This week at the court

SCOTUS Blog - Sun, 02/26/2017 - 12:01

We expect orders from the February 24 conference on Monday at 9:30 a.m. There is a possibility of opinions on Wednesday at 10 a.m. The court will also hear oral arguments on Monday, Tuesday and Wednesday, beginning at 10 a.m. each day. The calendar for the February sitting is available on the court’s website. On Friday the justices will meet for their March 3 conference; our list of “petitions to watch” for that conference will be available soon.

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Categories: Research

UK Police Arrest Suspect Behind Mirai Malware Attacks On Deutsche Telekom

Slashdot: Your Rights Online - Sun, 02/26/2017 - 09:34
An anonymous reader writes: "German police announced Thursday that fellow UK police officers have arrested a suspect behind a serious cyber-attack that crippled German ISP Deutsche Telekom at the end of November 2016," according to BleepingComputer. "The attack in question caused over 900,000 routers of various makes and models to go offline after a mysterious attacker attempted to hijack the devices through a series of vulnerabilities..." The attacks were later linked to a cybercrime groups operating a botnet powered by the Mirai malware, known as Botnet #14, which was also available for hire online for on-demand DDoS attacks. "According to a statement obtained by Bleeping Computer from Bundeskriminalamt (the German Federal Criminal Police Office), officers from UK's National Crime Agency (NCA) arrested a 29-year-old suspect at a London airport... German authorities are now in the process of requesting the unnamed suspect's extradition, so he can stand trial in Germany. Bestbuy, the name of the hacker that took credit for the attacks, has been unreachable for days."

Read more of this story at Slashdot.

Categories: Research

The Videogame Industry Is Fighting 'Right To Repair' Laws

Slashdot: Your Rights Online - Sat, 02/25/2017 - 23:34
An anonymous reader quotes Motherboard: The video game industry is lobbying against legislation that would make it easier for gamers to repair their consoles and for consumers to repair all electronics more generally. The Entertainment Software Association, a trade organization that includes Sony, Microsoft, Nintendo, as well as dozens of video game developers and publishers, is opposing a "right to repair" bill in Nebraska, which would give hardware manufacturers fewer rights to control the end-of-life of electronics that they have sold to their customers... Bills making their way through the Nebraska, New York, Minnesota, Wyoming, Tennessee, Kansas, Massachusetts, and Illinois statehouses will require manufacturers to sell replacement parts and repair tools to independent repair companies and consumers at the same price they are sold to authorized repair centers. The bill also requires that manufacturers make diagnostic manuals public and requires them to offer software tools or firmware to revert an electronic device to its original functioning state in the case that software locks that prevent independent repair are built into a device. The bills are a huge threat to the repair monopolies these companies have enjoyed, and so just about every major manufacturer has brought lobbyists to Nebraska, where the legislation is currently furthest along... This setup has allowed companies like Apple to monopolize iPhone repair, John Deere to monopolize tractor repair, and Sony, Microsoft, and Nintendo to monopolize console repair... Motherboard's reporter was unable to get a comment from Microsoft, Apple, and Sony, and adds that "In two years of covering this issue, no manufacturer has ever spoken to me about it either on or off the record."

Read more of this story at Slashdot.

Categories: Research

Seven Film Studios Want 41 Web Sites Blocked By Australian ISPs

Slashdot: Your Rights Online - Sat, 02/25/2017 - 16:34
angry tapir writes: A group of film studios is undertaking what is set to be the most significant use so far of Australia's anti-piracy laws, which allow rights holders to apply for court orders that can compel ISPs to block their customers from accessing certain piracy-linked sites. A pair of rights holders last year successfully obtained court orders forcing Australia's most popular ISPs to block a handful of sites including The Pirate Bay. Now Village Roadshow wants to have 41 more sites blocked. Village Roadshow joined six other studios in requesting an injunction Friday in federal court, reports Computerworld. And meanwhile, "a separate site-blocking application has been launched by Australian music labels, which are seeking to have Telstra, Optus, TPG and Foxtel's broadband arm block access to Kickass Torrents."

Read more of this story at Slashdot.

Categories: Research

FAA Warns More Drones Are Flying Near Airports

Slashdot: Your Rights Online - Sat, 02/25/2017 - 14:34
Between February and September of 2016, there were 1,274 reports of drones near airports -- versus just 874 for the same period in 2015, according to newly-released FAA research. "The report detailed more than 1,200 incidents of airplane pilots, law enforcement, air traffic controllers, and U.S. citizens reporting drones flying in places they shouldn't," writes Fortune. An anonymous reader quotes their report: One of takeaway of the report was that while the FAA has received several reports from pilots that drones may have hit their aircraft, the administration was unable to verify any such claim. "Every investigation has found the reported collisions were either birds, impact with other items such as wires and posts, or structural failure not related to colliding with an unmanned aircraft," the FAA said in a statement... Although a drone hasn't smashed into an airplane yet, the FAA "wants to send a clear message that operating drones around airplanes and helicopters is dangerous and illegal. Unauthorized operators may be subject to stiff fines and criminal charges, including possible jail time," the FAA said.

Read more of this story at Slashdot.

Categories: Research

Are Your Slack Conversations Really Private and Secure?

Slashdot: Your Rights Online - Sat, 02/25/2017 - 11:34
An anonymous reader writes: "Chats that seem to be more ephemeral than email are still being recorded on a server somewhere," reports Fast Company, noting that Slack's Data Request Policy says the company will turn over data from customers when "it is compelled by law to do so or is subject to a valid and binding order of a governmental or regulatory body...or in cases of emergency to avoid death or physical harm to individuals." Slack will notify customers before disclosure "unless Slack is prohibited from doing so," or if the data is associated with "illegal conduct or risk of harm to people or property." The article also warns that like HipChat and Campfire, Slack "is encrypted only at rest and in transit," though a Slack spokesperson says they "may evaluate" end-to-end encryption at some point in the future. Slack has no plans to offer local hosting of Slack data, but if employers pay for a Plus Plan, they're able to access private conversations. Though Slack has 4 million users, the article points out that there's other alternatives like Semaphor and open source choices like Wickr and Mattermost. I'd be curious to hear what Slashdot readers are using at their own workplaces -- and how they feel about the privacy and security of Slack?

