A 20-year-old Idaho murder case is currently stirring up concerns about police use of private genetic databases and the limitations of controversial familial DNA searches. The controversy is coming to light after a man named Michael Usry was accused of murder after police linked him to DNA found at the crime scene. The catch was that the officers got their lead from the world’s largest and most popular for-profit genealogical website.

According to the New Orleans Advocate, gory New Orleans filmmaker Michael Usry became implicated in the gruesome rape and murder of an Idaho woman named Angie Dodge after a genome database owned by Ancestry.com released private DNA information to the Idaho Falls Police Department. The information indicated that Usry’s DNA could be a match to semen found on Dodge’s corpse.

On June 13, 1996, 18-year-old Dodge was found stabbed in her Idaho Falls apartment. The violent nature of the crime and desecration of Dodge’s body led the Idaho Falls Police Department to believe that it was a crime of passion and that she knew her attacker. An investigation and confession led police to charge a man named Christopher Tapp for the murder, but his conviction has has been widely criticized and there have been claims that he was wrongly convicted.

That’s where Usry comes in. Decades later police were still concerned that they were never able to match Tapp’s DNA to the semen found on Dodge’s stomach. Last year investigators turned to the controversial technique of familial DNA testing, which involves identifying potential suspects by analyzing the DNA’s Y chromosome and trying to find a family member of the perpetrator. According to the Advocate,

A promising “partial match” emerged between the semen sample and the genetic profile of Usry’s father, Michael Usry Sr. — a finding that excluded the father but strongly suggested one of his relatives had a hand in the young woman’s murder.

The Sorenson Molecular Genealogy Foundation, a nonprofit purchased by Ancestry.com, had the elder Usry’s DNA samples from years ago when he submitted them through a project sponsored by the Mormon Church. What’s concerning is that according to the Electronic Frontier Foundation, the DNA samples collected by the nonprofit were only meant to be accessed and analyzed by the “principal investigator and the others specifically authorized by the Principal Investigator, including the SMGF research staff.” Despite this, the company shared the samples with the police without a warrant or court order.

This DNA sample obtained by the police reportedly partially matched  Usry Sr., but it also partially matched with 41 other samples in the database. However, police followed the lead from Usry Sr.’s DNA. Despite police being sure they’d finally found Dodge’s real killer, when they eventually compared Usry Jr.’s DNA to the sample from the crime scene, they discovered that he was not a match.

The reason why this man’s case is so important is because police use of private DNA databases without authorization from the courts threatens all Americans’ privacy and civil liberties. The people who submitted their DNA to this company did so under the guise that their information would be protected, but this controversy is proof that that was simply not the case.

This case also adds further scrutiny to the controversial method of familial testing. Fans of familial testing see it as a way to crack unsolvable cases, but the potential discrepancies and large pools of related DNA hardly make it a perfect science. Just a few weeks ago the FBI found itself in similar deep water after it was uncovered that its experts gave flawed forensic testimony in many trials in recent decades. That revelation scrutinized the accuracy of microscopic hair analysis, also said to be an imperfect science.

These cases make it clear that the forensic world could use more advancements to generate greater certainty when it comes to DNA analysis. It also makes you wonder how many innocent people weren’t as lucky as Usry and are behind bars because of less than perfect DNA matches.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Idaho Murder Case Raises Concerns Over Crime-Solving Technique appeared first on Law Street.

You may think that technological advances ensure a more secure future but think again, as technology evolves, ability to organize cyber attacks evolves in tandem.

This is most notably seen in the Visa & Mastercard Heist  in which people hacked both Visa and Mastercard, stealing 45 million dollars remotely in only hours.This cyber attacked happened around the world, all by the hands of computer criminals manipulating financial information. In turn, this information was used to loot the automated teller machines in major cities such as New York.

But as horrible as this may be, technology offers the ability to ensure security and privacy (If only phone providers could get behind the idea).

It may have not happened to you personally, but over the fiscal year of 2012, over 1.6 million smart phones were stolen. 

District attorney, George Gascón of San Francisco wants to fix this. In fact, phone manufacturers want to solve this problem as well. Unfortunately, cellular providers do not.

Gascón hopes to fix this rampant problem by implementing a kill switch into smart phones. This would be accomplished through a “kill switch” that would terminate smart phones if they were reported as stolen. Gascón is suspicious of the wireless carriers’ motives for rejecting the kill switch, claiming “there were email conversations between Samsung and the kill-switch developer, saying that the carriers were concerned about losing business”.

