In the wake of violent clashes between protesters and police in Ferguson, Mo., President Obama is ordering a review of the federal programs that help local police departments purchase military gear.
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Source: http://legaltalknetwork.com/podcasts/legal-toolkit/2014/07/top-new-legal-technology-products-2014
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In a closely-watched decision involving judicial review of agency settlements, the Unites States Court of Appeals for the Second Circuit vacated United States District Court Judge Jed Rakoff’s 2011 order rejecting a proposed $285 million settlement between the Securities and Exchange Commission (“SEC”) and Citigroup Global Markets Inc., finding that the judge applied an incorrect legal standard in his review of the proposed accord. S.E.C. v. Citigroup Global Mkts., Inc., No. 11-5227-CV L, 2014 WL 2486793 (2d Cir. June 4, 2014). The Second Circuit held that, under the proper standard, the district court is required to determine whether the consent decree is fair and reasonable, and, if it includes injunctive relief, whether the public interest “would not be disserved.” Absent a substantial basis in the record to the contrary, the appeals court held, the district court is required to enter the order.
In October of 2011, the SEC filed a complaint against Citigroup in the United States District Court for the Southern District of New York alleging that the bank misled investors about a billion-dollar collateralized debt obligation. Shortly thereafter, the SEC filed a proposed consent judgment wherein Citigroup agreed to, among other things, a permanent injunction barring it from future violations of the securities laws, disgorgement of $160 million, and a civil penalty of $95 million. The proposed consent decree did not include any admission of wrongdoing.
After conducting a hearing to explore the basis of the settlement, the district court issued a written opinion rejecting the proposed accord and set a trial date. See S.E.C. v. Citigroup Global Markets Inc., 827 F. Supp. 2d 328 (S.D.N.Y. 2011). The district court held that “before a court may employ its injunctive and contempt powers in support of an administrative settlement, it is required, even after giving substantial deference to the views of the administrative agency, to be satisfied that it is not being used as a tool to enforce an agreement that is unfair, unreasonable, inadequate, or in contravention of the public interest.”
In his ruling, he took particular exception with the absence of any admission or denial of liability by Citigroup. He compared the proposed consent decree unfavorably to the SEC’s 2010 settlements with Bank of America and Goldman Sachs. In those cases, the district judge observed, the parties had stipulated to certain findings of fact. Here, by contrast, “[w]ithout such an evidentiary basis in this case . . . the Court is forced to conclude that a proposed Consent Judgment that asks the Court to impose substantial injunctive relief, enforced by the Court’s own contempt power, on the basis of allegations unsupported by any proven or acknowledged facts whatsoever, is neither reasonable, nor fair, nor adequate, nor in the public interest.” Rejecting the proposed consent decree, the district court observed that an “application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. The injunctive power of the judiciary is not a free-roving remedy to be invoked at the whim of a regulatory agency, even with the consent of the regulated. If its deployment does not rest on facts — cold, hard, solid facts, established either by admissions or by trials — it serves no lawful or moral purpose and is simply an engine of oppression.”
On appeal, the Second Circuit vacated the lower court’s order and remanded for further proceedings consistent with its opinion.
The Second Circuit ruled that the lower court exceeded its authority in reviewing the adequacy of the settlement, holding that district courts are limited to determining whether a proposed consent judgment is fair and reasonable, and, if it includes injunctive relief, whether the “public interest would not be disserved.” The Court held that district courts are required to enter the order absent a substantial basis in the record to the contrary.
Focusing on the district court’s insistence that the consent decree contain “proven or acknowledged facts,” the Second Circuit held that it was an abuse of discretion to require, as the district court did here, that the SEC establish the “truth” of its allegations as a condition for approving a consent decree. The Court held that the lower court failed to give “significant deference” to the SEC by presenting the parties with a questionnaire and comparing the proposed accord unfavorably to settlements in other matters.
The Second Circuit also held that the district court applied the wrong standard of review by defining the “public interest” as “an overriding interest in knowing the truth.” It held that it is an abuse of discretion for a district court to find the public interest disserved “based on its disagreement with the S.E.C.’s decisions on discretionary matters of policy, such as deciding to settle without requiring an admission of liability.”
A significant aspect of the Second Circuit’s decision is its clarification of the scope of deference district courts owe federal agencies seeking approval of consent decrees. The Court held that “the job of determining whether the proposed S.E.C. consent decree best serves the public interest, however, rests squarely with the S.E.C. and its decision merits significant deference.”
