back to article VW engineer sent to the clink for three years for emissions-busting code

The engineer responsible for designing the software that enabled Volkswagen diesel cars to cheat on US emissions tests has been sentenced to 40 months in prison and fined $200,000. James Liang pled guilty last year to defrauding the federal government and violating the Clean Air Act, in a plea deal with the US government in …

Nice

Hope the board paid him at least five times that to take the rap.

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Did He Have An Option ???

Hi,

How many times has a person been told, in no uncertain terms, that their job is on the line if they do not do what they are told ?.

Do VW have a whistle blowing policy where people who do expose unlawful behaviour, are protected ?. Or is the culture one where even if they do have such a policy, you know that it is meaningless, and you will be found to be surplus to requirements in some way....

Regards,

Shadmeister.

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Re: Did He Have An Option ???

Until you go to court how do you know it's illegal?

If you are asked to extend the ratio for 2nd gear so you can improve the advertised 0-60 time is that illegal?

If you throttle down the CPU when it is over heating is that illegal if it allows you to post a higher benchmark when the machine is first turned on ?

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Re: Did He Have An Option ???

"Do VW have a whistle blowing policy"

The federal government in the US encourages/rewards whistle blowers from the private sector.

Whistle Blowers that work for the federal government on the other hand.......

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Anonymous Coward

Re: Did He Have An Option ???

His option was "take one for the team" so we don't have to. We can pay the 4.3bn.

Money is your friend.

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Anonymous Coward

Re: Did He Have An Option ???

"How many times has a person been told, in no uncertain terms, that their job is on the line if they do not do what they are told ?."

or more pertinent to this case how many times has a person been told that if the plead guilty they'll get a reasonably small fine and possbility of an extended holiday at home .... be interesting what happens in the other caes as there seems to be no incentive for any cooperatiojn with the prosectuion if the judges are going to completely ignore "agreements" that the prosectuters have given.

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Re: Did He Have An Option ???

How many Software Engineers are in a life-or-death situation when it comes to the stability of their job? Hopefully none because it's an unstable career by nature. When your employer asks you to break the law, you refuse and you try to find a new job before the investigators show up.

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Anonymous Coward

"Until you go to court how do you know it's illegal?"

The article makes it very clear that the people who wrote the software knew they were up to something dodgy.

But on the other hand, it's not credible to think that the software engineer found guilty in this case wrote software to game the emissions tests without management instructions to do so. Engineers are on the whole pretty straightforward people in their professional work, and tend to "just get on with it and do the job as best they can" mostly on the grounds that it's hard enough to get things to work properly as it is and you WILL be held responsible if things go badly wrong.

The engineers obviously were deeply involved in this business, but surely it's the management who decided to 1) instruct engineers to develop cheating software and 2) deploy the cheating software, who are the real villains here.

And really, there is no comparison between "doing something overtly intended to actually break an actual law" and - to take one of your examples, as I understand it - optimize the operation of an automatic gearbox for a particular motor car performance parameter.

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Re: Did He Have An Option ???

When your employer asks you to break the law, you refuse and you try to find a new job before the investigators show up.

Absolutely! And also dob them off to the authorities. When you are doing something you KNOW is illegal (designing a device to defeat federal-mandated testing is pretty obviously illegal, I'd say, NOT a hell of a lot of gray area there), you need to not only not do the crime, but also report it if you know they are going ahead and doing it anyway.

The general principle is this: when a crime is committed that you had knowledge of, the cops will generally classify you as either a witness or a co-defendant. Witnesses don't go to jail. If you go to the cops before they come to you, it helps your credibility and goes a long way to making you a witness.

Better to be looking for a new job than to go to prison, I'd say.

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Re: "Until you go to court how do you know it's illegal?"

"The engineers obviously were deeply involved in this business, but surely it's the management who decided to 1) instruct engineers to develop cheating software and 2) deploy the cheating software, who are the real villains here."

Yes, but he, the engineer, had an ethical duty that he reneged on. This particular ethical duty is backed up by a law, which is why he's in jail today. In a just world he wouldn't be the last one to wind up a guest of the state, but "I was only following orders" is a weak-sauce excuse that couldn't and shouldn't have cleared him here.

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Re: Did He Have An Option ???

Until you go to court how do you know it's illegal?

You don't, which is exactly and precisely the point. People plead out instead of going to court for a reason, and this is it. Call it creative prosecution, prosecutorial overreach, or whatever... it shouldn't be ok for the so called good guys to pay informants and witnesses, threaten friends and family, "make examples" of people, and most importantly be free of any accountability or responsibility after the fact.

