Research

UK Parliament Emails Closed After 'Sustained And Determined' Cyber-Attack

Slashdot: Your Rights Online - Sat, 06/24/2017 - 13:38
An anonymous reader quotes the Guardian: Parliament has been hit by a "sustained and determined" cyber-attack by hackers attempting to gain access to MPs' and their staffers' email accounts. Both houses of parliament were targeted on Friday in an attack that sought to gain access to accounts protected by weak passwords... The estate's digital services team said they had made changes to accounts to block out the hackers, and that the changes could mean staff were unable to access their emails... The international trade secretary, Liam Fox, told ITV News the attack was a "warning to everyone we need more security and better passwords. You wouldn't leave your door open at night." In an interview with the BBC, he added: "We know that there are regular attacks by hackers attempting to get passwords. We have seen reports in the last few days of even Cabinet ministers' passwords being for sale online. We know that our public services are attacked, so it is not at all surprising that there should be an attempt to hack into parliamentary emails." One member of Parliament posted on Twitter "Sorry, no parliamentary email access today â" we're under cyber-attack from Kim Jong-un, Putin or a kid in his mom's basement or something." He added later, "I'm off to the pub."

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Categories: Research

Sci-Hub Ordered To Pay $15 Million In Piracy Damages

Slashdot: Your Rights Online - Sat, 06/24/2017 - 06:00
An anonymous reader quotes a report from TorrentFreak: Two years ago, academic publisher Elsevier filed a complaint (PDF) against Sci-Hub and several related "pirate" sites. It accused the websites of making academic papers widely available to the public, without permission. While Sci-Hub is nothing like the average pirate site, it is just as illegal according to Elsevier's legal team, who obtained a preliminary injunction from a New York District Court last fall. The injunction ordered Sci-Hub's founder Alexandra Elbakyan to quit offering access to any Elsevier content. However, this didn't happen. Instead of taking Sci-Hub down, the lawsuit achieved the opposite. Sci-Hub grew bigger and bigger up to a point where its users were downloading hundreds of thousands of papers per day. Although Elbakyan sent a letter to the court earlier, she opted not engage in the U.S. lawsuit any further. The same is true for her fellow defendants, associated with Libgen. As a result, Elsevier asked the court for a default judgment and a permanent injunction which were issued this week. Following a hearing on Wednesday, the Court awarded Elsevier $15,000,000 in damages, the maximum statutory amount for the 100 copyrighted works that were listed in the complaint. In addition, the injunction, through which Sci-Hub and LibGen lost several domain names, was made permanent.

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Categories: Research

FCC Grants OneWeb Approval To Launch Over 700 Satellites For 'Space Internet'

Slashdot: Your Rights Online - Sat, 06/24/2017 - 03:00
OneWeb has been granted approval from the FCC to launch a network of internet-beaming satellites into orbit. FCC chairman Ajit Pai said in a statement: "Humans have long sought inspiration from the stars, from the ancient Egyptians orienting the pyramids toward certain stars to the Greeks using constellations to write their mythology. In modern times, we've done the same, with over 1,000 active satellites currently in orbit. Today, the FCC harnesses that inspiration as we seek to make the promise of high-speed internet access a reality for more Americans, partly through the skies..." The Verge reports: OneWeb plans to launch a constellation of 720 low-Earth orbit satellites using non-geostationary satellite orbit (NGSO) technology in order to provide global, high-speed broadband. The company's goal has far-reaching implications, and would provide internet to rural and hard-to-reach areas that currently have little access to internet connectivity. Additionally, OneWeb has a targets of "connecting every unconnected school" by 2022, and "bridging the digital divide" by 2027. According to OneWeb, the company plans to launch an initial 10 production satellites in early 2018, which, pending tests, will then be followed by a full launch as early as 2019.

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Categories: Research

Obama Authorized a Secret Cyber Operation Against Russia, Says Report

Slashdot: Your Rights Online - Fri, 06/23/2017 - 23:30
Jessica Conditt reports via Engadget: President Barack Obama learned of Russia's attempts to hack U.S. election systems in early August 2016, and as intelligence mounted over the following months, the White House deployed secrecy protocols it hadn't used since the 2011 raid on Osama bin Laden's compound, according to a report by The Washington Post. Apparently, one of the covert programs Obama, the CIA, NSA and other intelligence groups eventually put together was a new kind of cyber operation that places remotely triggered "implants" in critical Russian networks, ready for the U.S. to deploy in the event of a pre-emptive attack. The downed Russian networks "would cause them pain and discomfort," a former U.S. official told The Post. The report says CIA director John Brennan, Obama and other officials had at least four "blunt" conversations with Russian officials about its cyber intrusions beginning August 4th. Obama confronted Vladimir Putin in person during a meeting of world leaders in China this past September, the report says, and his administration even sent Russia a warning through a secure channel originally designed to help the two countries avoid a nuclear strike. Moscow apparently responded one week later -- after the U.S. election -- denying the accusation.