Before the Second Circuit’s decision in Citigroup, the SEC was forced to operate under the uncertainty of whether other district courts would follow Judge Rakoff’s approach and insist that its settlements contain admissions of wrongdoing or at least some sort of factual predicate for the settlement. In effect, the Second Circuit’s ruling vindicates the SEC’s use of “no-admit, no-deny” settlements, an integral part of its enforcement regime, and frees the SEC to settle cases through consent decrees without the burden of justifying its settlement. Without this burden, the SEC will be able to resolve cases more quickly and, therefore, more efficiently manage its enforcement docket.
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While many folks from the heartland despise the New York Times for its purported coddling of criminals, its contents don't always bear out this sensibility. It's done it again by publishing Lawrence Downes' homage to ignorance in its editorial notebook.
Payback is a bitch, and to the extent Downes' screed offers anything, it's the insight to what motivates this tyranny of the majority against the 600 Long Island Railroad retirees on disability who had the misfortune of following the LIRR's advice and going to Dr. Peter Ajemian. Long Islanders hate the LIRR. They hate the price of tickets. They hate having to stand on their daily commute despite the absurdly expensive cost of the ride. They hate the uncaring conductors enforcing rules that presume their passengers to be criminals seeking to get free rides. The LIRR has done much to cause this hatred, and only a fool would deny it's well deserved.
This is payback time. Finally, the media and the government have given us an easy target of this hatred, this simmering anger, and the rest of us, the commuters, the business people who paid the hated Commuter Tax, have an excuse to unleash our venom.
For a working schlub who commutes from the suburbs, the Long Island Rail Road disability scandal of 2008 was powerful evidence that the game of life is rigged.
Hundreds of railroad employees — engineers to white-collar managers — would retire in fine health as early as 50, then become instantly and lucratively disabled. If they took their phantom neck and back pain to the right doctor and to an obscure federal railroad board that almost never said no to a disability claim, the checks would start to flow. The daily grind turned into daily golf.
Hundreds? Name them, Downes. After years of investigation, the government has prosecuted a grand total of 33 defendants, of which 25 have pleaded guilty. Does this amount to hundreds on disability playing "daily golf" using the New York Times version of math?
The scheme cost taxpayers more than a quarter of a billion federal dollars from 2000 to 2008. It also gouged the L.I.R.R., which had to pay for all those early retirees’ pensions and for overtime and training new employees. What was most shocking about this gravy train was how many L.I.R.R. employees were on it. Every year from 2000 to 2008, between 93 percent and 97 percent of employees over 50 who retired with 20 years of service got disability payments. Experts had to wonder what other workplace, besides the gulag, crippled so many of its workers.
Experts knew exactly what happened, even if pundits were confounded. Older employees cost the LIRR a lot of money. They were paid at a much higher rate than new employees, and to reduce costs, the LIRR sought to persuade older workers to move on so they could be replaced with far less expensive employees. Nothing hard to grasp here, Downes. It's just money.
So the LIRR held seminars for the older workers about how they could retire on disability, and steered workers to facilitators who would help them navigate their way through the Railroad Retirement Board's disability system. These workers were sent to physicians who knew what was needed and could help them obtain a disability annuity.
Of course (and nobody seems to get this part of it), the RRB would have these retirees examined by their own physicians, who would review not only the narrative reports of docs like Ajemian, but the treatment notes, x-rays and MRI's as well. Suggesting that one doc like Ajemian could single-handedly defraud the federal the government is absurd, unless you eliminate the nasty facts and ignore the parts that don't conform to the narrative of payback.
It's not that this doesn't give rise to issues. A railroad disability isn't like a disability that applies to desk jockeys. It's an occupation disability, where it's given because of the inability to do railroad work, meaning those guys who fix the broken switches in the middle of the night in a snowstorm so you can hate them during your morning commute.
Do you really want the guy popping Vicodin because of his herniated disks responsible for the lives of a thousand people? The potential for harm is so great that railroad workers have been singled out for random drug testing, approved by the Supreme Court in 1989 in Skinner v. Railway Labor Executives’ Assn even thought suspicionless testing would be unconstitutional if applied to, say, New York Times pundits.
Even putting aside these and myriad other "details" wholly ignored by the media, there remains a flagrant flaw:
The Railroad Retirement Board has only now decided to cut off payments to about 600 of the dubiously disabled, months after the doctor who signed off on their diagnoses, Peter Ajemian, pleaded guilty to fraud in federal court.