Hit them with what they deserve, but do it without being worse human beings than they are (too much to ask).

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Re: "Until you go to court how do you know it's illegal?"

"it's not credible to think that the software engineer found guilty in this case wrote software to game the emissions tests without management instructions to do so"

From the article: "As head of the VW's Diesel Competence unit in the US, Liang oversaw the software function that enabled the cars to cheat the emissions tests. He is also the most junior of the eight current and former VW executives that have been charged so far."

This wasn't some lowly sucker just following orders. He wasn't the very top brass, but he was high enough to be held responsible and the jury is still out on the others.

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Re: Did He Have An Option ???

"The general principle is this: when a crime is committed that you had knowledge of, the cops will generally classify you as either a witness or a co-defendant. Witnesses don't go to jail."

Very nicely put!

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Re: Did He Have An Option ???

If you are asked to extend the ratio for 2nd gear so you can improve the advertised 0-60 time is that illegal?

Why would it be, that isn't trying to hide the values of legally mandated tests. It should be obviously fraud to anybody involved and thereby you don't do it.

it's not credible to think that the software engineer found guilty in this case wrote software to game the emissions tests without management instructions to do so

Per the Big Short "so now anybody who has a boss can't be held responsible for doing shitty and illegal things? What are you? 4?".

You can't fire people for not doing things that are blatantly fraud - that's when people go public.

Basic logic is in play here, the people who did this were fully aware what they were doing so are easy to prosecute; the people above them its not clear what happened, especially without evidence. If you're really dumb enough to do something illegal for a boss at least get evidence that you were told to do it; it's not a defence but at least you can take them with you.

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Anonymous Coward

Re: Did He Have An Option ???

"there seems to be no incentive for any cooperatiojn with the prosectuion"

Good point. State's evidence will no longer be forthcoming. The judge did us all a disservice.

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WTF?

Re: Did He Have An Option ???

"Witnesses don't go to jail."

They also don't get to work within their profession anywhere ever again. While it's definitely better then the clink, I certainly hope you love washing cars all day long if you plan to blow the whistle on your corp...

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Re: Did He Have An Option ???

> I certainly hope you love washing cars all day long

First of all I am the first to say corporations have way too much power over individuals and get away with collusion on a grand scale. That said the only way you end up doing manual labor is either if you do have a criminal record (and finally even that is getting reformed) or your skill set is just plain garbage. Going along with something illegal a corporation does is probably your worst choice long term because said corporation without ethics won't hesitate to throw you under the bus when crap hits fan which it usually does eventually as a culture like that doesn't stop until caught.

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life&death? Re: Did He Have An Option ???

The shenanigans were not deadly to any individual; and if all polluters were murderers, the jails would be very full.

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Anonymous Coward

Re: Did He Have An Option ???

And what if your employer asks you to do something that, not being a trained lawyer conversant with thousands of pages of relevant regulations, laws, and precedent, you merely suspect sounds dodgy? And in response, get told "Leave that to our legal department."

What then?

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Trollface

Re: life&death? Did He Have An Option ???

"if all polluters were murderers, the jails would be very full."

count the number of cigarette butts you find alongside any given road, especially near bus stops [regardless of whether anti-smoking laws prohibit it], as an example. [enough of them, and they can clog storm drains, right Texas?]

"arson, murder, and littering."

http://tvtropes.org/pmwiki/pmwiki.php/Main/ArsonMurderAndJaywalking

[and don't EVEN get me started on smokers' exhaust polluting the air I need to breathe]

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Devil

Re: Did He Have An Option ???

I'd say that for something NOT overtly illegal, you just politely complain about it in writing to the appropriate people, but do what you were asked to do anyway. Let the HR weenies and legal staff sort it out.

As for what was apparently done, i.e. writing a software method that's not even spoken about in 'normal terms', that knowingly 'cheats' on emissions tests, by first detecting if such a test is being done and THEN changing the engine's behavior accordingly [which is blatant, and can't be explained away[, knowing that auto makers must comply with these limits in order to sell cars in the USA, and then blatantly NOT complying [reducing the price of the cars, or making them perform better, or both] by cheating on the tests - as for THAT, I think any reasonable person would have inherently understood the ethical problems, and possible criminality, of actually DOING that.

So yeah he had an option, and I think in HIS case, it should've been to ask for a meeting with H.R. to discuss what his boss wanted him to do. But apparently he didn't do that, and instead, went far beyond expectations to invent something that basically "hacks the system". Nice hack, yeah, but illegal as hell.