Read more of this story at Slashdot.

Categories: Research

Arizona Bill Would Make Students In Grades 4-12 Participate Once In An Hour of Code

Slashdot: Your Rights Online - Sat, 02/25/2017 - 05:00
theodp writes: Christopher Silavong of Cronkite News reports: "A bill, introduced by [Arizona State] Sen. John Kavanagh [R-Fountain Hills] would mandate that public and charter schools provide one hour of coding instruction once between grades 4 to 12. Kavanagh said it's critical for students to learn the language -- even if it's only one session -- so they can better compete for jobs in today's world. However, some legislators don't believe a state mandate is the right approach. Senate Bill 1136 has passed the Senate, and it's headed to the House of Representatives. Kavanagh said he was skeptical about coding and its role in the future. But he changed his mind after learning that major technology companies were having trouble finding domestic coders and talking with his son, who works at a tech company." According to the Bill, the instruction can "be offered by either a nationally recognized nonprofit organization [an accompanying Fact Sheet mentions tech-backed] that is devoted to expanding access to computer science or by an entity with expertise in providing instruction to pupils on interactive computer instruction that is aligned to the academic standards."

Read more of this story at Slashdot.

Categories: Research

Petition of the day

SCOTUS Blog - Fri, 02/24/2017 - 23:23

The petition of the day is:

Taylor v. Extendicare Health Facilities, Inc. 16-825

Issues: (1) Whether the Federal Arbitration Act or the “federal policy favoring arbitration” requires courts to discriminate in favor of arbitration agreements; (2) whether the FAA requires courts to preempt neutral state laws that merely have a disproportionate impact on the enforcement of arbitration agreements; and (3) whether, if the answer to either question above is “yes,” that violates basic principles of federalism.

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Categories: Research

Appeals Court: You Have the Right To Film the Police

Slashdot: Your Rights Online - Fri, 02/24/2017 - 21:05
An anonymous reader quotes a report from Ars Technica: A divided federal appeals court is ruling for the First Amendment, saying the public has a right to film the police. But the 5th U.S. Circuit Court of Appeals, in upholding the bulk of a lower court's decision against an activist who was conducting what he called a "First Amendment audit" outside a Texas police station, noted that this right is not absolute and is not applicable everywhere. The facts of the dispute are simple. Phillip Turner was 25 in September 2015 when he decided to go outside the Fort Worth police department to test officers' knowledge of the right to film the police. While filming, he was arrested for failing to identify himself to the police. Officers handcuffed and briefly held Turner before releasing him without charges. Turner sued, alleging violations of his Fourth Amendment right against unlawful arrest and detention and his First Amendment right of speech. The 2-1 decision Thursday by Judge Jacques Wiener is among a slew of rulings on the topic, and it provides fresh legal backing for the so-called YouTube society where people are constantly using their mobile phones to film themselves and the police. A dissenting appellate judge on the case -- Edith Brown Clement -- wrote Turner was not unlawfully arrested and that the majority opinion from the Texas-based appeals court jumped the gun to declare a First Amendment right here because one "is not clearly established."

Read more of this story at Slashdot.

Categories: Research

ZeniMax Files Injunction To Stop Oculus From Selling VR Headsets

Slashdot: Your Rights Online - Fri, 02/24/2017 - 20:25
ZeniMax, the parent company of Fallout and Skyrim developer Bethesda, has filed for an injunction against virtual-reality company Oculus over the recent stolen technology case. The company had accused Oculus of stealing VR-related code, and was subsequently awarded $500 million by a Dallas court earlier this month. ZeniMax has now filed additional papers against Oculus, requesting that Oculus' products using the stolen code be removed from sale. GameSpot reports: Specifically, ZeniMax is seeking to block sales of its mobile and PC developer kits, as well as technology allowing the integration of Oculus Rift with development engines Unreal and Unity, reports Law360. If the injunction isn't granted, ZeniMax wants a share of "revenues derived from products incorporating its intellectual properties," suggesting a 20 percent cut for at least 10 years. ZeniMax argues the previous settlement of $500 million is "insufficient incentive for [Oculus] to cease infringing." Oculus, meanwhile, says that "ZeniMax's motion does not change the fact that the [original] verdict was legally flawed and factually unwarranted. We look forward to filing our own motion to set aside the jury's verdict and, if necessary, filing an appeal that will allow us to put this litigation behind us," the virtual reality company stated.

Read more of this story at Slashdot.

Categories: Research

World's Largest Spam Botnet Adds DDoS Feature

Slashdot: Your Rights Online - Fri, 02/24/2017 - 19:05
An anonymous reader writes from a report via BleepingComputer: Necurs, the world's largest spam botnet with nearly five million infected bots, of which one million are active each day, has added a new module that can be used for launching DDoS attacks. The sheer size of the Necurs botnet, even in its worst days, dwarfs all of today's IoT botnets. The largest IoT botnet ever observed was Mirai Botnet #14 that managed to rack up around 400,000 bots towards the end of 2016 (albeit the owner of that botnet has now been arrested). If this new feature were to ever be used, a Necurs DDoS attack would easily break every DDoS record there is. Fortunately, no such attack has been seen until now. Until now, the Necurs botnet has been seen spreading the Dridex banking trojan and the Locky ransomware. According to industry experts, there's a low chance we'd see the Necurs botnet engage in DDoS attacks because the criminal group behind the botnet is already making too much money to risk exposing their full infrastructure in DDoS attacks.

Read more of this story at Slashdot.