 Currently, many smart phones enable the option to wipe the memory of the phone if a perpetrator attempts to enter the phone. Unfortunately, without the backing of major cellular providers, these phones are still operable.This brings up the question—should cellular providers offer the option of a kill switch.

Yeah, why not? As technology becomes more penetrable, counter tactics must be implemented to secure the consumers regardless of economic motive. This leads to the follow up question—why don’t cellular companies implement the kill switch?

Although, there has not been an official reason, its pretty obvious why– its a terminate button. What business model would intentional provide consumers an option to terminate their service?  Providers say they will look into it but I wouldn’t get too excited. Either way, I wouldn’t expect a kill switch unless you work for the NSA.

In fact, the kill switch option may generate more revenue for some companies who take the initial step.

Bottom line, as privacy becomes persistently limited, cellular providers eventually should change their policies to appease the consumers.

[Huffingtonpost] [NY Times]

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Featured image courtesy of [Stahlkocher via Wikipedia]

Zachary Schneider

Zach Schneider is a student at American University and formerly an intern at Law Street Media. Contact Zach at staff@LawStreetMedia.com.

The post Don’t Kill the “Kill Switch” appeared first on Law Street.

My most recent assignment at my current think-tank internship was to write a report on the 2008 book,The Execution of Willie Francis: Race, Murder, and the Search for Justice in the American South. In it, journalist Gilbert King told the story of Willie Francis, an African-American teenager who was convicted of the murder of a Caucasian man in the small Louisiana town of St. Martinville and survived a botched execution attempt in 1946. The book recounts the dark history of race relations in southern Louisiana, the murky circumstances surrounding the murder of popular local pharmacist Andrew Thomas, and the gross travesty of justice that was Willie Francis’ trial (particularly his lawyers’ refusal to provide him with any real defense). After Francis was scheduled for a second date with the electric chair, an idealistic local Cajun lawyer and a crusading Creole civil rights attorney intervened to try to save him. In the end, the Supreme Court affirmed his sentence, and the boy was finally put to death in 1947.

Frankly—and sadly—I found the most sensationally sordid aspects of the Willie Francis tragedy, namely the ugly racism and nauseatingly biased criminal justice system of mid-twentieth century America, to be old time religion. As an African descendant myself, I’ve been spurred by both upbringing and personal interest to familiarize myself with Black history in the United States and worldwide. Nothing about Francis’ treatment at the hands of the courts surprised me. As a student of the law, however, I was most struck by the middle section of the book, which detailed the backgrounds and deliberations of the Supreme Court Justices who ultimately put Willie Francis back on the path to his demise. What really seized my attention was the lamentable fact that when Willie’s case—Louisiana ex rel. Francis v. Resweber—reached the Court, the nation’s highest tribunal had not yet seen fit to “incorporate” the fundamental constitutional freedoms entrenched in the Bill of Rights against state and governments.

The law graduates among you will remember “incorporation” as the process by which courts have ruled that portions of the Bill of Rights constrain the states as well as the federal government. If this development has been a “process” rather than an obvious tenet of American constitutional law from the beginning, it is because the Framers drafted the Constitution with a view to limiting the power of the federal government, not the states. (Mind you, the Framers didn’t make this especially clear in the text of the Bill of Rights. Of all the pre-Civil War individual-rights Amendments, only the First explicitly targets Congress.) Yet the bloodshed of the Civil War and the intransigence of the former Confederate states in resisting equality for the freed slaves revealed the need for limits to the state governments’ powers as well.

One might think that the Fourteenth Amendment’s ringing declaration that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” would have addressed this problem adequately. Alas, one would be mistaken. The Supreme Court’s 1873 decision in the Slaughterhouse Cases held that the above-mentioned Privileges or Immunities Clause of the Fourteenth Amendment applied only to the rights of U.S. citizenship and not of citizenship in particular states. This effectively foreclosed the use of the Clause to prevent state and local governments from riding roughshod over fundamental individual constitutional rights, right up to the present day. (Notably, Justice Hugo Black argued in 1947’s Adamson v. California that since the Slaughtehouse Cases addressed the unenumerated right to economic liberty, the cause of incorporating textually enumerated rights through the P-or-I Clause actually could have survived Slaughterhouse.) Although, as Yale law professor Akhil Reed Amar has written, “Virtually no serious modern scholar—left, right, and center—thinks that [Slaughter-House] is a plausible reading of the [Fourteenth] Amendment,” the Supreme Court has never mustered the gumption to overturn this misbegotten precedent.