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Re: Did He Have An Option ???

>What then?

You do keep your resume up to date I hope. Yes looking for a job is major PITA but really good engineers are still harder to find than companies with good cultures. You would be surprised how many actually are ethical as VW is learning doing the wrong thing can get very expensive very quick. Diesel cars are all but dead in the US now.

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"I was only following orders"

It is certainly a good excuse in the military.

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Re: "Until you go to court how do you know it's illegal?"

Anonymous Coward: "The engineers obviously were deeply involved in this business, but surely it's the management who decided to 1) instruct engineers to develop cheating software and 2) deploy the cheating software, who are the real villains here."

This. Automobiles are probably the most highly regulated industry. Developing a new model costs many billions. Absolutely *no* way that an engineer, even a senior level managing engineer, injected this deception on his own. Because of the huge costs involved, every single aspect of design and manufacturing is reviewed and documented meticulously. So, this gaming of the emissions system was decided at high levels of management, and reviewed probably dozens of times by various teams before finalized code was injected into the emissions control unit.

There's plenty of blame to go around, including the software engineering team that looked at the specs and just went along. But the senior managers better get more time than this engineer.

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Re: Did He Have An Option ???

You will be looking for a new job with the terrible reference from your previous employer hanging over you, good luck with that.

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Re: "Until you go to court how do you know it's illegal?"

" But the senior managers better get more time than this engineer."

He _was_ a senior manager. He was, according to the article, "head of the VW's Diesel Competence unit in the US".

He is merely the most junior of the managers charged _so far_. And several of the others are back in deepest Hunland and probably won't be extradited, so they'll throw the book at those they have available. Next up: the GM for VW's poison gas production... ah, that is, 'environmental systems'... in Michigan, who was caught trying to bug out back to Hunland. https://www.reuters.com/article/us-volkswagen-emissions-concealment-idUSKBN14T1NG He was leaving the US, Florida to be exact, to go back to Hunland 'on vacation'. VW's marketing people are having a major problem. They're practically _giving away_ the product, it seems that sales are way down. This ain't gonna help.

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Re: Did He Have An Option ???

"I was just doing my job" isn't much of an excuse. Your job or break the law was the choice. Whether the rest of us would make the "right" choice is perhaps debatable though.

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Re: Did He Have An Option ???

>You will be looking for a new job with the terrible reference from your previous employer

Have to be pretty dumb in the first place to give references to a job you already hold when looking for another. Just was in this situation (job sucked at time nothing unethical though) little over three years ago and at least here in the states its understood they are only getting references from management anyway from prior jobs not the current one. I could see how this would really suck for someone just getting started in their career though. Also in the states employers don't give bad reviews for legal reasons and will just refuse. In fact many companies refuse all attempts for references these days due to our overabundance of lawyers.

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Re: Did He Have An Option ???

Until you discharge the firearm in somebody's face, how do you know it's illegal?

That's what laws and regulations are FOR.

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Re: Did He Have An Option ???

Indeed - he was "just following orders" something you need to do in a modern corporation, even a German one.

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Re: "I was only following orders"

It is certainly a good excuse in the military.

No it isn't which is why the concept of a "lawful order" has existed for centuries. There's a reason why militaries the world over have their own legal systems that spend half their time picking over the concept of lawful orders.

Hell, the Nuremberg trials are the reference manual on this stuff which is circular to Germans blithely just doing things because they were told to.

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Re: Did He Have An Option ???

" in response, get told "Leave that to our legal department."

What then?"

"I'd like to have that in writing, please"

If they refuse to give it to yo in writing, that right there is an indication that whoever is giving you the order knows that it's dodgy

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Anonymous Coward

Re: Did He Have An Option ???

I've had first hand experience of whistle-blowing, albeit on a much smaller scale. I blew the whistle, and now have had to change job. Overnight all evidence of the project I was working on vanished, and it was impossible to get my management to even agree that my team and I had even ever been working on it. It was quite surreal.

Upon reviewing my emails (which I copied and took home) it became obvious how careful management had been to never actually put in writing what was always verbally implied.

The legal council of the organization recommended legal action against my management, and she was sidelined and removed from the investigation. A patsy investigation took place, which found my boss guilty of wrongdoing, and mildly penalised him (a warning). I and most of my team had to look for other work after the team was disbanded, the project removed (I was given no work), my desk moved to another building etc.