Categories: Research

FCC To Halt Rule That Protects Your Private Data From Security Breaches

Slashdot: Your Rights Online - Fri, 02/24/2017 - 18:20
According to Ars Technica, "The Federal Communications Commission plans to halt implementation of a privacy rule that requires ISPs to protect the security of its customers' personal information." From the report: The data security rule is part of a broader privacy rulemaking implemented under former Chairman Tom Wheeler but opposed by the FCC's new Republican majority. The privacy order's data security obligations are scheduled to take effect on March 2, but Chairman Ajit Pai wants to prevent that from happening. The data security rule requires ISPs and phone companies to take "reasonable" steps to protect customers' information -- such as Social Security numbers, financial and health information, and Web browsing data -- from theft and data breaches. The rule would be blocked even if a majority of commissioners supported keeping them in place, because the FCC's Wireline Competition Bureau can make the decision on its own. That "full commission vote on the pending petitions" could wipe out the entire privacy rulemaking, not just the data security section, in response to petitions filed by trade groups representing ISPs. That vote has not yet been scheduled. The most well-known portion of the privacy order requires ISPs to get opt-in consent from consumers before sharing Web browsing data and other private information with advertisers and other third parties. The opt-in rule is supposed to take effect December 4, 2017, unless the FCC or Congress eliminates it before then. Pai has said that ISPs shouldn't face stricter rules than online providers like Google and Facebook, which are regulated separately by the Federal Trade Commission. Pai wants a "technology-neutral privacy framework for the online world" based on the FTC's standards. According to today's FCC statement, the data security rule "is not consistent with the FTC's privacy standards."

Read more of this story at Slashdot.

Categories: Research

Security Lapse Exposed New York Airport's Critical Servers For a Year

Slashdot: Your Rights Online - Fri, 02/24/2017 - 17:00
An anonymous reader quotes a report from ZDNet: A security lapse at a New York international airport left its server backups exposed on the open internet for almost a year, ZDNet has found. The internet-connected storage drive contained several backup images of servers used by Stewart International Airport, but neither the backup drive nor the disk images were password protected, allowing anyone to access their contents. Since April last year, the airport had been inadvertently leaking its own highly-sensitive files as a result of the drive's misconfiguration. Vickery, who also posted an analysis of his findings, said the drive "was, in essence, acting as a public web server" because the airport was backing up unprotected copies of its systems to a Buffalo-branded drive, installed by a contract third-party IT specialist. When contacted Thursday, the contractor dismissed the claims and would not comment further. Though the listing still appears on Shodan, the search engine for unprotected devices and databases, the drive has since been secured. The files contained eleven disk images, accounting for hundreds of gigabytes of files and folders, which when mounted included dozens of airport staff email accounts, sensitive human resources files, interoffice memos, payroll data, and what appears to be a large financial tracking database. Many of the files we reviewed include "confidential" internal airport documents, which contain schematics and details of other core infrastructure.

Read more of this story at Slashdot.

Categories: Research

This week’s oral argument audio and transcripts now available on Oyez

SCOTUS Blog - Fri, 02/24/2017 - 16:31

Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.

The court heard argument this week in:

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Categories: Research

Neil Gorsuch the Law Clerk

SCOTUS Blog - Fri, 02/24/2017 - 14:51

The case in front of Neil Gorsuch presented “an interesting constitutional question,” as he put it.

“Does [due process] require a ‘nexus’ between the United States and a non-resident alien to apply to him extraterritorially a federal criminal statute?” wrote Gorsuch, who is President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court. “I recommend denial.”

The case of Martinez-Hidalgo v. United States came before Gorsuch not in his current job as a federal appeals court judge but as one of dozens of cert petitions he analyzed as a Supreme Court law clerk during the October 1993 term.

Gorsuch, 26 years old at the time, was a law clerk serving Justice Anthony Kennedy as well as retired Justice Byron White.

Kennedy was among the eight members of the court at that time who participated in the “cert pool,” in which all the clerks from the participating chambers divide the thousands of petitions for a writ of certiorari filed each term, with one law clerk reviewing each and writing a memorandum recommending a grant or denial that is then shared among all the other chambers in the pool. (Justice John Paul Stevens was the only member of the court who did not participate in the cert pool at that time. Currently, Justice Samuel Alito is the only non-participant. Having at least one non-participant is considered an important check on the cert pool process.)

The extraterritoriality case involved a 1991 incident in which a U.S. Coast Guard vessel steaming in international waters about 80 miles south of Puerto Rico came upon a 26-foot “flagless” boat—one without a name or identifying numbers. The crew of the boat claimed to be from Colombia, and after getting a “statement of no objection” from the Colombian government, the Coast Guard boarded the boat and found 282 kilos of cocaine.

The boat’s crew was charged under a federal statute with possession and intent to distribute cocaine on the high seas. One of the crew members, Nicomedes Martinez-Hidalgo, challenged his arrest on the ground that there was an insufficient nexus between his activities in international waters and the United States. The defendant lost in lower courts, and thus became one of thousands of petitioners seeking review in the Supreme Court.

In an 11-page memo for the cert pool on Jan. 7, 1994, Gorsuch carefully summarized and analyzed the facts, lower-court decisions and arguments in the Martinez-Hidalgo case.“It seems clear that the [due process] issue raised by this case has broad legal significance, questioning as it does the extraterritorial reach of both Congress and the Constitution,” Gorsuch wrote. “That said, it is not at all clear that the case has (at this point) much practical significance; [petitioner] points to no large, extant class of [defendants] for whom a decision here would make any real difference.”

Gorsuch further advised the disagreement on the legal issue among the federal courts of appeals asserted by the petitioner was really “the faintest of splits” and it “dissipates on examination.” Bona fide splits on federal legal questions among the federal circuits are a key reason the court grants review of a case.

Gorsuch had one final concern. The petitioner’s “briefing at the cert stage does not bode well for merits briefing,” he wrote. “Tackling a major constitutional question with the level of representation evident in the [cert petition] … would be a risky enterprise.”

In the end, the court accepted Gorsuch’s recommendation and denied the petition.

Clerking for White and Kennedy

When Gorsuch was asked at his 2006 confirmation hearing for his nomination to the U.S. Court of Appeals for the 10th Circuit which of his previous jobs had best prepared him to join the bench, he said: “Well, I cannot help but think back to my clerkships, and most particularly my time with Justice White.”