Some may dismiss this nicety as negligible, especially since the Supreme Court did eventually get around to incorporating most of the Bill of Rights through other, due process-based means. The story of Willie Francis suggests otherwise. As author Gilbert King writes, “Not once, not twice, but many times, the U.S. Supreme Court had held that the Bill of Rights did not apply to states. Thus, most of the rights in the first ten amendments to the Constitution, rights citizens decades later would take for granted, simply did not exist for litigants in a case originating at the state level—cases like Willlie’s. In other words, one’s right not to be tried twice for the same crime, for instance, could only be invoked if one was being tried in a federal court.”

So when Willie Francis’ lawyers prepared to argue his case before the Supreme Court, they had to face the daunting prospect of urging the Court to reconsider and overturn its previous rulings—rarely a promising strategy. The legal deck, then, was heavily stacked against the hapless youth from the beginning. Had the Court not stood the Fourteenth Amendment on its head a mere five years after its ratification—even in the face of statements from Congressman John Bingham, its principal framer, to the effect that it did incorporate the first eight Amendments to the states—Willie might have stood a real chance. Yet thanks to the obstinacy of the Slaughterhouse Court and the cravenness of succeeding generations of Justices, Willie Francis and countless others like him were subjected to grotesque miscarriages of due process—and suffered the ultimate injustice as a result.

When I was still but a lowly law student, I diligently read the online evaluation feedback for every course I contemplated taking before enrolling in it. I remember reading one evaluation from a student who opined that all constitutional law courses should be elective. The Execution of Willie Francis has reminded me why I have always held such attitudes in the utmost contempt—and why I carry a pocket copy of the U.S. Constitution with me in my bag daily. No matter what field of legal practice one wishes to take up, constitutional issues—including seemingly arcane matters of constitutional interpretation—affect all of us as citizens of a democratic society. It’s not only a matter of right and wrong, or of justice and injustice; sometimes it’s a matter of life and death.

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Featured image courtesy of [Nesnad via Wikipedia]

Akil Alleyne

Akil Alleyne, a native of Montreal, is a graduate of Princeton University and the Benjamin N. Cardozo School of Law. His major areas of study are constitutional and international law, with focus on federalism, foreign policy, separation of powers and property rights. Akil is also a member of Young Voices Advocates, which connects students and young professionals with media outlets worldwide to facilitate youth participation in political and social discourse. Contact Akil at Staff@LawStreetMedia.com

The post Why Constitutional Interpretation Matters 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.

SPECIAL REPORT from The F Word! PEN America liked me so much on Tuesday that they invited me to cover another event last night. So all you Law Street readers get to listen to the melodious sound of my voice an extra time this week. Lucky you.

Anyway! Together with independent researchers at the FDR Group, PEN published a report this week titled Chilling Effects, which found that writers in the U.S. are self-censoring in response to reports of widespread NSA surveillance. Thanks for scaring the crap out of all of us, Edward Snowden!

According to the report, 85% of surveyed writers are actively worrying about government surveillance, and are watching what they say as a result. Twenty-eight percent have reigned in or eliminated their use of social media, 24% have purposely avoided discussing certain topics via phone or email, and 16% have avoided writing or speaking about sensitive subjects. PEN writers report taking surveillance for granted—they simply assume they’re being monitored—and they’re choosing their words wisely so as to avoid harm.

Thanks PEN America!

Folks, this is what censorship looks like.

And it’s real. As a follow-up to Chilling Effects’ publication, PEN hosted a panel discussion last night in conjunction with the ACLU and the Fordham University School of Law. It was, to put it mildly, chilling.

The panel consisted of four men, all of whom had varying levels of expertise on the NSA and government surveillance. They each addressed the audience with separate, 15-minute presentations. If you want to hear them speak for themselves, you can view the live feed here.

Join us live! http://t.co/6fuvleyjLc #WTHarm pic.twitter.com/ATjoqF3uhg

— PENamerican (@PENamerican) November 15, 2013

But really, who needs to watch an hour and a half video when you’ve got me to recap it for you?

