Month: July 2015

Categories
Sports

Tom Brady destroyed evidence, Goodell concludes

This post has been updated as of July 29.

A decision by NFL Commissioner Roger Goodell to affirm a four-game suspension of New England Patriots quarterback Tom Brady reveals that Brady destroyed evidence that may have explained his role in the scandal known as DeflateGate.

According to Goodell, Brady destroyed a phone that he used throughout the period that covered the AFC Championship Game and the first six weeks of an investigation by the league into a scheme by Brady and two former members of the Patriots equipment staff to lower the air pressure in game balls in violation of the minimum 12.5 pounds per square inch set forth in league rules.

The date of the phone’s destruction coincided with the day on which Brady was interviewed by a team of investigators led by Ted Wells of the law firm Paul, Weiss, Rifkin, Wharton & Garrison. The NFL hired the firm to conduct an inquiry into the scandal. In the ruling released Tuesday, Goodell writes:

“Mr. Brady explained that when he changes cellphones, he gives his old cellphone to an assistant with the instruction ‘to destroy the phone so that no one can ever, you know, reset it or do something where the information is available to anyone.’ But this conflicts with the fact that the cellphone he had used prior to November 6, 2014 was, in fact, available or [the forensic expert’s] review. Had Mr. Brady followed what he and his attorneys called his ‘ordinary practice,’ one would have expect that the cellphone that he had used prior to November 6, 2014 would have been destroyed long before [the forensic expert] was hired. No explanation was provided for this anomaly.”

Brady used the phone to send or receive nearly 10,000 text messages, the investigation found. “Mr. Brady willfully obstructed the investigation by, among other things, affirmatively arranging for destruction of his cellphone knowing it contained potentially relevant information that had been requested by the investigators,” Goodell concluded.

The NFL’s ability to investigate charges of wrongdoing depends on cooperation, Goodell explained, in part because the league lacks subpoena power. Brady’s lack of cooperation led the commissioner to draw what he termed “an adverse inference” that supports a finding of misconduct.

For his part, Brady disputes the significance of the phone. In a post Wednesday on Facebook, he states:

“I replaced my broken Samsung phone with a new iPhone 6 AFTER my attorneys made it clear to the NFL that my actual phone device would not be subjected to investigation under ANY circumstances. As a member of a union, I was under no obligation to set a new precedent going forward, nor was I made aware at any time during Mr. Wells investigation, that failing to subject my cell phone to investigation would result in ANY discipline.” (emphasis in original)

Brady says he turned over records of his cellphone account and emails that investigators requested, as well as asked the phone company if there were a way to retrieve the text messages from the phone at issue. “There is no ‘smoking gun’ and this controversy is manufactured to distract from the fact they have zero evidence of wrongdoing,” he writes.

Categories
Law Privacy

Pocket-dial calls are not private, court rules

Someone whom you pocket-dial can listen to your call with impunity, a federal appeals court has ruled.

That’s because you know, or should know, that using a cellphone might result in your calling someone inadvertently, according to the U.S. Court of Appeals for the Sixth Circuit, which held recently that an assistant to the CEO of Cincinnati/Northern Kentucky International Airport who overheard comments about her boss by the airport’s chairman after he pocket-dialed the assistant is not liable for unlawfully intercepting a private conversation.

The assistant, Carol Spaw, listened continuously on Oct. 24, 2013 while James Huff, the chairman of the airport board, discussed Candace McGraw, the CEO, with Larry Savage, the airport’s vice-chairman, and later with Huff’s wife, Bertha. The men had stepped onto an outdoor balcony at their hotel in Bologna, Italy, where they discussed airport personnel matters, including the possibility of replacing McGraw as CEO.

Both Huff and his wife, with whom Huff continued discussing McGraw after returning to their room, later sued Spaw for intentionally intercepting their private conversations. A trial court ruled in favor of Spaw after concluding that because Huff placed the call, the Huffs lacked a reasonable expectation that their conversation would not be intercepted.

The appeals court agreed with respect to James but not with regard to Bertha. Writing for a three-judge panel, Judge Danny Boggs noted that “a number of simple and well-known measures can prevent pocket-dials form occurring.” But James Huff did not employ any of those measures, Boggs noted, adding, “He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.”

