Let’s Fight Nazis

Picture1By Jessy R. Nations

Dear Internet, I hope you’re happy. Just look what you did. You went and made Nazis again. Seriously, what were you thinking? It’s 2017 for crying out loud. I thought we all decided Nazis were bad like 50 years ago. But no, you just had to keep pushing that envelope. Now we have to do this for the next few years.

Under the guise of “free speech,” open racism and white supremacy have been on the rise. Whether they call themselves “Identarians,” “racial realists,” or the “Alt-Right,” these groups are everywhere. They’ve cleaned up their image and streamlined their rhetoric, but their core principle is the same: White people are better than everyone else, and are under attack from all the various minorities who should be removed by any means necessary. And it’s far more than just talk these days. To make matters worse, they’re recruiting. I vaguely recall a time when being openly racist would make you a social pariah. Now this behavior can land you a book deal, get you invited to talk shows, and give you a tour for you to speak at college campuses where you can threaten trans and immigrant students while your fans shoot protesters. In the interest of combating racism, this blog post offers a brief guide on how to spot these lunatics as well as some thoughts on what the law can do before they starting shooting up schools. Continue reading “Let’s Fight Nazis”

Virtual Shareholders’ Meetings: Yay or Nay?

Picture1By Alex Bullock

Next month, Berkshire Hathaway Inc. will hold their annual shareholders’ meeting in Omaha, Nebraska. Berkshire Hathaway’s annual shareholders’ meeting is a spectacle unlike any other, bringing investors from around the country (if not the world) to middle America for a weekend of free swag and corporate governance. Along with a 5k run, a movie screening, and endless corporate partner booths, the shareholders will take formal corporate action to vote to elect directors, to give an advisory vote on executive compensation plans, and to act on shareholder proposals, among other things. Berkshire Hathaway’s annual shareholders’ meeting is a significant event; indeed, I myself have thought about buying stock in the company just to see what their shareholder meeting is like in person. Continue reading “Virtual Shareholders’ Meetings: Yay or Nay?”

Twitter Fights Back in the ‘Trump Era’ to Protect ‘Rogue’ Government Accounts

Picture1

By Jeff Bess

During the early days of Donald Trump’s presidency, Twitter accounts purporting to represent unofficial “resistance” factions of federal agencies emerged and proliferated alternative perspectives on the inner workings of the Trump administration and its policies. These accounts claim to represent holdover factions from the Obama administration and career officials in agencies and government organizations such as the National Parks Service and the Federal Bureau of Investigation. The accounts issued frequent tweets critiquing the Trump administration’s policies across a variety of issues. Agencies “represented” by “alternative” Twitter accounts run the gamut from the Department of Justice to NASA to the National Weather Service.

Continue reading “Twitter Fights Back in the ‘Trump Era’ to Protect ‘Rogue’ Government Accounts”

Snap, Crackle, and Stop? No Voting Rights for Snap’s Public Shares

By Beth St. ClairSNAP IPO

Overheard: “I deleted all my social media accounts. But I kept my Snapchat account. That’s why it’s worth buying.” – As spoken by a millennial.

But what exactly are Snap’s investors, like this one, getting?

Continue reading “Snap, Crackle, and Stop? No Voting Rights for Snap’s Public Shares”

The Immigration Non-Cooperative?

USA_passport_with_immigration_stamps_from_Austria,_Germany,_Singapore_and_the_US_-_20120708

By Ari Mead

Local governments across the country fought federal immigration policy under Obama. Under Trump the fight continues. Specifically, the President has directed federal immigration agencies to more aggressively enforce current immigration laws and prevent residents with legal documentation from entering the United States based on country of origin.

But, for the first time, states are adopting state-wide policies that attempt to prevent cooperation with federal immigration policies.

The following is an overview of what’s happening:

CALIFORNIA

Several members of California’s legislature have responded with two proposed bills, which aim to protect immigration status, national origin, and religious belief from getting into the hands of federal officials.

Current California law requires that when state or local law enforcement arrest someone they believe is not a citizen, they must report that individual to the federal government. SB 54 would repeal that provision. In addition, the bill prohibits state and local law enforcement agencies, along with other state agencies – including schools – from using any local resources for immigration enforcement purposes. Sb 54 also directs state agencies to adopt the confidentiality policies that the Attorney General defines.

