In September 2008, Aaron Swartz commissioned a friend to walk into a federal law library in Sacramento with a thumb drive. The building was one of 17 in the country with unlimited access to the Public Access to Court Electronic Records (PACER) database, a service that normally chargers users a fee for each page of downloaded federal court records. With the intention of delivering free public records to the public, the friend installed a Perl script written in part by Schwartz on one of the computers and walked out.

Over the course of two weeks, the script pilfered a document from the system every 3 seconds and uploaded it to an Amazon cloud server.  Swartz then donated the documents to Carl Malamud’s non-profit website, public.resource.org, which aimed to liberate all public records from internet paywalls. By the time court administrators saw a $1.5 million spike in access fees on Sept. 29th, Schwartz had already made off with 2.7 million documents. (Source: Timothy Lee, Ars Tecnica)

Exactly one year ago, Aaron Swartz took his life in his Brooklyn apartment. Since then much has been said whether the notoriously harried FBI suspect was indeed a martyr for the cause of internet freedom, or another bright young man plagued by a dark cloud. But what’s not up for debate was his real-world impact on the culture of the internet: his programming contributions to the hugely popular website, Reddit (which, in the interest of full disclosure, I admit to frequenting,) and his showdowns as an activist against JSTOR, which opened up their taxpayer-funded research to the public as a result of his hounding. Swartz was posthumously awarded the Electronic Frontier Foundation’s Pioneer Award and will be honored in an anti-surveillance protest come February called The Day We Fight Back.

However, while Swartz will be lauded for his vigorous protesting of SOPA, and PIPA—censorship legislation proposed by members of congress— his work in the interest of freeing up court records will , as it has in the past, go largely unnoticed. So it is here that I draw attention to RECAP, a Chrome and Firefox extension that has been likened to the Napster of PACER, whereby purchased federal court documents can be uploaded and shared with anyone who chooses to view them. This would not have been possible without Swartz. Or to take another example, the aforementioned public.resource.org that has an enormous collection of free public court records thanks to the 2008 document heist. Notwithstanding these advents, costs of electronic records in the public domain are still shrouded behind unnecessary costs.

Taken from a page of public.resource.org titled “The PACER Problem” is a quote from Swartz’s contemporary Carl Malamud:

We are a nation of laws, but the laws are not publicly available. This is a fundamental issue for democracy, for if we are a nation of laws, we must be able to consult the cases and codes of our government.

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Jimmy Hoover (@jimmyhoover3)

Featured image courtesy of [Daniel J. Sieradski via Wikipedia]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post Remembering Aaron Swartz and His Battle With PACER appeared first on Law Street.

5. Costa Concordia Trial, A Literal Drama

Holding true to the twists and turns of the Costa Concordia shipwreck and its aftermath, a catastrophe that left 32 dead when the massive cruise liner capsized in shallow water off the coast of Italy, the captain’s criminal trial took place in Teatro Moderno, a stage theatre in Grosetto, Italy.  Francesco Schettino was charged with manslaughter for abandoning the ship before the 4,200 passengers had evacuated. This July, family members of the victims, along with witnesses, reporters and lawyers packed into the first rows of the theatre to hear testimony.

[NBC News]

4. Alec Baldwin’s Stalker

Would that God made me a celebrity, I pray to His Grace that it be anybody else but Alec Baldwin. I mean, I’d take Lindsay Lohan over a guy so antagonized by the world, he can’t even give testimony in a court of law before someone jumps in and tries to stoke his notorious temper. Such was the case in November when the “30 Rock” star said in a Manhattan court that Genvieve Sabourin, a small-time Canadian actress, had been stalking him and his fiancee. Sabourin, who claimed she had been a lover of Baldwin’s, repeatedly yelled accusations at him during the proceedings such as, “Wow, you’re lying,” and “I can’t believe your doing that!” Baldwin eventually broke down into tears before the invective of his tormentor. But the classic Jack Donaghy we all know and love was not far from the surface, telling a photographer not shortly after leaving, “I hope you choke to death.”

[Gawker]

3. Chad Ochocinco’s Too-sportsmanlike Conduct

In one of the most poorly thought-out celebrations in recent memory, football star Chad Johnson gave his attorney a gleeful butt-tap after learning of his light sentence for violating his probation. In 2012, Johnson pleaded no contest to a domestic abuse charge of his ex-wife, Evelyn Lozada. Though met by a ripple of giggles throughout the courtroom, judge Kathleen McHugh was far from amused. “Is there something funny about this,” she asked. McHugh reversed her previous community service decision, and sentenced Johnson to 30 days in jail.