The panelists gave us an incredible look into the world of surveillance, from a historical overview of the NSA’s beginnings, right down to their personal experiences with harassment and persecution. According to James Bamford—the only guy who wore a business suit—the NSA got its start in a Manhattan townhouse back in the 1920s. As a top-secret government agency created to assist the World War I effort, this pre-NSA got a copy of every telegram that went in or out of the country.

That’s a lot of paper.

Fast forward to present day and the NSA isn’t just courting the phone or telegram companies—they’ve got software providers in their back pocket. Not to mention, the technological realities of cloud computing and social media mean the NSA doesn’t really have to ask. As fellow panelist and tech-guru Bruce Schneier remarked last night, “We are all leaving digital footprints throughout our lives,” and they’re anyone’s to follow.

Bruce Schneier – aging hippie extraordinaire. Courtesy of Terry Robinson via Flickr.

So what really happens when the NSA follows our tracks? Ariel Dorfman, a Chilean-American playwright and novelist, knows firsthand—he lived in Chile during Augusto Pinochet’s dictatorship. Dorfman went into exile abroad shortly after Pinochet took office, but was allowed to return in 1983, before the regime’s fall. His poignant description of the Chile he came back to illustrated the fears he had for the future of the U.S.

“People had learned to suspect everyone and everything,” he said, describing friends who had once been open and outspoken as having transformed into guarded strangers. “Chile had become synonymous with silence.”

Indeed, when Dorfman had to dictate a dissenting op-ed over the phone, he was plagued with fear. He described experiencing a panic attack, worrying that the Chilean secret police would arrest and harm his family after eavesdropping on his conversation.

Ariel Dorfman — total bad ass. Courtesy of Robin Kirk via Flickr.

Thankfully, those fears never came true, but American journalist Glenn Greenwald hasn’t been so lucky.  Greenwald is the (in)famous reporter who broke the Edward Snowden leaks, and he spoke on the panel via Skype—an irony he made note of, as the video-calling software is owned by Microsoft, one of the NSA’s most loyal information suppliers.

But there were no other options. A resident of Rio de Janeiro, Greenwald can’t return to the U.S. for fear of being arrested for his NSA coverage. In fact, he’s not travelling at all—and for good reason. This past August, Greenwald’s partner, David Miranda, was detained for nine hours by officials at Heathrow Airport in London. They ultimately let him go, but confiscated his electronics first, claiming to be concerned that he was involved in terrorism and espionage.

Essentially, Greenwald and Dorfman are living proof of the fact that government surveillance is scary as shit. And that’s not just because of dystopian what-if scenarios, where all of us paranoiacs predict a turn towards the terror of Pinochet’s Chile.

It’s because, as Greenwald put it, if you want to challenge the powers that be, “the ability to communicate in private is an absolute prerequisite of that.” Without it, we’re incapable of engaging in dissent.

“The minute you know you’re being watched, the less free you become,” Greenwald said.

He’s right, and the crowd agreed. One audience member, J.L. White, stood up to suggest that we seriously consider impeaching President Obama. And after exacerbating the war in Afghanistan, using drones to kill American citizens, and pumping up the NSA’s surveillance efforts, no one in the room disagreed with her.

“What Bush did, Obama put on steroids,” said Bamford, validating White’s point.

But it’s not a hopeless situation. Dorfman expressed optimism, even as he sees alarming parallels between the Obama administration and Pinochet’s.

“They’re going to screw it up,” he said, reminding us that despite all of the surveillance, the government has still been wrong about important events. No one saw the Arab Spring coming, or the Boston Marathon bombing. At the end of the day, our wardens are laughably incompetent.

And while they blunder about, trying to consolidate all the minutiae of our digital lives into something useful, there are tons of people fighting back.

Ben Doernberg is one of them. Another Brooklyn resident, Ben quit his full-time job to organize for Restore the Fourth, a national coalition of grassroots activists agitating against government surveillance. I approached him after the panel, as he stood near the exit, recruiting people to join him in the good fight.

“I just want people to not fall into the trap of just learning more is all you have to do,” he said of the night’s event. “You have to actually do something.”

Will we? It’s hard to tell. With writers self-censoring, journalists and whistleblowers living in exile, and civilians cowering under the fear of terrorism, it’s easy to see how the surveillance state could continue growing.

But Ariel Dorfman, always looking on the bright side, sees hope.

