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).

Judge Walton’s response gives us some insight into how FISA warrants and bulk surveillance orders are obtained. All of the information is declassified. I was surprised at the seeming informality of the relationship between the government, who seeks the warrants, and the court staff and judges, who issue them. Judge Walton describes the process of submission, review, modification, and order as one that starts with a formal filing, and may move  into phone conversations (via “secured line”) and meetings between court staff and the Government. I am not a litigator, so I am not familiar with the ins and outs of warrant requests and issuances, but I am under the impression that most communications between parties and the court – even for date changes, name changes, telephonic conferences, etc. – are done via motion. That  is, they are filed and responded to in writing. Perhaps the ex parte nature of the FISC proceedings lends itself to this kind of informal (unrecorded) exchange, but it seems troubling from a transparency process. As we have seen, however, non-governmental parties are sometimes able to intervene or respond to the government’s motions. Shouldn’t communications be documented in that case?

Another interesting item from the statement is the description of how nongovernmental parties are able to get into the FISC. One way is to fail to comply with a FISC order. This is what happened in the Yahoo case. Once they refused to provide the data in the order, the Government filed a motion to compel compliance. Yahoo was then able to brief the FISC in response.

Judge Walton mentions another way to challenge a production order – via 50 USC §1861(f)(2)(A)(i), which provides that:

A person receiving a production order may challenge the legality of that order by filing a petition with the pool established by section 1803 (e)(1) of this title. Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (C), with the pool established by section 1803 (e)(1) of this title.

The same section allows the provider to challenge the nondisclosure order imposed in connection with the production order. However, according to the judge, “to date, no recipient of a production order has opted to invoke this section of the statute.”  (p. 8) As I’ve already mentioned, Yahoo came into the court by refusing to comply with the order. Google and Microsoft seek to release aggregate data about orders, not to challenge them on their face. The EFF and ACLU suits are by non-parties seeking access to opinions and information from the Court.

For more information on the FISC Public Docket, see my last post.

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:

Docket No. 105B(g) 07-01: Yahoo

Yahoo Corp. sought permission to disclose its motion in opposition to surveillance requests after the PRISM program was revealed. The decision in that case was published in redacted form at In re Directives Pursuant to Sec. 105b of the Foreign Intelligence Surveillance Act, 551 F. 3d 1004 (Foreign Intel. Surv. Ct. Rev. 2008).  This is one of only two opinions ever published by the FISCR.

Yahoo argued that the opinion should be unredacted in light of (a) recent declassification decisions by the DNI (Director of National Intelligence), (b) the current controversy surrounding the use of directives under Section 702 of the FISA Amendments Act of 2008, and (c) recent litigation over the constitutionality of Section 702. They also cite the current public interest in the FISC in light of the Snowden leaks.

The US filed a reply taking no position, and the FISCR ordered the Government to conduct a declassification review of the briefs and redact any sensitive material, at which point the FISCR will issue a memorandum opinion. The deadline for that is July 29.

Case No. Misc. 13-04: Microsoft

Microsoft sought a declaratory judgment from the FISC authorizing disclosure of aggregate data about the number of FISC orders it receives and complies with. Microsoft explicitly mentions in the pleading that it seeks to correct the misimpression, furthered by inaccurate media reporting, that it provides the government with direct access to its servers and network infrastructure through the PRISM program.

Microsoft argued that the FISA and the FAA do not prohibit disclosure of these numbers, and that the secrecy provisions in these statutes are aimed at preventing disclosure of surveillance to the targets. They also argue that a prohibition on disclosure of this nature would be unconstitutional as a content-based restriction on speech, prohibited by the First Amendment.

Case No. Misc. 13-03: Google

A coalition of advocacy groups, led by famous First Amendment lawyer Floyd Abrams, moved to file an amicus brief in support of the Microsoft and Google petitions for permission to publish aggregate data. The Amici brief focused on the First Amendment implications of restricting the providers’ speech.

A group of press advocated and publishers also filed an amicus brief in support of the petition to publish aggregate data. Their brief focused on the First Amendment as well, but from the perspective of a “willing speaker,” and the heightened public interest in hearing what the speech.

Case No. Misc. 13-02: ACLU

The American Civil Liberties Union and the Media Freedom and Access Clinic at Yale Law School filed a motion to release FISC opinion that discuss the meaning, scope, and constitutionality of Section 215 of the Patriot Act, 50 USC 1861. They argue that (a) disclosure is required under the First Amendment and (b) the FISC has the authority to publish its own opinions, sua sponte, and public interest and the need for debate compels it to do so.

The brief argues that access to public opinions is deeply enshrined in common law, that Government officials, including President Obama, have called for a robust debate about the issue, and that access to the opinions interpreting the statutes are necessary in order to understand the scope of the law and properly inform the debate.

Several members of Congress filed a brief of amici curiae in support of the ACLU’s motion. They argue that disclosure is necessary to allow them to explain the surveillance programs to the public and to have an informed discussion in Congress about the scope and application of the law.