If the whistle-blower had reported this before it came to worldwide attention, he would have most likely been constructively fired later down the line. Fake HR reports of threatening behaviour, use of racist language etc, for example, are very effective and in many cases require no evidence at all to be acted on - hearsay is enough. If the company felt threatened all internal evidence of the project would change or be made go away. There isn't always a clear evidence chain for illegal internal activities. In my experience, when it counts, suddenly there no longer is (and maybe never was) any evidence for the project you thought you were working on.

Reflect on how much is verbal in your workplace and realize none of that is usable as evidence later.

In this case I think its highly unlikely that an engineer decided, with no personal benefits, to write some emission measurement cheating software.

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Re: Did He Have An Option ???

"Also in the states employers don't give bad reviews for legal reasons and will just refuse."

I thought (but IANAL) that you have to give someone a reference. You just have to not write anything defamatory or untrue. Refusing to give one at all can be seen as being obstructive.

Most of the "Bob is an arsehole, but I can't write that" references I see are of the form "Bob was employed here as a $ROLE, for a period of $TIME between $START_DATE and $END_DATE".

It's a bit like the old RAC deal, no signal is the signal. An actual reference, even if it's very mundane like "Bob is punctual and polite" indicates that Bob is probably OK. Including nothing else is a definite warning sign.

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Re: Did He Have An Option ???

Might not be that easy, I dont know the guys circumstances but he was in the states, maybe just on an h1b or similar visa which ties him to the one company.

It is also questionable whether he considered it a bit of 'fun' to achieve a good emissions result and a higher performance by a little 'trick' rather than some sort of deliberate exercise at breaking a law and defrauding. TBH if the test regime is so poorly done as to not test a cars real emissions under real conditions then the people doing the testing are the ones guilty of doing a botch job and failing to protect the environment, not the guys who see the loophole and exploit it.

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You don't, which is exactly and precisely the point.

Except that in this case the engineers and the head engineer in the dock assuredy Did know they were doing something illegal. The emmissions laws were a matter of public record and the device designed to specifically fool the testing equipment that the filthy diesel engine was "clean".

To Rura Penthe (either of them) with them all.

Throw away the key.

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Re: Did He Have An Option ???

The 0-60 time is an interesting one. Because it is very common to behave for the tests in various ways, e.g. only enough fuel for the test, removal of various things to lighten the car (sometimes even seats), over revving the engine to not waste time on gear changes a normal driver (owning and not wanting to kill the car) would use, I have even heard rumour of no engine oil and so on. I could certainly imagine a situation where rev limiters are removed etc. for the above. The industry has cheated at various things for decades, no one really cares.

Following orders wasn't a defence even at Nuremburg but it would be interesting to see the trail of instruction and email that led to this...

Yes you can fire people for not doing what you tell them, companies do all the time. The question is really still, is it fraud to game the system when the system itself is so badly and obviously broken

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Re: Did He Have An Option ???

Illegal? TBH it is hardly my fault if your enforcement of your rules is so shoddy that it is obvious and simple to avoid it. This is like the people that complain when starbucks dont pay tax in the UK, they dont because the rules the government created mean they dont have to.

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Re: Did He Have An Option ???

This is exactly what I was thinking. The guy's options were to either do as he was told or file for unemployment and have his employment record show that he was fired for insubordination. And if he went whistle blower on it and VW's legal team did their job well then he'd be dragged through the mud and his career would be effectively over.

The punishment certainly does not fit the circumstances of the crime in this case. If the judge wanted to make an example of someone then that "someone" should not have been the most junior member of the team who probably felt they had no choice in the matter. It should have been the most senior executive, the one with the power to tell the others "Do it or GTFO".

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Re: "I was only following orders"

It is certainly a good excuse in the military.

It's a good way to get into lots and lots and lots of trouble. Most militaries have reasonably clear rules about what is and is not an illegal order. Following illegal orders will get you a share of the shit which lands on those who issue the illegal orders... if you get caught. If you don't get caught, why then illegal orders are like treason. Recall that:

"Treason doth never prosper: what's the reason?

Why, if it prosper, none dare call it treason."

After the Second World War, Britain wanted to hang Donitz and Raeder for using unrestricted submarine warfare. This was most definitely forbidden by the rules of war, and they had unquestionably issued thoroughly illegal orders. The noted Anglophobe Ernest King, chief of the USN, pointed out that if anyone was going to hang for unrestricted submarine warfare, then the total would have to include himself, Nimitz, and Lockwood, as, and I quote: "What they tried and failed to do to you, we did to Japan." Donitz and Raeder got 10 years and were out early. If your side wins, all is forgiven...

