Evasion generally has to do with mandatory liabilities and provisions. For example - tax avoidance and evasion. It's legal to plan your activities to avoid incurring a tax. It's illegal to take an action that results in a tax liability and then not pay it or attempt to hide it.
For me, what Uber did is akin to avoiding roads that are known speed traps. Yes, Uber is required to obey the laws of the jurisdiction they are in, but they are also able to deny service to anyone for any reason so long as that reason does not fall under a protected class (age, race, gender, etc.). Refusing service for being a suspected member of law enforcement is allowed. Just as certain small businesses provide discounts to law enforcement in appreciation of their service, others can refuse to serve them.
The issue of whether or not what Uber did was illegal seems to hinge upon whether or not the underlying activity was illegal. It sounds to me (and has been stated elsewhere) that many of the jurisdictions where this was being used have unclear or incomplete ride-sharing and booking laws. This would make the activities by Uber up for legal debate, just like the Uber legal battle in CA on whether to classify drivers as employees or contractors. If there's not a consensus or existing legal precedent that a specific activity is illegal, you can't say that their activity is evasion because the activity they are trying to "hide" hasn't been ruled in court to actually be illegal because this situation is still relatively new and hasn't been adjudicated on yet. Once we have a decision by the courts on the underlying activity, then yes, using Greyball to avoid authorities would be illegal.
It is true that Uber consistently claims that laws that apply to commercial livery do not apply to them--whether it was ever true is debatable. Courts have not been sympathetic to this claim. But, regardless, now, years later, legislatures & city councils have added "ridesharing" to their laws.
Finally, regardless of Uber, there is no technicality that somehow makes obstruction of justice legal in any jurisdiction. And building a piece of software only makes it worse, as it immerses what is a criminal conspiracy to obstruct justice across many jurisdictions and involves anyone who built or used it.
Evasion - for Portland, they haven't been formally approved from what I read. Doesn't necessarily mean that because they aren't formally approved that the actions are illegal. But I also see that Portland passed a law in Dec 2015 to allow Uber and Lyft on a permanent basis under existing transportation laws that would require them to provide trip data to the city, conduct background checks, etc.
Trying to avoid contact in the course of an investigation or other formal proceedings is generally not illegal. Think about process servers trying to serve papers like subpoena's, decrees, or other court documents on behalf of the state. It's not illegal to avoid those people and try to hide from them. You don't get obstruction or evasion charges even if you are fully aware they are trying to serve you and make efforts to avoid them.
Re Portland: this is factually inaccurate. Uber admitted they used Greyball when they were operating illegally in Portland. Yes, Portland & Uber have since come to an agreement, but not even Uber claims they were operating legally when they used Greyball to evade law enforcement..
Kindly, the challenge with explaining this to non-lawyers is that you do not know what you do not know, but think you do, & use words differently than an officer of a court does.
The example of a process-server is simply not a relevant comparison. Proccess-serving has a lot of TV-created urban legendry around it. Yes, you can try to avoid being served & but, no, you can't ignore a court order or a subpoena by avoiding a process server. If you try to hide, they'll eventually just mail the summons to you.
Regardless, process-serving has nothing to do with what Uber already admitted to doing: building & using software in CA to evade law enforcement in, eg Portland, which is a jurisdictions where they knew they were operating illegally.
This is obstruction of justice.
Regarding process servers - yes, they will issue a substitute service and then mail it to you, sure. But my point was that you won't be arrested for trying to hide.
I do totally understand the challenge you face as a lawyer talking to a non-lawyer, lol. I thank you for your comments and additional information.
Uber publicly admitted they built it, that they were still using it, tried to defend its use (for driver safety), and then, a week later, reversed themselves & agreed to stop using it to evade law enforcement, "going forward."
I cannot imagine why Uber chose to admit all that. (Well, other than there were at least 50 people who worked on Greyball & who knows how many more knew, so maybe there was not much choice...lying wasn't going to cut it & lawsuits were already certain) Nonetheless, its a lot of admissions.