[CNN]

2. “Creepy-Ass Cracker:” Racial Epithet or Bizzarre Snackfood?

Rachel Jeantel was the last person to speak to 17-year old Trayvon Martin before he was killed in an altercation with George Zimmerman. In their phone conversation, Martin described Zimmerman, who at the time was following him through a gated Florida neighborhood, as a “creepy-ass cracker”– a fact that came to light while Jeantel was being cross-examined by Defense Attorney Don West. In a pin-drop courtroom, West asked if it was then not Martin who had introduced race as an element in the incident, and not Zimmerman. But all of this quite presumptuously rules out the possibility that Jeantel misinterpreted Martin’s meaning and there was indeed a giant, oddly-shaped Saltine roaming the streets, and Trayvon, a naturally inquisitive young man, was simply commenting on its presence.

[ABC News]

1. Blind Justice

A man who just had his eye punched out in a bar fight was further afflicted when, to the shock and horror of jurors, his new $3,000 blue eye prosthetic spilled out during testimony this February. Whether in jest or just a miscalculation of words, Judge Robert Coleman hit the nail on the head when he called it, “an unfortunate, unforeseen incident.”

[Yahoo! News]

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Jimmy Hoover

Featured image courtesy of [Rvongher via Wikipedia]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post Disorder in the Court! 5 Weird Courtroom Moments From 2013 appeared first on Law Street.

According to the American Bar Association’s latest findings, law school enrollment is down 11%, or 5,000 students from last year. Many bloggers, and legal news outlets have somewhat ironically blamed this on the negative media attention law schools have gotten over the last few years. But that’s selling graduates a bit short. If the potential benefit of a six-figure investment isn’t all that clear, I doubt a blog entry will be the deciding factor. So it begs the question: what is to blame?

In her WSJ blog article on the drop, in which she pointed out that enrollment numbers are now hovering around those from 1977, Jennifer Smith writes in passing, “some lower-level legal tasks that firm associates used to do, such as document review, are now increasingly farmed out to contract attorneys or legal outsourcing companies that can do the work more cheaply”. And though brief, she has touched on one of the major challenges for new members of the J.D. club. In 1977, new lawyers were competing amongst each other for jobs. Now, they’re competing with the rest of the world. And in many offices ranging from Mumbai to Bangalore, the rest of the world is winning.

Legal Process Outsourcing (LPO), as it’s officially been named, has nearly doubled in the past few years, going from a $640 industry in 2010 to worth over a billion dollars in 2012, according to the LPO Program. Experts predict that it will continue to grow as providers set up shop in Latin America and former British colonies with similar English Common Law justice systems. A 2012 report on the industry from Professor Mary Lacity of the University of Missouri and Professor Leslie Willcocks of the London School of Economics argues that because of a fragmented legal industry stateside and many untapped countries as possible LPO providers, “the potential global LPO market is enormous”. “Just considering the US market”, the paper adds, “the legal services industry is worth about $245 billion”.

“the potential global LPO market is enormous”– Legal Process Outsourcing: LPO Provider Landscape

For the most part, the ethics of outsourcing have already been decided. In 2007 and 2008, when LPO first burst on the scene with national media attention, various state bar associations along with the ABA blessed the fledgling industry. But there is still the question of how far it can go?

If you’re thinking that this is another case of overseas contractors doing grunt work, you’re wrong. While some would be happy to skirt the tedium of legal discovery and document review, LPO providers like Pangea3— a recent recipient of the provider-of-the-year-award– assists US firms in everything from corporate contracts to intellectual property agreements, falling just short of performing the actual attorney responsibilities themselves. For a law school graduate looking at one of the most dismal legal markets in recent memory, those jobs aren’t anything to sneeze at.

So what’s a young lawyer to do? Do we lasso the industry through regulations, or let entry level positions go the way of the automobile industry? Or the manufacturing industry? Or the information technology industry? I don’t have the answers to these questions. But in light of the precipitous decline in law students this year, let us not scratch our heads in confusion as we wonder why nobody wants to be a lawyer anymore.

[ABAJournal]

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Featured image courtesy of [Michael Fernandes via Wikipedia]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post While Law School Enrollment Drops, Outsourcing Surges appeared first on Law Street.

