Research

WikiLeaks Releases New CIA Secret: Tapping Microphones On Some Samsung TVs

Slashdot: Your Rights Online - Sat, 04/22/2017 - 10:34
FossBytes reports: The whistleblower website Wikileaks has published another set of hacking tools belonging to the American intelligence agency CIA. The latest revelation includes a user guide for CIA's "Weeping Angel" tool... derived from another tool called "Extending" which belongs to UK's intelligence agency MI5/BTSS, according to Wikileaks. Extending takes control of Samsung F Series Smart TV. The highly detailed user guide describes it as an implant "designed to record audio from the built-in microphone and egress or store the data." According to the user guide, the malware can be deployed on a TV via a USB stick after configuring it on a Linux system. It is possible to transfer the recorded audio files through the USB stick or by setting up a WiFi hotspot near the TV. Also, a Live Liston Tool, running on a Windows OS, can be used to listen to audio exfiltration in real-time. Wikileaks mentioned that the two agencies, CIA and MI5/BTSS made collaborative efforts to create Weeping Angel during their Joint Development Workshops.

Read more of this story at Slashdot.

Categories: Research

EFF Says Google Chromebooks Are Still Spying On Students

Slashdot: Your Rights Online - Sat, 04/22/2017 - 03:00
schwit1 quotes a report from Softpedia: In the past two years since a formal complaint was made against Google, not much has changed in the way they handle this. Google still hasn't shed its "bad guy" clothes when it comes to the data it collects on underage students. In fact, the Electronic Frontier Foundation says the company continues to massively collect and store information on children without their consent or their parents'. Not even school administrators fully understand the extent of this operation, the EFF says. According to the latest status report from the EFF, Google is still up to no good, trying to eliminate students privacy without their parents notice or consent and "without a real choice to opt out." This, they say, is done via the Chromebooks Google is selling to schools across the United States.

Read more of this story at Slashdot.

Categories: Research

Petition of the day

SCOTUS Blog - Fri, 04/21/2017 - 23:23

The petition of the day is:

Negrón v. United States 16-999

Issue: Whether lower courts are bound by the rationale of Justice Sotomayor’s lone concurrence in Freeman v. United States – with which all other justices in Freeman expressly disagreed – on the theory that it is the “narrowest grounds” of a plurality opinion under Marks v. United States.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

Developer of BrickerBot Malware Claims He Destroyed Over Two Million Devices

Slashdot: Your Rights Online - Fri, 04/21/2017 - 21:20
An anonymous reader writes: In an interview today, the author of BrickerBot, a malware that bricks IoT and networking devices, claimed he destroyed over 2 million devices, but he never intended to do so in the first place. His intentions were to fight the rising number of IoT botnets that were used to launch DDoS attacks last year, such as Gafgyt and Mirai. He says he created BrickerBot with 84 routines that try to secure devices so they can't be taken over by Mirai and other malware. Nevertheless, he realized that some devices are so badly designed that he could never protect them. He says that for these, he created a "Plan B," which meant deleting the device's storage, effectively bricking the device. His identity was revealed after a reporter received an anonymous tip about a HackForum users claiming he was destroying IoT devices since last November, just after BrickerBot appeared. When contacted, BrickerBot's author revealed that the malware is a personal project which he calls "Internet Chemotherapy" and he's "the doctor" who will kill all the cancerous unsecured IoT devices.

Read more of this story at Slashdot.

Categories: Research

DOJ: Russian 'Superhacker' Gets 27 Years In Prison

Slashdot: Your Rights Online - Fri, 04/21/2017 - 18:30
According to the Justice Department, a 32-year-old Russian "superhacker" has been sentenced to 27 years in prison for stealing and selling millions of credit-card numbers, causing more than $169 million worth of damages to business and financial institutions. The Daily Beast reports: Roman Valeryevich Seleznev, 32, aka Track2, son of a prominent Russian lawmaker, was convicted last year on 38 counts of computer intrusion and credit-card fraud. "This investigation, conviction and sentence demonstrates that the United States will bring the full force of the American justice system upon cybercriminals like Seleznev who victimize U.S. citizens and companies from afar," said Acting Assistant Attorney General Kenneth Blanco said in a statement. "And we will not tolerate the existence of safe havens for these crimes -- we will identify cybercriminals from the dark corners of the Internet and bring them to justice."

Read more of this story at Slashdot.

Categories: Research

For Now, Secrecy Trumps Transparency at the White House

Project On Government Oversight - Fri, 04/21/2017 - 18:25
Unfortunately, the Trump Administration has decided they will not disclose the names of visitors to the White House, a giant step backwards from the previous administration.
Categories: Research

Theranos Used Shell Company To Secretly Buy Outside Lab Equipment, Says Report

Slashdot: Your Rights Online - Fri, 04/21/2017 - 18:10
An anonymous reader quotes a report from Ars Technica: On Friday, the Wall Street Journal reported that the company "allegedly misled company directors" regarding its lab tests and used a shell company to buy commercial lab gear. These are just a few of the new revelations made by the Journal, which also include fake demonstrations for potential investors. The new information came from unsealed depositions by 22 former Theranos employees or members of its board of directors. They were deposed by Partner Fund Management LP, a hedge fund currently suing Theranos in Delaware state court. Theranos is also facing multiple lawsuits in federal court in California and Arizona, among others. The Journal, which did not publish the new filings, quoted former Theranos director Admiral Gary Roughead (Ret.), as saying that he was not aware that the company was using "extensive commercial analyzers" until it was reported in the press. The Journal described the filings as "some of the first substantive details to emerge from several court proceedings against the company, though they include only short excerpts from the depositions."