White had retired from the court in the spring of 1993. According to some accounts at the time, White had not hired a full slate of law clerks for the term that would start in the fall of 1993 because he had an inclination to retire. It is unclear whether Gorsuch was aware of this when White hired him.

Following a tradition among retired justices, who are assigned one law clerk, White agreed to share his clerk with an active justice. Gorsuch thus became a part-time member of Justice Anthony Kennedy’s chambers.

The Supreme Court heard arguments in 99 cases during Gorsuch’s clerkship, issuing 93 full opinions.The most high-profile merits cases that term involved protest buffer zones around abortion clinics, the use of gender-based peremptory challenges in jury selection and whether a rap song incorporating parts of a Roy Orbison song constituted fair use under copyright law.

Whether Gorsuch played any significant role in advising Justice Kennedy on the term’s merits cases remains a private matter. And the amount of time he devoted to the needs of the newly retired Justice White isn’t widely known.

But Gorsuch’s cert pool memos provide a window on one key part of his clerkship. Justice Harry Blackmun, who was in his last term in 1993-94, was a member of the cert pool, like Kennedy. Blackmun preserved almost everything from his years of judicial service in his files, including clerk memos from the cert pool. Blackmun’s papers were first made publicly available at the Library of Congress in 2004. (The links to the pool memos in this story are to the Digital Archive of the Papers of Justice Harry A. Blackmun (2007), by Lee Epstein, Jeffrey A. Segal, and Harold J. Spaeth.)

Clerk memos tend to be somewhat formulaic and cautious. They perhaps reveal little about how a former law clerk might approach issues he might confront later in life as a Supreme Court justice.

“Very rarely would these provide any real indication of the author’s personal views,” said Eugene Volokh, who was a clerk to Justice Sandra Day O’Connor that term and is now a UCLA law professor and prominent legal blogger.

“You are writing a pool memorandum and your job is to recommend a grant or deny” based on a fairly objective set of criteria, said Volokh, who is a longtime friend of Gorsuch.

But the memos have been used before as fodder in high court confirmation battles, most recently during the 2010 hearing for Elena Kagan.

A few conservatives criticized Kagan for a cert memo she wrote to Justice Thurgood Marshall, for whom she clerked in the October 1987 term, regarding a school district’s race-conscious high-school-attendance rezoning plan.

Kagan, in her memo to Marshall, called the voluntary plan “amazingly sensible” and urged him to vote to deny review of the case, which the court did. One conservative testified before the Senate Judiciary Committee that Kagan’s stance would give administrators license to engage in “racial engineering.” The charge didn’t make much headway with the committee.

‘Nothing Remotely Certworthy Lurking Here’

Of some 50 Gorsuch cert pool memos found in the Blackmun papers, most involved “fact-bound” or “splitless” appeals that fell well short of the court’s normal standards for granting review.

“Habeas [petitioner] seeks error correction,” Gorsuch wrote regarding the in forma pauperis petition of a California man asking the Court to overturn his murder and robbery conviction. “All questions presented are factbound; nothing remotely certworthy lurking here. Deny.”

Gorsuch expressed some sympathy for a Texas high school student who got wrapped up in a carjacking and was sentenced to 12 years in a state penitentiary. The student was the “school’s star football athlete and had the chance to attend college on scholarship,” Gorsuch wrote. “Several teachers submitted letters attesting to [petitioner’s] character.”

The defendant’s claim of ineffective assistance of counsel, however, was “enormously fact-laden, … implicating no splits, and raising no important question of law,” Gorsuch said. “It seems to me that the sentence imposed here was horribly harsh; but to intervene would constitute error-correction alone.”

Gorsuch was less sympathetic to the cert petition of a Tennessee jail inmate who claimed he was assaulted with a broomstick by another inmate and sought to hold two jail employees liable for failing to prevent the attack. Gorsuch called the petition “frivolous” and a “clear deny on the merits.” He went on to suggest that the justices might want to deny pauper status to the petitioner based on a Supreme Court rule that permits such denials when a petition is clearly frivolous.

Gorsuch noted that the court tended to deny pauper status only to repeat offenders who were abusing the process, and that the justices seemed to have a policy of giving “one free frivolous [cert petition] before the rule will be applied against him.”

One of Justice Blackmun’s clerks, reviewing Gorsuch’s cert pool memo, urged her boss not to deny the petitioner pauper status. “He’s not a frequent filer, and he took his appeal in good faith,” the clerk wrote.

In another case, Gorsuch explored for 10 pages an Arizona prison inmate’s arguments that his mandatory “hard labor” crafting novelty belt buckles in a prison-run program qualified him as an “employee” under the Fair Labor Standards Act. A federal district court and the 9th Circuit held otherwise.

Gorsuch concluded that the inmate’s petition did not present a circuit split, as asserted, between the 9th Circuit and two other federal circuits that had ruled prisoners to be employees because they worked for non-prison entities.

“The [court of appeals] ‘split’ is more apparent than real,” Gorsuch wrote. “No [court of appeals] has held a prisoner working for the prison institution or in a prison-sponsored work program to be a FLSA employee. … Now, perhaps if [the 9th Circuit] were to go on in some future case to argue that a ‘state-structured program’ includes working for McDonald’s,” a conflict with other circuit rulings “would surely emerge.”

Gorsuch’s writing style in the memos is crisp and approachable, occasionally employing nice turns of phrase.

In a petition stemming from a labor-organizing dispute at a North Carolina chicken-processing plant, Gorsuch discussed how the U.S. solicitor general had done “an artful job” of distinguishing the case in question from a National Labor Relations Board decision known as Standard Products.

“This case and Standard Products may sit uneasily together, but they can be coaxed into getting along,” Gorsuch wrote.

He did have a penchant for using stodgy terms, such as “amongst,” “whilst,” and “unbeknownst.” One of Justice Blackmun’s clerks, in marking up one memo from Gorsuch, circled one of his uses of “whilst” in an apparent equivalent of an eye roll.