“Fear is contagious, but so is courage,” he said, urging everyone in the room to take a stand.

So what will you do? Tell us in the comments! (Just remember, the government’s watching.)

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Featured image courtesy of [Truthout.org via Flickr]

Hannah R. Winsten

Hannah R. Winsten is a freelance copywriter, marketing consultant, and blogger living in New York’s sixth borough. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow. Contact Hannah at staff@LawStreetMedia.com.

The post YOU’RE BEING WATCHED RIGHT NOW: Here’s What To Do About It appeared first on Law Street.

Disclaimer: I am a very vocal advocate of stricter regulation of gun laws.  That does not mean that I do not respect the 2nd amendment (“right to bear arms”).  I absolutely do, and I respect the original point of view of the framers of the Constitution.  So does Justice Scalia; it’s called being an originalist.  Now can we acknowledge that times have changed since the drafting of the Constitution?  That public safety should override, or at least be more strongly considered, in federal, state, and local legislative actions?  That sometimes there is a limit to how far a law can reach?

The backstory is simple: According to the Des Moines register, Iowa now grants permits to obtain guns to legally blind people.

Their reasoning is simple: it is legal and constitutional, pursuant to both the Gun Control Act of 1968 and the Americans with Disabilities Act.

The Gun Control Act of 1968 endeavors to regulate, and has for years regulated, who is able to obtain a license to carry a gun and the rules surrounding the ability to obtain a gun license.  The law provides that there are certain classes of people who are ineligible to be licensed gun owner.  These people include, but are not limited to, the following: criminals, a non-citizen of the United states; potentially dangerous people against whom restraining orders have been issued, and abusers of illegal substances or alcohol.  Not listed in this group of people banned from owning a gun license?  Blind people.

The Americans with Disabilities Act of 1990 seeks to protect those who for any reason may face unlawful discrimination due to a disability.  These disabilities include physical and mental disabilities like blindness, deafness, those in wheelchairs, and those with developmental issues.

Both of these federal laws serve important and necessary purposes for the protection of public safety and civil liberties.  The difficulty with this particular legal and legislative issue is the cross-section of the laws and their purposes.

In allowing the legally and completely blind to obtain gun licenses, Iowa is taking an important stand in the advancement of the ADA and the protection of the civil liberties of its citizens.

That being said, our nation has, in the last few years had significant problems with gun control, gun access, and disabilities (specifically mental health).  We’ve been down this slippery slope before.  Is anything catastrophically dangerous likely to happen if a legally blind person is carrying a gun they are legally licensed to have?  Probably not.  But what if a blind woman is in her home with her two children one night and an intruder enters?  What if the woman grabs her firearm and shoots in the direction of the perceived intruder, but instead fatally wounds her child?  Why are we not considering the repercussions of this law?  There needs to be more debate on this, and more possible scenarios considered, before the full enactment of the law.

[Des Moines Register, CNN, Fox News]

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Featured image courtesy of [M Glasgow via Flickr]

Peter Davidson II

Peter Davidson is a recent law school graduate who rants about news & politics and raves over the ups & downs of FUNemployment in the current legal economy. Contact Peter at staff@LawStreetMedia.com.

The post Iowa Permits Blind People to Obtain Gun Permits. Seriously. appeared first on Law Street.

It should go without saying that shutting down the government is not a good idea. It’s not good for the people of the United States, nor is it good internationally. Capital is stagnant, as seen with the plummeting stock market; and the idea that it is acceptable to stop something if you don’t like it is not only repulsive but is inherently being instilled in the minds of American citizens. As a functional citizen in the United States it is imperative to rethink government shutdowns.

 It is inevitable that the government was built to shut down because Congress can bring such a conversation to the table regarding the looming debt ceiling, and in this particular situation, Affordable Care Act. If a provision like this exists, it will unfortunately be used, often for the wrong reason. The trending question across the United States, and even the world is, “Why did the Government shutdown?” I have the answer.

The U.S. Constitution explicitly gave Congress one key responsibility, the power of the purse. This is the concept that provides Congress with the power to pass bills to fund the government. When they do not pass these bills, the government cannot run.

What is interesting, is that some services in the government are still funded. These are deemed as necessary expenses such as Social Security and Air Traffic Control. These are obviously viewed as essential expenditures.