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Categories: Research

Petition of the day

SCOTUS Blog - Fri, 06/23/2017 - 22:22

The petition of the day is:

Elonis v. United States 16-1231

Issues: (1) Whether, as a matter of statutory or constitutional law, liability under 18 U.S.C. 875(c) requires an analysis of whether a reasonable person would be threatened by the communication, or whether it is instead sufficient to examine whether a particular recipient, whether reasonable or not, would have considered it threatening; and (2) whether an erroneous pre-trial holding that the defendant’s subjective mental state is not an element of the crime, followed by jury instructions and government argument to the same effect, can be harmless error.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

32TB of Windows 10 Internal Builds, Core Source Code Leak Online

Slashdot: Your Rights Online - Fri, 06/23/2017 - 22:05
According to an exclusive report via The Register, "a massive trove of Microsoft's internal Windows operating system builds and chunks of its core source code have leaked online." From the report: The data -- some 32TB of installation images and software blueprints that compress down to 8TB -- were uploaded to betaarchive.com, the latest load of files provided just earlier this week. It is believed the data has been exfiltrated from Microsoft's in-house systems since around March. The leaked code is Microsoft's Shared Source Kit: according to people who have seen its contents, it includes the source to the base Windows 10 hardware drivers plus Redmond's PnP code, its USB and Wi-Fi stacks, its storage drivers, and ARM-specific OneCore kernel code. Anyone who has this information can scour it for security vulnerabilities, which could be exploited to hack Windows systems worldwide. The code runs at the heart of the operating system, at some of its most trusted levels. In addition to this, hundreds of top-secret builds of Windows 10 and Windows Server 2016, none of which have been released to the public, have been leaked along with copies of officially released versions.

Read more of this story at Slashdot.

Categories: Research

Opinion analysis: In regulatory takings case, court announces a new test

SCOTUS Blog - Fri, 06/23/2017 - 21:31

Under the doctrine of regulatory takings, government regulation that goes “too far” in burdening property rights counts as a taking under the Fifth Amendment, entitling the owner to “just compensation.” In deciding such claims, courts often must deal with a tricky preliminary question: How should they define the bounds of the property that the government has allegedly taken? That question, often dubbed “the denominator problem,” could be outcome-determinative. For example, a regulatory burden on a small pond may seem minor if the property interest is defined as the developer’s much larger contiguous holdings, but severe if the property is defined as the pond itself. The court has long maintained that the denominator analysis must focus on the “parcel as a whole,” but that cryptic instruction has left litigants and lower courts at sea.

The parties in Murr v. Wisconsin offered the court three very different approaches to the denominator analysis. The case is interesting, and challenging, because each test would vindicate a slightly different view of the takings clause. As described in my earlier post, the Murrs argued that  a “merger” provision in state and local law — which barred them from selling separately their two undersized, riverfront lots — was a taking of the one lot they wished to sell. The Murrs urged a bright-line denominator test, hinging on the lot lines of the parcel alleged to be taken. This test would typically make it easier for landowners to assert takings. The state, arguing against a taking, offered a different bright-line test based on state law taken as a whole; here, the state’s merger provision would set the denominator as both lots together. The state’s test would offer the greatest deference to state prerogatives in defining property. Finally, the county (and in a similar vein, the United States as amicus) offered a multi-factor approach that would provide the least predictability, but the most flexibility to determine the interests of justice in any given case.

In today’s 5-3 decision, the court ruled against the Murrs, adopting aspects of the tests pressed by the county and the United States. Writing for the majority, Justice Anthony Kennedy stated that the denominator question, like the overall takings inquiry, turns on a multi-part analysis. “Like the ultimate question whether a regulation has gone too far,” he wrote, “the question of the proper parcel in regulatory takings cases cannot be solved by any simple test.” The court rejected the “formalistic” rules proposed by both the Murrs and Wisconsin. The Murrs’ proposed test, the court explained, would unjustifiably elevate lot lines over other aspects of state law. And although state law is relevant to the inquiry, the majority could not accept Wisconsin’s proposal to define the denominator based on state law as a whole: Courts must also “weigh[] whether the state enactments at issue accord with other indicia of reasonable expectations about property.”

The court emphasized that any denominator test must ascertain, through an “objective” analysis, “whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” The court’s prescribed test includes three factors: “[1] the treatment of the land under state and local law; [2] the physical characteristics of the land; and [3] the prospective value of the regulated land.” With regard to the third factor, the analysis should give “special attention to the effect of burdened land on the value of other holdings.”