Meet the new criteria for terminating rights by the federal government, dubiousness. Forget "beyond a reasonable doubt," "preponderance of the evidence" or "probable cause." Heck, not even reasonable suspicion. Dubiousness. And why does the New York Times endorse the new standard of "dubiousness" for deprivation?
Disenchanted riders are counting on the feds and the L.I.R.R. to get the money back, and send the belated message that the schemers will be punished.
It's not about proof of wrongdoing. There is no proof of wrongdoing. The only "proof" is that guys with missing limbs and multiple surgeries went to Peter Ajemian (plus the unmentioned RRB doctors, but let's not muddle up anger with facts). As long as people are angry, we don't need no stinkin' evidence.
Lest someone get the misimpression that it's just the Times feeding into the anger and ignorance that pervades the media attention, Newsday offered an editorial as well:
Now the LIRR wants to revoke their pensions as well. Workers who are truly disabled can reapply for disability benefits -- a hassle, probably, but a crucial step to whittle out those who committed fraud.
Because it would be far too hard to expect the government of the United States of America to figure out first whether someone did wrong before convicting them of dubiousness in the first degree and denying them due process? The difference here is that expectations of thoughtfulness by Newsday are inherently lower than that of the Times. Tell the families who use the disability annuity for food that they just need to suffer the hassle of the next year without it to make the government's job easier.
As far as I can tell, I may be the only voice speaking out for the LIRR disabled, which is itself curious given that I commuted for 25 years on the railroad and hate the LIRR as much as the next guy. But my hatred of the railroad doesn't obscure the facts, my rage doesn't make me desire payback from innocent targets.
For those of you who rail about constitutional violations when it comes to the police, what's being done here isn't materially different. These 600 have been painted with the Ajemian brush, though none have been found guilty of any fraud nor afforded a fair opportunity to challenge the taint imputed to them for committing the crime of dubiousness.
But then, you aren't getting a disability annuity, so why should you care if the government wrongfully beats the crap out of some other guys, as long as you get to go about your life unimpeded. And besides, everybody hates the LIRR, so it's just too hard to muster any sympathy. Too hard for Newsday. Too hard for Downes. Too hard for the New York Times. Thinking is too damn hard. Let's just burn them all at the stake and call it a day.
Source: http://blog.simplejustice.us/2013/07/08/dubious-in-the-first-degree.aspx?ref=rss
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The move by Gov. Jay Nixon to pull out the troops came after a night that involved only a handful of arrests in the St. Louis suburb.
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Source: http://jurist.org/paperchase/2014/08/china-executes-8-for-separatist-violence-and-related-crimes.php
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The 1st Circuit today held that the Defense of Marriage Act's denial of federal benefits to married same-sex couples is unconstitutional. Massachusetts v. US Department of Health and Human Services (1st Cir 05/31/2012).
The federal Defense of Marriage Act (DOMA) Section 3 prevents same-sex married couples from filing joint tax returns, prevent a surviving spouse from collecting Social Security survivor benefits, and prevents federal employees from sharing medical benefits with same-sex spouses.
The trial court held that DOMA Section 3 is unconstitutional; the 1st Circuit affirmed.
The court's decision surveys equal protection and federalism issues and concludes that "governing precedents under both heads combine - not to create some new category of 'heightened scrutiny,' ..., but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage."
Thus the court gave less deference to, and "closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern."
The court concluded that denial of federal benefits to same-sex married couples "has not been adequately supported by any permissible federal interest."
The court stayed its mandate, thus extending the trial court's stay, in anticipation of the losing parties seeking certiorari in the US Supreme Court.
My view:
This is a decision, purportedly based on the US Constitution, that essentially avoids making an explicit connection to the text of the Constitution.
The idea is that states regulate marriage, the federal government may have something to say in this regard, but the reasons behind the federal government's actions didn't have enough oomph. No, there's no 10th amendment violation, and no violation of the Spending Clause. And no, there's no "strict scrutiny" going on. And no "new category of 'heightened scrutiny.'" But wait, let's give the legislation "closer scrutiny."
I'm no fan of DOMA, but it's not really clear to me what this court is doing.
[By the way, similar DOMA issues are pending in the 9th Circuit.]