The closest Gorsuch came to recommending a grant among the pool memos came in a case in which a driver and her passenger were placed in a police car by a Florida sheriff’s deputy during a traffic stop as the deputy searched the woman’s car. The driver consented to the search of her vehicle, but “unbeknownst” to the two women, their conversation in the police car was being recorded.

The women “evidently made several tape-recorded inculpatory statements,” Gorsuch wrote. Meanwhile, the search of the car yielded a large amount of cocaine. The driver sought to suppress the recording from the police car on the ground that she had a reasonable expectation of privacy in her conversation with her friend. Two lower courts rejected that argument.

In a nine-page memo, Gorsuch explored several complications of the case and suggested that the justices “call for a response” from the respondent, a tactic used in potentially certworthy cases when a government agency has initially waived its right to respond.

“As appalling as the police behavior here was, … it does seem fairly clear that [petitioner] voluntarily consented to the search of her vehicle, thus perhaps invalidating what might otherwise have been an impermissible search,” he wrote.

But “to be safe,” Gorsuch added, “it may be wise and worthwhile to Call for a Response” to help clarify the record and the arguments. (The court denied the petition outright.)

A Star-Studded Clerk Class

What is perhaps most remarkable about Gorsuch and the cert pool is how he managed to avoid drawing petitions involving a number of hot-button issues from the 1993 term.

Gorsuch did not draw pool memo duties for a case dealing with Ohio’s judicial-bypass system for minors seeking abortion, a New Jersey case about criminal charges over a blockade of an abortion provider’s office, a case about whether a stillborn fetus has constitutional due process rights, an appeal from an anti-abortion group that was denied a booth at a Kentucky city’s Great Pumpkin Festival, and others touching on abortion.

And Gorsuch did not draw a cert petition from a group of litigants challenging the dismissal of their securities-fraud claim against the developers of the Taj Mahal Casino in Atlantic City, N.J., with the lead respondent being Donald Trump.

Those petitions went to other clerks in the cert pool. Gorsuch’s law clerk class included former U.S. Solicitor General Paul Clement (for Justice Antonin Scalia) and Judge Brett Kavanaugh (Kennedy) of the U.S. Court of Appeals for the District of Columbia Circuit, both of whom have been mentioned as potential Supreme Court picks for a Republican president.

Others in the 1993 term included Jullius Genachowski (Justice David Souter), who served as chairman of the Federal Communications Commission under President Obama; James Ryan (Chief Justice Rehnquist), now the dean of the Harvard Graduate School of Education; and Allison Eid (Justice Clarence Thomas), now a member of the Colorado Supreme Court.

“You’re feeling lucky to be around such top young lawyers from all over the country,” said Volokh.

It seems unlikely that Gorsuch was doing anything to avoid thorny cert petitions, since pool memos are assigned randomly.

As Chief Justice Rehnquist explained in a 1996 note to the clerks of that term, “pool memos are assigned to the various chambers participating in the pool on a random basis, partly because that is the easiest way to do it, and partly to avoid any temptation on the part of law clerks to select for themselves pool memos in cases with respect to which they might not be as neutral and detached as is desirable.”

While the pool memos typically have a sober and serious tone, there is one feature for which some of the clerks often have adopted a breezy or playful approach. In memos that are already two- to ten-page distillations of complicated briefs and lower court rulings (and which already also feature a one-paragraph summary), some clerks sought to abbreviate the case to just a few words or phrases following case caption.

For example, in a petition about one parent’s free exercise of religion challenge to child custody restrictions that barred him from imposing his “fundamentalist” religious convictions on his child as a condition of visitation, the pool clerk rendered the caption this way: “Robert Lange (I proselytize while I diaper) v. Elizabeth Lange (not with my kids, you don’t).”

And in a case involving a suspected drug courier who had the same name as a legendary member of the Cincinnati Reds, the law clerk provided the Hall of Famer’s career batting average home run and stolen base totals: “Searle, Clay (say it ain’t so) v. Morgan, Joe (.271, 268 HRs, 689 SBs).”

Gorsuch mostly did not employ such whimsical summaries. But in his pool memo for a case involving the longtime sponsor of the TV nature show “Wild Kingdom,” he incorporated a light-hearted reference to the show’s longtime host in this way: “Mutual of Omaha Life Insurance (What would Marlin Perkins say now?) v. Mary Dahl-Eimers.”

And in another petition, an Oklahoma man was challenging his extended sentence as a habitual felon by arguing that his name was misspelled by the government in various court papers. Gorsuch’s discussion section for that case was short and to the point: “The most hopeless of all sufficiency of the evidence challenges. Good grief.”

He rendered the caption this way: “Almer Kelley Goldsmith (get the name right!) v. Oklahoma (Ah, but a rose by any other name is still a rose).”

The post Neil Gorsuch the Law Clerk appeared first on SCOTUSblog.

Categories: Research

Argument preview: Court to consider social media access for sex offenders

SCOTUS Blog - Fri, 02/24/2017 - 12:30

In April 2010, Lester Packingham’s traffic ticket was dismissed, prompting him to take to Facebook to celebrate. He posted that “God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent . . . Praise be to GOD, WOW! Thanks JESUS!”

We have no way to know whether any higher powers read Packingham’s Facebook posts. But at least one mortal authority did: a Durham, N.C., police officer who had logged onto Facebook to see whether any registered sex offenders had been using the site. He found the post by Packingham, who had been indicted in 2002 on two counts of statutory rape of a 13-year-old and eventually convicted of taking “indecent liberties of a minor.” Packingham had been sentenced to 10 to 12 months in prison, which the judge suspended, and ordered to register as a sex offender.

Based on his Facebook post, Packingham was charged with violating a North Carolina law that makes it a crime for a registered sex offender to “access” a “commercial social networking Web site” when he “knows” that it allows minors. Packingham asked the trial court to dismiss the charges, arguing that the law infringes on the freedom of speech guaranteed by the First Amendment, but the trial court declined to do so. Packingham was convicted and received a suspended sentence. An intermediate state appellate court overturned his conviction, but the state supreme court reversed that ruling and reinstated his conviction. Last fall the justices agreed to weigh in, and next week they will hear oral argument in his case.