 The court then applied these guidelines and concluded that the Murrs’ two lots should be treated as one for takings analysis. First, Wisconsin property law — specifically, the merger provision — treats the two parcels as one. Second, the lots are contiguous, and their “rough terrain,” “narrow shape,” and riverfront location all make land-use regulations predictable. Third, the lots are more valuable when combined. Going one step further (and arguably a bit beyond the question presented), the court then held that, on the facts of this case, no taking had occurred.

The court’s selection of a standard over a rule may sound like a property law technicality. But it also implicates deeper questions about the takings clause. All sides agree that, as the majority explains, the takings clause serves dual goals of protecting both private property rights and the government’s need to regulate in the public interest. But where does the emphasis belong — and who gets to decide? As I’ll explain, there are reasons to doubt that the choice of denominator test will drastically change the outcomes of takings cases. Still, the provocative theme of a battle between property rights and government regulation bubbles near the surface of this case, as do questions about how much deference is warranted to states, localities, and their lawmaking bodies. These controversial issues likely explain why the justices labored over the case until the penultimate day of opinion announcements.

Indeed, Chief Justice John Roberts’ dissent, joined by Justices Samuel Alito and Clarence Thomas, criticized the majority’s approach as a threat to property rights. Although the dissent did not dispute the court’s holding that no taking had occurred in this case, it rejected the new denominator test. Quoting Alexander Hamilton, the dissent noted that “‘the security of Property’ is one of the ‘great object[s] of government.’” But the new test, the dissent explained, stacks the deck in the government’s favor. It does that through “clear double counting”—considering the government’s interests not just in the ultimate inquiry into whether a taking occurred, but also when defining the denominator. Once applied, the dissent stated, this will push courts to define parcels in ways that align with “[r]easonable government regulation,” making it less likely that such regulation will be deemed a taking. Thomas penned a short separate dissent, expressing interest in taking a “fresh look” at whether the court’s regulatory-takings doctrine can be squared with the Constitution’s original public meaning.

This decision is certainly one for property law casebooks, and it provides a new test that will now play a major role in regulatory-takings litigation. It’s not clear, however, that the stakes are quite as high as the opinions suggest. The denominator question, after all, is just a preliminary step; courts must then decide whether a taking occurred, applying (as relevant here) the tests from Penn Central Transportation Co. v. New York City or Lucas v. South Carolina Coastal Council. In some cases — like this one — judges may be able to agree on whether a taking has occurred despite disagreement on what constitutes the denominator. Moreover, the Penn Central test, the usual test in regulatory-takings cases, is famous for the broad discretion it affords courts. Whether the denominator test preferred by the dissent and the Murrs would actually have spurred courts to find more takings, despite their broad discretion at the second step of the process, is an interesting but unclear empirical question. The more certain result of Murr is that the takings analysis is now more complex. Courts and litigators will spend the coming years interpreting the Supreme Court’s new, open-textured definition of the takings denominator.

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Categories: Research

Texting While Driving Now Legal In Colorado -- In Some Cases

Slashdot: Your Rights Online - Fri, 06/23/2017 - 19:20
Fines for texting and driving in Colorado have jumped to $300, but according to the fine print, the increased fine only applies to drivers who are texting in "a careless or imprudent manner." Therefore, drivers who are texting in any other manner are still within the law. FOX31 Denver reports: Before the new legislation, any texting while driving was illegal. Tim Lane of the Colorado District Attorney's Office confirmed the softening crackdown on all texting and driving. "The simple fact is that if you are texting while driving but not being careless, it's no longer illegal," he said. What constitutes "careless" driving is up to the discretion of each individual law enforcement officer. Cellphone use of any kind is still banned for drivers younger than 18. Teens caught with a phone in hand while driving will be slapped with a $50 fine.

Read more of this story at Slashdot.

Categories: Research

WikiLeaks Doc Dump Reveals CIA Tools For Hacking Air-Gapped PCs

Slashdot: Your Rights Online - Fri, 06/23/2017 - 18:00
An anonymous reader writes: "WikiLeaks dumped today the manuals of several hacking utilities part of Brutal Kangaroo, a CIA malware toolkit for hacking into air-gapped (offline) networks using tainted USB thumb drives," reports Bleeping Computer. The CIA uses these tools as part of a very complex attack process, that allows CIA operatives to infect offline, air-gapped networks. The first stage of these attacks start with the infection of a "primary host," an internet-connected computer at a targeted company. Malware on this primary host automatically infects all USB thumb drives inserted into the machine. If this thumb drive is connected to computers on an air-gapped network, a second malware is planted on these devices. This malware is so advanced, that it can even create a network of hacked air-gapped PCs that talk to each other and exchange commands. To infect the air-gapped computers, the CIA malware uses LNK (shortcut) files placed on the USB thumb drive. Once the user opens and views the content of the thumb drive in Windows Explorer, his air-gapped PC is infected without any other interaction.

Read more of this story at Slashdot.

