Articles Posted in Laws

US Capitol BuildingThe US Government  responded yesterday to the FISC’s order to conduct a declassification review in the Yahoo case. Their response asks for 45 and 60 days to complete the full review. They cite the need for interagency coordination, the volume and type of materials, and multiple FOIA requests in support of this request.

In the Microsoft and Google cases, the Government asked for a third extension of its deadline to respond to Microsoft’s motion. Microsoft and Google both consented to the extension.

In other news about the FISA Court, Reggie B. Walton, the presiding judge, responded to Sen. Patrick Leahy’s request for more information about the court processes and procedures. On July 18, Sen. Leahy requested this information in preparation for a Senate Judiciary Committee hearing on the implementation of FISA Authorities (scheduled for July 31).

papersThe Foreign Intelligence Surveillance Court has created a public docket for declassified opinions.

The documents have been released through the efforts of providers like Yahoo, Microsoft, and Google, as well as advocacy groups like the ACLU and the EFF, who filed requests to publish the opinions and filings in the FISC. Since FISA was enacted, the FISC and FISA Court of Review have only released a handful of opinions. The public docket gives us insight into the secret activities of the courts and their litigants.

The docket includes the following cases:

shutterstock_121502677The media has been closely following the criminal trial of George Zimmerman, the racially charged trial in which Zimmerman is accused of murdering teenager Trayvon Martin. Just this week, a jury of six was chosen.

For most people, when we think of juries, we think of them as being comprised of twelve people. Indeed, for over 600 years, juries in the English and American legal systems have been 12 people (men, traditionally—which highlights another interesting aspect of this case with an all-female jury panel).

In 1898, the U.S. Supreme Court ruled in Thompson v. Utah that the Constitution requires a jury to be comprised of exactly twelve persons. However, in 1970, the Court revisited that holding. After assessing the legislative history of the Sixth Amendment and the purpose of the jury, the Court in Williams v. Florida held that Florida’s law permitting a six-person jury in a criminal trial does not violate the Sixth Amendment’s guarantee of the right to a trial by jury. The Williams Court reasoned as follows:

American Express Co. v. Italian Colors Restaurant, United States Supreme Court (6/20/13)
Antitrust & Trade Regulation, Arbitration & Mediation, Class Action

contractAn agreement between American Express and merchants who accept American Express cards, requires that all of their disputes be resolved by arbitration and provides that there “shall be no right or authority for any Claims to be arbitrated on a class action basis.” The merchants filed a class action, claiming that American Express violated section 1 of the Sherman Act and seeking treble damages under section 4 of the Clayton Act. The district court dismissed. The Second Circuit reversed, holding that the class action waiver was unenforceable and that arbitration could not proceed because of prohibitive costs. The Circuit upheld its reversal on remand in light of a Supreme Court holding that a party may not be compelled to submit to class arbitration absent an agreement to do so.

The Supreme Court reversed. The FAA reflects an overarching principle that arbitration is a matter of contract and does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery. Courts must rigorously enforce arbitration agreements even for claims alleging violation of a federal statute, unless the FAA mandate has been overridden by a contrary congressional command. No contrary congressional command requires rejection of this waiver. Federal antitrust laws do not guarantee an affordable procedural path to the vindication of every claim or indicate an intention to preclude waiver of class-action procedures. The fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.

Read more: Arbitration Backed as Court Rules for American Express Continue reading →

Five opinions came down today from the United States Supreme Court. Read the summaries below and read the full text of the opinions at Justia’s U.S. Supreme Court Center.

Alleyne v. United States, United States Supreme Court (6/17/13)
Civil Rights, Constitutional Law, Criminal Law

gavelAlleyne was convicted using or carrying a firearm in relation to a crime of violence, 18 U.S.C. 924(c)(1)(A), which carries a five-year mandatory minimum sentence. The sentences increases to a seven-year minimum if the firearm is brandished, 924(c)(1)(A)(ii), and to a 10-year minimum if it is discharged, 924(c)(1)(A)(iii). The jury form indicated that Alleyne had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” Alleyne objected to a sentencing report recommendation of a seven-year term, arguing that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a judge’s finding of brandishing would violate his Sixth Amendment right to a jury trial. The district court overruled the objection. The Fourth Circuit affirmed.

The Supreme Court vacated and remanded, overruling Harris v. United States, 536 U.S. 545 and applying Apprendi v. New Jersey, 530 U.S. 466. Mandatory minimum sentences increase the penalty for a crime and any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Defining facts that increase a mandatory minimum as part of the substantive offense enables a defendant to predict the applicable penalty from the face of the indictment and preserves the jury’s role as intermediary between the state and criminal defendants. Because the fact of brandishing aggravates the prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received had a different range been applicable. The Court noted that its ruling does not mean that any fact that influences judicial discretion must be found by a jury.

Read more: Supreme Court says jury should have final say on facts that trigger mandatory minimums

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small_lockBack in January, key provisions of FISA – the Foreign Intelligence Surveillance Act – were renewed by Congress.  I wrote about the troubling situation of access to FISA Opinions, which is basically non-existent. Up until January, only one opinion had been released by the FISA Court, and only two opinions released by the FISA Court of Review. The FISA Rules of Court allow on the federal government or the FISA Courts themselves to release opinions without a court order.

Well, the Guardian UK got ahold of a recent opinion that compels Verizon to produce the telephony data for millions of domestic customers for the Government. This opinion, which you can read on the Guardian’s site, is marked as top secret and almost certainly was not released by the FISA Court itself. The Guardian only says that it “obtained” the opinion.

