Today, President Trump declassified a memorandum dated January 18, 2018, from the House Permanent Select Committee on Intelligence (“Nunes Memo”). This memo alleged abuses by the Department of Justice and the Federal Bureau of Investigation while seeking a Foreign Intelligence Surveillance Act (FISA) warrant to conduct electronic surveillance of Carter Page.
I’m a little bit behind on complaining about it, so here’s the executive summary to catch everyone up: One month after they celebrated 25 years of PACER, the whole thing went down, twice in one week.
In case you missed it, the Administrative Office of Courts issued a statement in December celebrating the twenty five year anniversary of PACER. The electronic filing service was started in 1988. It ushered in the era of electronic filing for federal court documents. To me, the irony of this “celebration” is that PACER, and the local CM/ECF systems, have barely changed since then.
As usual, the Third Branch PR team leads with how PACER has made access “universal.”
“Twenty-five years ago, the vast majority of cases were practically obscure. Today, every Third Branch court is using CM/ECF and PACER,” said Michel Ishakian, chief of staff for the AO’s Department of Program Services, who oversaw PACER from 2008 to 2013. “That means that all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes. This level of transparency and access to a legal system is unprecedented and unparalleled.”
This is technically correct – but Mr. Ishakian neglects two caveats to this statement:
1. Users have to pay to access these documents. You pay to search for them, and you pay to download them.
2. The “opinions” available on PACER are slip opinions, not officially published case law. That means they can’t be cited in court.
The Administrative Office of the Courts announced yesterday that FDSys will now include opinions from 64 federal courts. The program to integrate federal court opinions into FDSys began in 2011. In 2011, they added opinions from 12 courts. In 2012, they increased that number to 28 courts. In February of this year, they announced that they were expanding the program. And now we know they have increased the number of courts to 64. According to today’s press release, they are backfilling some jurisdictions, putting in an archive back to 2004. They claim to have 750,000 opinions in FDSys now.
According to the statement, “FDsys currently contains opinions from 8 appellate courts, 20 district courts, and 35 bankruptcy courts.” To put this in perspective, there are 17 circuit courts, 94 district courts, and 195 bankruptcy courts. All together, they are pulling opinions from 63 of 307 federal courts (roughly). That’s 21% of the federal jurisdictions in 3 years.
As usual, I feel compelled to say “it’s great that they’re doing this, BUT”—they’re focusing on the wrong things. Why are they pulling documents from district courts and bankruptcy courts? The case law that most people care about is appellate opinions that create precedent. In federal jurisdictions, this means the Circuit Courts of Appeal and the United States Supreme Court. FDSys has no SCOTUS opinions (which are freely available on the Court’s site), and only about half of the Circuit Courts of Appeal. Some district court opinions are interesting and useful, and I suppose the same is true for bankruptcy court opinions, but why are they being added ahead of the Supreme Court? 750,000 documents is a lot—my guess is they’re pulling in random orders and rulings that are part of the public record but not especially useful in legal research.
According to court documents (see below), the FBI and federal prosecutors got help from hacker Hector Xavier Monsegur a/k/a ‘Sabu’ a/k/a ‘Xavier DeLeon’ a/k/a ‘Leon’ to build cases against other alleged members of Anonymous, LulzSec, Internet Feds, and AntiSec hacker groups.
U.S. authorities charged five accused hackers with federal criminal computer hacking violations, while Monsegur pled guilty to a variety of ‘substantive hacking’ violations that included targets like Sony Pictures, Fox Broadcasting, and PBS.
Any antitrust concerns about Google’s acquisition of Motorola Mobility were satisfied in Europe and the United States today. Regulatory hurdles were cleared when the European Union and the U.S. Department of Justice’s Antitrust Division each approved Google’s purchase of the telecom unit.
The deal bolsters Google’s patent portfolio, and is anticipated to add substantial value to the company’s Android mobile operating system.
The Federal Communications Commission (‘FCC’) ruled today that anti-abortion activist Randall Terry (inset, right) failed to show “that he is a legally qualified” presidential candidate entitled to “reasonable” broadcast TV access in Illinois.
Even if he was, the FCC concluded, Chicago NBC affilate WMAQ did not act unreasonably when it refused to sell him air time to run ads on Super Bowl Sunday (Read the decision below).
FDA Scientists & Doctors: Agency Read Our Personal Emails For Alerting Public About Medical Device Safety
A lawsuit filed by current and former employees of the U.S. Food and Drug Administration charges that the agency accessed and spied on their personal e-mail accounts after scientists and doctors alerted Congress and the media that certain radiation-emitting computer detection devices may not be safe or effective.
The lawsuit filed by scientists and doctors charges that nine FDA employees (the “FDA Nine”) had their private, personal, password protected email accounts on Google and Yahoo secretly recorded by the the U.S. Department of Health and Human Services, the government agency to which the FDA reports.
Why? Because the FDA scientists and doctors engaged in whistleblower-protected conduct by voicing concerns about radiation-induced cancer risks allegedly involving medical devices that the agency regulated.
You would think that Silicon Valley giants would compensate their employees well, support their professional growth, and know that a time will come when they leave for greener pastures.
C-level execs at Apple, Google, Adobe, Pixar, Intel, Intuit, and Lucasfilm apparently thought, acted, and communicated differently, however, according to newly revealed legal documents in an employee class-action lawsuit (see below).
A Freedom of Information Act (‘FOIA’) lawsuit (below) by the Electronic Privacy Information Center (‘EPIC’) reveals that the U.S. Department of Homeland Security paid contractors to monitor Facebook, Twitter other social networks, blogs, and comments on news media websites.
The documents (below) disclose that the federal government paid at least $1.16 million to private contractor General Dynamics to monitor social networks, blogs, and news media sites for “public reaction to major governmental proposals with homeland security implications.” That’s government bureaucratic-speak for public dissent.
The legal implications of U.S. social networking surveillance programs tracking dissent of its own citizens, even with open source tools, are deeply disturbing.