At issue was a series of steps that led to Spaw’s overhearing a conversation the participants thought to be private. After stepping onto the balcony, Huff tried to call Spaw using his iPhone to ask her to make a dinner reservation for him and Savage. When the call failed to connect, Savage called Spaw, who agreed to make reservations.

Thereafter, while Huff and Savage discussed personnel matters, the iPhone, which Huff had placed in the breast pocket of his jacket, called Spaw’s office phone, which she answered. After saying “hello” several times without a response, Spaw placed her phone on speaker mode and said “hello” a few more times. Within the first two minutes, Spaw realized that Huff and Savage were discussing McGraw, which prompted Spaw to take handwritten notes of the conversation and to instruct her colleague Nancy Hill, who also could hear the men talking, to do the same.

Spaw listened continuously to the call, which lasted 91 minutes. During that time, Huff finished his conversation with Savage and returned to his room, where he relayed to Bertha the substance of his conversation with Savage. Spaw, who used an iPhone to record part of the call, claimed that she felt obliged to do so after hearing the men discuss what Spaw described as an intention to discriminate against McGraw unlawfully.

The court noted that whether someone intercepts a phone call in violation of the law that authorized Spaw’s lawsuit turns on two questions: First, whether a person whose call is intercepted exhibits an expectation of privacy and, second, whether that expectation is reasonable.

“James Huff lacked a reasonable expectation of privacy in his statements only to the extent that a third-party gained access to those statements through a pocket-dialed call that he placed,” wrote Boggs (emphasis in original). “In sum, a person who knowingly operates a device that is capable of inadvertently exposing his conversations to third-party listeners and failed to take simple precautions to prevent such exposure does not have a reasonable expectation of privacy with respect to statements that are exposed to an outsider by the inadvertent operation of that device.”

Unlike her husband, however, Bertha Huff had an expectation that the contents of her conversation would remain private, at least until the final two minutes of the call, when her husband realized what had happened and told her his phone was on.

Though Bertha Huff knew her husband owned a cellphone and that cellphones can pocket-dial, “speaking to a person who may carry a device capable of intercepting one’s statements does not constitute a waiver of the expectation of privacy in those statements,” Boggs wrote.

Bertha Huff might have a claim against Spaw, provided Huff can show that Spaw’s actions constituted an intentional use of a device to intercept Huff’s communications, the court ruled.

The decision reminds us that anyone we pocket-dial can eavesdrop. “Having a private cause of action against someone who records your call after a pocket dial may be small consolation if the contents of the call are sufficiently embarrassing,” writes Jonathan Adler, a professor at Case Western University School of Law, in The Washington Post. “So this is a good reminder to lock your phone before putting it in your pocket.”

Categories
Law News Privacy

Gawker fills in a gap between publishing and privacy

Last Thursday, Gawker, an online site that tout’s “today’s gossip” as “tomorrow’s news,” published an item about a married male executive at a major media company who planned to hook up with a male escort in a Chicago hotel room.

As detailed in the post, the executive, who serves as chief financial officer of Condé Nast, called off the rendezvous after the escort, who realized the executive happens to be the brother of a former Treasury secretary, sent his would-be date documents tied to housing discrimination the escort claims to be facing in Texas.

The post drew a firestorm of criticism from readers, including from journalists. Critics condemned Gawker for outing the executive and for detailing an attempt by the escort, whom the piece identified using a pseudonym, to pressure the executive to hit up his brother for help.

A day after the post went up, Gawker took it down. The move marked “the first time we have removed a significant news story for any reason other than factual error or legal settlement,” Nick Denton, the site’s CEO, wrote in a statement. According to Denton:

“The story involves extortion, illegality and reckless behavior, sufficient justification at least in tabloid news terms. The account was true and well-reported. It concerns a senior business executive at one of the most powerful media companies on the planet… In the early days of the Internet that would have been enough… But the media environment has changed, our readers have changed, and I have changed… I believe this public mood reflects a growing recognition that we all have secrets, and they are not all equally worthy of exposure.”

The decision to remove the post prompted the resignation of both Gawker’s executive editor and the site’s editor-in-chief. Removing the post breached the firewall between the editorial and business sides of the house in a way that, in their view, undermined their responsibility to safeguard the site’s editorial integrity.