Also, the best illegal orders are the ones which are merely understood. A certain Canadian unit had an unfortunate encounter with 2 SS Panzer Division Das Reich shortly after the Normandy landings; Das Reich, who were even more hard-core than Liebstandarte Adolf Hitler or Hitlerjugend or even Prinz Eugen, shot a bunch of Canadian prisoners. For the rest of the war that Canadian unit took no prisoners... No orders issued, it was 'just understood'. Over in the Pacific, before the landings on Guadalcanal, the commander of the 1st Marine Division famously informed his troops that "The Japanese soldier feels that it is a disgrace and a dishonor to surrender. So don't force him." Not an order, just a suggestion. The US Marines took fewer prisoners, as a percentage or an absolute number throughout the war in the Pacific than did the US Army or the Australians. There were, for example, about 21,000 Japanese soldiers on Iwo Jima before the Marines landed; 216 were taken prisoner. To be sure, the Japanese were pretty hard core, but the US Army and the Australians, also in the Pacific, and the British and Indian forces in India and Burma managed to take considerably more prisoners. (Usually. Two battalions of the King's African Rifles, now part of the Kenyan Army, got pissed off at the Japs for the same reason as those Canadians were pissed off at the Germans, and thereafter the rare Japanese trooper in their operational areas who wanted to live was well-advised to find a white boy to surrender to. There were a few other, similar, examples, mostly Australian and Sikhs. Particularly after the Sikhs found out that some of their troops had been used for bayonet practice by the Japs.) No orders, just an understanding. Keep things simple.

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Anonymous Coward

Re: "Until you go to court how do you know it's illegal?"

This is safety critical software. Nothing goes in to the software design without extensive review and sign off from senior management.

Engineers do not make those decisions. No engineer can sneak code in, there will be extensive code reviews and testing before management sign off that the code is doing what it is designed to do.

I hope that VW honour whatever arrangement they came up with for this guy because he's kept a lot of nervous senior management out of the court's firing line.

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Re: Did He Have An Option ???

That sort of reference is pretty standard nowadays, and is carefully worded so that the company doesn't get into any (further) legal problems. I'm not a great fan of it myself, but remember this sort of thing is drafted by HR who you must always remember are looking after the company's interests and not yours.

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Re: "I was only following orders"

IANAML, but the law is very clear on this point: no it isn't. That point was, coincidentally, also established in Germany--specifically in the Nuremberg trials. Here in the USA, William Calley famously attempted an "only following orders" defense when tried for his part in the My Lai massacre. This also failed. Today, the UCMJ (the code of laws pertaining strictly to the military in the USA) makes it clear that members of the military only have a duty to obey _lawful_ orders.

Nice try though.

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Anonymous Coward

I wonder what actual evidence exists to make the case.

I find it somewhat hard to believe that software is written or modified by VW subdivisions around the eorld. Why duplicate this kind of expertise. There are guys in Germany who kmow which,parameters to bend and which to twist in order to make the engine achieve this or that result.

I would expect those guys to be writing the software for all markets. Especially if there is dodgy shit going on, you wouldmtry to keep the circle of conspirators / possible whistle blowers small.

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>There are guys in Germany who kmow which,parameters to bend and which to twist in order to make the engine achieve this or that result.

Which is probably the case. Sure seems like the German government (or at least German states) was looking the other way and sure has largely worked behind the scenes to cheer-lead for VW instead of holding them to account.

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...I wonder what actual evidence exists to make the case.

Possibly quite a lot. If imagine there's a system architecture document pointing to high level requirements, suitably decomposed into lower level requirements for use by individual teams. As they code, there will be code reviews and modifications, plus development of tests (unit and system) to ensure it works as planned. Reviews of tests, gating documentation to ensure it has reached a commercially deployable state. All documented by project management and reported.

This is a German organisation, expect paperwork trails.

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When elephants fight, it is the ants that suffer.

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Anonymous Coward

Can you say scapegoat?

The Milgram defense should be enshrined in law.

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Re: Can you say scapegoat?

You are aware he is a boss, not a trench-monkey, right? A deciderator not a gofer. A scientist, not a hunchback.

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Code of Ethics

It is literally the first rule in the IEEE code of Ethics.

"to accept responsibility in making decisions consistent with the safety, health, and welfare of the public, and to disclose promptly factors that might endanger the public or the environment;"

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