Read more of this story at Slashdot.

Categories: Research

Microsoft Improves Gmail Experience For Windows 10 Insiders, But There Are Privacy Concerns

Slashdot: Your Rights Online - Fri, 04/21/2017 - 17:30
Reader BrianFagioli writes: Today, Microsoft announced a new Gmail experience for Windows 10. While only available for Windows Insiders as of today, it uses the same concept as the Outlook mobile app, but for the Mail and Calendar apps. Microsoft will provide you with an arguably improved experience as long as you are OK with storing all of your Gmail messages in Microsoft's cloud. What types of features will the new experience offer? Things such as tracking packages, getting updated on your favorite sports teams, and a focused inbox. "To power these new features, we'll ask your permission to sync a copy of your email, calendar and contacts to the Microsoft Cloud. This will allow new features to light up, and changes to update back and forth with Gmail -- such as creation, edit or deletion of emails, calendar events and contacts. But your experience in Gmail.com or apps from Google will not change in any way."

Read more of this story at Slashdot.

Categories: Research

Now accepting internship applications (Deadline extended)

SCOTUS Blog - Fri, 04/21/2017 - 17:26

SCOTUSblog is still accepting applications from current law students interested in interning with us. The principal focus of the internship (which is a paid one) will be assisting with the “Petition of the day” and “Petitions to watch” features on the blog and maintaining the case pages. This will require roughly 10 to 20 hours of work a week on a generally flexible work schedule, which can be accomplished remotely. The position will begin in early to mid-May, and the expected commitment would be through May 2018.

To qualify for the position, you must:

* Have a strong academic record

* Be currently enrolled in a J.D. or LL.M program (undergraduates are not eligible)

* Have excellent organizational skills and attention to detail

* Be able to work independently on deadline

* Have a strong interest in learning about the U.S. Supreme Court and its workings

* Have some experience working with (or at least interest in) blog or website technology

To apply, please send us the following materials:

* Cover letter

* Resume

* Contact information for two references

* A writing sample of no more than five double-spaced pages that has not been edited by anyone other than you

* An official or unofficial law school transcript

Application materials should be sent to Andrew Hamm (ahamm@scotusblog.com) and Molly Runkle (mrunkle@scotusblog.com). Materials must be received by April 28 for consideration.

The post Now accepting internship applications (Deadline extended) appeared first on SCOTUSblog.

Categories: Research

LinkedIn Apologizes For Trying To Connect Everyone In Real Life

Slashdot: Your Rights Online - Fri, 04/21/2017 - 16:10
LinkedIn has apologized for a vague new update that told some iPhone users its app would begin sharing their data with nearby users without further explanation. From a report: The update prompted outrage on Twitter after cybersecurity expert Rik Ferguson received a strange alert when he opened the resume app to read a new message: "LinkedIn would like to make data available to nearby Bluetooth devices even when you're not using the app." That gave Ferguson, vice president of research at the cybersecurity firm Trend Micro, a handful of concerns, he told Vocativ. Among them: "the lack of specificity, which data, when, under what conditions, to which devices, why does it need to happen when I'm not using the app, what are the benefits to me, where is the feature announcement and explanation, why wasn't it listed in the app update details." Reached for comment, LinkedIn said it's a mistake -- that some iPhone users were accidentally subject to undeveloped test feature the company is still working on.

Read more of this story at Slashdot.

Categories: Research

Court Rules Fan Subtitles On TV and Movies Are Illegal

Slashdot: Your Rights Online - Fri, 04/21/2017 - 15:30
A court has just ruled that making fan subtitles or translations is not protected by the law. From a report: A Dutch group called the Free Subtitles Foundation took anti-piracy group BREIN to court over "fansubbing." BREIN has previously been active in taking fan subtitles and translations offline, and the Foundation was hoping a Dutch court would come down on the side of fair use. The court didn't quite see it that way. It ruled that making subtitles without permission from the property owners amounted to copyright infringement. BREIN wasn't unsympathetic, but said it couldn't allow fansubbers to continue doing what they're doing.

Read more of this story at Slashdot.

Categories: Research

How Smaller Cities Can Participate in the Open Data Movement

Sunlight Foundation - Fri, 04/21/2017 - 13:14

Last week, I had the opportunity to showcase Sunlight’s latest research on community engagement around open data at the Hometown Summit in Charlottesville, Virginia. The event united local leaders, elected officials, practitioners, policymakers, community organizers, and investors in small to mid-sized U.S. cities who are working to find creative solutions for community problems at the local level, for 3 days of sharing stories and strategies. Talking through the barriers to community engagement faced by small cities — especially those who wish to engage residents in using public data — provided us with some meaningful insights into tactics for implementing open data programs in communities with smaller populations and fewer resources.