In Oct. of 2012, the Supreme Court heard oral argument from the Arkansas Game and Fish Commission on whether the federal government should have to pay for inducing floods into the former’s wildlife area for over seven years. This past week on Dec. 3, the Appeals Court for the Federal Circuit, on remand from the Supreme Court, affirmed a figure of over $5.7 million to be paid to the agency, ending a long drawn-out battle.

A river ran through it.

In 1957, the Arkansas Game and Fish Commission, a state wildlife conservation agency, bought 25,000 acres of land downriver from a government dam, hoping to “preserve bottomland habitat and provide waterfowl hunting”. Each year the tide of the Dave Donaldson Black River Wildlife Management Area would rise as the dam, built by the Army Corps of Engineers in the ‘40’s, released water downstream in an attempt to lengthen harvest times for local farmers.

For over 40 years, the seasonal washes never really did any real damage. The water flowed in, and then it flowed out, leaving the surrounding wildlife intact. But everything changed late in 1993 when the Corps adopted a more aggressive release standard. This time, the floods from the dam reached dangerous heights of six feet. The oaks and various hardwoods– “choked” of oxygen from the stagnant water– began to die. And notwithstanding the outcries of Commission representatives, they kept dying over the next seven years while the floods continued.

Payday

AGFC filed a suit against the government in Federal Claims Court, arguing that the flood damage incurred by the Management Area called for monetary reimbursement in accordance with the Fifth Amendment’s Takings Clause. The Takings Clause, as the name would suggest, originally mandated that in cases where the government requisitioned private property, they would have to reimburse the owner with a fair amount. But over the last century, the Takings Clause has been expanded to include cases where any variety of government actions reduce the market value of a property. Given those broad parameters, judges use ad hoc jurisprudence when assessing Takings Claims. This time with the AGFC was no different. The court awarded them $5.7 million for damages, and  $176,428 for restoration. But it was far from over.

Flip. Flop.

In the Court of Appeals for the Federal Circuit, the decision was reversed, and the AGFC, who had not long before been staring at a pretty good sized check, were left shouting “TIMBER!!!” as their hopes for compensation fell down around them. The Court found that the Takings Clause in this case didn’t hold any water… well, in a figurative sense. They reasoned that only in instances when permanent change had been done unto the property could the Takings Clause be invoked. In cases of flooding, whereby property reverts to its previous state after the water rushes out, is not permanent.

But like fellow Arkansan Bill Clinton post-Monica Lewinsky, there was hope yet for the AGFC. The Supreme Court granted cert mid-2012 and overturned the appeals court’s decision, once again awarding the Commission the money. Here, Supreme Court justices wax philosophical on the nature of the Takings Clause:

JUSTICE BREYER:  The problem with a flood is you don’t take all the land.  You send some stuff in. And the stuff is there for a while, and then it comes back, and — it’s called water.  And so I don’t know what to make of the cases like Kimball Laundry where you actually appropriate the property.  I suspect that they are not quite the same. Anything else? I got Dickinson. I’ve got Kimball Laundry.

JUSTICE SCALIA: We have cases about flying overland—

JUSTICE BREYER: Yes, Causby.

JUSTICE SCALIA: — cases about shooting — shooting overland. Right?

MR. GOODHART: Yes, Your Honor. The Causby case —

JUSTICE SCALIA:  That’s not water, but it ain’t taking, either, in the — in the narrow sense that Justice Breyer has talked about.

This latest decision by the Court of Appeals for the Federal Circuit was one prompted by the government, who wanted a retrial for the purposes of fact finding. Specifically, they disputed everything from causation of the floods to the appraisal of the damages. The court saw no error in the findings of the original court and affirmed the aforementioned recompense.

But what does it all mean?

The implications of this case aren’t lost on the Pacific Legal Foundation, whose work in property rights has made them a critical voice of government land-use. “If government commits a taking, including flooding or occupying someone’s land,” writes Brian Hodges in a PLF blog article,”there is an obligation to pay, period.”

Though the matter at hand has been decided, these are still interesting questions. Is the government to pay even when the action they take serves the benefit of a large group of people? Couldn’t that possibly open up room for a stampede of new litigants who, because of government actions, have had reductions in their property values? And even more pressing: if a stampede of federal claims were to happen, wouldn’t the government be loath to do or build anything at all? Bridges… dams… highways… infrastructure projects…But of course to some, that probably wouldn’t be such a bad thing.