As Denton noted, the turnabout marked a departure for Gawker, which made its mark with pieces that sparked the downfall or discomfort of a series of public figures. In 2010, the site published an anonymous account of the author’s one-night stand with Christine O’Donnell, then the Republican nominee for the U.S. Senate from Delaware. (Though O’Donnell was a public figure, critics in and out of the media slammed Gawker for invading her privacy. Denton defended the post by pointing out that O’Donnell campaigned as a paragon of chasteness.) In 2011, former U.S. Rep. Chris Lee resigned after Gawker published an email exchange he had with a woman he met on Craigslist.

Hulk Hogan sued Gawker in 2012 for $100 million after Denton posted excerpts from a tape of the wrestler having sex with the wife of a friend. (The case is pending in a Florida court.) More recently, Gawker investigated whether Katie Holmes moved into a Manhattan apartment three years ago that linked via a secret entrance to a Whole Foods Market on the first floor. (She did, it seems.)

To its credit, the site punches up. In 2010, Gizomodo, a Gawker site devoted to tech news, revealed a lapse in Apple’s legendary security by reporting on a prototype of an iPhone 4 that the editors bought from someone who found it in a bar, where an engineer from Apple left it by accident. Last winter, Gawker took the lead in publishing a trove of emails from the hack of Sony.

At its best, Gawker knows  how to “make fun of people and media sites without being overtly cruel,” Sarah Grieco wrote last year in the Columbia Journalism Review. At its worst, Gawker has a tendency to bully, according to Grieco, who cites Gawker’s claims that Shepard Smith, a Fox News anchor, is gay despite a dearth of evidence.

In defense of the discretion that Gawker demonstrates when it wants to, Denton has cited the decision not to publish nude photos of Jennifer Lawrence and other celebrities that leaked last year. The images may have been accurate, but they exposed no lie, Denton told Capital New York recently.

The piece about the CFO seems to be akin to the case of Hogan but with one difference. Hogan charges Gawker with invading his privacy. The video showed Hogan having sex but the act was private and recorded without his knowledge, he alleges. Gawker counters that the material is newsworthy, a position in line with the law, which generally protects reporters who ferret out facts that are not commonly known so long as they’re news.

Still, compared with Hogan, a celebrity who has boasted about his sexual prowess, the CFO of Condé Nast is an unknown. Sure, he works for a company that publishes The New Yorker, Vogue and other titles. But the person in charge of overseeing preparation of financial statements, managing Condé Nast’s financial strength or presenting the company’s creditworthiness has little to do with the content of its magazines.

At many news outlets, the executive suite tends to be a well-paid wing of the back office. And by most accounts, the current CFO of Condé Nast is about as far from the limelight as one can be. It’s also difficult to find a contradiction between his private behavior and public persona. He has no public persona.

Though Denton seems to have concluded as much the realization came too late to prevent the piece from going up in the first place. In a memo Monday to Gawker’s staff, he noted that the CFO story was legal but unworthy of the discretion afforded the editors who signed off on its publication. Writes Denton:

“We need a codification of editorial standards beyond putting truths on the Internet. [italics in original] Stories need to be true and interesting. I believe we will have to make our peace with the idea that to be published, those truths should be worthwhile. And some humane guidelines are needed — in writing — on the calculus of cruelty and benefit in running a story. Everybody has a private life, even a C-level executive, at least unless they blab about it. We do not seek to expose every personal secret — only those that reveal something interesting. And the more vulnerable the person hurt, the more important the story had better be.”

Time will tell if that’s a standard Gawker can uphold. Some members of Gawker’s editorial staff dispute both the viability of the criterion and Denton’s role in publishing the Condé Nast piece, which some in the newsroom say he could have killed up front had he found it as reprehensible as he contends.

Whatever the outcome, the test that Denton has articulated further defines the boundaries of publishing and privacy in a digital age. Highlight the disparities between the statements and actions of public figures. Clear the air of spin. Cover the news. And remember that stories are about people, too.

Categories
Law Privacy

Neiman Marcus customers can sue over data breach

The hassle of straightening out unauthorized charges and the cost of protecting oneself against identity theft give consumers whose personal information is swiped in a data breach standing to sue a company that controlled the information, a federal appeals court in Chicago ruled Monday.

Customers who shopped at Neiman Marcus over roughly three months in 2013 during which hackers used malware to steal payment card information from the retailer’s terminals suffered injuries concrete enough to support their claims, according to the U.S. Court of Appeals for the 7th Circuit.