On the first day of the summit, I joined colleagues from the Center for Government Excellence, the Behavioral Insights Team, and Results for America on a panel highlighting the efforts of the What Works Cities Partnership over the past two years. Amongst a crowd of innovators from small cities across the country, we found the perfect opportunity to introduce the new What Works Cities Certification initiative, which is like an ENERGY STAR rating for data-driven governance. This certification program was created to celebrate U.S. cities that are paving the way for the use of data and evidence to make governments more effective. It expands upon the two years of work we’ve completed in an important way: certification allows smaller cities — with populations as little as 30,000 — to receive recognition for great work incorporating data into the governance process.

We’re thrilled to have more cities join the conversation about opening their data and engaging their communities. There’s a lot we can learn from smaller communities.

Charlottesville, Virginia, for example, is partnering with local organizations to host a Civic Innovation Day in June, where they plan to tap into the knowledge in their community by inviting designers, technologists and any interested citizen to use their talents to develop solutions to tackle community challenges.  A member of the City Council of Lancaster, PA is working to help her community- which collects tons of data-find low-cost solutions for hosting open data online. Other small cities like Asheville, NC and Galveston, TX have also worked around resource constraints to join the open data movement. We’re proud to help shine a light on the great work that smaller cities are doing.

Smaller cities, bigger challenges?

Larger cities tend to have more civic tech groups, businesses, nonprofits, academic institutions, and overall more residents to use their data. Smaller cities, on the other hand, face relatively larger barriers creating an active community around data to drive decision-making, spur innovation, and make government more efficient, primarily due to a lack of resources to establish programs internally, as well as fewer data users.

On the second day of the Summit, I participated in a panel about activating citizen leadership and methods for empowering residents to shape the future of cities. Sunlight is interested in discovering how communities can drive public participation in using open data to identify and solve community problems. We began this research several months ago, and have since captured several of these strategies in our new Tactical Data Engagement Guide.

During this panel, I explained the many ways that the strategies in the TDE guide are flexible and can be adapted to work for a city of any size. But as the conversation continued, I began to further reflect on the challenges faced by smaller cities seeking to demonstrate the public’s use and reuse of public data —a key to measuring the success of a sustainable open data program.

So, how can smaller cities overcome these barriers? Stay tuned for my piece on strategies for open data engagement in small towns next week.

 

Categories: Research

Top Federal Contractors Paid Billions for Environmental Damage

Project On Government Oversight - Fri, 04/21/2017 - 12:13
In honor of Earth Day 2017, we encourage you to explore our Federal Contractor Misconduct Database and the wealth of information it contains about the environmental records of the largest federal contractors.
Categories: Research

How to Manage and Honor Anger [Audio + Infographic]

Rockwood Leadership - Fri, 04/21/2017 - 12:00

How do we lead when we’re angry?

That was the question almost 70 Rockwood alums explored during last week’s Community Call about managing and honoring anger, a topic that has gained interest with many social justice and nonprofit leaders in the months since the election.

At the beginning of the call, Rockwood CEO Darlene Nipper read a piece from Anger by Thich Nhat Hanh, and then shared a story about how suppressing anger after the election had physical ramifications for her body:

https://rockwoodleadership.org/rwl/wp-content/uploads/2017/04/thichnhathanh-darlenestory2.mp3?utm_source=rss&utm_medium=rss

 

Saying “Hello” To Anger

As both the piece by Thich Nhat Hanh and Darlene’s story illustrate, we can either mistreat anger, or honor it for the messages it is bringing us in the moment. Although we might fear or condemn anger, anger itself is not the issue. Anger is neither intrinsically good or bad in and of itself. It is a natural emotion that expresses itself in very complex ways.

Anger can actually be an asset and serve as a healthy release when channeled properly and managed well. This infographic from the National Institute for the Clinical Application of Behavioral Medicine provides an overview of how our anger gets triggered, and what happens in our bodies and brains when it is:

Tending to Anger With Mindfulness

Regularly practicing mindfulness can improve our ability to observe our own thoughts and feelings when triggered, and allow us the space to be reflective instead of reactive.

When triggered, immediately stop and notice your anger, try to understand the source, and allow yourself time to really feel and experience the anger before releasing it. Blocking the anger often turns into repression and stress which, as demonstrated in the model above, can lead to physical pain and long-term effects within the body.

By creating a mindfulness practice for releasing and channeling your anger, you can bring reflection, insight, passion, and creativity to your life.

Are you an alum interested in deepening your resilience and honing your leadership skills? Check out the Advanced Art of Leadership, a 5-day training open only to Rockwood alums.

If you’re not a Rockwood alum, you can learn more about managing anger, mindfulness, and much more at the Art of Leadership.