[U.S Court of Appeals for the Federal Circuit]

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Featured image courtesy of [Linda Tanner via Wikipedia]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post When the Government Floods Your Property appeared first on Law Street.

In a letter to a congressional subcommittee on Nov. 21, American Bar Association President (ABA) James Silkenat voiced his support for the Restore Honor to Service Members Act, a bill that would upgrade the statuses of gay and lesbian veterans discharged under Don’t Ask Don’t Tell (DADT.)

Addressing chairman Joe Wilson and ranking member Susan Davis of the Armed Services Committee, Silkenat characterized the bill as comprising “the final steps necessary to bring about an end to the unfortunate remnants of [DADT],” adding, “this legislation is crucial for the thousands of our veterans who are still experiencing the consequences of that policy and its even more oppressive predecessors.

The bill would create new panels to hear cases from veterans who, because of the discriminatory nature of previous laws, were kicked out of the armed forces. It aims not only to honor due federal benefits for those veterans, but also to remove the blemish of their discharge, and the unfair consequences incurred as a result. However, it falls short of providing monetary recompensation for lost wages and other damages.

The ABA has had a long history of supporting gay rights: first, by opposing Don’t Ask Don’t Tell in 1993 when it was enacted, and later in 2010, when the organization came out in support of gay marriage. Silkenat says that, in this case, because of the “sensitive special status of the armed forces” and ABA’s relationship with the Department of Defense, he was compelled to make his stance known.

Despite its 138 cosponsors, the bill has a very slim chance of making it out of the notoriously rigid Armed Services Committee. Compounding its grim odds is the fact that, of those 138 cosponsors, only one is Republican. In the Republican-controlled House, that alone is a death sentence.

It need not be said that blatant injustices like the ones targeted in the new bill should stoke a rallying cry in the legal community. If the politicians on the Hill can’t scrub the ugly anachronism of homophobia from our society then, in the spirit of Thurgood Marshall, it seems the only thing left to do is to go “through the courts.” So, channeling my inner Stephen Colbert, I give a tip of the hat to you Mr. Silkenat, and a wag of the finger to you, House Republicans.

[ABA Journal]

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Featured image courtesy of [DVIDSHUB/Sgt. Randall Clinton via Flickr]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post ABA Lends Support to House Bill Honoring Gay Vets appeared first on Law Street.

Picture a drug-dealing teenager in your head. Maybe he’s white. Maybe he’s black. Maybe he’s hispanic or asian. But if the image you’ve conjured looks anything like those portrayed in the media, three things remain the same; he’s a man, his clothes are baggy, and you can probably find him in a back alley somewhere, slapping hands with junkies for cash.

But in a study featured in the Sept. issue of the Journal of Criminal Justice, social work researchers have found that the old corner store cliché of adolescent drug-sellers no longer suffices. Authors Jeffrey Shook, Michael Vaughn, and Christopher Salas-Wright argue that there are three different classes of adolescent drug dealers: dabblers, delinquents, and externalizers.

Dabblers, Delinquents, and Externalizers

According to the study, dabblers rarely use illicit substances themselves, and participate in violent or risky behavior even less. But in comparison with the general population, dabblers still show signs of elevated, marijuana, tobacco, and alcohol use. Of this class, 62% said that they have sold drugs only one or two times in the last year.

A new study shows three classes of teen dealers, all of which share elevated levels of marijuana, alcohol, and tobacco use. Courtesy of Torben Hansen via Flickr.

Delinquents, however, participate in violent behavior more often than dabblers. “Members of the delinquent class” reads the study, “were significantly more likely to reside in households earning less that $20,000 or between $20,000 and $49,000 per year.” But among this class, teenagers were not likely to use illicit drugs like crack/ cocaine, or other hallucinogens.

Finally, the group the authors deemed the “externalizers” engaged in risky and violent behavior the most. Externalizers often come from broken homes, and households where parents do not condemn the use of illegal substances. Externalizers often times belong to peer groups where drug use is the norm.

The study, called “Exploring the Variation in Drug Selling Among Adolescents in the United States,” uses data from the  National Survey on Drug Use and Health (NSDUH.) The researchers panned through a pool of 12 to 17 year-olds from across the country to find 3,080 adolescents who reported to have sold drugs in the last 12 months. They then ran analysis on participants for attributes ranging from grades in school to propensity toward risk.