Categories: Research

And then there were six – the remaining cases

SCOTUS Blog - Fri, 06/23/2017 - 15:30

The justices are expected to take the bench on Monday at 10 a.m. to issue opinions in argued cases. There are six decisions still outstanding, involving everything from cross-border shootings to the death penalty and public funding for playgrounds at religious preschools. To be sure, there is no guarantee that we will actually get opinions on the merits in all six of these cases: Three of the remaining cases were argued before Justice Neil Gorsuch took the bench in April, creating a not-insubstantial possibility that the justices are deadlocked. With Gorsuch now on the bench, the justices could order reargument in those three cases, which would presumably take place next fall. But we will know much more by the end of Monday morning. In any event, here is a brief summary of each of the six cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)

January sitting (January 9 to 18)

Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”

Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”

February sitting (February 21 to March 1)

Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.

Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer.

In a decision issued on Monday, the court – in an opinion by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.

By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.

April sitting (April 17 to 26)

California Public Employees’ Retirement System v. ANZ Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand.

Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.

There are three opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, but it’s hard to know which one or how many of the three remaining decisions he will write. Ginsburg and Alito have each written two of the April opinions, so it is unlikely they will be writing again for that session.

The post And then there were six – the remaining cases appeared first on SCOTUSblog.

Categories: Research

Victims Aren't Reporting Ransomware Attacks, FBI Report Concludes

Slashdot: Your Rights Online - Fri, 06/23/2017 - 15:20
Catalin Cimpanu, writing for BleepingComputer: Despite being an expanding threat, ransomware infections are rarely reported to law enforcement agencies, according to conclusions from the 2016 Internet Crime Report (PDF), released yesterday by the FBI's Internet Crime Complaint Center (IC3). During 2016, FBI IC3 officials said they received only 2,673 complaints regarding ransomware incidents, which ranked ransomware as the 22nd most reported cyber-crime in the US, having caused just over $2.4 million in damages (ranked 25th). The numbers are ridiculously small compared to what happens in the real world, where ransomware is one of today's most prevalent cyber-threats, according to multiple reports from cyber-security companies.

Read more of this story at Slashdot.

Categories: Research

Under Pressure, Western Tech Firms Including Cisco and IBM Bow To Russian Demands To Share Cyber Secrets

Slashdot: Your Rights Online - Fri, 06/23/2017 - 14:40
An anonymous reader shares a Reuters report: Western technology companies, including Cisco, IBM and SAP, are acceding to demands by Moscow for access to closely guarded product security secrets, at a time when Russia has been accused of a growing number of cyber attacks on the West, a Reuters investigation has found. Russian authorities are asking Western tech companies to allow them to review source code for security products such as firewalls, anti-virus applications and software containing encryption before permitting the products to be imported and sold in the country. The requests, which have increased since 2014, are ostensibly done to ensure foreign spy agencies have not hidden any "backdoors" that would allow them to burrow into Russian systems. But those inspections also provide the Russians an opportunity to find vulnerabilities in the products' source code -- instructions that control the basic operations of computer equipment -- current and former U.S. officials and security experts said. [...] In addition to IBM, Cisco and Germany's SAP, Hewlett Packard Enterprise Co and McAfee have also allowed Russia to conduct source code reviews of their products, according to people familiar with the companies' interactions with Moscow and Russian regulatory records.

Read more of this story at Slashdot.

Categories: Research

Opinion analysis: Immigrant who received bad advice gets another shot at staying in the U.S.

SCOTUS Blog - Fri, 06/23/2017 - 14:21

Yesterday the Supreme Court sent the case of a Bosnian Serb woman who was stripped of her citizenship for lying to immigration officials back to the lower courts. The justices rejected the government’s argument that Divna Maslenjak could lose her citizenship simply by making false statements, no matter how trivial. Instead, the court ruled, Maslenjak’s lies can only be held against her if they would have mattered to immigration officials. Today the justices gave another immigrant, Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though his odds of winning at trial were low and he was likely to be deported anyway.

Chief Justice Roberts with opinion in Lee v. U.S. (Art Lien)

Lee’s saga – which Chief Justice John Roberts, in his opinion for the court, recounted in some detail – began in 2009, when he pleaded guilty to possession of ecstasy with the intent to distribute it and was sentenced to one year and one day in prison. It was only after he pleaded guilty that Lee – who was a lawful permanent resident of the United States – learned that deportation was mandatory for crimes like his. For Lee, who had come to the United States nearly 30 years before, this was a penalty worse than prison: He owned two restaurants in the United States and was the sole caregiver for his elderly parents; by contrast, he no longer had any ties to South Korea, where he was born.