Categories: Research

Today in OpenGov: Chicago’s new data portal, a sale on congressional staff, and more…

Sunlight Foundation - Fri, 04/21/2017 - 09:01

In today’s edition, we explore Chicago’s upgraded data portal, explain how donors get access to top congressional staff, talk Trump with WNYC, share some tools to help with the upcoming election in the UK, and more…

states and cities
  • Chicago’s data portal gets user-friendly refresh. “Chicago’s data portal…is one of the oldest and most robust data portals in the United States. Yet while its content has grown by hundreds of datasets during that time, its overall design, features, and accessibility have not seen significant variation in more than five years. That is, until now: last week, the City of Chicago launched a massive revamp of its open data portal, giving its visitors a wholly new and modernized experience.” (Data-Smart City Solutions)
  • Syracuse leverages data to fix aging water infrastructure. After Syracuse, NY mayor Stephanie Miner struggled to get state or federal help to fix her city’s deteriorating water mains she turned to “she turned to big data. To get to the bottom of the problem of catastrophic water main breaks, Syracuse first had to understand what was happening underground and where. Using an algorithm developed by a team at the University of Chicago, the city put reams of information, scattered among various departments, to work.” (POLITICO)
  • State and local governments try to ease Immigrant fears that federal officials will use local data to target them. Many states and localities have programs aimed at helping immigrants that “have reviewed and perhaps retained millions of documents with personal information about the applicants, such as their names, addresses and foreign identification numbers.” Immigrants are increasingly fearful that this data can be used against them. “To try to ease the fear, lawmakers in states such as Hawaii, Massachusetts and Vermont have pushed various measures to prevent state and local resources from being used to enforce federal immigration law.” (Government Technology)
  • Lessons learned from Cincinnati’s data-driven efforts. Cincinnati, Ohio city manager Harry Black released a retrospective paper after three years building a data-driven governance program. The paper explores “the methodologies behind the efforts and just what they have meant to Cincinnati government.” (Government Technology)
washington watch
  • Access to congressional staff advertised for big donors. “Documents obtained by The Intercept and the Center for Media and Democracy show that the National Republican Senatorial Committee and the National Republican Congressional Committee are both telling donors that in exchange for campaign contributions, they will receive invitations to special events to meet with congressional staff including chiefs of staff, leadership staffers, and committee staffers.” The behavior isn’t limited to the Republican party, the article highlights several Democratic examples are highlighted as well. (The Intercept)
  • Alleged Menendez co-conspirator nears the end of his fraud trial. “If Melgen is convicted on some or all of the 76 fraud-related felony counts he faces, he could feel extreme pressure to testify against Menendez (D-N.J.) in the corruption case in Newark where both men are named as defendants.” (POLITICO)
  • How does USAFacts fit in with other government spending efforts? Among others “…a law with an impending deadline may make their work easier for future reports — at least in tracking federal spending. The Digital Accountability and Transparency Act — signed into law in 2014 — requires all federal agencies begin reporting their spending data in a standardized format starting in May.” (FedScoop)
  • Interested in filing a FOIA request? Full Frontal with Samantha Bee’s got you covered. We think Ashley’s “Totally Basic FOIA Tutorial” is a great gateway to government transparency. Check out FOIA.Wiki to learn more about the law and think about our friends at MuckRock for your filing needs.  Watch the video below or check it out on YouTube

