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 …

  1. g00se

    Nice

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

  2. This post has been deleted by its author

    1. Yet Another Anonymous coward Silver badge

      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 ?

      1. Anonymous Coward
        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.

        1. spacecadet66

          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.

          1. TheElder

            "I was only following orders"

            It is certainly a good excuse in the military.

            1. streaky Silver badge

              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.

            2. WolfFan Silver badge

              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.

            3. spacecadet66

              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.

        2. Ken Hagan Gold badge

          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.

        3. guyr

          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.

          1. James O'Shea Silver badge

            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.

        4. Anonymous Coward
          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.

      2. J__M__M

        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).

        1. Stevie Silver badge

          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.

      3. streaky Silver badge

        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.

        1. Dave 15

          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

      4. Jeffrey Nonken Silver badge

        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.

    2. Anonymous Coward
      Anonymous Coward

      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.......

    3. Anonymous Coward
      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.

    4. Anonymous Coward
      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.

      1. Anonymous Coward
        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.

    5. Kevin McMurtrie Silver badge

      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.

      1. ma1010 Silver badge

        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.

        1. Ken Hagan Gold badge

          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!

        2. DropBear Silver badge
          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...

          1. asdf Silver badge

            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.

        3. Dave Ross

          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.

          1. asdf Silver badge

            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.

            1. MonkeyCee Silver badge

              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.

              1. Jay 2

                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.

      2. G.Y.

        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.

        1. bombastic bob Silver badge
          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]

      3. Anonymous Coward
        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?

        1. bombastic bob Silver badge
          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.

          1. asdf Silver badge

            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.

          2. Dave 15

            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.

        2. jmch Silver badge

          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

      4. Dave 15

        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.

    6. FlippingGerman

      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.

    7. TReko

      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.

    8. Anonymous Coward
      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.

    9. sisk Silver badge

      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".

  3. Anonymous Coward
    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.

    1. asdf Silver badge

      >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.

    2. JetSetJim Silver badge

      ...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.

  4. poohbear

    When elephants fight, it is the ants that suffer.

  5. Anonymous Coward
    Anonymous Coward

    Can you say scapegoat?

    The Milgram defense should be enshrined in law.

    1. Stevie Silver badge

      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.

  6. CommodorePet

    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;"

    1. Yet Another Anonymous coward Silver badge

      Re: Code of Ethics

      So it's ok for IEEE members to develop nuclear weapons or high frequency trading platforms for mortgages but not for "optomising" fuel economy?

      1. spacecadet66

        Re: Code of Ethics

        "Everyone else is doing it" is another excuse that most of us grow out of using by adulthood.

        (And no, I don't think any of those three are OK. Since you ask.)

      2. streaky Silver badge

        Re: Code of Ethics

        develop nuclear weapons or high frequency trading platforms for mortgages but not for "optomising" fuel economy?

        2 are legal jobs, one is a fraud perpetuated against the public globally that, by the way, will kill far more people than nuclear weapons ever have.

        1. Holtsmark

          Re: Code of Ethics

          "one is a fraud perpetuated against the public globally that, by the way, will kill far more people than nuclear weapons ever have."

          ..I assume that you are talking about the high frequency trader here right?

          (Powerty is a real killer)

      3. Nolveys Silver badge

        Re: Code of Ethics

        So it's ok for IEEE members to develop nuclear weapons or high frequency trading platforms for mortgages but not for "optomising" fuel economy?

        The normal rules don't apply to the government or financial institutions.

      4. asdf Silver badge

        Re: Code of Ethics

        >high frequency trading platforms for mortgages

        Change that to invent complex derivatives that hide losses from regulators and shareholders and then you are in the same ballpark as this emissions thing.

    2. TheElder

      Re: Code of Ethics

      Do this search in Google:

      usa medical industry corruption cartel

      About 774,000 results (0.68 seconds)

      1. spacecadet66

        Re: Code of Ethics

        And "USA medical industry made of cheese" gets "About 1,670,000 results." What's your point?

  7. goldcd

    Isn't the new 'thing' in law enforcement to 'follow the money'

    Hey, maybe he personally got a bonus on every diesel shifted - but I find that unlikely.

  8. calumg

    There's nothing illegal in writing the code. The illegal act is selling the car that cheats the emissions standards. How is an engineer supposed to know the law anyway - this is what the company's legal department and product managers do.