Lee went back to federal court, seeking to overturn his conviction. He argued that when his attorney advised him to take the guilty plea and assured him that he would not be deported, Lee was deprived of his constitutional right to have the assistance of a competent lawyer. The federal government agreed that the performance of Lee’s trial lawyer was deficient. But Lee’s conviction should still stand, the government argued, because the Supreme Court’s 1984 decision in Strickland v. Washington also requires a defendant to show that he was prejudiced by that inadequate assistance. And that, the government contended, Lee cannot do because the case against him was so strong. The U.S. Court of Appeals for the 6th Circuit agreed, holding that “no rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.”

Today the Supreme Court reversed. In his decision, which was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, Roberts conceded that, in most cases, a defendant will not be able to show that he was prejudiced by taking a guilty plea when the evidence against him is overwhelming. But the court declined to enshrine that generalization in a categorical rule. Both common sense and the Supreme Court’s own case law, Roberts explained, acknowledge “that there is more to consider than simply the likelihood of success at trial.” Instead, Roberts continued, a defendant who is deciding whether to take a guilty plea will also consider the consequences of his conviction – after both a trial and a guilty plea. And the fact that a defendant’s odds of prevailing at trial may be very low does not end the inquiry: When the question is “what an individual defendant would have done,” Roberts reasoned, “the possibility of even a highly improbable result” – an acquittal – “may be pertinent to the extent it would have affected his decisionmaking.”

“In the unusual circumstances of this case,” Roberts determined, Lee has “adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” When Lee was deciding whether to accept the plea deal, Roberts observed, his most important consideration was whether he would be deported. This should hardly come as a surprise, Roberts added, when the Supreme Court itself has “recognized that preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” If Lee’s attorney had provided accurate advice, Roberts stressed, Lee “would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.” At least in Lee’s case, Roberts concluded, “that ‘almost’ could make all the difference,” particularly when the plea deal may have only saved Lee a year or two in prison. “Not everyone in Lee’s position would make the choice to reject the plea,” Roberts agreed. “But we cannot say it would be irrational to do so.”

Justice Clarence Thomas, in a dissent joined by Justice Samuel Alito, had harsh words for the court’s ruling today. As an initial matter, Thomas reiterated that, in his view, the Constitution does not protect a defendant’s right to receive accurate information about the effect that a guilty plea will have on his immigration status. But in any event, Thomas argued, Lee cannot show that he was prejudiced by his lawyer’s bad advice because going to trial would not realistically have made any difference: If he “had gone to trial, he not only would have faced the same deportation consequences, he also likely would have received a higher prison sentence.”

Thomas also warned that today’s ruling will have “pernicious consequences for the criminal justice system” by undermining the finality of convictions. He predicted a flood of new challenges to plea agreements, in which defendants will “bear a relatively low burden to show prejudice” from their attorneys’ deficient advice. And that will in turn “impose significant costs on courts and prosecutors,” he suggested, by requiring additional evidentiary hearings. “In circumstances where a defendant has admitted his guilt, the evidence against him is overwhelming, and he has no bona fide defense strategy,” Thomas concluded, “I see no justification for imposing these costs.”

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Categories: Research

A “view” from the courtroom: The metes and bounds of the term

SCOTUS Blog - Fri, 06/23/2017 - 14:13

Fridays are rare days for Supreme Court opinions, with the last one coming two years ago when the same-sex marriage ruling in Obergefell v. Hodges (and one other decision) was announced.

But with nine cases left to decide on this second bonus opinion day of the term, it seems possible that the court is aiming to finish its work by Monday. We’ll have our answer a little later.

The bar section is about as empty today as it was yesterday, with a handful of advocates present. Todd Gaziano of the Pacific Legal Foundation is here, awaiting a decision in Murr v. Wisconsin, a PLF case involving the takings clause. Jordan Lorence of the Alliance Defending Freedom is here, likely awaiting the decision in Trinity Lutheran Church of Columbia v. Comer. Arthur Spitzer, the legal director of the American Civil Liberties Union of Washington, D.C., is here, as he often is at the end of the term.

Justice Kennedy with opinion in Murr v. Wisconsin; Justices Alito and Thomas absent from bench (Art Lien)

Several members of the U.S. solicitor general’s office file in and take places at the counsel tables, while Noel Francisco, the president’s nominee for solicitor general who is serving in another Justice Department post pending his confirmation (thanks to this term’s decision in National Labor Relations Board v. SW General Inc.), takes a seat in the bar section. The public gallery contains a lot of young people today, but is not completely full.

Meanwhile, several of the justices’ law clerks have filled the vestibules on the south side of the courtroom.

After yesterday’s minor misstep, three marshal’s aides take their places behind the bench this morning at 10 a.m., before the justices’ arrival. When the court takes the bench, Justices Clarence Thomas and Samuel Alito are absent. It’s Thomas’ 69th birthday today, but we don’t think that’s the reason for his absence.