trumpland
  • Sunlight talks Trump and transparency with WNYC. Sunlight’s Alex Howard joined WNYC’s “On The Media” to talk about transparency and accountability in the White House. You can listen online or download the podcast here.
  • Ivanka Trump to skip book tour, donate royalties. “Ivanka Trump, who now serves as an official government adviser to her father, complete with a security clearance and an office in the West Wing, announced Thursday she won’t do any publicity for her book – no tour, no book signings, and none of the television interviews that help boost a book to the bestseller lists.” She will also donate her advance and any royalties from the book to charity. (POLITICO)
  • New administration brings K Street boom. “Washington’s top-grossing lobbying firms are expecting a banner year, with Republicans in control of the federal government for the first time in a decade.” After an election year slow down many K Street firms experienced a major bounce back in the first quarter of 2017. (The Hill)
around the world
  • Useful tools as the UK gears up for a June general election. mySociety highlights their range of offerings that might be “useful during the campaign whether you just want to find out the voting record of your current MP or if you’re planning on building a website or app to cover the campaign.” (mySociety)
  • OGP subnational program helps connect ideas around the globe. “One of the positive outcomes of the OGP Subnational Pilot Program is that it creates relationships among like-minded cities and governments. These relationships result in exchanges of knowledge, practices, and experiences. Buenos Aires Elige(link is external) (BA Elige), a platform through which citizens can bring their ideas, discuss them and make them compete for the support of fellow-citizens, is an initiative that exemplifies the results of such collaboration.” (Open Government Partnership)
  • Major donors present new strategy on transparency. “The Transparency & Accountability Initiative [a donor collaboration formed in 2010] has unveiled a new strategy emphasizing the use of data for accountability, tax governance and civic space.” (FreedomInfo.org)
save the dates
  • #TCampAZ is coming up on May 22 in Phoenix. Learn more on Facebook and get your tickets hereThis one-day unconference will bring together the government representatives, developers and journalists to solve problems relating to civic data access. TCamp participants design the agenda, present their ideas and dive into the challenges, success stories and new possibilities during morning and afternoon breakout sessions. It is being hosted by the Arizona Center for Investigative Reporting with key partners including Sunlight, Galvanize, and the Institute for Digital Progress.
  • April 26th, 6:00 PM: “Participatory Organizing: From Co-Op to Network to Mass Movement” in Washington, DC. The OpenGov Hub is hosting a co-created workshop on collaborative culture and non-hierarchical organizing. We combine storytelling and participation to learn together about democratic, bottom-up organizing at different scales: from co-ops, to networks, cities and nations. We’ll offer some practices and tools that have helped us, and discover the intelligence in the room too. Learn more and register here.
  • May 17th and 18th: Reboot Congress 2017 and the Kemp Forum in Washington, DC. “Held in the shadow of the U.S. Capitol, Reboot Congress 2017, is an invite-only conversation that will bring together a dynamic mix of problem solvers – civic tech innovators, engineers and designers, elected officials, senior staffers, policy experts, and other stakeholders working to modernize Congress.” Learn more here.
  • May 17th: The 2017 Door Stop Awards in Washington, DC. “Lincoln Network and The OpenGov Foundation are joining forces to present the 2017 Door Stop Awards for Congressional Innovation and Transparency. Awards will be presented on May 17, 2017 in Washington, D.C. at an evening party as part of Reboot Congress.” Do you know a member of Congress or staffer who deserves to be recognized? You can submit a nomination here!
  • May 19th and 20th: Global Legislative Openness Conference in Kyiv, Ukraine. “This 2-day event is hosted by the Verkhovna Rada of Ukraine, organized by the Legislative Openness Working Group of the Open Government Partnership and Open Parliament Initiative in Ukraine. The event will convene leading legislators, government officials, and civil society representatives to consider how legislative openness can strengthen public trust in representative institutions and build a responsive, 21st century legislature. In addition, the conference will explore how parliaments can best leverage the Open Government Partnership’s new legislative engagement policy to develop and implement legislative openness plans and commitments.” Learn more here.
  • June 8th and 9th: Personal Democracy Forum 2017 in New York City. “The annual flagship conference brings together close to 1,000 top technologists, campaigners, hackers, opinion-makers, government officials, journalists, and academics for two days of game-changing talks, workshops, and networking opportunities to celebrate the power and potential of tech to make real change happen.” Learn more about #PDF17 and get your tickets here.
Are you hosting an event that you’d like to see highlighted in this newsletter? Please let us know by sending a quick email to todayinopengov@sunlightfoundation.com with a brief description and a link to the event page.

 

Tired of your boss/friend/intern/uncle forwarding you this email every morning? You can sign up here and have it delivered direct to your inbox! Please send questions, comments, tips, and concerns to todayinopengov@sunlightfoundation.com. We would love your feedback!

Categories: Research

US Prepares Charges To Seek Arrest of WikiLeaks' Julian Assange

Slashdot: Your Rights Online - Fri, 04/21/2017 - 09:00
An anonymous reader quotes a report from CNN: U.S. authorities have prepared charges to seek the arrest of WikiLeaks founder Julian Assange, U.S. officials familiar with the matter tell CNN. The Justice Department investigation of Assange and WikiLeaks dates to at least 2010, when the site first gained wide attention for posting thousands of files stolen by the former U.S. Army intelligence analyst now known as Chelsea Manning. Prosecutors have struggled with whether the First Amendment precluded the prosecution of Assange, but now believe they have found a way to move forward. During President Barack Obama's administration, Attorney General Eric Holder and officials at the Justice Department determined it would be difficult to bring charges against Assange because WikiLeaks wasn't alone in publishing documents stolen by Manning. Several newspapers, including The New York Times, did as well. The investigation continued, but any possible charges were put on hold, according to U.S. officials involved in the process then.The U.S. view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents. Attorney General Jeff Sessions said at a news conference Thursday that Assange's arrest is a "priority." "We are going to step up our effort and already are stepping up our efforts on all leaks," he said. "This is a matter that's gone beyond anything I'm aware of. We have professionals that have been in the security business of the United States for many years that are shocked by the number of leaks and some of them are quite serious. So yes, it is a priority. We've already begun to step up our efforts and whenever a case can be made, we will seek to put some people in jail." Meanwhile, Assange's lawyer said they have "had no communication with the Department of Justice."

Read more of this story at Slashdot.

Categories: Research

Relist Watch: Asterisk edition

SCOTUS Blog - Fri, 04/21/2017 - 07:59

John Elwood reviews Monday’s relists.

After we trumpeted that last week’s conference presented the newly installed Justice Neil Gorsuch with his first opportunity to show off his new door-opening and note-taking skills, the court announced that Gorsuch would instead be sitting out the conference so that, in light of the unusually short on-ramp before the April argument session, he could focus the brief time available preparing for oral arguments. Rumors flew that Gorsuch had spent the whole time with celebrity trainers, crashing on PX90 wrist workouts to ready himself for the fateful day when his colleagues would parade their extended families past the conference-room door at 3o-second intervals to test how long the famously affable Coloradan could remain famously affable. Gorsuch’s absence was reflected on the resulting order list, which contained a single, asterisked footnote on the first page confirming that the new guy “took no part” in considering any of the matters on the list.

