Whatever one thinks of Roger Clemens’ veracity (let alone possible steroid use), the idea that his criminal trial ends without a verdict because the prosecutors blatantly disregarded the court’s instructions by showing the jury inadmissible evidence is just astounding. Brings to mind former Supreme Court Justice Benjamin Cardozo’s famous question from the 1920s — should the suspect go free because the constable has blundered?

From the reports I’ve read, this was either incompetence or intentional overreaching, as the U.S. Attorneys’ office played in open court a videotape of congressional testimony in which a member read aloud portions of an affidavit (from Andy Petti’s wife) the court had declared — correctly, in my view — could not be used (at least not until rebuttal, if the defense attacked Pettit’s credibility). Astonishing. The meaning of this fiacso is that the government, no less and perhaps more than any other litigant, cannot under our American system of constitutional justice avoid its responsibilities to ensure fairness in criminal prosecutions.

Posted via email from glenn’s posterous.

Related Posts:

• No Drugs For the Defense
• Off With His Head!
• Free Speech, Now that Speech is Free

Just yesterday I finished a federal appellate brief to the U.S. Court of Appeals for the Ninth Circuit. GCB Communications, Inc. v. U.S. South Communications, Inc. The case is about an arcane area of telecom regulation — payphone compensation — but presents some serious legal questions regarding the role of federal courts and the authority of regulatory agencies like the FCC. It’s even got a constitutional (due process) question.

So the moral of the story is that little cases (this one involves all of $18,000) can raise big issues. Now, as explained in the brief, the court of appeals will decide whether awarding legal fees of some $80K on a lawsuit in which the plaintiffs won less than $20K is a sensible result under a federal law allowing “reasoanable” attorneys’ fees.

Oh, first the court has to agree that my clients should have lost at trial under the law and the evidence introduced!! (For the non-lawyer audience, that’s because the court could reverse the trial court judgment “on the merits,” in which case the plaintiffs, now “appellees,” lose, and not have to reach the issue of legal fees.)

Here’s my favorite line from the brief:

Lawsuits as economic blackmail should not be rewarded with hugely disproportionate attorneys’ fees, especially when a complaint is used principally for monetary leverage.

What do you think about that?

Related Posts:

• The FCC Goes for the Nuclear Option
• Of Buggy Whips, Telephones and Disruption
• The Meaning Of the Clemens Mistrial

This is an ongoing issue with the American judiciary system. Judges are by institution isolated and by tradition older than the general population. Increasingly, however, they are called upon to rule on technologies with which they have no experience at all.

It does’t look like we’ll be seeing much Tweeting-from-the-bench on the Supreme Court any time soon, but the Hillicon Valley blog highlights an amusing moment at a recent House Judiciary subcommittee meeting, attended by two Supreme Court Justices — Antonin Scalia and Stephen Breyer — in which they’re asked if they plan on using Twitter any time soon. Scalia says he doesn’t even know anything about it, and notes that his wife refers to him as “Mr. Clueless.” Reassuring to know that of a Supreme Court Justice. Breyer, however, seems to indicate a realization that Twitter, as a communication platform, really could be quite powerful.

Subcommittee Chair Steve Cohen: Have either of y’all ever consider tweeting or twitting?

Justice Scalia: I don’t even know what it is. To tell you the truth, I have heard it talked about. But, you know, my wife calls me Mr. Clueless — I don’t know about tweeting.

Justice Breyer: Well, I have no personal experience with that. I don’t even know how it works. But, remember when we had that disturbance in Iran? My son said, ‘Go look at this.’ And oh, my goodness. I mean, there were some Twitters, I called them, there were people there with photographs as it went on. And I sat there for two hours absolutely hypnotized. And I thought, ‘My goodness, this is now, for better or for worse, I think maybe for many respects for better, in that instance certainly, it’s not the same world. It’s instant and people react instantly… and there we are. It’s quite a difference there and it’s not something that’s going to go away.

Posted via web from glenn’s posterous

Related Posts:

• Federal Courts Step Up to Social Media Challenge
• Twitter Digest for 06-09-2013
• Twitter Digest for 06-02-2013

I’m not sure I agree entirely with the political motivations, but the legal analysis here seems right.

If Chairman Genachowski announces, as expected, his intention to reclassify the Internet as a telephone system, he will be reversing 30 years of precedent starting with the Carter administration FCC’s “Computer II” decision and definitively settled with respect to broadband Internet access by the Clinton FCC in 1998. Turning sharply left from Carter and Clinton indicates a pretty extreme shift beyond the mainstream of American politics.