Chief Justice John Roberts announces that Justice Ruth Bader Ginsburg has the court’s opinion in Perry v. Merit Systems Protection Board.

This involves a U.S. Census Bureau employee who was dismissed for “spotty attendance,” she explains, and the legal question concerns the proper forum for an appeal of the merit board’s dismissal of a “mixed case” — one involving allegations that an adverse civil-service employment action was motivated by discrimination based on race, gender, age or disability.

Ginsburg’s opinion sides with federal district court review, rejecting the government’s argument that mixed claims be split between a district court and the U.S. Court of Appeals for the Federal Circuit.

Justice Neil Gorsuch has written a dissenting opinion, joined by Thomas. This was the first case heard by Gorsuch when he joined the court, and this is his first written dissent. He does not deliver it from the bench.

Justice Anthony Kennedy is next with the opinion in Murr v. Wisconsin, about a family’s challenge to municipal limits on its development of two parcels of property they own along the St. Croix river as a regulatory taking. (Authorities required the family to sell or build on the two lots as a single, combined property.)

This was one of the cases the court agreed to review while Justice Antonin Scalia was still alive, and the court carried it over to the current term. It was also argued on the first day of Gorsuch’s Senate confirmation hearing, when the attention of the press corps was focused on the Hart Senate Office Building.

What was already an important takings case took on a new perspective when, last fall, during one of many panel discussions in which legal experts preview the coming term, one such expert awoke us from a state of mental slumber by describing a footnote in the merits brief of the state of Wisconsin.

Wisconsin, in support of the idea that property lot lines are “creatures of state law,” reached back to English law to explain that landholdings were defined by “metes and bounds” — measurements and boundaries. Footnote 3 of the state’s brief then provided some further historical context:

In Medieval England, the ritual of “beating the bounds” was of particular importance to defining the boundaries of a parish, manor, or royal forest. … These “periodical surveys” preserved “ancient boundaries” by, among other methods, requiring young boys to beat a boundary mark “with peeled willow wands to impress its location on their memories.” … “[T]o preserve evidence of particular boundaries,” the “boys themselves” were sometimes whipped “on the spot” in exchange for a fee, “it being thought that the impression made on the memory was thus more likely to be lasting.” …. The testimony of boys—beaten during these ceremonies—was used to settle more than one boundary dispute.

Neither the oral argument nor Kennedy’s opinion delves into the practice of beating the bounds. Kennedy observes that in considering the proper unit of property against which to assess the effect of the challenged governmental action, “courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law.”

Kennedy says that because, among other reasons, the value of the combined lots required by the local regulations is likely greater than the separate lots, the Murrs have not suffered a compensable taking. The chief justice — who does mention “metes and bounds” — has filed a dissent, joined by Thomas and Alito. Thomas has filed a separate dissent. And Gorsuch, of course, did not participate.

Roberts says that he has the opinion in Lee v. United States, one of the court’s many immigration cases this term.

The chief justice begins with the personal story of Jae Lee, who emigrated from South Korea at age 13 in 1982, graduated from high school in New York City, then set out to Memphis, where he eventually opened the Mandarin Palace Chinese Restaurant. Lee, long classified as a lawful permanent resident, was not always that lawful, as “he also engaged in some illegal acts,” Roberts says.

Lee’s arrest on drug charges led to some particularly bad advice from his defense lawyer, who had advised him that he would not face deportation if he pleaded guilty to the offense.

“Lee soon learned that his attorney was dead wrong,” Roberts says from the bench. Lee had pleaded guilty to an aggravated felony under the Immigration and Nationality Act and was subject to mandatory deportation. This led to a motion to vacate the conviction and sentence based on the fact that Lee had been provided constitutionally ineffective assistance of counsel.

It seems during this description that the chief justice is sympathetic to Lee’s claim.

He emphasizes the theme that Lee received “very bad advice” from his lawyer and that as someone who had lived for 30 years in the United States, established two businesses, had never returned to South Korea since childhood, and was the sole family member who could care for his elderly parents, Lee would place “paramount importance” on avoiding deportation.

Indeed, Roberts gets around to explaining that even though the evidence against Lee was strong, and thus choosing to go to trial might offer him faint hope of avoiding deportation, “we cannot say it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial.”

Thomas has filed a dissent joined but for one section by Alito. Gorsuch took no part.

With that, Roberts announces that “this court will next sit Monday morning at 10 o’clock. At that time we will announce all remaining opinions ready during this term of the court.”

Six cases remain. Whether they are all ready for announcement, or whether some are to be set for re-argument, is a question that should be answered on Monday.

[Correction: An earlier version of this post stated that Kennedy’s opinion in Murr v. Wisconsin mentions “metes and bounds.” It is Roberts’ dissent in that case that mentions that phrase.]