So this week’s conference will be the first for Gorsuch. That fact is reflected in this week’s unusually long roll of relists, which are plentiful enough that it appears that the court may have simply rolled over the entire “discuss list” from last week’s conference. Three of last week’s relists return again, including the closely watched six-time relist and potential blockbuster Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, involving a cake decorator who refused on religious grounds to make a cake for a same-sex wedding. In addition to the repeat offenders, the court relisted a whopping 14 new cases. The new relists can be sorted into three main groups — plus one election-law case.

Where to begin?

State tax retroactivity. In the “dull but important” category we have a big knot of state tax cases out of Michigan presenting questions about retroactive changes to tax laws and the Multistate Tax Compact. As framed by one of the lead cases in this group, Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699, these cases address (1) whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause. Other new relists cases raising closely related issues include: Sonoco Products Co. v. Michigan Department of Treasury, 16-687, Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688, Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697, International Business Machines Corp. v. Michigan Department of Treasury, 16-698, and DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736. In addition, Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308, presents just the retroactivity issue. Word to the wise: Gillette and DIRECTV are framed as “hold” petitions that advocate a grant in Goodyear, but if the court decides to take these issues, it can choose among them for a preferred vehicle. At least the petitioners in this group will have no problem convincing the court that the issue will affect a lot of cases.

Bankruptcy and pre-emption. There is a smaller group of cases that present a very different issue of interest to the business community. Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, asks whether the U.S. Court of Appeals for the 2nd Circuit correctly held — allegedly contrary to several other courts of appeals — that the presumption against federal pre-emption of state law does not apply in the bankruptcy context.  The case also presents a second question involving whether the 2nd Circuit correctly held — consistent with decisions of the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but allegedly contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits—that a fraudulent transfer is exempt from avoidance under the Bankruptcy Code when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead a Bankruptcy Code safe harbor applies only when the financial institution has its own beneficial interest in the transferred property. Third, the petition asks whether bankruptcy law’s pre-emptive effect extends beyond its text and impliedly pre-empts fraudulent-transfer actions brought by private parties. Merit Management Group, LP v. FTI Consulting, Inc., 16-784, appears to ask Deutsche Bank’s second question and alleges the same split. Both these cases were repeatedly rescheduled before their first relist (seven times and five times respectively, along with a much-rescheduled (eight times) fellow traveler that presented similar issues: Whyte, as Trustee of the SemGroup Litigation Trust v. Barclays Bank PLC, et al., 16-239. But Deutsche Bank and Merit Management made the jump to relists while Whyte has once again been rescheduled, although it remains on track for the same conference as the others. If you have a theory, I’m all ears. I presume at a minimum it means the court views the first two cases and not Whyte as the more serious grant candidates on these issues.

Search warrants for cellphone data? Our third group of relisted cases concerns one of the hottest of hot-button criminal law issues now: whether investigators need to obtain a search warrant for historical cell-phone data such as location data (which is extremely useful for placing suspects at the scene of a crime). The question is whether people have an expectation of privacy in such data even though third parties (that is, phone companies) have access to it. Most courts have held that, just as with the telephone numbers that we expose to telephone companies and thus have minimal privacy interests in, phone users have no expectation of privacy in this kind of cell data, so the government can require telephone companies to turn it over without first getting a search warrant. A panel of the U.S. Court of Appeals for the 4th Circuit held in one of these cases, Graham v. United States, 16-6308, that a search warrant was required, but the en banc court then reversed and adopted a position that no warrant was necessary. And although the 3d Circuit speculated that there might be Fourth Amendment protection for cell-site records, it ultimately ruled that a magistrate judge could permit collection with less than probable cause.  There does not appear to be a split on the issue, which makes the court’s decision to relist interesting – perhaps one of the justices is making a case for taking the issue in the absence of a split because it is recurring and important. In addition to Graham (which also presents a second question about the good-faith exception to the warrant requirement), the other cases that present the issue are Carpenter v. United States, 16-402, and (apparently) Jordan v. United States, 16-6694 (sorry, the lawyer is unable to provide us the papers, so I’m a bit fuzzy on the details). Caira v. United States, 16-6761, involves a similar issue involving an IP address.

And the rest.  That brings us to the last of this week’s new relists, which is certainly not the least. North Carolina v. North Carolina State Conference of the NAACP, 16-833, involves a package of voting procedure changes enacted in North Carolina, including an ID requirement, a reduction in days of early voting, and eliminating out-of-precinct voting and election-day registration. The district court held that the changes neither had a discriminatory motivation or a discriminatory effect, but the U.S.. Court of Appeals for the 4th Circuit reversed. It left undisturbed the district court’s conclusion that the challenged provisions had no discriminatory impact, but rejected as “clearly erroneous” the district court’s factual conclusion that the legislature’s motive was not discriminatory. Having concluded that racial discrimination motivated the North Carolina changes, the 4th Circuit shifted the burden to the state to prove that the law would have been enacted absent that motive. Evidently concluding that test had not been met, it reversed.