    1. Smooth Newt
      Meh

      Re: There's nothing illegal in writing the code

      There's nothing illegal in writing the code. The illegal act is selling the car that cheats the emissions standards. How is an engineer supposed to know the law anyway - this is what the company's legal department and product managers do.

      If instead of providing some software, the engineer provided a physical tool for someone to use in a burglary, or even lent them a vehicle to use as a getaway car, would they be committing a crime? I don't see that software is fundamentally different - it is just another tool. In most jurisdictions whether the engineer had committed a crime in any of these cases would depend upon whether they knew that what they provided was to be used in carrying out the criminal act. If they did then they would be an accessory.

      As for whether or not the engineer has to know that the act was a criminal one, in most jurisdictions ignorance of the law is not a defence ("ignorantia juris non excusat"), although sometimes it can mitigate the punishment. How is an engineer to know the law? In the same that the rest of us have to. We all have to understand criminal law. Engineers don't get special dispensation.

      1. Lee D Silver badge

        Re: There's nothing illegal in writing the code

        "God, how was I supposed to know it's against the law to create software expressly designed to detect emissions testings in progress as opposed to normal driving, and then explicitly enable a mode never enabled under any other circumstances, which drastically reduces the car's performance for seemingly no reason whatsoever?!?!?!!"

        Er... yeah... right.

        There's some grey area, in some circumstances, but you're required to know and do your job, which includes querying dubious things like this. I mean, personally, I'd be getting that request in writing, documenting that code in explicit detail, and recording who told me to do what when. If it's legit, no problem. If it's not, I'd expect to see some objection to my doing that, which would no doubt end in the phrase "I suggest you never mention such features ever again to me, or anyone in my department, and by the way, I have read-access to the code repositories." If they sack you for that, damn he could have nailed them to the wall and just the settlement would be millions, let alone HE would have been the one exposing the scandal (i.e. good guy) instead of someone else revealing it and him going to jail.

        I have refused requests as part of my job. I have stated "that's illegal". The issue has never been pressed in such circumstances. Because people know what that means - it means "go for it". Get another mug to do that for you, and watch me take him down with you. Try to sack or discredit me, and watch the shitstorm that results. Or go away, never ask again, and the answer's no.

      2. TheElder

        Re: There's nothing illegal in writing the code

        If instead of providing some software, the engineer provided a physical tool for someone to use in a burglary, or even lent them a vehicle to use as a getaway car, would they be committing a crime?

        Another example is providing firearms to mentally ill people in the USA.

    2. bombastic bob Silver badge
      Devil

      "How is an engineer supposed to know the law anyway"

      it's probably down to the "any reasonable person" argument, and a jury that convicts based on that.

  9. alain williams Silver badge

    Good start ... what about

    the managers who knew about it and probably asked him to write the code. This needs to go up as high as possible in the management structure. Most of them are probably happy that someone else has taken the blame.

    The only way of making change is my making it so painful for the read decision makers that they, and their successors, will never do this again.

  10. cb7

    Wait, I thought the US didn't give a shit about emissions and their impact on the environment?

    "Climate change? That's fake news"

    1. Yet Another Anonymous coward Silver badge

      Wait till Ford get caught rigging the F150 software to make its emissions higher

    2. Suricou Raven

      Wrong emissions.

      This scandal is about smog-making emissions, not climate-changing emissions.

    3. bombastic bob Silver badge
      Devil

      man-made climate change *IS* fake news. but climate changes all the time. Consider that ~70 year cycle in the northern hemisphere, you know, like 1900 cold, 1935 warm, 1970 cold, 2005 warm, 2040 cold...

      And the question here isn't about the emissions themselves [which are really based on air quality, and not "gobal fornicating warming" CO2 nonsense]. It's about every OTHER car maker complying, and VW _NOT_ complying, by cheating on the bi-annual smog checks [and other emissions testing].

      Ultimately that's what it comes down to, yeah.

  11. AbortRetryFail

    Dangerous precedent

    So they found a scapegoat then.

    This sets a very dangerous precent. Jailing the person who wrote it, rather than the people who instructed them to write it, doesn't seem right to me. Does this mean that every software developer must thoroughly investigate the legality of every piece of work they are asked to undertake by their employer before doing so?

    Surely an employer has a duty of care not to coerce its employees into breaking the law and shoulder the legal responsibility should they do so?