Source: http://www.lawmemo.com/blog/2012/05/doma_down_but_w.html
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Source: http://valawyersweekly.com/2014/01/02/lender-cant-collect-deficiency-for-repo/
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People get cold feet all the time, and there are several ways to deal with it. You probably haven’t thought of this one, as reported by The Daily Mail:
A fianc̩ faked his own death by telephoning his partner and pretending to be his father breaking the bad news Рso he could get out of his approaching wedding day, it was revealed today.
Wow. A real gentleman this one.
Bride-to-be Alex Lanchester, 23, of Sutton Coldfield, West Midlands, received a phone call just months before her wedding claiming that Tucker Blandford, also 23, of Stamford, Connecticut, had died in a car accident.
She then rang the American’s parents to offer her condolences, but they told her he was alive and well – and Miss Lanchester quickly learned he had faked his death to avoid the wedding.
You can read A LOT more, and see photos of the couple, by clicking here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/-I6fmFEA3M8/adfd.html
Check twice if you get an email from the Minnesota Court of Appeals. The Clerk of Appellate Courts office is reporting a scam email is making the rounds. The note tells recipients that their claim has been received.
The public should be aware that these emails are not coming from the Minnesota Judicial Branch of the appellate courts. Official court communications are sent by U.S. mail or by a phone call. The branch recommends not opening and not responding to any suspicious email.
Below is an example of the scam emails making the rounds:
FROM: Minnesota Court of Appeals [court_secretary@new-fantasy.ir] Mon 2/3/2014 8:46 PM Pretrial notice Hereby we confirm that your complaint has been received together with enclosures dated January 30, 2014. The complaint will be reviewed in court in the nearest possible time based on the documents and information you have previously provided. You do not have to be present at trial in person if the Court does not suggest otherwise. Please use this link to check your complaint once again and confirm it. If we do not get your confirmation the claim will be cancelled. You will be further notified without delay of any judgement delivered in regard to your complaint. Sincerely, Court secretary
Source: http://minnlawyer.com/minnlawyerblog/2014/02/05/court-reports-pretrial-notice-email-scam/
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In Bricklayers & Trowel Trades Int’l Pension Fund v. Credit Suisse Sec. (USA) LLC, No. 12-1750, 2014 U.S. App. LEXIS 8994 (1st Cir. May 14, 2014), the United States Court of Appeals for the First Circuit affirmed a district court’s exclusion of an event study as unreliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Plaintiffs, AOL shareholders, had offered the event study to show that alleged misstatements by defendant Credit Suisse First Boston (“CSFB”) ultimately caused declines in AOL’s stock price. The First Circuit agreed that plaintiffs’ expert, Dr. Scott D. Hakala, in performing the event study, failed to examine relevant “event dates,” classified certain dates as relevant even though the disclosures on those dates largely repeated previously disclosed information, and failed to control for confounding factors. As plaintiffs’ loss causation evidence consisted entirely of the event study, the First Circuit also affirmed summary judgment on behalf of CSFB. Notwithstanding the common and widely accepted use of event studies in securities cases, Bricklayers reminds practitioners of the need to fully scrutinize event studies under Daubert admissibility rules.
CSFB’s research analysts covered AOL stock and, in regularly published research reports, issued “target prices” for the stock. AOL shareholders alleged that CSFB’s research reports misrepresented its analysts’ true opinions about AOL, allowing AOL’s stock to trade at artificially inflated prices. They sued CSFB under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities & Exchange Commission (“SEC”) Rule 10b-5, 17 C.F.R. § 240.10b-5. In response to CSFB’s motion for summary judgment, plaintiffs proffered Dr. Hakala’s event study. That study, for certain selected “event dates,” purported to distinguish price movements resulting from general market conditions from movements attributable to company-specific events. Using this study, Dr. Hakala purported to show a connection between the allegedly false research reports and drops in AOL’s stock price once information regarding AOL’s true financial condition reached the market. CSFB attacked the event study as unreliable under Daubert. The United States District Court for the District of Massachusetts agreed, excluding the event study and granting CSFB summary judgment.
In affirming, the First Circuit determined the event study suffered from three substantial flaws. First, like the trial court, it observed that a number of the 57 event dates Dr. Hakala deemed relevant to his study failed to align with any alleged disclosures in the complaint. Indeed, the court found a “complete disconnect” between the event study and the complaint, leaving the court “guessing” as to how Dr. Hakala selected the event dates. It noted that the study seemed “more concerned simply with identifying abnormal market movement than in supporting the shareholders’ causation allegations.” To the extent that selected dates failed to correspond to the complaint, they simply “d[id] not ‘help the trier of fact.’”