The customers, who include people who discovered fraudulent charges on their credit or debit cards after using the cards at Neiman Marcus stores in New York and California two years ago, filed a class-action lawsuit in March 2014 charging the luxury chain with failing to maintain security sufficient to protect their personal information and waiting six months from the start of the breach to notify customers their information had been compromised.

The plaintiffs alleged that the breach exposed 350,000 cards, of which 9,200 were known to have been used fraudulently. In all, the breach may have exposed as many as 1.1 million payment cards.

The trial court tossed the lawsuit, finding the plaintiffs’ claims of financial harm they might experience insufficient to support standing. Judge Diane Wood, writing for a three-judge panel of the appeals court, disagreed:

“At this stage in the litigation, it is plausible to infer that the plaintiffs have shown a substantial risk of harm from the Neiman Marcus data breach. Why else would hackers break into a store’s database and steal customers’ private information? Presumably, the purpose of the hack is, sooner or later, to make fraudulent charges or assume those consumers’ identities.”

The court distinguished the case of the data breach before it with a ruling in 2013 by the Supreme Court that found human rights organizations lacked standing to challenge the Foreign Intelligence Surveillance Act because they could not show that the government actually intercepted their communications with suspected terrorists.

“This is a really consequential decision” notes Alison Frankel of Reuters. “It’s the first time a federal appeals court has looked at a data breach class action that was dismissed because the trial judge said it fell short of [the Supreme Court’s] standing requirements.”

The customers of Neiman Marcus “should not have to wait until hackers commit identity theft or credit-card fraud in order to give the class standing, because there is an ‘objectively reasonable likelihood’ that such an injury will occur,” wrote Wood, citing the Court’s ruling from two years ago.

According to Wood, an offer by Neiman Marcus to pay the cost of a credit-monitoring service that costs $4.95 for the first month and $19.95 a month thereafter reflects the type of injury the plaintiffs suffered. She added:

“It is telling in this connection that Neiman Marcus offered one year of credit monitoring and identity-theft protection to all customers for whom it had contact information and who shopped at their stores between January 2013 and January 2014. It is unlikely that it did so because the risk is so ephemeral that it can safely be disregarded.”

That some lenders will not hold customers responsible for unauthorized charges neither eliminates injury to the cardholders nor shows that their injury cannot be redressed by a decision in their favor, the court found.

According to the court, the fact that the plaintiffs’ injuries might be traced to a data breach at Target or another of the retailers whose systems hackers infiltrated around the same time also does not rule out a lawsuit against Neiman Marcus.

If it happens that more than one company may be responsible for exposing the plaintiffs’ personal information to hackers, the companies themselves will have an opportunity to prove that they were not the cause of the injury, the court said.

Categories
Tech

All things mobile?

With my MacBook in the shop this week I’ve used my iPhone exclusively for all things digital. That includes paying bills, refilling a prescription; purchasing tickets to a concert and typing posts such as this one.

“This is one of those times when an iPad might get you most of what you need,” my significant other told me. Overall the phone is fine. Still, I’m struck by the tasks that seemingly ought to be mobile yet for whatever reason require a workaround.

For example, at Ticketfly, an online merchant that sells what the first part of its name suggests, my attempt to purchase one ticket to a show this September ended in what the site termed a server error. Ticketfly suggested a phone call to complete my order. 

Walgreens asked me if I would like to purchase a membership in a program for discounts on drugs. Intrigued, I clicked on a PDF file of a brochure that described the program. But the site failed to deliver the file despite my trying at least three times to open it.

I also tried to pay my Visa bill at Bank of America. The bank issued me a new card recently. That required me to connect the card anew to my bank account. But the site could not direct me to the page where you enter your banking details. I later completed the setup from a desktop Mac at the library.

Categories
News

Three items for a Monday

My MacBook is in the shop but three items compel me to post via my iPhone.

First, Serena Williams wins Wimbledon for the sixth time while notching her fourth consecutive major. Mark the moment in the annals of tennis and sports. 

Ever wish you could have watched Ali or Borg or Ben Hogan or DiMaggio in their prime? This is one of those moments when we can see greatness in real time.

Second, last week a federal judge in Manhattan ordered Time Warner Cable to pay $229,500 to a Texas woman for robo-calling her 153 times after she yanked her consent.