Such a shift is unjustified, because free-market Internet policy has been a tremendous success. The Internet — in the absence of regulation — has flourished into a remarkable engine of economic growth, innovation, competition, and free expression. Such triumph argues in favor of continuing existing successful policies, but with today’s announcement the FCC shows it is more interested in satisfying a left-wing political constituency than continuing sound policy.

Posted via web from glenn’s posterous

Related Posts:

• Politics, Polls and Telephone Poles
• Why Net Neutrality Rules and Broadband “Third Way” Reclassification Are Unnecessary and Unlawful
• Labels Are Important

It’s true.  The left wing of the Decocratic party is afraid the president may actually nominate a moderate or centrist to the Supreme Court.  Horrors! ;-)

Folks, that’s the only kind of people who EVER get to the Supremes!  Liberals are made, not born, on the Court  Earl Warren, William Brennan, John Paul Stevens and William Douglas were hardly died-in-the-wool liberals when they were nominated. They moved steadily to the left as they matured. So give judicial liberalism a chance!!

Posted via email from glenn’s posterous

Related Posts:

• Soft Money and Justice Thomas
• A Court of Technophobes?
• The FCC Goes for the Nuclear Option

Well, it took a little bit of time, but the Administrative Office of the U.S. Courts has issued revised jury instructions, recommended for all federal cases, updated for today’s social media age.  It’s “old wine in new bottles” — i.e., traditional rules adapted to new social networking communications — which illustrates that some things really should not (and do not) change at all where social media are concerned.

Federal Court Officials Issue Guidance on Jury Use of Blackberries, iPhones, Twitter, LinkedIn Etc. [TechLaw].

You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

Related Posts:

• A Court of Technophobes?
• Even Liberals Now Fear Obama
• Social Networking At the Supreme Court

The U.S. Supreme Court, for the first time, took note of social media today, observing that “soon … it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues.”

This landmark event occurred in Citizens United v. FEC, a case overturning the McCain-Feingold 2002 campaign reform legislation which required corporations to fund “electioneering communications” through PACs. Supreme Court Removes Limits on Corporate, Labor Donations to Campaigns [Fox]. So get ready to see explicit corporate-funded movies, TV spots, Twitter campaigns and Facebook fan pages furthering their political views every November.

Whether that is good or bad for American democracy I will leave to readers’ own judgments.

Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. See Part II–C, supra. Today, 30-second television ads may be the most effective way to convey a political message. See McConnell, supra, at 261 (opinion of SCALIA, J.). Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant informa- tion about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.

Related Posts:

• A Court of Technophobes?
• Federal Courts Step Up to Social Media Challenge
• Twitter Digest for 06-09-2013

Speech is indeed effectively free in the age of YouTube.  So that does undermine the scarcity argument traditionally used for the (now-defunct) “fairness doctrine” and the like. But some conservative pundits, like Gordon Crovitz in the Wall Street Journal today, argue this makes political campaign contribution limits both obsolete and unconstitutional.  Why Campaign Political Speech Restrictions on Unions and Corporations Make No Sense [WSJ.com].

The problem is that while speech is free, campaign $$ is not.  Crovitz equates money with political speech, something the Supreme Court did (erroneously in my view) way back in the 1970s in upholding some, but not all, Watergate-era campaign spending and contribution limits.  That does not mean, as he implies, that restricting corporate political contributions is “silly,” because Cravitz’s own analysis shows that it is communication where technology has leveled the playing field, not political campaigns, with all their expensive pre-Web 2.0 trappings like air travel, rally planing and event staging.

In his defense, what Crovitz appears to be saying is that bans on pure corporate political speech, rather than monetary contributions, are problematic:

Whatever the arguments for blocking direct contributions by corporations and unions, McCain-Feingold goes beyond this and directly limits First Amendment speech. The Constitution doesn’t promise “equal” speech, just the freedom to speak.

I agree with that.  But the premise that “direct contributions” are different should be the start, not a footnote, to this debate.

Related Posts:

• The Meaning Of the Clemens Mistrial
• Making Good On Past Mistakes
• Soft Money and Justice Thomas

Last week, a federal district court ruled that mandatory DNA collection for all people facing federal felony charges is constitutional, dealing a setback to civil liberties. U.S. District Judge Gregory G. Hollows upheld the DNA Fingerprint Act, a 2006 statute which allows federal law enforcement agencies to collect DNA from individuals “arrested, facing charges, or convicted” of federal offenses, as well as those “detained” but not charged. Previously, states throughout the country had a variety of different laws on the books regarding DNA collection — with most mandating testing only after a suspect had been convicted of a crime. The Not-So Private Parts [True/Slant].