    1. Yet Another Anonymous coward Silver badge

      Re: Dangerous precedent

      No just that you have to send a copy of the source code to every government agency in every country your company does business with - just to cover yourself

    2. Anonymous Coward
      Anonymous Coward

      Re: Dangerous precedent

      Who said the company coerced him into doing it? Remember what his title is. He was the head of the department...

    3. JetSetJim Silver badge

      Re: Dangerous precedent

      Rtfa, he's the most junior of 8 on trial, but he was in charge of the engineers, which means the others are manglement. The code monkeys aren't on trial, although I'd imagine they're being creative about what they did at VW on their CV now

    4. Rob D.

      Re: Dangerous precedent

      Liang is 63 so he'll be retired by the time he is out of clink. He's admitted responsibility for creating the defeat code some time back but the reporting doesn't make clear the extent to which he would be aware of eventual intent at the time of creation. But seems unlikely he wouldn't be aware that VWs were suddenly meeting environmental standards in tests they should have failed.

      A plea bargain might be a simple time-based necessity - he was lead to believe his sentence would be less than 3 years and small fine; he's 63 and wants to be able to spend some time in retirement not fighting a major court case dragged out through appeals in the US.

      But other comments about likelihood of getting more state's witnesses after this sentence being upped well over the recommend level from prosecutors seem on the mark.

    5. Anonymous Coward
      Anonymous Coward

      Re: Dangerous precedent

      "This sets a very dangerous precedent."

      Totally agree. The Enron story showed how execs blamed the IT for fake financial records, giving birth to the Sarbanes Oxley Act. This story is the same and shows yet another hole in the justice system (American or otherwise).

      There is a need to force execs to control not only finances, but also the systems they have employees build, and bear full responsibility in case of failing so.

      This ruling goes obviously into the scapegoat direction. Not good.

      1. Tom 7 Silver badge

        Re: Dangerous precedent

        "There is a need to force execs to control not only finances, but also the systems they have employees build, and bear full responsibility in case of failing so."

        I'd sort of agree but I've seen what happens in finance when the execs bear responsibility and no way am I going to try and write laba-fucking-rynthine code so that the 'auditors' are as confused as the admins are anyway.

        And as the computers wont be ...

  12. Anonymous Coward
    Anonymous Coward

    clean air laws are a joke

    I would do it just to rile up the green junkie paris liberals. this guy is a hero and the judge is just another silly billie.

    1. Chris G Silver badge

      Re: clean air laws are a joke

      Troll or arsehole, either way you should be ignored.

      1. Yet Another Anonymous coward Silver badge

        Re: clean air laws are a joke

        Troll or arsehole, either way you should be ignored.

        That's unfair - they could be both

      2. bombastic bob Silver badge
        Thumb Up

        Re: clean air laws are a joke

        "Troll or arsehole, either way you should be ignored."

        I thought it was satire, gave it an upvote.

      3. The Axe

        Re: clean air laws are a joke

        "Troll or arsehole, either way you should be ignored."

        So no one can have a different opinion then. To have the wrong thought is a crime next?

    2. The Axe

      Re: clean air laws are a joke

      "I would do it just to rile up the green junkie paris liberals. this guy is a hero and the judge is just another silly billie."

      Government creates some rules about something. Engineers do their best to work to it. However company needs to satisfy the needs of the public to make a profit. A clash. So the company tries to work around the system. Government wins (all the time) as it has force behind it.

    3. Daggerchild Silver badge

      Re: clean air laws are a joke

      It's a crying shame we don't all live in hab-domes (yet) so you can't be forced to put your lungs where your emissions are. That'd make for fun reality TV.

  13. Destroy All Monsters Silver badge
    Windows

    If only

    ...this kind of sentencing would apply to the Hillary Camarilla and the Bushbama Administration Crime Bosses down to the Neocons still imn thinktanks and TV. Disgustomats from CNN and Fox can come too.

    One would have to institute an open airlock policy to make space in the clink.

    1. This post has been deleted by its author

  14. J__M__M

    the asshole test

    If you ever find yourself "making an example of" anyone but your own damn kids, guess what?

    I say this knowing full well my uninformed knee-jerk reaction might mean I'm also an asshole, but at least I didn't destroy anyone in the process. I'll click-through now... and if it turns out I'm wrong I'll drop back in to admit exactly that (unlike any federal prosecutor that ever lived).

  15. Anonymous Coward
    Anonymous Coward

    This is why you should routinely backup your communications with management, regardless of corporate policy.