You will recall that a few years back in Shelby County v. Holder, the justices invalidated a provision of the Voting Rights Act that required jurisdictions with a history of racial discrimination in voting to obtain preclearance before they would be permitted to change voting procedures. The Shelby County majority reasoned that Congress had not updated the list of jurisdictions in decades despite changed circumstances. North Carolina argues here that the 4th Circuit’s decision is tantamount to nullifying Shelby County and restoring preclearance. The state asks (1) Whether a federal court has the authority to reimpose the same “anti-retrogression” preclearance standard invalidated as to Section 5 by Shelby County; (2) whether the 4th Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina legislature nonetheless intended to deny African Americans the right to vote; and (3) whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a claim that the state is denying the vote.

It’s hard to say “that’s all” after having run through so many cases. So instead, we’ll just say “so long” until this time next week.

Thanks to Bryan U. Gividen for compiling the cases in this post.

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Returning Relists

Salazar-Limon v. City of Houston, 16-515

Issue: Whether, when a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, a court may grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did.

(relisted after the February 17, February 24, March 3, March 17, March 24 and March 31 conferences, and after the April 13 conference)

 

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March March 17, March 24 and March 31 conferences, and after the April 13 conference)

 

Needham v. Lewis, 16-881

Issues: 1) Whether, viewing the evidence from the officer’s perspective at the time of the incident as shown in the dashboard video, a reasonable officer could have believed that the decedent posed an imminent threat of serious harm to the officer or others in the vicinity; and (2) whether, at the time of the incident, the law clearly established in a particularized sense, considering the evidence available including the dashboard video, that the use of deadly force was unlawful in this situation.

(relisted after the March 17, March 24 and March 31 conferences, and after the April 13 conference)

  

New Relists

Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

(relisted after the April 13 conference)

 

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held—contrary to several other courts of appeals — that the presumption against federal preemption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held — following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits — that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held — contrary to this court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code—that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).

(relisted after the April 13 conference)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13 conference)

  

Sonoco Products Co. v. Michigan Department of Treasury, 16-687

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states and requires them to allow taxpayers to elect to use the compact’s equally weighted apportionment formula until the state prospectively withdraws from the compact; (2) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the contracts clause; (3) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the due process clause; and (4) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the commerce clause.

(relisted after the April 13 conference)

 

Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688

Issues: (1) Whether a state statute that retroactively imposes over $1 billion in increased tax liability on out-of-state businesses for the benefit of in-state businesses violates the dormant commerce clause; (2) whether a state tax law that has a 6 1/2-year period of retroactivity and targets out-of-state businesses for increased tax liability of over $1 billion violates the due process clause; and (3) whether a state’s retroactive repeal of a central provision of the decades-old Multistate Tax Compact violates the contracts clause by imposing over $1 billion in retroactive tax liability on out-of-state taxpayers.

 (relisted after the April 13 conference)

 

Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 conference)

 

International Business Machines Corp. v. Michigan Department of Treasury, 16-698

Issues: (1) Whether a state, without violating the constitutional bar against the impairment of contracts, can retroactively withdraw from the Multistate Tax Compact so as to divest taxpayers of benefits under that compact for a period of 6 1/2 years before that withdrawal; and (2) whether, consistent with due process, a state can, by statute, change its tax laws retroactively for a period of more than six years, when the change was not promptly instituted and when the change was designed to increase state tax revenues by overriding a Michigan Supreme Court decision determining taxpayer obligations under prior law.

(relisted after the April 13 conference)

 

Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 conference)

 

DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 conference)

 

Merit Management Group, LP v. FTI Consulting, Inc., 16-784

Issue: Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.

(relisted after the April 13 conference)

 

North Carolina v. North Carolina State Conference of the NAACP, 16-833

Issues: (1) Whether a federal court has the authority to reimpose, under Section 2 of the Voting Rights Act, the same “anti-retrogression” preclearance standard invalidated as to Section 5 by Shelby County v. Holder; (2) whether the U.S. Court of Appeals for the 4th Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina legislature nonetheless intended to deny African Americans the right to vote; and (3) whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote denial claim under Section 2.

(relisted after the April 13 conference)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13 conference)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13 conference)

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Categories: Research

Friday round-up

SCOTUS Blog - Fri, 04/21/2017 - 07:36

Last night the Supreme Court declined to block the executions of a group of Arkansas inmates, one of whom was executed shortly before midnight. Amy Howe covers the proceedings for this blog. Additional coverage comes from Lyle Denniston at his eponymous blog, who notes that “new Justice Neil M. Gorsuch cast his first votes as a member of the Supreme Court,” and that on “what appeared to be the main order in the Arkansas cases,” in which “the result was a 5-to-4 rejection of the inmates’ requests for postponement of execution and denial of review of their legal claims,” “Justice Gorsuch was in the majority with the court’s four most conservative members.”

On Wednesday, the court heard oral argument in Weaver v. Massachusetts, which asks whether a criminal defendant must show prejudice when his counsel’s deficient performance leads to “structural error” in his trial. Rory Little has this blog’s argument analysis.