Here's the thing: there are legitimate uses for Greyball (driver safety, as they asserted), but evading law enforcement, which they've now admitted, is not one of them--and, as said over and over, is obstruction of justice.
Uber'll undoubtedly try to defend Greyball on this basis (that there are non illegal uses for it--and that was the overwhelming majority of what it was used for)...it wouldn't have worked but, now with their own reversal & public admissions, it'd be hard to even make such an argument)
anyway, here are a few links about Greyball & Portland:
18 U.S.C. 1001 is a great place to start, but doesn't necessarily tell you what the current interpretation of the law is. To determine what that is, you need to determine which cases are leading and how they were interpreted, then you need to go back and apply it to the facts. This is a weaker offence, but seems more likely to stick if raised.
From there you can move into RICO specific issues at 18 U.S.C. 1961-1968 (emphasis on 1961-1963). From 1961 you can find the offenses that trigger RICO. Check out section 1510 specifically. I think the RICO link here is weak, but I haven't gone through all the case law.
Spoilation is another good jumping-off point for understanding the relevant principles.
The concern with any of these one-off avenues, though, is that they're individually non-comprehensive. Note that the terms in each of these three segments are different despite the fact that they're talking about subtle variations on the same thing.
That's not quite right. The issue of whether or not Uber tried to hide activities from authorities is separate from whether the activity was itself illegal. It's possible to face an obstruction of justice charge even if the investigation you are obstructing is looking at legal activity or ultimately does not result in a prosecution.
For example, Martha Stewart was convicted of obstruction of justice (and lying and conspiracy) even though she was not actually charged with insider trading.
What Martha Stewart did was lie to authorities during the course of a formal investigation in an attempt to convince them that she did nothing wrong and end the investigation. That's completely and entirely different. It's also, by the way, the reason you should never speak to authorities, especially if you are the subject of the investigation. Exercise your right to silence. She chose to speak up and lied. If she kept her mouth shut she might have been able to escape prosecution. Anytime you open your mouth to authorities you open yourself up to one of these obstruction charges. The easiest solution is to just not cooperate one iota with them. Because as soon as you stop playing ball and doing what they want, they will try to use any one of the gazillion laws on the books to try and screw you. Not saying Martha is/was innocent. That's just my take on how I view a person's options when in that situation.
Obstruction charges usually stem from providing false testimony or evidence, tampering with evidence, or witness tampering. None of those, nor any related actions, are applicable here.
They operated in cities and other areas where they were explicitly prohibited from doing so.
They camouflaged their activities (e.g. https://news.ycombinator.com/item?id=14270534) and shadowbanned regulators
So, not only did they not avoid the metaphorical "speed traps", it's more like they covered over the license plates and intentionally sped through them.
Further, it's entirely possible to be cited for "illegal operation" in a jurisdiction that generally allows Uber drivers' activity. Certain areas are zoned for specific purposes. For example, my friend runs a limo service and there are areas that they are not allowed to pick up passengers for whatever reason, even though the ride is planned in advance. That friend has also been cited (incorrectly) for illegal pickups at the airport as if they were Uber, when they are not and the ride was planned days ago.
My point here is that Uber could still be allowed by law (in general) to operate in a district but a driver's specific actions may violate some smaller aspect of the local law with regards to livery/transportation rules.
Yeah, and if Uber had drivers breaking the law and making money for Uber it would be pretty naive to assume that a company like Uber doesn't know that this money was made in areas where Uber was not allowed to operate or illegal. That too, we are talking about a company which is an expert on location tracking. I don't think such an argument could even remotely fly in a decent court of law.
What I linked to says "Uber sent emails to driver training them on avoiding detection (e.g. When at airport take down phone; have drivers sit up front; etc...)"
That sounds like "Uber corporate" to me