Defending the law, North Carolina argues that it is an essential part of the state’s ongoing efforts to protect children from sexual abuse. The sex offender registry, which allows the state and the public to track where sex offenders may be living, wasn’t enough, it explains, because sexual predators “became increasingly adept at using social media to gather intimate information about minors’ social lives, families, hobbies, hangouts, and the like. They then used this information to target unwitting victims, either in person or online.” North Carolina emphasizes that the law now before the justices doesn’t actually regulate speech by registered sex offenders. Instead, it just keeps them from accessing social networking sites. In this case, the state observes, Packingham was convicted because he went on Facebook, not because of what he said there.

Packingham counters that the law still violates fundamental principles of the First Amendment. The Supreme Court, he argues, “has made clear that receiving and ‘gathering’ information are activities fully and independently protected under the First Amendment, not conduct that may be freely regulated and punished.” But this law, in his view, does exactly that, by barring sex offenders from looking at websites the way they would look at newspapers and gathering information from those sites.

Moreover, Packingham adds, the First Amendment bars the government from punishing someone for conduct that is not criminal just because someone else’s similar conduct could be criminal. Guilt, he contends, “is personal.” But contrary to that principle, the North Carolina law does not require the government to show that a sex offender intended to cause any harm by accessing a prohibited website. “Rather,” he argues, “the law imposes punishment because access could facilitate harm if undertaken by someone with a criminal purpose.”

It doesn’t matter whether the North Carolina law regulates the content of registered sex offenders’ speech rather than when and where they may speak, Packingham contends, because the law fails even the less stringent test that applies in the latter case. First, the law is not “narrowly tailored,” because it “punishes vast amounts of protected activity to reach the minuscule fraction that implicates the government’s purpose”: It applies not only “to every site colloquially understood to be a ‘social networking website,’” but also to “many others, such as, that undeniably satisfy the broad statutory definition.” At the same time, he complains, the law is under-inclusive: The state acknowledged that Packingham would not have run afoul of the law if a friend had posted the same message for him, and the law does not apply to chat rooms or photo-sharing sites, which have “long been recognized as being at the center of online predation.”

North Carolina responds that the real question isn’t how broadly the law could theoretically sweep, but how it actually works in real life. When the law is “correctly interpreted,” the state contends, it only bars registered sex offenders from accessing “true social networking sites,” where they can link to other webpages and collect information about children. It does not, the state stresses, prohibit sex offenders from visiting other sites, such as, that do not meet those criteria. Indeed, the state notes, “there is not a single real-world example of any registered sex offender who has been convicted under Section 202.5 for accessing a non-social-networking site.”

Second, Packingham argues, there are alternatives that would allow North Carolina to accomplish its goal without restricting so much speech. This would include, he suggests, “a law making it a crime to access websites for nefarious purposes,” which wouldn’t violate the First Amendment rights of people who have no ulterior motives, but are instead just seeking information. Other possibilities, he posits, would include laws that punish attempts to solicit minors online. Law enforcement officials, he notes, frequently go undercover online to “identify and prosecute individuals who pose a serious threat to minors,” and those officials can monitor or investigate anyone about whom they have specific concerns.

By contrast, Packingham claims, the broad ban that the North Carolina law imposes is particularly significant because social networking sites are among the most popular avenues for Americans to “express themselves, associate, and learn important information.” In some scenarios, he points out, there aren’t actually any viable alternatives to social networking sites – for example, a 2011 “town hall” hosted by President Barack Obama was conducted solely over Twitter.

In response, North Carolina reiterates that it tried to fight child sexual abuse in other ways, but that those methods didn’t work; similarly, it dismisses the other measures that Packingham proposes as “less effective.” For example, it tells the justices, a law that makes it a crime to use “a social networking website to harvest information for an improper purpose could only be enforced after the abuse has taken place” – which would be inconsistent with its goal of preventing abuse altogether.

The state also emphasizes that, even if some social networking sites are off limits to sex offenders, they still “have myriad alternative channels of communication,” ranging from social networking sites that are limited to adults to “countless non-social-networking sites like” The fact that there is no single equivalent to Facebook, the state concludes, does not mean that there are not any alternative channels for sex offenders to express themselves.

It has been almost two years since the justices struck down a Pennyslvania man’s conviction for communicating, via Facebook, violent threats against (among others) his ex-wife and the federal agent who visited him to investigate. Will Packingham fare as well in his efforts to use social media? We will likely know more by the end of next week’s argument.

The post Argument preview: Court to consider social media access for sex offenders appeared first on SCOTUSblog.

Categories: Research

Legal scholarship highlight: The Supreme Court, the media and public opinion

SCOTUS Blog - Fri, 02/24/2017 - 10:19

Katerina Linos is a professor at UC Berkeley Law School. Kimberly Twist is an assistant professor of political science at San Diego State University.

Does the Supreme Court, the most trusted branch of the federal government, influence ordinary Americans’ opinions? When the Supreme Court upholds same-sex marriage, Obamacare or controversial immigration restrictions, does it increase public support for these policies? The answers to these questions are vitally important, because they shape the legitimacy of the court and the likelihood that court decisions will meet political resistance.

If Americans take cues from Supreme Court rulings when forming or updating their opinions on policy, this would suggest that initially unpopular policies may gain widespread public acceptance if they come before the court and are upheld. Exerting this kind of influence would enable the court to function as a “Republican schoolmaster” and as a vehicle for social change, as scholars from Robert Dahl in 1957 to Nate Persily in 2013 have suggested. Court decisions are less likely to be resisted by bureaucrats and politicians if those decisions are supported by a majority of the American public. Legal scholars have argued that this in turn could allow for greater judicial independence and for an effective system of checks and balances in American politics.