Others have tried to get the opinions, using a procedure (detailed in the last blog post) established to declassify opinions that contained “important rulings of law.” A 2012 FOIA Request, however, yielded “no records.”

st-patrickSt. Patrick’s Day is a day when we celebrate the Irish in all (or at least 35 million) of us. We honor our Irish ancestors, relatives and friends by dressing in green, visiting an Irish pub, or participating in a festive parade.

Food manufacturers also observe St. Patrick’s Day through the creative use of food coloring, which is regulated by the U.S. Food and Drug Administration. Pigments used to color food and derived from vegetables, minerals or animals are exempt from certification. A natural source of green food coloring would be grape skin extract.
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cc.largeCalifornia Assemblyman Brian Nestande (R-42nd Dist.) has put forth a bill to apply a Creative Commons License to the California Code of Regulations (CCR). According to Mr. Nestande’s site, “AB 292 will provide that the full text of the California Code of Regulations shall have an open access creative commons attribution license, allowing any individual, at no cost, to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes.”

Right now, the Office of Administrative Law (OAL) owns and publishes the CCR. The OAL was created by Cal. Gov’t Code §11340. Cal. Gov. Code §11343 et seq governs the filing and publication of the Cal. Code Regs. The Office of Administrative law collects the regulations from issuing agencies, and after notice, sends them to the Secretary of State for certification. The OAL is then charged with providing for the “or the official compilation, printing, and publication of adoption, amendment, or repeal of regulations, which shall be known as the California Code of Regulations.” (Cal. Gov’t Code §11344(a)).

Section 11344.4(a) also allows them to sell the CCR: “The California Code of Regulations, the California Code of Regulations Supplement, and the California Regulatory Notice Register shall be sold at prices which will reimburse the state for all costs incurred for printing, publication, and distribution.”

The OAL currently contracts with Thompson West/Barclay’s to publish the official version of the CCR. According to Mr. Nestande’s office, the OAL licenses the CCR to West for $400,000 per year, plus 7% of all royalties. [The office did not have a copy of the latest contract, but you can see the contract for 2009-2012 here]. We don’t how much it would cost to produce the CCR in house, but it’s not a stretch to imagine that the OAL is turning a profit on this deal – which seems to be outside the scope of its charter in 11344.4. Mr. Nestande’s office points out that this creates a conflict of interest for the OAL – “As more businesses are covered by new regulations, more businesses need to purchase access to those regulations from Thomson, and OAL derives a larger profit.  This makes it difficult to be truly objective when approving new regulations, if it directly benefits from expanding the state’s regulatory burden.”

I think the bigger conflict of interest is that Cal Gov’t Code §11344(a) requires the OAL to post the CCR’s online for free, but their incentive for profit is interfering with the public’s ability to view and use those regulations. The CCR is hosted online by Westlaw. They are papered over with disclaimers (“The Official California Code of Regulations is available in looseleaf printed format from Thomson – West / Barclays (1-800-888-3600)) and copyright statements (© 2013 Office of Administrative Law for the State of California;” “Use of all or part of the data displayed on this site for commercial or other unauthorized purposes is prohibited.”). The regs on the site are not indexed by Google, and users cannot download or copy them without violating the copyright. What’s more, they’re not official. The Bluebook requires you to cite to the official version, which is the Westlaw Compilation.

There’s another absurdity in the status quo: Westlaw actually sells copies of its Compilated Regs to other state offices. You know, state regulatory offices that devised the regs to begin with. According to the Assemblyman’s office, “Nearly all state agencies and departments purchase the compilation from West, in addition to hundreds of trade associations, and individual business owners that purchase single section subscriptions.”

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blueprintLast week, Public.Resource.Org, through their counsel at the Electronic Frontier Foundation, filed an action for declaratory judgement against the Sheet Metal and Air Conditioning Contractors’ National Association, Inc. [SMACNA]. In its complaint, asserts that since SMACNA’s copyrighted standards were explicitly incorporated into federal and state law, they have become part of the public domain and are no longer subject to copyright restrictions.

This saga began when Carl Malamud of Public.Resource.Org began buying copies of privately issued, copyrighted building codes and putting them up online. These codes were incorporated by law into federal and state statutes, so Carl believed that they should be publicly available – a  proposition we agreed with.

When Attributor, an agent for SMACNA, discovered the codes on Public.Resource.Org, they sent a DMCA takedown notice. Public.Resource.Org now seeks a declaratory judgment from the federal courts that it is not infringing. It asserts that since these standards were incorporated by reference into federal law, the manual is now “the law of the United States and compliance with the 1985 manual is mandatory,” and thus is part of federal law – which is not subject to copyright.

padlockTwo legislative crowdsourcing efforts came across my desk today: OpenPACER and Fork the Law. I love the idea of collective effort to make laws.

The government has tried this to some extent with There, you can sort, view, and comment on proposed regulations. An even better iteration of this is GovPulse, a site that was created in the private sector to categorize and search proposed regulations. GovPulse encourages users to comment and contact their representatives, but it’s not an official comment site.

OpenPACER and Fork the Law are something entirely new, however. They are created by citizens for citizens in order to change the law. If you’re reading this blog, you probably already know about PACER and efforts underway to eliminate the paywall. The folks at RECAP (a PACER recycling tool) have started OpenPACER to solve this problem legislatively. You know that saying “There ought to be a law?” – well, OpenPACER is acting on that by proposing legislation to “provide free and open access to electronic federal court records.”