The amici argue that the Speech and Debate Clause, U.S. Const. Art. I §6 cl. 1 protects the open exchange of ideas in Congress, and supports the “informing function” of the Legislature. In times of crisis, Congress must be able to debate and inform the public, and a prohibition on access and speech about judicial opinions impairs this essential function.

The United States filed a brief in opposition, arguing that (1) the ACLU has already been denied by the Court (in an unpublished FISC opinion issued in 2008, and attached to the brief), which the ACLU did not appeal, and (2) the ACLU has no standing to make the motion, since it was not a party any relevant opinion. The Government also argues that, in any event, a declassification process is underway the the Government will release material if they deem it appropriate. It’s interesting to note that Attachment A is a memorandum opinion from the FISC, previously unpublished. That opinion holds that  any common law right to public access to opinions was pre-empted by FISA and its security procedures. It also found that the ACLU failed to demonstrate a First Amendment right of access.

The Court issued an Order requesting bar membership and security clearance for counsel associated with the case, with a deadline of August 9.

Case No. Misc. 13-01: EFF

The EFF filed a motion for declaratory judgement on the question of whether FISC Rules preclude the production of FISC opinions under a FOIA Request. The EFF filed a FOIA request for opinions in which the Court held that a surveillance request was unreasonable under the Fourth Amendment. The Department of Justice responded that it located the opinions but was barred from producing them under FISC Rules of Court.  The DOJ opposed the EFF’s motion, arguing that the determination was outside of the FISC’s jurisdiction. Essentially, the DOJ argues that only the agency has the discretion to release its records, and that the FISC does not have the authority to order the DOJ to do so. The FISC only has the authority to release its own records.

Attached to this opinion are Exhibits, including the EFF’s original motion to compel disclosure  – an interesting glimpse into how FISA is dealt with in a federal district court.

The FISC concluded that its jurisdiction over the matter was appropriate, and that FISC Rules do not bar production of its opinions.  It found that FISC Rule 62 does not have the effect of sealing FISC opinions, and that the Executive Branch is fundamentally responsible for safeguarding sensitive national security information.

The underlying FOIA action is ongoing. You can follow it on Justia Dockets.


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:

The performance of [the jury’s] role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six than when it numbers 12—particularly if the requirement of unanimity is retained.

Thus, the Court held, “the 12-man panel is not a necessary ingredient of ‘trial by jury.’” That holding has been heavily criticized by both legal scholars and social scientists, but is still good law today. Several states, including Florida—the state where both the original six-person jury was upheld and where the Zimmerman trial is being held—continue to use juries of fewer than twelve in criminal trials.

Photo credit: bikeriderlondon/

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.”

I’ll leave the civil liberties analysis of this to the pros – but I wanted to drive home this essential point: we only know about this because someone leaked it. The court hears over 1,000 cases a year and is effectively creating law that we are not allowed to see. Even if you are not directly implicated in a FISA case, you are held accountable to the law this court is creating, but you have no idea what it is.

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.”

Continue reading →

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.

In addition to seeking this declaratory judgment, Public.Resource.Org is asking the court for an injunction against SMACNA from asserting copyright claims against it, and costs.

I’ll be following this suit closely. At Justia, our mission is to provide access to the laws of the United States – all cases, codes, and regulations. As I’ve written about before, it seems obvious that these things should be available free of charge and copyright restrictions – but they’re not. Privately owned building codes are just one small part of the corpus of law that is locked behind a paywall. Many final appellate decisions and many state codes are only published in their official form by a private publisher. In order to cite to them, you must access a copyrighted, paid version of the statute or case.

You can follow the case here.

More blog posts on the subject:

Techdirt: Sheet Metal And Air Conditioning Contractors Use Bogus Copyright Takedown To Block Publication Of Federally Mandated Standards.
EFF: Free Speech Battle over Publication of Federal Law
Sunlight: Breaking the Law by Reading It

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.”

From their site:

The courts currently offer an expensive and difficult-to-use web site. They charge more than their cost of offering the service—more than Congress has authorized—violating the E-Government Act of 2002. This Act seeks to, once and for all, compel the courts to fulfill Congress’ longstanding vision of making this information “freely available to the greatest extent possible“.

If you have an opinion on how this law should be drafted, what should be included, what should be left out – you can visit OpenPACER and let them know. You can help draft the law that will eventually be proposed.

Along those lines, Fork the Law seeks to amend existing legislation by crowdsourcing proposals to change it. They are starting with the Computer Fraud and Abuse Act, 18 USC §1030 et seq.

From their site:

Fork the Law is an effort to bridge the gap between rapidly evolving technology and governing law. Our initiative is to take all necessary steps to move from where we are to where we must coalesce, from drafting new legislation, to educating Congress and the People about the issues we face as a nation, to promoting passage of new laws that continue our forward progress.

If you have expertise or opinions on the law, you can join the effort by suggesting text, changes, deletions, etc. The folks at Fork the Law will then lobby these changes.

PS. I had to ask about “fork” – according to the engineer on my couch, it means to make a copy, or a clone, of code. It can also be used to describe the process by which you take an opensource code that you don’t like, clone it, and change it to make it better.

HT Robert Richards at Legal Informatics Blog, who keeps us up to date on all this stuff.