The ruling shows the reach of the Telephone Consumer Protection Act and how companies can run afoul of it. Though Time Warner Cable seems not to have tried to comply. 

The case also highlights the value of reading the terms of service that govern relations with the services we use.

Speaking of the cable company, at a speech today in Manhattan, Hillary Clinton called for boosting competition in broadband, among other improvements to the economy. Hopefully whoever becomes president will do exactly that. The network can’t get faster fast enough.

Categories
Law Privacy

Search of seized hard drives highlights questions of privacy in a digital age

A federal appeals court in New York has agreed to hear anew an appeal that explores the contours of privacy in a digital age.

At the urging of one of their colleagues, a majority of judges on the 2nd Circuit U.S. Court of Appeals voted on June 29 to rehear an appeal filed by Stavros Ganias, an accountant from Wallingford, Connecticut who was convicted in 2011 of two counts of tax evasion and sentenced to 24 months in prison.

The ruling reopens an appeal decided in June 2014 by three judges of the court, who in a divided ruling vacated Ganias’ conviction after concluding that the government violated his Fourth Amendment rights when it retained files from his lawfully searched computers for more than two-and-a-half years and then searched them again when it later developed probable cause.

The case highlights a difference between searches of books or papers and searches of computers and other electronics, which can hold files that range from the professional to the personal and may encompass far more information about someone from whom the government seizes such devices than the warrant itself authorizes.

In deciding to review the ruling, the majority asked the parties and their allies to address two questions that the court will consider when it convenes for oral argument on Sept. 30.

“(1) Whether the Fourth Amendment was violated when, pursuant to a warrant, the government seized and cloned three computer hard drives containing both responsive and non-responsive files, retained the cloned hard drives for some two-and-half years, and then searched the non-responsive files pursuant to a subsequently issued warrant; and

(2) Considering all relevant factors, whether the government agents in this case acted reasonably and in good faith such that the files obtained from the cloned hard rives should not be suppressed.”

At issue is a prosecution that stemmed from Ganias’ work on behalf of a company that had been hired by the U.S. Army to provide security and maintenance services at a vacant facility in Stratford, Connecticut.

Based on a tip from a confidential source that the contractors had stolen copper wire and other equipment from the facility, in Nov. 2003 investigators from the Army obtained warrants to search several premises, including the offices that housed Ganias’ accounting firm.

There, pursuant to the warrant, the agents made identical copies of the hard drives of Ganias’ computers. Though the imaging also copied Ganias’ personal files—contained in programs such as QuickBooks and TurboTax—the agents assured Ganias they were looking only for materials that tied to the investigation. The following spring, after discovering suspicious payments by the contractor to a business owned by someone who had not reported any income from that business, the Army invited the IRS to join the investigation. Investigators from the Army gave the IRS copies of Ganias’ hard drives so that agents from the IRS could review the evidence.

By December, the agents from both the Army and IRS had extracted the files that tied to their investigation of the contractor. They knew the warrant did not authorize them to review other records retrieved from the hard drives. Still, they retained the files that had nothing to do with the investigation.

For its part, the IRS started to suspect that Ganias had failed to report the contractor’s income properly. In July 2005—about 20 months following the seizure of the hard drives—the IRS broadened its investigation to include possible tax fraud by Ganias. The agent in charge of the investigation did not review Ganias personal financial records, which she knew to be beyond the scope of the warrant.

The following February, the government asked Ganias and his attorney for permission to review Ganias’ personal files that had been copied from the hard drives. After Ganias did not respond, the IRS obtained a warrant to search the images of Ganias’ financial records seized in 2003. Because Ganias had revised the original files shortly after the Army copied the drives in 2003, the original records would not have existed absent the government’s retaining the images.

At trial, Ganias sought to suppress the computer files that became the subject of his appeal. Judge Alvin Thompson of the U.S. District Court in Hartford denied the motion, explaining:

“Here… where the searches and seizures were authorized by a magistrate judge, where government agents scrupulously avoided reviewing files that they were not entitled to review, and where the defendant had an alternative remedy pursuant to [a motion to return property] to avoid the complained of injury, i.e. that the government held his data for too long without returning or destroying it, the defendant has not shown that his Fourth Amendment rights were violated.”