So the title of this post is slightly (intentionally) misleading, because the DNA collection — stored in a database known as CODIS, short for Combined DNA Index System — is not limited to convicted people and never goes away.  Historically, until 2001 DNA was collected only from inmates who had been convicted of a small number of specified offenses defined in rules promulgated by the Justice Department. Then the USA PATRIOT Act, in Section 503, added three additional categories of qualifying federal offenses for purposes of DNA-sample collection: (1) an offense listed in 18 U.S.C. 2332b(g)(5)(B), for “acts of terrorism transcending national boundaries”; (2) a crime of violence; and (3) an attempt or conspiracy to commit any of the above offenses.

So this little-noticed piece of legislation not only expands infinitely, to any criminal offense, those eligible for DNA collection.  It also expands the DNA database to people who are arrested but never indicted or “charged” but never tried, as well as those who are acquitted! That’s bad enough, in my view, to characterize this law as yet another step toward an Orwellian future for the United States, driven by the knee-jerk reaction to 9/11, led by conservatives such as Sen. John Kyl, well-known for spearheading the so VERY important battle to criminalize Internet gambling by U.S. citizens. Will the government require location-based service providers, cell phone networks and smart-tag toll technologies to hand over and archive location data on subscribers, so the government can track us?  Will Amazon, eBay and other online retailers be forced to allow the government to troll their databases for purchasing patterns?

Maybe folks made the same complaints when fingerprints began to be collected on arrest more than 70 years ago.  But the difference is that DNA has taken on almost mythical status as being indisputable.  As Ethan Ackerman observed when the Act was passed:

Criminal jurors, charged with deciding facts in a trial, tend to be irreversibly swayed by DNA evidence, rightly or wrongly. Call it the “CSI effect,” but DNA evidence creates an irrefutable connection in the minds of most jurors. While this can be a two-edged sword when juries expect forensic evidence prosecutors just don’t have, jury allegiance to DNA evidence tends to harm defendants it is introduced against much more than it exonerates them.

This is a double-whammy.  First the government gets DNA from anyone with even the most cursory involvement with the criminal justice system. Then it can utilize those samples to add a patina of irrefutability to its criminal prosecutions.  Whether or not the CODIS database is extended again (maybe to all infants born in the United States, justified as a way to protect against kidnapping and Amber Alert lost kids?), I believe its application beyond individuals convicted or indicted for terrorism and violent felonies is unnecessary and irresponsible.

As Benjamin Franklin wrote in 1759, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” That’s a good lesson to apply to the DNA Fingerprint Act.

Related Posts:

• The Meaning Of the Clemens Mistrial
• Little Case With Big Issues
• A Court of Technophobes?

Tom O’Toole of BNA TechLaw writes that Supreme Court nominee Sonya Sotamayor is unlikely to have any substantial influence on the Court’s cyberlaw jurisprudence because there basically is none:

The Supreme Court has never reviewed a case involving the Computer Fraud and Abuse Act.

The Supreme Court has never reviewed a case involving the Electronic Communications Privacy Act.

The Supreme Court has never reviewed a case involving Section 230 of the Communications Decency Act (which gives interactive computer services immunity from most claims arising from the publication of third-party content), though it did consider, and strike down, the prohibitions against indecent online speech contained in another part of the CDA in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

The Supreme Court has never reviewed a case involving the CAN-SPAM Act or the Digital Millennium Copyright Act.

The Supreme Court has never reviewed a case involving electronic contracting, jurisdiction arising from online activities, cybersquatting or any other domain name-related dispute.

Aside from Doe v. Chao, a case involving standing to sue the federal government under the Privacy Act, the Supreme Court has never taken a case involving online privacy or security (GLB, COPPA, FTC Act, you name it). If you want to count Bartnicki v. Vopper, go ahead, though I don’t think that obscure decision in any way undermines the point I am trying to make here.

He’s right, but I find that a plus, not a minus. The evolution of this rapidly changing medium really does not need the glacial pace at which the Supreme Court decides issues, and certainly benefits from the pull-and-tug among lower courts to strike the appropriate balances among regulation, civil rights, legislative power, law enforcement and the other technology policy matters affecting the Internet. When the Supreme Court speaks on tech issues — witness the Sony Betamax case from nearly 25 years ago or the Brand X decision from 2005  — it often leaves the law in a more polarized and confused state than before. So IMHO, we don’t need no stinkin’ badges from the Supremes.

Related Posts:

• A Court of Technophobes?
• The FCC Goes for the Nuclear Option
• Even Liberals Now Fear Obama