Second, the First Circuit found that a number of the selected event dates concerned published references to previously disclosed information, thus allowing Dr. Hakala to attribute AOL stock-price declines to information that was not new. The First Circuit determined that Dr. Hakala repeatedly ignored the efficient market principle by attributing price fluctuations to previously disclosed information. In an “informationally efficient” market, however, “all publicly available information is impounded in [the] price” rapidly after the information is disseminated. Plaintiffs had previously availed themselves of this principle by invoking the fraud-on-the-market presumption of reliance to obtain class certification. This same principle necessarily applied to Dr. Hakala’s event study, where the time lag between the original disclosures and the proposed event dates ranged from one day to roughly a month. According to the First Circuit, “the event dates occurred after an efficient market would have processed the news.”
The AOL shareholders attempted to salvage Dr. Hakala’s work by arguing that the event-date disclosures at issue included at least some information not included in the original disclosures. The First Circuit agreed with plaintiffs that the event-date disclosures did not merely “parrot” previously released information. Yet, it found that these disclosures “did no more than to provide gloss on public information” and so could not have moved AOL’s share price in an efficient market.
Finally, the First Circuit observed that confounding factors, such as news stories, statements or events, coincided with a number of event dates and potentially affected AOL’s stock price on those dates, which impacted the event study’s reliability. The court agreed that proof of loss causation required plaintiffs to show that CSFB’s alleged reports, as opposed to some other news stories, moved the stock price on any given day. It also agreed that Dr. Hakala had offered no reliable means to address this. Rather, he simply made a subjective judgment call as to the effect of confounding information on the stock price “without any methodological underpinning.” Although some subjective judgment calls are necessary when crafting an event study, “a subjective analysis without any methodological constraints does not satisfy the requirements of Daubert.”
Although five of the 57 event dates remained after the application of Daubert, the First Circuit held the district court did not abuse its discretion in treating the entire study as inadmissible. And because the plaintiffs needed to show a connection between CSFB’s deceptive practices and the drop in AOL’s stock price, and relied exclusively on Dr. Hakala’s event study to do so, there was no genuine dispute as to loss causation. The First Circuit affirmed the award of summary judgment to CSFB.
Bricklayers demonstrates the effective use of Daubert to attack an event study on multiple fronts that, cumulatively, allow for the exclusion of the entire study.
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Appellants and amici briefs are now in at the Third Circuit on the appeal of Andrew Auernheimer's conviction for somehow violating the Computer Fraud and Abuse Act. I say "somehow" as the government was never pinned down on whether it was exceeding authorized access or unauthorized access. But they were clear that what he did was wrong, wrong enough to get him convicted and sentence to 41 months imprisonment.
Weev didn't help himself. Whether he wanted to be a martyr to the cause of geekdom or just unwilling to win except on his terms isn't clear. But his lawyer, Tor Eckland, couldn't control him, and had enough on his hands trying to defend Weev in what I believe to be his first trial*. While the prosecution was huge within the computer hacker community, it didn't garner the attention of Lori Drew's prosecution, lacking a dead child. But make no mistake, Weev's prosecution raises issues of monumental significance for all computer users.
Orin Kerr, who joined the defense team on appeal, gives a summary of the case.
Here are the basic facts. When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad.
The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.
Or to put it a bit more succinctly, Weev and Spitler stumbled on pages that were publicly accessible, but AT&T figured no one would find because there was no way to access them other than to have its iPad or, as stumble on them. They then did what geeks do, and exploited their discovery to see how far they could go. Rather than hand it over nicely to AT&T so it could cover its tracks and deny its screw-up, they gave it to a reporter to publish. AT&T was pissed, and the government was happy to prosecute as payback for quick and easy disclosure of your cellular communications the heinous crime of publicly embarrassing AT&T for being a computer idiot.
The appellant's brief, after a disturbing opening to the main argument that repeats the conventional wisdom from 1986 analogizing computers to physical trespass, takes the view that this just isn't a crime. As the pages were public, it cannot be unlawful access. The brief reads more academic than advocate, but does an admirable job of making its points.