On appeal, the court noted that the framers of the Constitution sought to end the practice of the British of searching the premises of opponents and seizing their papers, books and records indiscriminately pursuant to so-called general warrants. Consequently, the court noted, the Fourth Amendment requires that warrants will be available to the government only on a showing of probable cause and a description of the places to be searched and the items to be seized. According to Judge Denny Chin:

“These Fourth Amendment protections apply to modern computer files. Like 18th Century “papers,” computer files may contain intimate details regarding an individual’s thoughts, beliefs, and lifestyle, and they should be similarly guarded against unwarranted Government intrusion. If anything, even greater protection is warranted.”

The court observed that investigators who carry out a warrant may do so by making mirror images of the information stored on hard drives that the investigators can later review off-site. According to the court, the government must review the material within a reasonable period—there’s no one-size-fits-all rule—and that material is subject to exclusion from evidence when the government seizes items outside the scope of the warrant (a practice that starts to resemble a general warrant) and fails to act in good faith.

In the case of Ganias, the court concluded that the government had overstepped its authority. According to Chin, the government’s retaining Ganias’ records for two-and-a-half years interfered with his rights in those files.

“Without some independent basis for its retention of those documents in the interim, the government clearly violated Ganias’ Fourth Amendment rights by retaining the files for a prolonged period of time and then using them in a future criminal investigation,” wrote Chin, who rejected the government’s contention that it obtained a second warrant to search Ganias’ files.

“If the Government could seize and retain non-responsive electronic records indefinitely, so it could search them whenever it later developed probable cause, every warrant to search for particular electronic data would become, in essence, a general warrant,” he added.

The ruling, which vacated Ganias’ conviction, surfaces a tension between the reasonableness of a search—in this case the length of time the government retains records swept up in a search—and the need for the government to establish that it has not altered evidence in its custody. As the Harvard Law review noted in December:

“Although the court properly found that Ganias’ Fourth Amendment rights had been violated, the decision failed to appreciate the importance of authentication requirements for electronic evidence. As a result, Ganias may unnecessarily complicate prosecutions by potentially creating a perceived ‘right to deletion’—a prescription that federal prosecutors must delete files nonresponsive to a warrant sooner rather than later. The court could have avoided any potentially burdensome effects of this prescription on the evidentiary authentication process had it issued a more narrow ruling merely suppressing the evidence.”

The decision to reexamine the ruling also may tie to a question posed by Orin Kerr, a professor of criminal law and procedure at George Washington University who has commented on the case. “Is the real problem here that the government has over-seized and is taking unfair advantage of having extra stuff available to it, or is the real problem only that too much time has elapsed before the government is taking that advantage?” Kerr wrote in The Washington Post following Chin’s ruling.

Kerr suggests the same facts as Ganias except imagines the government developed probable cause for the second crime days after carrying out the first warrant. “Should that case come out differently?” he asks. “And if it could come out differently, is that because we intuit that the information for the second warrant likely is still… available on the original hard drive or because we think that the government’s seizure did not go on for so long as to become unreasonable?”

The first briefs are due by July 29.

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Home

The unanimous Declaration of the thirteen United States of America

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Categories
Sports

Dustin Brown continues to climb

Rafael Nadal lost at Wimbledon Thursday to the 78th-ranked player in the world.

That player happens to be Dustin Brown, a German who stands six feet five with dreadlocks half as long. Brown, 30, dispatched Nadal, a Spaniard who stands six feet one and who is ranked 10th in the world, in four sets. The loss marked the third time in four years that Nadal lost during the tournament’s first week.

Brown, who was raised in Jamaica—his mother is German, his father Jamaican; on Twitter he goes by the handle @DreddyTennis—became one of the 100 best players in the world in 2009, when he reached No. 99, the highest ranking ever for a Jamaican player.

In an interview last year, Nick Kyrgios, an Australian ranked No. 29 in the world, asked Brown what it’s like playing with the dreads.

“For me it makes no difference, I’ve always had long hair,” Brown answered. “I think the last time I cut it was August 1996.”

“That’s insane,” replied Kyrgios. “I was born in 1995. That’s the last time you had a haircut.”

I like Brown’s locks, his game—said to be unorthodox, the better to frustrate opponents—and the VW camper van he used to travel between tournaments early in his career.

Thursday was not the first time that Brown beat Nadal. A year ago, he defeated Rafa in straight sets during the first round of a tournament in Halle, Germany. After the match, Brown recalled his rise through the ranks. “At the start it was awkward,” he told the Guardian. “People didn’t know who I was, everyone was like, ‘Who’s this guy with the camper?’ But after a while, meeting people, playing better, playing doubles, stringing rackets for the guys, you get to know everyone.”