What is also viewed as a necessary expenditure is that both Congress and the President still are paid—which is outrageous. Essentially, congressmen do not have to work and will be paid for just sitting around.

Members of the House came together in a moment of rare bipartisanship to pass a bill, by a vote of 407 to 0, approving back pay for furloughed government workers. It is funny how easy it is pass such legislation.

It is blatantly clear that this system is wrong. We should care that the system is broken because our government is inactive while we, the taxpayers, are still paying for our government.

It is necessary for the United States to have a checks and balance system in order to maintain a stable democracy—the power of the purse is one of those institutions. But the method in which essential expenditures are determined must be reviewed.

[CNN] [Washingtonpost] [Politico]

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Featured image courtesy of [Rich Renomeron via Flickr]

Zachary Schneider

Zach Schneider is a student at American University and formerly an intern at Law Street Media. Contact Zach at staff@LawStreetMedia.com.

The post Shutdown Woes: Rethinking a Broken System appeared first on Law Street.

The Stop Online Piracy Act (SOPA) was a bill  proposed in Congress in 2011 that immediately made headlines because opponents argued that it was too restrictive and had the potential to hamper free speech. It did not end up passing, but the ideas and motivations behind it still remain up for debate. Read on to learn about SOPA, the legislative battles surrounding it, and where we stand now.

What was SOPA?

The provisions of the bill primarily included increased federal enforcement of copyright laws and increased government action against entities involved in copyright infringement. These provisions include allowing both the U.S. Department of Justice and private copyright holders to obtain injunctions against copyright infringement by foreign-based entities. The bill would have allowed the Justice Department to bar internet advertising networks and payment network providers from servicing infringing websites e.g. torrent websites, sites that allow streaming of copyrighted movies or TV shows, etc. SOPA also would have prevented search engines from providing links to those websites.

SOPA aimed to increase the criminal penalties infringers face under the law.  For example, the penalties for economic espionage would have been a maximum of 15-20 years imprisonment and fines up to $5 million. The bill would have increased the realm of copyright crimes to include those perpetrated by “electronic means.”  Criminal penalties would have increased for IP infringement of government information or infringement that results in harm to government personnel or interests.

SOPA also would have had major implications for IP civil jurisprudence. Private entities are given rights against infringers as well. If a private entity is damaged by infringement and wishes to exercise SOPA rights they could have sent written notification to payment agents and advertising networks connected with the alleged offending site who then have to inform them and cease service unless the alleged infringer can respond with a counter-notification, indicating that they are not infringing. The copyright holder would have been able to bring an action for injunctive relief against the infringing site’s owners if either a counter-notification was provided or payment networks continue serving the alleged infringer without a counter-notification. Applying SOPA rights to foreign sites would have required them to consent to U.S. jurisdiction to determine if they are dedicated to infringement.

What was the argument for SOPA?

Proponents of the bill believed that SOPA could have created a lot of benefits for the public. It created major difficulties for perpetrators of IP crime because it would have given private companies the means and authorization to enforce and protect their own intellectual property rights. This allowed IP crimes to be remedied more quickly and at a far lower cost to the public because it could be done without the time constraints and expense of adjudication. This would improve the economy by decreasing government spending on investigating and prosecuting IP crimes. The fear of facing civil litigation under SOPA and the strengthened criminal penalties would have created a strong disincentive for many forms of infringement. Furthermore, by hamstringing IP infringement SOPA would make the U.S. more attractive to authors and innovators and reinvigorate the economy with increased job creation.

What was the argument against SOPA?

Opponents highlighted SOPA’s drawbacks. Under the law, even when a valid counter-notification would have been sent, third-party servicers were not required to resume serving accused websites.  SOPA also insulated the third parties from all lawsuits except those initiated by the copyright holder.  Therefore, the law allowed and perhaps even incentivized companies to limit other companies’ legal and commercial rights without judicial oversight, leaving SOPA vulnerable to the objection that it violates individuals’ constitutional due process. Non-infringing companies may be damaged by having valuable business relationships taken away from them without a meaningful opportunity to be heard and without legal recourse. This is because even if a company is found to be non-infringing there is no requirement that the discontinued services be reinstated. Finally, SOPA would not have accounted for the proportionality of the alleged infringement relative to the alleged infringer’s website. For example, under SOPA if one person uploaded an allegedly infringing video on Facebook and the owner exercised his SOPA rights he could potentially bring SOPA action against Facebook in its entirety.