One of the authors, Jeffrey Shook PhD, is an associate professor of social work at the University of Pittsburgh who holds a doctorate in sociology from the University of Michigan. He first began to look at youth drug dealing  while writing his dissertation on how court systems process juvenile delinquents. Shook says he began to see trends between selling drugs, and using them.

“The more that I got into it, the more that I looked at some of these links, particularly the link between use and dealing. A lot of the ethnographies that we get, a lot of them focus on urban drug dealing which doesn’t show as strong of a link [between use and dealing] as I think that we’re finding.”

Interventions, New Approaches

In the past, scholars have delved into the differences between drug-dealing youth and the general youth population; but never before has such a study been performed with the guise of comparing drug dealers to other drug dealers. This, the researchers say, will “help reveal key differences in the characteristics and behaviors of these young people and aid in the development of interventions that better reflect the nuances of drug dealers and drug markets.”

One possible intervention, Shook says, could be community based treatment. Rather than the current system, which he believes has a woefully misguided focus on “a more punitive response,” weeding out drug use at the grassroots level could have substantial results.

But he admits that adolescent drug dealing is an area that needs more research before any solid claims can be made on how to bring about wholesale change in the system.

“Each [study] tells you a little part of the story. You have to keep doing them and putting together the picture. I think there’s a lot more work to be done,” Shook said.

[Journal of Criminal Justice]

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Featured image courtesy of [Justin Scott Campbell via Flickr]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post 3 Kinds of Teen Drug Dealers, Study Says appeared first on Law Street.

The 10^th U.S. Circuit Court of Appeals denied a petition of habeas corpus last Wednesday to Oklahoma death row inmate, Benjamin Cole—saying that the circumstances of his trial were fair and perfectly constitutional.

48-year-old Cole was convicted of first-degree murder after a 2002 incident in which he inflicted a fatal injury to his infant daughter while trying to get her to stop crying. Nine-month-old Brianna was lying on her stomach when her father lifted her ankles up over her head—a move so unnatural it broke her spine in half and shredded her aorta, according to the subsequent autopsy report. As she lay dead on the floor, Cole returned to his video games until his wife walked into the room.

During the 2003-04 trial, Cole denounced his government-appointed defense counsel for not sharing his conviction in the Christian faith. Court documents described him as staring blankly at the Bible while the proceedings took place. Cole then made a request for a new team of Pentecostal lawyers to represent him, but the request was denied. That denial formed the bulk of his recent habeas corpus petition where he claims that it violated his 6th, 8th, and 14th Amendment rights.

In his petition, Cole argued that the Supreme Court case, U.S v. Cronic, set precedent for what he called a “breakdown of communication” between him and his lawyers. In the Cronic case, the defendant accused of mail-fraud was sentenced to 25 years in prison after his newly assigned lawyer failed to present a defense equal to that of the prosecution’s 4-year preparation. But in the case of Benjamin Cole, both the presiding district court, and most recently, the 10^th Circuit Court of Appeals have decided that Cole’s born-again trial behavior was of his own doing and, as a result, didn’t incur the same constitutional blunder as U.S v. Cronic.

The final opinion reads, “Having reviewed all of the state court records in this case, we conclude that, notwithstanding the constitutional errors alleged by Cole in these federal habeas proceedings, Cole received a fundamentally fair trial. In other words, even aggregating the constitutional errors alleged by Cole, we conclude that those errors did not have a substantial and injurious effect or influence on either the jury’s determination of Cole’s guilt or its decision to sentence Cole to death.”

There are 32 states that still use the death penalty.  According to the Death Penalty Information Center, the number of inmates on death row in 1970 versus today has gone from 631 to 3,108. Cole’s more-than-decade-long saga of appeals is a familiar tale in the United States, whereupon sentencing, death row inmates wait an average of nearly 200 months before execution. Even the Supreme Court has characterized these long periods of time waiting to be killed as causing “immense mental anxiety amounting to a great increase in the offender’s punishment (Foster v. Florida, 2002).”

In an exhaustive cycle of ineffective legal assistance petitions to prosecutorial misconduct claims, the state wastes hundreds of thousands of dollars in court costs when a sentence of death is handed down. While Cole’s actions were horrific and unspeakable to the moral human being, by sentencing him to death, the court sentenced the taxpayers to the gallows of a slow and painful financial burden. So, if not for reasons humane or anti-hypocritical (like, you know, not murdering murderers,) then in the Cole case one can find a monetary incentive in avoiding the death penalty.