Another proposed bill in California, SB 31, requires state agencies to secure databases containing names, places of birth, addresses and nation of origin. Additionally, the bill disallows California from creating any databases that compile personal information.

WASHINGTON

On February 23rd, Washington State beat California lawmakers to the punch, as Washington’s Governor Jay Inslee signed an executive order blocking state officials and agencies from cooperating with federal immigration raids, sharing private information in agency databases or creating any religious based databases. Although city level non-cooperation policies have existed for decades, these state-wide non-cooperation policies are the first of their kind.

FEDERALISM CHALLENGES

Meanwhile, city non-cooperation policies have been around and have been tested in court, shedding light on some of the legal issues they pose. City of New York v. United States, from the United States Court of Appeals of the Second Circuit, concerned a provision in The Welfare Reform Act that prevented localities from prohibiting their local law enforcement and other agencies from sharing information with the federal government. The City of New York challenged the provision as violating the Tenth Amendment, and argued that the federal government could not interfere with how it instructed their local employees outside of a federal agency. Ultimately, the Tenth Amendment prevents congress from passing laws requiring states to administer civil immigration law. The Second Circuit decided that in the face of federal policy requesting cooperation, a city policy cannot prevent an official from voluntarily sharing immigration information. At the same time the ruling from the Second Circuit does not discuss whether a federal policy could require a state agency or city official to obtain information to report to the federal government.

Another case that considered the legal issues imbedded in non-cooperation policies was Sturgeon v Bratton. Sturgeon, a Ninth Circuit Court of Appeals case, involved an LAPD policy called S.O. 40, which stated that obtaining immigration information was not a matter for local authorities. A group of citizens challenged the policy as unconstitutional, arguing that that federal immigration law preempted the city policy. The Court of Appeals disagreed and said that the Tenth Amendment “shields state and local governments from the federal government requiring them to administer federal civil immigration law.”

In the months and years to come, more courts will likely have plenty of opportunities to decide whether state non-cooperation policies are also shielded by federalism. Whether states themselves are shielded by federalism depends on the federal government’s actions moving forward. The federal government could limit funds tied to immigration, or test the Tenth Amendment in this area again, challenging state laws that prevent local authorities from acting to enforce immigration laws.

Image Source

Man or Machine? EU Considering “Rights for Robots”

robotBy Grady Hepworth

Isaac Asimov’s 1942 short story “Runaround” is credited for creating the famous “Three Laws of Robotics.” Asimov’s Laws, although theoretically fictional (and most recently featured in the 2004 motion picture I, Robot), require robots to i) not hurt humans, to ii) obey humans, and to iii) only protect themselves when doing so wouldn’t conflict with the first two rules. However, the European Union (“EU”) made headlines this month when it took steps toward making Asimov’s Laws a reality.
Continue reading “Man or Machine? EU Considering “Rights for Robots””

Are My Emails Beyond the Grasp of the U.S. Government?

gavelBy Mackenzie Olson

Companies like Microsoft and Google store a lot of customer data in storage centers overseas. As of July 2016, 2nd Circuit precedent indicated that, due to the foreign location of those centers, the U.S. government could not compel these companies to turn over data, even by issue of a search warrant. The case that rendered this decisions was In the Matter of Warrant to Search a Certain E–Mail Account Controlled and Maintained by Microsoft Corporation. (But also take note of the dissent in the denial of en banc review). As the Southern District of New York adjudicated the Warrant case, the Second Circuit Court of Appeals was its final arbiter. Accordingly, the Court of Appeals’ judgment only controlled as precedent in that jurisdiction. And though its opinion has been persuasive elsewhere, at least one judge, based in the Third Circuit, now disagrees with its outcome.

On February 3, 2017, Magistrate Judge Thomas J. Rueter of the Eastern District of Pennsylvania issued an opinion and subsequent orders compelling Google to turn over certain data stored in overseas facilities, per the request of two previously issued search warrants.

In his opinion, Judge Rueter explains that, “the present dispute centers on the nature and reach of the warrants issued pursuant to section 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 (“SCA”).

He frames the relevant issues as follows: “The court must determine whether the [g]overnment may compel Google to produce electronic records relating to user accounts pursuant to search warrants issued under section 2703 of the SCA, or in the alternative, whether Google has provided all records in its possession that the [g]overnment may lawfully compel Google to produce in accordance with the Second Circuit’s ruling.” Rueter ultimately holds that “compelling Google to disclose to the [g]overnment the data that is the subject of the warrants does not constitute an unlawful extraterritorial application of the [SCA].”