There are two amici briefs, one arguing that this is how everybody uses the internet, and the other arguing that this is how sophisticated internet security experts use the internet, both reaching the same conclusion that affirmance of Weev's conviction would criminalize normal and lawful practices.
As everybody else involved relies on analogies, it seems appropriate despite my view that it's critical to stop using real world analogies to explain digital world conduct, to do the same. The prosecution's argument is that just because someone leaves their door unlocked doesn't mean a person can walk in and take what he wants. The defense argument is that when someone leaves their stuff in front of a picture window, passersby commit no crime by looking in and seeing what the person put on display. Neither analogy strikes me as fully satisfying.
The question for the rest of us is where the line is drawn between lawful and unlawful conduct based on a law crafted at the birth of public computer use and before there was any world wide web to consider. The language of the CFAA fails miserably to provide an answer, and there is certainly no "originalist" view since there was no internet in existence. What we are left with is empty, meaningless language being shoehorned into technology that didn't exist. It might have seemed like a good idea back in 1986, but we're paying for it now.
Nonetheless, Congress can't be bothered to do its job of crafting a law that might apply, and the court is left with trying to decipher criminality from inapt words and their limited grasp of how the tubes work (or that of their kids, their law clerks, or maybe the kid down the street).
The prosecution has a huge glaring hole that needs answering: Is there any middle ground for a URL that can be accessed without hacking a password but is otherwise not intended to be found, accessed or used except by a discrete, chosen group of users? The government wants the crime to depend on the subjective and transitory intent of the website owner, where "unauthorized" is defined as undesired. The defense wants a brightline test that says if it can be publicly accessed, then there can be no crime.
The government's position is not only untenable, but presents a threat to users that can't be tolerated. And indeed, it's so highly subjective, and selective, that it ignores that Google et al. violate it constantly with impunity. Do we want cookies and bots crawling all over us, capturing our personal info to feed back to people so they can sell us crap? I don't think so. But it prevailed below anyway.
The problem now is that the burdens shift on appeal, and it's the appellant's position that will be subject to scrutiny. Is there no limit to what we can access on the internet, as long as we don't hack the password? What if all the surrounding circumstances leave us with no doubt that the website owner doesn't want anybody coming in uninvited, so that no reasonable person can not be aware that he's entering a URL where he isn't welcome? Is that still okay?
Since the lines are drawn at polar extremes, and the arguments remain couched in poor analogies, and the judges will have a terrible time getting into the mindset of sophisticated computer users who think nothing of screwing around with user agents to see what they can find, and Weev felt compelled to handle himself in the typical, snarky, computer whizkid way that tends to just piss the crap out of everybody who isn't a snarky computer whizkid, this is going to be a tough fight.
But there remains one detail that I would have pounded hard, far harder than either the appellant or amici. Fair notice requires that the language of the CFAA, for smarter or stupider, state clearly what constitutes criminal conduct so that a person will know what not to do. By the Rule of Lenity, the failure of the law to adequately define a crime given the state of technology as it currently exists must resolve all ambiguities in favor of the defendant.
While no one knows what Congress might do if it is forced to recraft the CFAA, and they could make it even worse, what seems clear now is that it is far too unclear to imprison anyone whose conduct falls within that middle ground of not hacking a password and breaking through a brick wall. Maybe they would criminalize what happened here, but until the law makes clear where the line is drawn, the government can't just make it up at will. And the Third Circuit should not be so activist as to give a 2013 meaning to a 1986 law that the government pulls out of its butt to nail Weev.
Weev's conviction must be reversed, despite his attitude and mouth, because the rest of us used the internet too and if Weev is a criminal, so too are we all.
* I hasten to add, lest anyone think otherwise, that I think Tor did an exceptional job with this case, even the more remarkable given the circumstances.
Update: Via Volokh, the amicus brief of the National Association of Criminal Defense Lawyers has just become available. While I'm still going through it, my initial impression is that it's excellent, and fills in some of the gaps in the other briefs. Notably, putting them all together, the argument on behalf of Weev is overwhelming.
Source: http://blog.simplejustice.us/2013/07/09/its-not-easy-being-weev.aspx?ref=rss
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Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/08/turning-legal-services-products
A young man named Trayvon died. He didn’t need to die. That is both tragic and sad.And there is another truth that twitter cannot change. For all the vast information that has become available to us by virtue of the internet, there is no wisdom of the crowds.
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To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001. In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right. The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.
This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends.
Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?
Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle." Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.
This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.
There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist. Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.