What happened with SOPA?

There was a lot of backlash against SOPA from high-profile and much-used websites. On a few different days websites blacked themselves out to protest SOPA. The blackouts not only called attention to the issue, but also served as a sort of warning to consumers that if they did not get involved in stopping SOPA, some of their favorite websites would be threatened. Participants included Wikipedia, WordPress, and BoingBoing. Eventually, SOPA ended up failing. There were attempts to revive it about a year later, but nothing really came of those.

SOPA is the perfect example of the disconnect between technology and the people making our laws. On paper the idea sounded good, but in practice there were significant problems with the proposed law. While the debate over copyright and technology is far from over, SOPA almost certainly is.

Resources

Primary

U.S. Constitution: Article I Section 8 of the United States Constitution

House of Representatives: H.R. 3261, the “Stop Online Piracy Act”

Additional

100gf: Why SOPA Might be the Best Thing That’s Ever Happened to the Internet

Vulture: Polone: Why I’m for SOPA, and How the Entertainment Industry Blew It

Venture Beat: Top 5 Reasons to Support SOPA

Cracked: The Only Argument on the Internet in Favor of SOPA

Washington Post: SOPA Died in 2012, But Obama Administration Wants to Revive Part of it

Mashable: Why SOPA is Dangerous

TechDirt: Supporters of SOPA/PIPA Make Arguments That Make No Sense

CDT: US Piracy Law Could Threaten Human Rights

SOPA Strike: Homepage

Christian Science Monitor: SOPA and PIPA Bills: Old Answers to 21st Century Problems

Masur Law: Summary of SOPA and PIPA

CNN: SOPA Explained: What it is and Why it Matters

NickEhrenberg: The Arguments For and Against SOPA/PIPA (and now CISPA)

PC World: SOPA Controversy Explained

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

The post SOPA: The Argument is Over, but the Dust Hasn’t Settled appeared first on Law Street.

Stop-and-Frisk practice has recently taken another legal hit today, as federal judge, Shira A. Scheindlin ruled that the stop-and-frisk tactics of New York Police Department to have violated the constitutional rights of New Yorkers. Judge Scheindlin ruled that police officers have for years been systematically stopping innocent people without objective reason to suspect them of wrongdoing. Judge Scheindlin has found the program demonstrates a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government. In addition, it also found violations with the 14th Amendment.

Judge Scheindlin of Federal District Court in Manhattan has designated an outside lawyer, Peter L. Zimroth, to monitor the Police Department’s compliance with the Constitution. Mr. Zimroth is a partner in the New York office of Arnold & Porter LLP. The ruling, in Floyd v. City of New York follows a two month non-jury trial over the department’s stop-and-frisk practices earlier this year.

[New York Times]

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Featured image courtesy of [Debra Sweet via Flickr]

Ashley Powell

Ashley Powell is a founding member of Law Street Media, and its original Lead Editor. She is a graduate of The George Washington University. Contact Ashley at staff@LawStreetMedia.com.

The post Stop-and-Frisk Takes Another Legal Hit appeared first on Law Street.

The largest internet companies have joined forces with top civil liberties groups to call on the White House and Congress to increase transparency surrounding the government’s controversial National Security Agency (NSA) surveillance program. Apple, Facebook and Google are among the companies that signed a letter to the feds, asking for the right to disclose information about national security data requests.

The  tech giants’ call for greater transparency represents a push back against allegations that they had a deeper involvement with the NSA’s surveillance program, PRISM, and allowed the NSA ‘direct’ access to their servers. In particular, Google has vehemently denied that they granted the government such access. Last month, Google petitioned a secret U.S national security court to soften the restrictions on the information it can reveal about the government  data requests made under Foreign Surveillance Intelligence Act (FISA), claiming such restrictions violate the company’s First Amendment rights. Microsoft also had a similar request.

Tech companies are prohibited from revealing anything about requests they receive for such information because FISA requests are classified as top secret.

[Time.com]

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Featured image courtesy of [Mike Mozart via Flickr]

Ashley Powell

Ashley Powell is a founding member of Law Street Media, and its original Lead Editor. She is a graduate of The George Washington University. Contact Ashley at staff@LawStreetMedia.com.

The post NSA Transparency Push: Apple, Google, Facebook Join Civil Liberties Coalition appeared first on Law Street.