In Nelson v. Colorado, the justices held on Wednesday that a state cannot require a defendant whose conviction is invalidated to prove actual innocence before recovering fines and fees imposed as a consequence of the conviction. Steve Vladeck analyzes the opinion for this blog. In The New York Times, Adam Liptak reports that critics described the Colorado law struck down by the justices as “part of a national trend to extract fees and fines from people who find themselves enmeshed in the criminal justice system.” At the Cato Institute’s Cato at Liberty blog, Trevor Burrus discusses the decision, observing that although its effect is limited because Colorado is the only state with a law like the one invalidated here, “for many former criminal defendants in Colorado, the ruling can help them get their money back and, perhaps, a little dignity too.”

At Bloomberg BNA, Patrick Gregory reports on Wednesday’s oral argument in Trinity Lutheran Church of Columbia, Inc. v. Comer, a constitutional challenge to Missouri’s exclusion of a church-run preschool from a state program that provides grants to nonprofits to resurface playgrounds, noting that “Justices Elena Kagan and Stephen Breyer joined the court’s more conservative bloc in questioning whether the state could exclude the church from its grant program because it’s a religious institution.” At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro discusses the argument, finding the apparent sympathy for the church across the ideological spectrum “surprising, because if indeed the case is headed to a 7-2 resolution, then it would’ve been 6-2 without Gorsuch and there was no need to hold it for so long.” At Rewire, Jessica Mason Pieklo weighs in on the case, arguing that the “church is asking to keep the significant benefits it already receives in the form of tax exemptions as a religious institution, while also having the state write checks directly to it so that the church can improve its property, which is part and parcel of its religious ministry.”

At Empirical SCOTUS, Adam Feldman examines Justice Neil Gorsuch’s first week on the bench, noting that over the course of all the week’s arguments, and excluding Justice Clarence Thomas who, as usual, was silent, “Gorsuch with 114 questions asked more than Justices Alito, Ginsburg, and Kennedy.” At Supreme Court Brief (subscription required), Tony Mauro looks ahead, noting that a “wider array of tricky cases argued by tough advocates faces Gorsuch next week.”

Briefly:

  • In Time, Justice Sonia Sotomayor lauds retired Justice Sandra Day O’Connor for founding “iCivics, a nonprofit that uses video games to teach middle and high school students how America’s democracy works,” asserting that “[t]oday there could not be more pressing work.”
  • In the Muscatine Journal, Emily Wenger reports that at a recent event in Iowa, Sen. Chuck Grassley (R-Iowa) “said he expects a Supreme Court Justice resignation within the year.”
  • At Jost on Justice, Kenneth Jost observes that Justice Sonia Sotomayor, who has repeatedly “spoken out against judge-imposed death sentences,” “can now take a bow for significant reforms in death penalty cases in two of the states with among the highest number of executions since capital punishment was reinstituted in 1976,” because Alabama and Florida have “enacted laws eliminating judges’ power to impose a death sentence except based on factual findings or recommendations from a jury.”
  • At In a Crowded Theater, Erica Goldberg looks at the court’s decision on Tuesday in Coventry Health Care of Missouri v. Nevils, in which the justices held that a federal law governing employee benefits pre-empts state laws barring subrogation and reimbursement, arguing that the court’s “Supremacy Clause analysis elides an interesting problem and unnecessarily disparages legal formalism in a troubling way.”

 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.

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Categories: Research

Court divides on Arkansas executions (UPDATED Friday, April 21, 6:10 a.m.)

SCOTUS Blog - Thu, 04/20/2017 - 23:37

[UPDATED: After temporarily staying inmate Ledell Lee’s additional appeals last night to give them more time to consider his new filings, the justices rejected Lee’s request to block his execution, clearing the way for Arkansas to execute Lee. Lee was executed shortly before midnight local time.]

The battle over efforts by Arkansas to execute eight inmates in 11 days returned to the Supreme Court this evening. Earlier this week, the justices declined to step in and overturn a stay issued by the state supreme court that resulted in a reprieve for two inmates whose cases involved issues similar to those the justices will consider next week in an Alabama capital case. But another group of inmates did not fare as well in their challenges relating to Arkansas’ death penalty protocol. The inmates needed at least five votes to block the upcoming executions, but they could only get four votes (those of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) in one case and three votes (Breyer, Sotomayor, and Kagan) in another.

Arkansas had hoped to carry out the executions before the end of the month, when the state’s supply of midazolam – a sedative used in the state’s lethal injection protocol – expires. One inmate, Ledell Lee, was scheduled to be executed tonight for the 1993 murder of Debra Reese, whom he robbed, strangled, and beat with a tire iron. Justice Samuel Alito, who is responsible for emergency appeals from the geographic area that includes Arkansas, issued a temporary stay to allow the U.S. Court of Appeals for the 8th Circuit and the Supreme Court to consider new filings by Lee, who argues (among other things) that he should be allowed access to DNA testing that would prove his innocence. The 8th Circuit denied relief late tonight, but the Supreme Court’s stay remained in effect as of 11:30 p.m. Eastern – approximately 90 minutes before the warrant for Lee’s execution is set to expire.

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Categories: Research

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