  16. corestore

    That's more than a bit off. Creating code that's smart enough an engine can tell if it's been tested is pretty bloody impressive. Deserves reward rather than punishment; the punishment should fall on the company which took that code and misused it in production vehicles. Writing the code was no crime. IMHO.

    1. regregular

      Not that clever. It is literally reading one sensor - steering angle. If that remains stationary the jig is up. Supposedly some other parameters are checked for verification but that's it. No magic done.

  17. Will Godfrey Silver badge
    Unhappy

    Just as predicted

    Unfortunately.

    In my view, the one person who was guilty of nothing is the one that got punished.

  18. Anonymous Coward
    Anonymous Coward

    How is writing code a crime?

    It's a crime to cheat on emmisions tests.

    But its not a crime to write the code to do so.

    The crime is at the 'put it into use' phase and that is the responsibilty of MANAGEMENT all the way up to CEO.

    1. Ken Hagan Gold badge

      Re: How is writing code a crime?

      He WAS management. He was the US head of blah blah blah (read the article).

    2. Chris G Silver badge

      Re: How is writing code a crime?

      If you are knowingly writing code that will permit the breaking of a law, then, at minimum you are an accessory to the crime. In this instance I can't see that a senior engineer had no idea what the code was for.

      I am also amazed that a group of high powered intelligent people could imagine they would never be found out.

    3. Doctor Evil

      Re: How is writing code a crime?

      Aiding and abetting the commission of a criminal act is itself a crime.

    4. Lee D Silver badge

      Re: How is writing code a crime?

      I'm just going to write the code to hack into North Korea's launch command and launch their nukes at the US.

      Then I'll just leave it on the Internet, or blindly give it to a manager who asked for such things without even asking why it had to be so specific.

      Are you seriously telling me that wouldn't be a crime if someone else used it? I'd be blameless?

      Not quite.

      And the specificity of the code, its decisions, actions and purpose really makes him guilty. If a smart manager had said to one engineer "I need code to detect when the steering wheel is straight" and gone to another to say "I need code to cut the engine to minimal emissions" and another to say "can you join these bits of code?" then #1 and #2 are pretty blameless and #3 could probably argue his way out of it. But the manager that asked? No way, he obviously had a specific intent in mind.

      The guy we're talking about? He *IS* that manager, in effect.

    5. Roland6 Silver badge
      Coat

      Re: How is writing code a crime?

      >It's a crime to cheat on emmisions tests.

      Did VW actually 'cheat' on the emmissions tests?

      I only ask as it does seem that a car with this software in it did go through the test and pass...

      The only area of doubt is whether a car with said software falls foul of the defined rules regarding the emissions test.

      For example, if the math's exam rules don't actually specify that calculators aren't allowed, were you actually cheating by discretely used the calculator in your pocket?

      Coat? Mines the one with a sliderule in the pocket :)

  19. chivo243 Silver badge
    Flame

    Maximum executive fine too

    VW executive, general manager, Oliver Schmidt, of its engineering and environmental office gets a range of $40,000 to 400,000? Justice would hopefully dictate the maximum allowable as well. As a GM I'm sure 40,000 is no sweat. 400,000 might only make his eyes water a little, but still not painful like 200,000 for a coder.

    1. pleb

      Re: Maximum executive fine too

      Read the article - the perp was not "a coder". He was in a position of authority and responsibility.

  20. Blotto Bronze badge

    Can the US now jail every.......

    So they found the VW engineer culpable, now how about those political, social, marketing and weapon engineers culpable for other stuff that cost lives and money, other stuff like gun crime, oppression (at home and abroad), narcotics, tobacco, lack of health care etc. They should now all be fair game since this case.

  21. Version 1.0 Silver badge

    Who's next?

    We're already finding that VW wasn't the only company doing this ...

  22. dermots

    "Only an engineer"?

    Hi defence may have been that he just an engineer following orders, but he was more senior than that:

    'Liang, 62, whose title in the U.S. was "Leader of Diesel Competence"...'

    (https://www.forbes.com/sites/davidkiley5/2016/09/09/the-first-vw-exec-tumbles-in-dieselgate-with-more-sure-to-follow/)

    Whoever requested it, approved it, allowed it to proceed is also guilty, but if the "Leader of Diesel Competence" devises and implements a way to avoid regulations, he'd appear to be culpable.

    1. Ken Hagan Gold badge

      Re: "Only an engineer"?