“Call it hustling, grinding, whatever you want… we were all just trying to get on to the big tour,” he added.

Categories
Sports

Phil Jackson, Kris Porzingis and the kids on the 3 train

One night about a week ago I boarded an uptown 3 train at Chambers Street. To my right sat two middle-age men, each accompanied by two boys who appeared to be their sons. One of the boys wore a t-shirt that touted Steph Curry, the all-star point guard for the Golden State Warriors. Another wore Lakers garb. Two wore Knicks jerseys.

About two stops later it occurred to me the six of them likely had come from the Barclays Center, where that evening the NBA staged its annual draft. The first threesome left the train at Penn Station. Their companions at 72nd Street.

After arriving home and consulting Twitter, I realized, at least for the Knicks fans, that the draft had presented something of a referendum on Kristaps Porzingis, a 19-year-old forward whom the Knicks selected as their top pick.

Apparently, the selection of Porzingis proved to be wrenching for some of the Knicks’ faithful, who awaited the draft with a hope that finally, this draft, the first under team president Phil Jackson, would mark the first step in a return to winning. The Knicks finished last season with 17 wins and 65 losses, second-worst in the league and the worst in franchise history.

By wrenching, I mean that some fans who attended the draft booed the selection of Porzingis, despite his standing seven feet one and saying that he wanted to play in New York. ESPN captured one young fan crying as he marked the moment in a selfie.

That’s not to suggest Porzingis doesn’t have game. As a player last season with Cajasol Seville of Spain’s ACB league, Porzingis averaged 10.7 points, 4.8 rebounds and one block in 33 games. He hit 38% of his three-point shots and 54% of his two-point tries. Porzingis averaged 11.6 points, 4.1 rebounds and 1.2 blocks in 16 games of the Eurocup, where he won the “Rising Star Trophy.”

Porzingis’ weakness is said to be defense. He weighs about 233 pounds, which, at his height, suggests he might struggle with the physicality of the NBA. It didn’t help that Carmelo Anthony, the Knicks star forward, reportedly dissed the selection of Porzingis. Anthony later reached out to the rookie, whom Anthony said he “can’t wait” to see play.

The pundits appear to like Porzingis’ game, though questions abound. According to Kevin O’Connor at SB Nation, the Latvian “could end up being the steal of the 2015 NBA Draft” if Porzingis has the work ethic to reach what O’Connor calls his “sky-high potential.”

Writing in the PhillyVoice, Rich Hoffman praised Porzingis’ shooting and athleticism while questioning his defense and ability to pass the ball. “He averaged less than one assist per game in both [Spain and the Eurocup] and reportedly doesn’t look comfortable setting his teammates up,” Hoffman wrote.

“Porzingis is very agile for someone his size,” Rafael Uehara wrote last January on the fan site Upside and Motor, noting that Porzingis can play defense, too. “Energy and length are also how he contributes on the other end… He also clogs passing lanes, picking up steals with regularity.” As for Porzingis’ deficits: dribbles too high (makes him susceptible to having the ball stripped away) and passes poorly while moving (see Hoffman, infra), says Uehara.

Jackson says he’s not worried and compares the Latvian to Paul Gasol, who stands seven feet and played center for Jackson with the Lakers. “[Gasol] was 227 pounds when drafted by Memphis,’’ Jackson told reporters recently. “He said, ‘I was a skinny kid when I came in the NBA, too. It’s not about that. It’s about strength.’”

Of course, the selection matters all the more because of who did the selecting. Jackson won five NBA championships with the Lakers after winning six with the Chicago Bulls. He also won two championships as a player for the Knicks; the first in 1970, followed by another three years later. “I think Phil wanted to make a statement,” a host on ESPN Radio’s afternoon show said Wednesday. “He clearly made it with Kris Porzingis.”

If you had asked me in the 1990s, when Jackson’s Bulls dominated the NBA, whether I could imagine the Zen Master one day taking the top pick in the draft on behalf of the Knicks, I think it would have seemed unthinkable. But there I was, on the 3 train, across from a couple of kids in Knicks jerseys on their way back from Brooklyn where they had witnessed exactly that.