If Americans do not respond to court rulings, however, each of these possibilities is, at best, a “hollow hope.” And indeed, many believe that the court is both counter-majoritarian – because unelected justices review the actions of popularly elected politicians – and unresponsive to shifts in public opinion.

Existing scholarship on whether the Supreme Court can actually affect public opinion is extensive, but divided. Our study overcomes measurement issues that prior work faced: The biggest problem has been a lack of survey data from just before and after court rulings. Researchers have, in the past, needed to rely on data collected months or years on either side of court decisions. This has made causal claims difficult, if not impossible, as changes in opinion could be due to court rulings or to dozens of other intervening events.

Substantively, the work on the court and public opinion has overlooked a major actor: the media. How newspapers, television programs and Internet sources translate and disseminate court decisions is a critical question. Unlike the president or members of Congress, Supreme Court justices do not hire publicists to reduce their opinions to soundbites, nor do they buy advertisements to spread messages widely. Instead, Supreme Court justices write long and technical opinions, which then must be interpreted and distilled for public consumption by the media. Indeed, research on the Supreme Court has called the media, and, in particular, television, the “most critical conduit” by which the American public learns about the court’s actions.

In a recent article published in the Journal of Legal Studies, we conducted studies of public opinion before and after two major 2012 Supreme Court rulings: National Federation of Independent Business v. Sebelius and Arizona v. United States. In the first ruling, the court upheld the most controversial Obamacare provision – the individual mandate – while striking down other parts of the law, such as Medicaid expansion. In the second ruling, the court upheld the most controversial provision of Arizona’s restrictive immigration law – the “show-your-papers provision” – while striking down other important provisions. We surveyed a nationally representative sample of 1,000 respondents in May 2012, right before the decisions were released, and re-interviewed these respondents in the days following the June 2012 court rulings. We asked all respondents about their level of support for or opposition to the relevant provision for that study: For health care, we asked whether federal legislation should require all Americans to purchase health insurance, and for immigration, whether state laws should require police to investigate a person’s immigration status during a traffic stop (given “reasonable suspicion” that person was in the United States unlawfully).

Before asking for the respondents’ opinions during the second survey in June, we randomly assigned respondents to receive either no further information about the ruling, or one of three experimental treatment messages: 1) that the court had upheld the individual mandate (or the “show-your-papers” provision); 2) the first message, plus an argument from the court’s majority opinion; or 3) the second message, plus an argument from the court’s health-care dissent or immigration concurrence.

In addition, to evaluate the effects of real-world media exposure, student coders classified the evening news transcripts from six networks (ABC, CBS, NBC, CNN, Fox News and MSNBC) on the days of the health care and immigration rulings. We identified commonly-used frames in these transcripts, such as reporters discussing the individual mandate as a tax or talking about the potential for racial profiling in Arizona, and, based on the coders’ reports, tagged each as either positive (supportive of the court ruling), negative (critical of the court ruling), or neutral. Using a survey question about news attentiveness and the television news programs watched by respondents, paired with our content analysis of the evening news programs, we then categorized respondents based on the messages they received from our study and from their real-world news sources – no news, uncritical coverage of the court ruling, or critical coverage of the court ruling.

Through the combination of experimental data and content analysis of television news, we were able not only to explore how the media cover court rulings, but also to analyze the effects that media outlets’ translations of court decisions have on public opinion. First, we found that journalists are unusually deferential to the Supreme Court. Whereas two-sided coverage of executive and legislative decisions is fundamental to journalistic ethics, one-sided coverage of court decisions is surprisingly common. Journalists often present only the frame chosen by the court majority, and ignore the frame chosen by dissenting justices.

Even partisan networks, such as Fox News and MSNBC, did not choose to devote all of their time to criticisms of court decisions with which they vehemently disagreed (such as MSNBC on the “show-your-papers” provision and Fox News on the individual mandate). Instead, we saw reporting based on the court majority’s opinion mixed with criticisms of the decision. Fox News and MSNBC opted for more heavily one-sided coverage when they agreed with the court’s decision. The other four networks (ABC, CBS, NBC and CNN) consistently presented the court’s ruling alongside mostly positive arguments from politicians.

Second, we found that ordinary Americans will only change their minds when they are exposed to one-sided coverage of court decisions. We found large and significant shifts both when viewers received one-sided messages from the news programs they typically watch, and when we randomly exposed a representative sample of Americans to a one-sided message. This finding suggests that a court decision upholding a particular policy can increase the level of public support for that policy. The one exception to this finding concerned Latino respondents, who consistently showed lower levels of support for the “show-your-papers” provision after the court ruling.

Two-sided coverage, which discussed both the frame used by the court majority and that used by the dissent (or, in the case of the immigration ruling, the concurrence), reduced the impact of the court decision on opinion change. After hearing a mix of positive and critical coverage, these respondents were likely to keep their original views of the individual mandate and the “show-your-papers” provision.

We found that the Supreme Court can shift Americans’ views – and did in fact significantly increase the popularity of the individual mandate. This effect, however, is driven by one-sided media coverage – by a choice media outlets often make to treat Supreme Court decisions with far more deference than they treat presidential and congressional choices. Given sufficient media coverage for a particular court case, this choice on the part of the media means the court does have the ability to lead public opinion.

The post Legal scholarship highlight: The Supreme Court, the media and public opinion appeared first on SCOTUSblog.

Categories: Research

Founder of India's $4 Smartphone Firm Arrested on Allegations of Fraud

Slashdot: Your Rights Online - Fri, 02/24/2017 - 09:00
Remember the $4 smartphone from India? Yeah, things haven't really materialized. Reuters reports: The founder of an Indian tech firm that shot to prominence by offering a $4 smartphone has been arrested on allegations of fraud, after a handset dealer accused the company of not refunding him for an unfulfilled order, the police said. Mohit Goel, the founder of Ringing Bells, was arrested Thursday afternoon in Uttar Pradesh and will be produced in court later on Friday, said Rahul Srivastav, a police spokesman from the northern Indian state. Goel and his company made headlines last year with the "Freedom" smartphone, which was priced at 251 rupees ($3.77), attracting strong demand but also widespread scepticism and scrutiny from regulators even in price-conscious India, where cheap smartphones are big sellers. The founder was arrested after a dealer said he had paid 3 million Indian rupees for an order of handsets but had received only a fraction of the order. He further said some of the phones received were defective, according to the police.