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Categories: Research

Google Will Stop Reading Your Emails For Gmail Ads

Slashdot: Your Rights Online - Fri, 06/23/2017 - 13:20
Google will soon stop scanning emails received by some Gmail users, a practice that has allowed it to show them targeted advertising but which stirred privacy worries. From a report: The decision didn't come from Google's ad team, but from its cloud unit, which is angling to sign up more corporate customers. Alphabet's Google Cloud sells a package of office software, called G Suite, that competes with market leader Microsoft. Paying Gmail users never received the email-scanning ads like the free version of the program, but some business customers were confused by the distinction and its privacy implications, said Diane Greene, Google's senior vice president of cloud. "What we're going to do is make it unambiguous," she said. Ads will continue to appear inside the free version of Gmail, as promoted messages. But instead of scanning a user's email, the ads will now be targeted with other personal information Google already pulls from sources such as search and YouTube.

Read more of this story at Slashdot.

Categories: Research

Google Will Now Hide Personal Medical Records From Search Results

Slashdot: Your Rights Online - Fri, 06/23/2017 - 11:20
Mark Wilson, writing for BetaNews: Google has updated its search policies without any sort of fanfare. The search engine now "may remove" -- in addition to existing categories of information -- "confidential, personal medical records of private people" from search results. That such information was not already obscured from search results may well come as something of a surprise to many people. The change has been confirmed by Google, although the company has not issued any form of announcement about it.

Read more of this story at Slashdot.

Categories: Research

Chinese Government Fabricates Social Media Posts for Strategic Distraction, not Engaged Argument

Slashdot: Your Rights Online - Fri, 06/23/2017 - 10:42
Abstract of a study: The Chinese government has long been suspected of hiring as many as 2,000,000 people to surreptitiously insert huge numbers of pseudonymous and other deceptive writings into the stream of real social media posts, as if they were the genuine opinions of ordinary people. Many academics, and most journalists and activists, claim that these so-called "50c party" posts vociferously argue for the government's side in political and policy debates. As we show, this is also true of the vast majority of posts openly accused on social media of being 50c. Yet, almost no systematic empirical evidence exists for this claim, or, more importantly, for the Chinese regime's strategic objective in pursuing this activity. In the first large scale empirical analysis of this operation, we show how to identify the secretive authors of these posts, the posts written by them, and their content. We estimate that the government fabricates and posts about 448 million social media comments a year. In contrast to prior claims, we show that the Chinese regime's strategy is to avoid arguing with skeptics of the party and the government, and to not even discuss controversial issues. From a CNET article, titled, Chinese media told to 'shut down' talk that makes country look bad: Being an internet business in China appears to be getting tougher. Chinese broadcasters, including social media platform Weibo, streamer Acfun and media company Ifeng were told to shut down all audio and visual content that cast the country or its government in bad light, China's State Administration of Press, Publication, Radio, Film and Television posted on its website on Thursday, saying they violate local regulations. "[The service providers] broadcast large amounts of programmes that don't comply with national rules and propagate negative discussions about public affairs. [The agency] has notified all relevant authorities and ... will take measures to shut down these programmes and rectify the situation," reads the statement.

Read more of this story at Slashdot.

Categories: Research

Live blog of opinions (Update: Completed)

SCOTUS Blog - Fri, 06/23/2017 - 09:20

We live-blogged as the court released opinions. The transcript is available at this link.

The post Live blog of opinions (Update: Completed) appeared first on SCOTUSblog.

Categories: Research

Trump Plans To Dismantle Obama-Era 'Startup Visa'

Slashdot: Your Rights Online - Fri, 06/23/2017 - 09:00
An anonymous reader quotes a report from Ars Technica: A regulation from the Obama administration that would have allowed foreign-born entrepreneurs who raise investor cash to build their startups in the U.S. won't be allowed to go into effect. The Department of Homeland Security will file an official notice to delay the International Entrepreneur Rule for eight months. The intention is to eliminate the rule entirely, according to sources briefed on the matter who spoke to The Wall Street Journal. The decision isn't final, and a DHS spokesperson told the WSJ that the department "cannot speculate" on the outcome of the review. The International Entrepreneur Rule, signed by former President Obama days before he left office in January, doesn't offer a visa but rather a type of "parole" that would allow immigrants to stay in the U.S. temporarily as long as they meet certain requirements. In order to qualify, a foreign entrepreneur has to raise at least $250,000 from well-known U.S. investors. The rule grants a stay in the U.S. of 30 months, which can be extended for an additional 30 months. Founders can't apply for a green card during that time. DHS has estimated about 3,000 entrepreneurs would qualify under the rule.

Read more of this story at Slashdot.

Categories: Research

Friday round-up

SCOTUS Blog - Fri, 06/23/2017 - 07:25

As the Supreme Court term draws to a close, the justices have stepped up their output, holding an extra session yesterday to release opinions in three cases. Mark Walsh provides a “view” from the courtroom for this blog. At Crime and Consequences, Kent Scheidegger notes that the “theme out of the United States Supreme Court [yesterday was] materiality.”