[Tenth Circuit Blog]

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Featured image courtesy of [Theodore Scott via Flickr]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post Petition Denied to Death Row Inmate Convicted of Killing Daughter appeared first on Law Street.

It’s been a week since the last Lavabit court documents were filed and here I am, still trying to make sense of the whole charade. When I first heard of the case, I wondered how it is possible that law enforcement agents can rummage around unchecked, even when their investigations bring them past the proverbial doorsteps of regular people.

Such was the case this past June when the FBI demanded the “master keys” to secure-email provider Lavabit’s servers. The order was part of an investigation into the Internet correspondence of Edward Snowden: one of Lavabit’s customers.

“But wait,” you say, “doesn’t a ‘master key’ mean that they could then monitor data on all of Lavabit’s customers? Even the ones that hadn’t done anything wrong?” To which I respond, “Elementary, dear Watson.”

So in light of this fact, the obvious question is then: does secure email even exist?

End-to-end security: the key is having more than one.

In a conversation with Johns Hopkins University cryptography professor Matthew Green, Green said that the answer is yes. It does exist. But according to him, the name of the game is “end-to-end” security. In short, end-to-end security is a type of program where data is encrypted locally on a user’s device before it’s sent through the server to a recipient. The recipient then uses his or her own password to decrypt the message. This bars even the provider from being able to untangle the data in a way that’s readable.

Green, who has written about the subject in The New Yorker, says that the way the company’s servers revolved around SSL decryption, or essentially one set of master keys, was “the real problem with Lavabit.”

“The mail that came in was not encrypted using your password,” he said. “It was encrypted using SSL. And so anyone who got that SSL could be able to read all the data. And so it wasn’t a very good design from that perspective.”

But end-to-end security is not exactly a perfect science either. More geared toward text messaging and phone communications, there are only a few programs that use end-to end security technology with email. They usually come in the form of add-ons such as Pretty Good Privacy or Privacy Guard, where senders and recipients must use the same service.

However, Green says that at encryption software company Silent Circle, programmers are working to change that. In late Oct., the company announced that, with the help of Lavabit founder Ladar Levison, they would develop a new product called Dark Mail that integrates end-to-end protection with their email service.

Wait on technology. Not on Washington.

In a blizzard of political headway that some are now calling “the Snowden effect,” many lawmakers have announced their efforts to rally behind surveillance reform. One such effort is the USA FREEDOM ACT, a bill that has, since its introduction in late Oct., picked up 102 cosponsors from both parties. The bill calls for heightened regulation on surveillance activities, such as pen/trap procedures like the one that spelled doom for Lavabit’s a few months ago.

But Green says that it’s not enough, “forget about the government. Just imagine that the only people after you are criminals. You’re not going to be able to rely on laws to protect you from that kind of person.”

Furthermore, where the bill now sits in a congressional committee might just be its final resting place.

“I would love to see some kind of legal solution to all of this surveillance but I’m not sure that we [will] get something that we can really rely on. Ways that you can protect yourself and add privacy is to do it yourself and to do it through technology rather than hoping that the laws are going to be changed.”

However, that’s not to say that Green opposes the bill.

“I haven’t really looked at the legislation… but it sounds like a good idea,” he said.

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Featured image courtesy of [twitter.com/mattwi1s0n via Flickr]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post Secure Email, a Myth? appeared first on Law Street.

In a highly anticipated statement, the United States Department of Justice (DOJ) pilloried claims by secure email provider, Lavabit LLC, that the FBI violated the law when it ordered the surveillance tool known as a pen/trap device to be placed on the latter’s servers.

Lavabit came under pressure in July of this year to hand over the keys to their security system after the FBI began investigating one of their customers; that customer was Edward Snowden.

When Lavabit refused, claiming that to do so would enable government agents to monitor the communication “metadata” of not just Snowden but all of their customers, the presiding District Court of Eastern Virginia served the company with a court order once again requiring the company to furnish the keys.

The company’s Texas-based founder, Ladar Levison, moved to quash the order. The court denied that motion.

From there, Levison only began to lose more footing. On Aug. 2nd, he finally delivered the keys to the FBI– the only problem being that the paper’s 4-point font rendered them illegible.

Levison was charged with civil contempt days later. The sanctions for the charge were $5,000 for each day he failed to deliver them. Then, in a move that garnered much media attention, Levison disobeyed a court gag-order and shut down his business. The message on the homepage url that is still live reads, “I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit.”

