allowed to use any more, there has been a cash crunch, few people have money to spend and many shops have closed temporarily,

Those businesses that are still operating, re-adjust their pricing every morning – but there seems to be mass confusion about what the Zim dollar is really worth, and how products should be priced:

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Some stores used estimates from the fluctuating black market US dollar to Zimbabwe dollar exchange rate.

The Zimbabwean dollar is currently estimated to trade at Z$9.99 to the US dollar in the Zimbabwean black market.

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Several informal businesses have, however, ignored the directive and continue to use foreign currency pricing

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Quoting prices in foreign currency is a criminal offence. At some of the informal stores and produce stalls we found that prices were not on display – but shoppers were quoted prices in rand, and also had to pay in the South African currency.

Stall owners say they buy their products from neighbouring Botswana and South Africa, mostly in rand, and that they couldn’t afford to buy new stock if they accepted Zimbabwean dollar.

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We noticed some panic buying early in the morning, with some people stocking up on basics as they fear their money would lose value throughout the day.

There were also widespread shortages in basic commodities:

Post published in: Business

This after the finance minister said fuel was considerably cheaper than in neighbouring countries.

President Emmerson Mnangagwa announced the biggest fuel price hike in January — a 150 percent increase — which sparked deadly protests by financially struggling Zimbabweans that left more than a dozen people dead after an army clampdown.

The Zimbabwe Energy Regulatory Authority said late on Friday that effective Saturday, petrol would cost 6.10 Zimbabwe dollars ($0.70) a litre, up from 5.26, while the price of diesel had been increased 13 percent to 5.84 Zimbabwe dollars.

Finance Minister Mthuli Ncube was quoted in a daily newspaper as saying he would be happy if the price of fuel was equivalent to $1 per litre.

While Ncube wants fuel prices to reflect import costs, many Zimbabweans can barely afford to pay them when the unemployment exceeds 80 percent and the entry-level wage for a government employee is about $49 a month — enough to buy a car tyre.

But with no sign of an end to rolling power cuts in the southern African country, demand for fuel has risen as businesses resort to more expensive diesel-powered generators.

Analysts say this is increasing the price of doing business, with companies likely to pass the cost to consumers, who are already grappling with inflation of nearly 100 percent.

There were long queues at service stations selling fuel early on Saturday.

This is among a raft of measures meant to stem the theft of gems, the Zimbabwe Independent learnt this week.

As revealed in February, substantial quantities of diamond ore were stolen from the ZCDC in January by a gang of armed men in millitary gear which overpowered the company’s security staff and held them hostage before escaping with valuable gemstones.

The January robbery was followed by yet another heist at the ZCDC in March, where a gang of armed robbers, in a similar style, overpowered the security staff in the mining area, and escaped with precious ore. The ZCDC said on both accounts the criminals only got away with “valueless” dump tailings.

In the aftermath of the robberies, the ZCDC board subsequently sacked its top executives, led by the then chief executive Morris Mpofu. Mpofu has since been dragged to the courts to answer allegations of corruption, specifically that he approved diamond sales to a blacklisted dealership.

The ZCDC’s acting chief executive officer Roberto di Pretto said that the mining firm would bolster its security system through the adoption of automated technology, while evaluating the assets of its employees, through a “lifestyle audit”.

“We are looking into the process of automation of the value chain which includes the sort-house and all other highly sensitive areas,” De Pretto said, noting that suspects implicated in the two heists were apprehended and appeared in court.

“We are also carrying out multi-layered extensive surveillance and thorough vetting of employees including lifestyle audits. The security around Chiadzwa is being enhanced through additional technological systems with a view to raise our security to world-class standards around the clock.”

The heists, which were preceded by the massive management shake-up at the state-owned mining enterprise, saw the 69th session of the United Nations (UN) plenary resolving to deliberate on whether Zimbabwean diamonds should be classified as conflict gems during the inter-governmental organisation’s 74th general assembly meeting agenda in March.

The meeting, bringing together heads of state from the UN’s 192 member countries, is scheduled to run from September 17-24 this year in New York, United States.

The development follows intense lobbying by a grouping of international civil society organisations affiliated to the Kimberly Process Certification Scheme (KPCS) urging the UN to review its definition of conflict diamonds in order to encompass Zimbabwe’s gemstones.

Zimbabwe will be barred from trading on the formal market, if the move by a consortium of civil society organisations sails through.

Under KPCS rules governing the international trade in the precious mineral, diamond mines must have tight security.

The robbery incidents add impetus to calls for the KPCS to widen the definition of conflict diamonds to also cover those being mined in Zimbabwe, which various interest groups say are being used to finance President Emmerson Mnangagwa’s violent suppression of dissent.

Currently, the organisations feel the definition of conflict diamonds — that they are gemstones which originate from areas controlled by forces or factions opposed to legitimate and internationally recognised governments, and are used to fund military action in opposition to those governments, or in contravention of the decisions of the UN Security Council — is inadequate.

This year, the ZCDC has conducted three diamond auctions with receipts from cumulative sales yet to be consolidated to determine how much the country has generated from the marketing of the precious mineral. Another auction sale will “soon” be conducted this year.

ZCDC, which was established in 2017 following the controversial termination of licences held by seven entities operating in Chiadzwa, is currently sitting on a 3.2 million carat stockpile.