      Yes, and in view of the number of comments that have apparently missed this point, perhaps El Reg should consider changing the article's title to begin "VW manager sent to the clink..." because (sad to say) apparently some commentards got no further than the sub-heading before posting.

      1. JetSetJim Silver badge
        Coat

        Re: "Only an engineer"?

        ...some commentards got no further than the sub-heading before posting

        Isn't that the usual MO round here?

  23. Merlinski

    The US is a Police State. Liang's only hope is a Presidential Pardon for fighting Obama era Climate Change laws.

    The natural political system for a corporatist state such as the US is fascism.

    The US also leads the way in locking up its citizens, with nearly 1% of its males currently doing time, and 5% either in jail, on parole or having done time in the past. Europe manages to get by with only locking up 1 in 1,000.

    And that's even before we get onto the travesty of the UK extradition treaties with the US. (Gee, thanks ZANULabour).

    Do not do business with America. Do not go to America. Do not fight wars with Americans. Or you WILL get shafted.

    IMHO, naturally.

  24. ilmari

    So obviously in this case they actually detected test conditions by some method (front wheels moving, rear wheels stationary, obd connected?), and switched engine to lower emissions...

    I wonder what the outcome would've been if they instead had heavily optimized the engine to run the cleanest at exactly the test regime conditions, but provide increased power and higher emissions when the driver pushes the throttle and deviates from the teat conditions?

    It would on one hand be a sort if cheat, but on the other hand one could argue that it would be reasonable for the test, that the authorities designed, to reflect the most common expected use, and that it made sense to optimize the engine for these conditions...

    I myself tend to use the style which BMW (iirc) found to be most efficient, pedal to the floor, shift up before 2000rpm until in highest gear.

  25. Robert D Bank

    applied elsewhere

    Data Protection Act - I bet a lot of those pontificating here have been involved in copying/testing using personalised data either unwittingly or otherwise. When the people you have to 'trust' who say it is not personalised are offshore and out of DPA jurisdiction and basically don't give a toss, where do you stand then? There could be a lot of testing of this under the new EU laws...and an awful lot of people are going to be feeling very uncomfortable

  26. J.G.Harston Silver badge

    What if the software has a table of calibration values with a comment

    // NB: Until the wheels have moved, there is nothing to use to index into the

    // table, zero-th entry is default value that assumes car has moved 100m

    // This will give spurious results until car has actually travelled 100m

    (Like my old Polo did. Hmm a VW Polo). And Management demands 'get rid of that intial 100m thing'. Is that then illegal?

  27. ByTheSea

    What has not been mentioned in the article, nor discussed in posted comments, is that it is conceivable that when engineering were stuck for a solution to the emissions problem, and being pressured by management, that it was an engineer that came forward with what he thought was a brilliant solution. That would put the moral imperative on the management who accepted it. That raises the question, who is more guilty?

  28. Destroy All Monsters Silver badge

    Always good to read, better than journo snark or muh GW noise

    Actual engineering stuff:

    "Mettle Fatigue - VW’s Single-Point-of-Failure Ethics"

  29. Phred133

    rigged system

    So this whole thing started with some grad students... Where was the EPA during this 10 years that this has gone on? Oh, that's right. that pesky little DMCA... no one gets to review the code, "Just take our word,it's all good." Yeah right, and the check's in the mail."

    Place all blame for this fiasco, and all the others, (GM,Audi,Fiat/Chrysler) and all the others who haven't got caught "gaming the system" yet on the DMCA! This law is ludicrous, it only serves its masters, and we all know who that is.

    1. cbars

      Re: rigged system

      I don't.

      Also, it's cheque :)

  30. Andrew Taylor 1

    So a german car exec gets sent to prison but a US exec who allows cars to go out with defective ignition locks that result in the deaths of several USAians gets away scot free, can't remember the story but it was either GM or Chrysler, with just the company being fined. Looks a little suspicious to me.

    1. WolfFan Silver badge

      So a german car exec gets sent to prison but a US exec who allows cars to go out with defective ignition locks that result in the deaths of several USAians gets away scot free, can't remember the story but it was either GM or Chrysler, with just the company being fined. Looks a little suspicious to me.

      It was GM, and they didn't 'get away scot free'. See https://en.wikipedia.org/wiki/General_Motors_ignition_switch_recalls

      They paid $900 million in fines, they're being sued in multiple jurisdictions, and have actually lost a few (and won a few) of those suits. Several senior types ran for the hills, 'admitting no wrong-doing'.