On Oct. 10th, he filed an appeal brief with the Fourth Circuit Court of Appeals of the United States. The justice department’s latest brief is a reply to that appeal. In the brief,  they state that an electronic business, like other businesses, cannot defy lawful warrants by simply “locking its front gate.” Moreover, “marketing a business as “secure” does not give one license to ignore a district court of the United States.”

But if the Appeals Court should feel otherwise, the DOJ hedged their bets. Because Lavabit did not move to quash the initial grand jury subpoena, but only the court warrant. They argued that Lavabit has forfeited any arguments to contest the contempt charge.

In light of the global surveillance disclosures of 2013, the case mirrors what many today feel is a battle between privacy and the far reaches of the government.

The court has not yet set a date for oral argument.

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Featured image courtesy of [Gage Skidmore via Flickr]

Featured Image Courtesy of [Flickr]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

The post DOJ to Lavabit’s Levison: ‘Too Bad, So Sad’ appeared first on Law Street.

Let’s assume that you, our beloved reader, are of a common variety these days—you’re in the market for a new job. You’ve followed the posts of some of my colleagues at Law Street who have written extensively about The Search, and now you’re faced with a most enticing proposition, say… an interview! And more enticing still is the letter of intent now sitting on your table after having passed that interview (with flying colors, no less). You quickly sign your LOI and all the other forms handed to you as part of the initiation process. But, in your haste to ascend into the promised land of full-time employment, you’ve accidentally just ceded one of your constitutional rights. At least, that’s what say the opponents of E-Verify, the online protocol used by employers to determine worker eligibility.

Originally created for federal employers under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, there are now 5 states that have mandated the use of E-Verify across both public and private sectors. They are Alabama, Arizona, Mississippi, South Carolina and Utah. In addition to information on I-9 forms, the system also asks for an applicant’s social security number and photo ID. The information is then run through a Department of Homeland Security database to make sure it checks out.

Like most states, Arizona legislators implemented mandatory E-Verify as part of an effort to curb illegal immigrants in the work place. But their efforts did not go unchallenged. Shortly thereafter, myriad plaintiffs across the business and civil rights sectors sued the state officials responsible for Legal Arizona Workers Act, alleging that the law should be preempted by the federal Immigration Reform and Control Act (IRCA) of 1986, and, as a result, null. The case eventually made its way up to the Supreme Court in 2011 in The Chamber of Commerce of The United States of America vs Whiting. However, in a 5-3 decision, the Court upheld the decision of the lower courts. They affirmed that, in this case, the Supremacy Clause did not apply. According to the court opinion, states are allowed to mandate the use of the electronic verification system as they see fit.

But as Congress duels over how to reform our national immigration system, the role of government enforcement in the workplace has once again come under review. The most successful piece of legislation thus far, the Border Security and Responsibility Act of 2013, now awaits House approval. If it becomes law (an unlikely feat given current political clout), it would bump from 5 to 50, the number of states that currently use the system.

Jim Harper, writing in response to a New York Times op-ed for the CATO institute, calls the questions raised by opponents of E-verify, “the natural consequence of dragooning the productive into enforcing maladjusted laws against free movement of people from a particular ethnic category to where their labor is most productive.”

Harper has come out against the program in the past; he famously referred to it as “Frank Kafka’s solution to illegal immigration.” Mind you, long before the 2013 global surveillance disclosures, Harper said that the expansion of the system “would cause law-abiding American citizens to lose more of their privacy as government records about them grew and were converted to untold new purposes.”

Furthermore, some say that instituting mandatory electronic verification would eschew the presumption of innocence which is so fundamental to 5th, 6th, and 14th amendments. By asking all prospective employees, who are mostly US citizens, to provide evidence to the effect that they are not guilty of illegal immigration is to incriminate a swath of people never before accused of wrongdoing.

If we are to allow DHS security checks in the workplace, where will it stop? And perhaps more alarming: where will it lead? The supermarket? The movies? Your home?

But alas, to the newly employed, and, more importantly, eligible US worker, these concerns are irrelevant. So congratulations on the new job! But don’t forget, next week are mandatory drug tests… hope you don’t mind.

[Oyez]

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Featured image courtesy of [Bram Cymet via Flickr]

Jimmy Hoover

Jimmy Hoover is a graduate of the University of Maryland College Park and formerly an intern at Law Street Media. Contact Jimmy at staff@LawStreetMedia.com.

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