That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it. Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself. Ronald Reagan, for all his faults, was elected on the platform that government was the problem. Baker disagrees.
I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports. More importantly, I lived it. And I never want to live through that particular Groundhog Day again. That’s why I’m here. The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed. There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome. What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law. Baker plays the same cards.
Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event. Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us. That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see.
Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11. There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.
But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.
Source: http://blog.simplejustice.us/2013/07/17/the-butcher-the-baker-and-fisa.aspx?ref=rss
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At some point, you will say, “What kind of life do I want to live?” In a recent article in the Los Angeles Times (Thursday, August 14, 2014), a retired “workaholic” entrepreneur said “’You cannot not have a plan when you retire.’”
He turned to retirement; though he didn’t plan it that way, he traded his many hours of daily work for golf, playing each and every day for 365 days. He said “One obsession prepared me for (another).”
The writer then continues, “All this makes me wonder: What do pro golfers do when they retire?”
Life After Law: What Will You Do With the Next 6,000 Days? seeks to address this issue. One such option, before traveling into the “sunset,” is selling your law practice and monetizing the years of your efforts … capitalizing on the goodwill you’ve developed. See our LawBiz® Registry for more help in this effort.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/a89refCEwF0/
This morning the US Supreme Court decided - on a 5-4 vote - that pharmaceutical sales representatives are "outside salesmen" and therefore exempt from overtime under the Fair Labor Standards Act. The Court also unanimously held that the Department of Labor's recently-announced contrary interpretation was entitled to exactly zero deference.
Christopher v. SmithKline Beacham (US Supreme Ct 06/18/2012)
Christopher, a pharmaceutical sales representative, sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay overtime. The trial court granted the employer's motion for summary judgment and denied Christopher's motion to amend the judgment based on the trial court's failure to consider an amicus brief filed by the Secretary of the Department of Labor (DOL). The 9th Circuit affirmed. The US Supreme Court affirmed (5-4).
The job of a pharmaceutical sales representative is to try to persuade physicians to write prescriptions for products in appropriate cases. For over 70 years DOL acquiesced in an interpretation that they were "outside salesmen" who are exempt from FLSA overtime requirements. In amicus briefs filed in Circuit courts DOL took the position that a "sale" requires a "consummated transaction." In Supreme Court briefing DOL's position was that there is no "sale" unless the employee "actually transfers title."
The Court said that the DOL's new interpretation is entitled to no deference at all because it would impose massive liability for conduct that occurred before the interpretation was announced, there had been no enforcement actions suggesting the industry was acting unlawfully, DOL gave no opportunity for public comment, and the interpretation is "flatly inconsistent" with the FLSA.
The FLSA definition of "sale" includes consignments, which do not involve a transfer of title. Although DOL regulations say that sales include the transfer of title, that does not mean a sale must include a transfer of title. The regulations also use the phrase "other disposition" which - in this unique regulatory environment - includes the work of pharmaceutical sales representatives. The representatives also bear all the exterior indicia of salesmen (average salaries exceeding $70,000, work that is difficult to standardize to a particular time frame, etc.)
The DISSENT reasoned that sales of drugs are made by pharmacists, not pharmaceutical sales representatives. The pharmaceutical sales representative neither make sales nor promote "their own sales." (The dissent agreed that the DOL's current views expressed in briefs are not entitled to any weight.)
Source: http://www.lawmemo.com/blog/2012/06/pharma_sales_re.html
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As criminal schemes go, this actually isn’t a bad one. So no slamming the victim today. As reported by per NJ.com:
According to Montclair Detective Lt. David O’Dowd, the “diversion-style” burglary hit a Fairview Place home at about 2 p.m. on August 8 when a man wearing beige work clothes and carrying a portable radio rang the doorbell.
It begins …
The man told the homeowner he was working on a water issue in the area, and she let him in to test some of her faucets, police said. After running the water, he led the woman outside to a garden hose, where the two stood for about 30 minutes, police said.
When a voice through the radio said “we’re good to go,” the man left through the yard, police said. When the woman went back inside, police said she found the house ransacked, and $1,000 in cash stolen.
Good to go! And what about the perps?
Police described the suspect who distracted the woman as a 5-feet-10-inch tall white man with brown hair in his 30s. Anyone with information is asked to call Detective L. McCarthy at 973-509-4725.
You’ll find the source here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/r6ImeRKkc3g/adfs-4.html
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