In its reporting of the decision, news outlet Reuters particularly emphasizes Judge Rueter’s reasoning that “transferring emails from a foreign server so FBI agents c[an] review them locally as part of a domestic fraud probe d[oes] not qualify as a seizure . . . because there [i]s “no meaningful interference” with the account holder’s “possessory interest” in the data sought . . . [the retrieval] has the potential for an invasion of privacy, [but] the actual infringement of privacy occurs at the time of disclosure in the United States.”

Orin Kerr, law professor at The George Washington University School of Law, notes numerous problems with Judge Rueter’s decision. “The issue in this case is statutory, not constitutional. Even if you accept the (wrong) framing of the issue as being whether the SCA applies outside the United States, the answer has to come from what Congress focused on, not where the constitutional privacy interest may or may not be. Where you place the Fourth Amendment search or seizure strikes me as irrelevant to the extraterritorial focus of the statute.”

Kerr further contends that, “Even accepting the court’s framing, I don’t think it’s right that no seizure occurred abroad. As I see it, copying Fourth Amendment-protected files seizes them under the Fourth Amendment ‘when copying occurs without human observation and interrupts the stream of possession or transmission’. . . . That test is satisfied here when the information was copied. The court suggests that bringing a file back to the United States is not a seizure because Google moves data around all the time and ‘this interference is de minimis and temporary.’ I don’t think that works. Google is a private company not regulated by the Fourth Amendment, so whether it moves around data is irrelevant.”

It will come as no surprise that Google plans to appeal the Third Circuit decision. Likely a slough of other tech and media companies that previously filed amicus curie briefs in the Microsoft case will file briefs again, such as Apple, Amazon, AT&T, eBay, and Verizon.

Key questions that remain, then, are what will the Third Circuit decide on review?

Will the court follow the precedent set by the Second Circuit in Warrant?

Will it adopt the reasoning of the dissenters in the denial of Warrant‘s en banc review?

Will it follow Judge Rueter’s reasoning in the case at bar?

Or will it render an entirely novel opinion?

And though we can be sure that the losing party will petition the Supreme Court, one also must consider whether a final player emerge, in the form of Congress directly intervening? After all, the SCA was enacted in 1986, and many consider it not only out of date, but also relatively unworkable for modern technological issues. The time certainly seems ripe for a statutory update.

Image Source

 

Two Copywrongs Make A Copyright: Archiving Environmental Protection Agency Data Against the Trump Administration’s Demands

powerplantBy Gwen Wei

Five days after the inauguration of President Donald J. Trump, his administration officially instructed the Environmental Protection Agency (“EPA”) to delete all references to climate change from the agency’s website.

The demand generated an instant outcry: from the media, members of the scientific community, and believers in global warming at large. Continue reading “Two Copywrongs Make A Copyright: Archiving Environmental Protection Agency Data Against the Trump Administration’s Demands”

Supreme Court Hears Oral Arguments for Lee v. Tam

lee-v-tam-picBy Kiran Jassal

The Supreme Court of the United States recently heard oral arguments for Lee v. Tam to decide whether the disparagement provision of the Lanham Act is facially invalid under the First Amendment. The disparagement provision resides in Section 2(a) of the Lanham Act and states that a trademark which “[c]onsists of…matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…” may not be registered.

In 2011, Simon Shiao Tam filed a trademark application for his band name, “The Slants.”

Continue reading “Supreme Court Hears Oral Arguments for Lee v. Tam”

Public Records in the Age of Trump

twitterBy Jeff Bess

It is  more than cliché to observe that the advent and evolution of the internet has deeply transformed modern society in many ways, both micro and macro. Indeed, not a clearer example exists than the role social media played in the 2016 presidential election. With over twenty million followers on Twitter and nearly 35,000 tweets, Donald Trump leaned into this direct line to the masses to set a new high water mark for social media ubiquity in pursuit of the White House.

Though derided by many as misguided or un-presidential, it is undeniable that Trump’s avid use of Twitter has been and continues to be effective. Indeed his prolific social media presence was a key source of the estimated $2 billion in earned media that greatly contributed to his success. And now that he is president, do his characteristic early morning, sometimes scattershot flurries of 140-character missives count as official government records? In other words, are they subject to federal document retention laws?

Continue reading “Public Records in the Age of Trump”