Read more of this story at Slashdot.

Categories: Research

Today in OpenGov: A heavy public records delivery

Sunlight Foundation - Fri, 02/24/2017 - 08:59

Today’s look at #OpenGov news, events, & analysis, including a heavy delivery of public records out of Atlanta…

What’s the deal with federal open data?

Earlier this month a host of datasets including “legally mandated White House payroll reports to Congress, budget documents, White House visitor records and public response documents…were removed from the White House Open Data portal.” It is unclear if the new administration intends to replace the missing data. The White House is legally mandated to report some pieces, but others — including the White House visitor logs, which technically belong to the Secret Service — were shared voluntarily by the Obama Administration:

Alex Howard, Sunlight’s Deputy Director, shared his take, noting that”from the perspective of anyone who thinks that the greatest opportunity afforded by modern technology is for the government to inform people directly, not just simply through the lens of the press — that’s something this administration has talked a lot about — that’s leaving a lot of informed public opportunity on the table…” That said, he expressed optimism that the documents would eventually be updated and returned to the web. (NBC News)

  • Meanwhile, data from President Obama’s White House is still available via the National Archives. (The Outline)
  • Several agencies including NOAA and NASA have made it clear that they have not removed any data and do not intend to do so (Wired). So far, the only confirmed data removal since President Trump took office stemmed from a lawsuit involving the USDA’s Animal and Plant Health Inspection Service. Some, but not all of the effected data has been replaced. (KJZZ)
  • There is reason to hope that open data more broadly may have a place in the Trump Administration. Open data has traditionally been a bipartisan issue and OMB Director Mick Mulvaney “sounded enthusiastic about open data initiatives…” at his confirmation hearing. Meanwhile, continued support for open data programs appears to exist at numerous agencies. (Federal Computer Week)
  • In The Hill Joshua New made a strong argument for Congress to support the OPEN Data Act to ensure that open data remains a part of federal policy even if it is not a high priority in the Trump Administration. “Rather than wait for the Trump administration to change course, Congress should move quickly to adopt the bipartisan OPEN Data Act and permanently codify an open data policy for the U.S. government.”
State of the States The Columbia Journalism Review has an interesting story about the City of Atlanta’s recent decision to release 1.47 million pages of documents related to “a federal investigation into more than $1 million in bribes for city contracts.” The catch? The city printed them out. Our take: That’s not optimal in 2017. When a government agency or city hall doesn’t release a database of documents online & enable the public to search them, the choice does have a direct relationship to the accountability and accessibility of whatever they describe. (Read more on our Facebook page)
  • Government Technology gave an overview of Sunlight’s recent white paper on responsible municipal data management, specifically highlighting our recommendations to encrypt sensitive data and communications, take an inventory, publicly document all policies, and limit individual employees’ discretion on data-sharing. Read the entire white paper with all of our recommendations here.
  • Massachussets has a new public records law that provides benefits to citizens and municipalities. Under the law, municipalities have “up to 25 business days to produce records while state agencies have up to 15 business days. But municipalities and state agencies can also petition the supervisor of records for one extension per request. Municipal agencies can get up to 30 extra business days, and state agencies can get up to 20.” MuckRock has a list and analysis of all the petitions filed so far.
  • Marin County, California and Chapel Hill, North Carolina have new open data portals!

Best Practice: @chapelhillgov official held an event in a library to introduce its #opendata portal & get feedback.

— Sunlight Foundation (@SunFoundation) February 23, 2017

Daily dose of Trump Eliza Newlin Carney takes aim at President Trump’s “business conflicts and tendency to treat the presidency as a cash machine” in the American Prospect, noting that “Trump is in clear violation of the Constitution’s “emoluments” clause, legal experts, watchdogs, and many Democrats argue. Article 1, Section 9 specifically bars the president from receiving money or anything of value from a foreign government or head of state.” Impeachment is unlikely to come from the Republican controlled House of Represenatatives, but other forms of oversight may be emerging from both sides of the aisle.
  • University of Virginia law Professor George M. Cohen shared a unique idea to ease potential conflicts of interest for President Trump, “a public trust, created by Congress, to manage the [President’s] companies and channel profits to the U.S. treasury…” (Government Executive)
  • We’ve been tracking President Trump’s reported conflicts of interest here.


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Categories: Research

Alphabet's Waymo Sues Uber For Allegedly Stealing Self-Driving Secrets

Slashdot: Your Rights Online - Fri, 02/24/2017 - 08:00
An anonymous reader quotes a report from Bloomberg: It took Alphabet Inc.'s Waymo seven years to design and build a laser-scanning system to guide its self-driving cars. Uber Technologies Inc. allegedly did it in nine months. Waymo claims in a lawsuit filed Thursday that was possible because a former employee stole the designs and technology and started a new company. Waymo accuses several employees of Otto, a self-driving startup Uber acquired in August for $680 million, of lifting technical information from Google's autonomous car project. The "calculated theft" of Alphabet's technology earned Otto's employees more than $500 million, according to the complaint in San Francisco federal court. The claims in Thursday's case include unfair competition, patent infringement and trade secret misappropriation. Waymo was inadvertently copied on an e-mail from one of its vendors, which had an attachment showing an Uber lidar circuit board that had a "striking resemblance" to Waymo's design, according to the complaint. Anthony Levandowski, a former manager at Waymo, in December 2015 downloaded more than 14,000 proprietary and confidential files, including the lidar circuit board designs, according to the complaint. He also allegedly created a domain name for his new company and confided in some of his Waymo colleagues of plans to "replicate" its technology for a competitor. Levandowski left Waymo in January 2016 and went on in May to form Otto LLC, which planned to develop hardware and software for autonomous vehicles.

Read more of this story at Slashdot.

Categories: Research