      In no case did GM do what VW did: create, with malice aforethought, a software system specifically aimed at fraudulently misrepresenting the behavior of their vehicle. VW went to the extreme of (massively and repeatedly) advertising their products as having 'clean diesel' engines, to the detriment of other vendors, who presumably didn't have 'clean diesel' engines. The fraud is that the 'clean diesels' actually emitted 40 times the legal limit of pollutants. Not only were they not clean, they were extremely dirty. They lied, deliberately, to the government and to their customers. They are still lying. In the GM case, they fucked up and had a bad product, and they they kept their mouths shut about it. Reprehensible, but not nearly in the same class as actively creating software to commit fraud.

      Your (false) equivalence of VW and GM reminds me, strongly, of Don the Mango Mussolini's false equivalence of Nazis and those who would protest Nazis.

  31. Paul Smith

    Plea Bargin

    The real story here is not about someone being convicted for breaking the rules, it is that the witness copped a plea bargain in return for helping the prosecution, which the judge didn't honor.

    The US justice system was already severely handicapped by things like associating conviction rates with electoral success, and the ability of police and prosecution forces to bully their way past civil rights, but it was tolerable while the majority of judges remained impartial. Exceptions like Rittenband were notable by being the exception, but increasingly often it would seem that judges in the US believe that they have the right to express and exercise their personal opinions.

  32. Potemkine! Silver badge

    "a powerful deterrent message to the rest of the industry"

    Exemplary punishment is not Justice. Acts and consequences being the same, why would the first offender be judged harsher than the second one? One should be judged on his/her actions, not according how would be perceived the sentence by others.

  33. Tubz

    Haven't we heard the same old story before from German employees and companies "I/we was/were following orders ..." so long prison time and massive fines in order for all. and those back in German who think they are safe, should all be extradited !

  34. Bruce Woolman

    Unnecessary deaths?

    Has anyone seen calculations concerning anticipated increases in air-pollution caused-morbidity and mortality resulting from this crime? Certainly a significant number people will have shortened lives because of VW's perfidy.

    1. Destroy All Monsters Silver badge

      Re: Unnecessary deaths?

      OTOH, you may have given a future mass-murderer lung cancer, thus bending fate to the good side. Who's to know?

    2. Roland6 Silver badge

      Re: Unnecessary deaths?

      Remind me, who got prosecuted for putting lead in petrol for circa 60 years?

      Could the lack of prosecution for this crime have something to do with the fact that the prime movers were US companies...

  35. ultraweasel

    Ever been pressurised by management?

    Ok,

    The Engineer / Manager in this case was in the wrong. Should he be the only one to 'take one for the team'? I don't think so.

    I don't know what it's like in your industries, but speaking from experience in the automotive engineering industry, the pressures to 'get things done' - from the senior management can be horrendous. It is a more ruthless industry than many realise.

    People can make strange decisions when under undue pressure...

    I cannot believe that this individual acted 'alone'. Would none of the senior management have been interested in the fact that their vehicles went from not having a hope in hell of passing US emission regulations to passing comfortably (better than all their rivals?).

    Sorry. No way. This issue goes to the top.

    P.S. Has nobody here been pressured by their management into making short-cuts, shipping code that you know wasn't up to scratch?

    You may say that this 'isn't the same'! Maybe, but I would suggest that you don't be overly judgemental of this individual - we don't know, and may never will, what pressures he was under to 'make it work'.

  36. Herby Silver badge

    Done all the time...

    In a galaxy far far away, and a long time ago. Back when it was fashionable to benchmark compilers using specific programs (Drystone is but one example) is was found that some compilers had recognition code to detect such programs and emit a HIGHLY optimized program that would score better than the typical code emitted by the compiler. This was done to get specific sales to governments that used said benchmarks. I understand that the code involved had a more detrimental effect (health wise), but the cases are similar.

    I would hope that the prosecutor would go up the food chain to find out the correct person to throw in the clink, but alas, those exact people are the ones that will have the highest priced legal assistance to (likely) get away with the crime. From appearances this guy was involved in the specification, but the orders must have come from higher up. We shall see what happens next.

    1. MK_E

      Re: Done all the time...

      Something about the optimum number of paperclips springs to mind.

POST COMMENT House rules

Not a member of The Register? Create a new account here.

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Biting the hand that feeds IT © 1998–2019