The first decision was in Maslenjak v. United States, in which the justices held that the government cannot denaturalize someone for making false statements that did not affect the decision to make her a citizen. Amy Howe has this blog’s argument analysis. At Reuters, Lawrence Hurley reports that the justices “rejected the Trump administration’s stance that the government should be able to revoke citizenship of people for even minor misstatements in the citizenship application process.” Additional coverage comes from Lydia Wheeler at The Hill and Robert Barnes at The Washington Post. At The Narrowest Grounds, Asher Steinberg takes issue with Justice Samuel Alito’s concurring opinion, responding to two hypotheticals Alito employs to demonstrate that “materiality need not be causal,” but rather that “the illegal act … need only have a natural tendency to influence whether one obtains naturalization, regardless of whether it does.”

In Turner v. United States, the court upheld the convictions of the defendants in a notorious murder trial concluding that evidence withheld from the defense would not have affected the outcome of the trial. Amy Howe analyzes the opinion for this blog. In The Washington Post, Robert Barnes reports that “Justice Stephen G. Breyer wrote that it was not reasonable to think that the withheld evidence — that a man convicted of similar crimes had been seen in the area — would have made a difference.”

Yesterday’s final decision was in Weaver v. Massachusetts, which held that excluding the public from jury selection did not invalidate a conviction because the defendant did not show that he was prejudiced by the exclusion. Rory Little has this blog’s argument analysis.

The Heritage Foundation’s SCOTUS 101 podcast features a discussion of Matal v. Tam, in which the justices held on Monday that a ban on the registration of disparaging trademarks violates the First Amendment. At Dorf on Law, Michael Dorf observes that “[t]hanks to Matal, the government speech doctrine will not swallow the First Amendment,” and he explores the implications of the decision for “claims to opt out of general obligations such as those imposed by antidiscrimination law” “in which an opt-out was asserted as a matter of free speech.”

At Take Care, David Gans weighs in on Monday’s decision in Ziglar v. Abbasi, in which the justices limited the ability to bring suit under the Constitution against federal officials for detentions in the wake of the September 11 terrorist attacks, arguing that “Ziglar offers a thin, unconvincing view of separation of powers that never takes seriously that the judiciary has an affirmative role to play in the Constitution’s system.” At PrawfsBlawg, Richard Re observes that “critics of Abbasi have argued that Bivens is now ‘all but overruled’ and ‘all-but limited … to its facts.,” but notes that “similar claims have been made before—and will likely be made yet again,” and that if “Bivens has nine lives, it seems to have two or three left to go.”

Briefly:

  • Slate’s Breakfast Table forum offers commentary on the term’s cases from Walter Dellinger here and Pamela Karlan here.
  • In an op-ed in The New York Times, Linda Greenhouse looks at Justice Ruth Bader Ginsburg’s opinion for the court in Sessions v. Morales-Santana, which held that differential treatment of parents by gender in immigration law violates equal protection; Greenhouse maintains that the “ruling defied expectations in every way that counted and suggests a more complex picture of the Roberts court than its notably ideology-riven decisions usually offer.”
  • At the Sentencing Law and Policy blog, Douglas Berman weighs in The Washington Post Fact Checker’s assertion that a statement about sex-offender recidivism by Justice Samuel Alito in Packingham v. North Carolina was misleading, noting that “these are challenging issues to discuss with precision both conceptually and statistically,” and that “though I am always pleased to see detailed discussion of crime data in theWashington Post, I am troubled by its decision to ‘award Three Pinocchios’ to a statement that is factually true.”
  • The Nation features two articles examining the troubling aftermath of Montgomery v. Louisiana, in which the court 18 months ago gave retroactive effect to an earlier decision prohibiting mandatory life-without-parole sentences for juvenile offenders, by Jessica Pishko here and Danielle Wolffe here.
  • In Time, Thomas Wolf observes that the court’s ruling in Gill v. Whitford, a high-profile partisan-gerrymandering case the justices will consider next term, “will go a long way to determining whether you choose your representatives — or the other way around — and whether you’ll be able to hold them accountable when they put party agendas over your interests.”
  • In Mother Jones, Nathalie Baptiste discusses Ayestas v. Davis, in which the court will hear a death-row inmate’s argument that he was denied access to “state resources that should be made available to pay for experts or investigators.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and David McDonald discuss two amicus briefs filed by Cato – one in support of a cert petition challenging California “commercial-fishing license fees that require nonresidents to pay several times more than residents” here, and another in support of a petition contesting Minnesota’s “unfettered confinement of sex offenders” here.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

The post Friday round-up appeared first on SCOTUSblog.

Categories: Research

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