Supreme Court Weighs in on Warrantless Searches of Phones, Laptops at Border

A lawsuit has been brought before the Supreme Court by eight plaintiffs challenging warrantless searches of phones and other devices at the U.S. border, reports USA Today. U.S. Customs and Border Protection reports it performed 40,913 so-called basic searches of electronic devices in 2019, a 22 percent increase from the prior fiscal year. Those searches involve an officer looking through a phone – reading emails, texts and calendar items – without the help of third-party software. Varying opinions by different appeals courts on border officials authority in these circumstances around the country means that an international passenger entering the United States at Boston Logan International Airport faces a different set of rules than if that same passenger touches down in Los Angeles.

The government told the high court in May that federal agencies “enforce a wide range of federal laws at the border” and said that the court’s past precedents permit the device searches while the Biden administration said that the plaintiffs have not established what happened when agents seized their phones. In a statement, U.S. Customs and Border Protection said searches have helped to detect terrorist activity and thwart international crimes. The American Civil Liberties Union, argues that phones, computers and other devices chock full of personal information should be subject to a higher standard than a passenger’s luggage.

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June 22, 2021 at 11:06AM

Millions of People With Felonies Can Now Vote. Most Don’t Know It.

Only a fraction of the thousands of formerly incarcerated people whose voting rights were restored in time for the 2020 election made it back on to the voter rolls in four key states — Nevada, Kentucky, Iowa and New Jersey, a Marshall Project analysis found.

At least 13 states have expanded voting rights for people with felony convictions between 2016 and 2020. As a result, millions of formerly incarcerated people across the country are now eligible to vote.

Devyn Roberts, 44, only heard about the voting rights changes after responding to a Marshall Project survey for newly eligible voters in Kentucky. Roberts hasn’t been eligible to vote for most of her adult life, so she hasn’t been following politics closely and didn’t know about Kentucky’s executive order restoring voting rights to some people with felony convictions.

“We are non-voters,” she said. “They should have told us. There should have been a commercial about this.”

Many people working to register newly eligible voters said the low registration numbers for formerly incarcerated people reflect more than apathy and political alienation. Most don’t even know they now have the right to vote. None of the states in our analysis required corrections departments or boards of elections to notify newly eligible voters of their rights. The task was left to political organizers, already stretched thin by get-out-the-vote efforts amid a pandemic. To coax the newly enfranchised back onto the voter rolls, they’ve had to dispel the widely-held fear that voting could mean going back to prison.

Organizers are gearing up to apply the lessons of the last election to the politically consequential 2022 midterms. They’re urging corrections officials and probation and parole officers to notify people that their rights have been restored. With the pandemic waning, they’re planning to reach more formerly incarcerated people in person at rallies and in halfway houses across their states. Many of the officials who oversee the justice system are up for election in the midterms: judges, district attorneys, sheriffs and the county commissioners and state legislators who oversee them.

For Jagada Chambers, who is registering people in Nevada, that means rallying Nevadans with felony convictions to participate in upcoming sheriff and district attorney races. In Kentucky, organizers hope to motivate people to register by the prospect of unseating Republican Sen. Mitch McConnell, who opposes restoring voting rights for people with felony convictions.

If they succeed, the results may not fall along expected party lines: People behind bars are not a monolith, and a survey of their political preferences during the last presidential election showed substantial support for Donald Trump, as well as a range of views on specific criminal justice issues.

“I don’t care what party you are,” said Ron Pierce, who was formerly incarcerated and is now leading registration efforts for the New Jersey Institute for Social Justice. “If your agenda aligns with my agenda, that’s where my vote goes.”

The full scope of the nationwide push to re-enfranchise the formerly incarcerated is difficult to assess because few states keep track of how many people with felony convictions register to vote.

The Marshall Project requested state voter registration rolls as well as the list of potentially eligible voters in Kentucky, Nevada, Iowa and New Jersey. No such list existed in Nevada and New Jersey, so we obtained information on people who had recently been released from prison. Each state we examined has active voter registration efforts and inexpensive and accessible data. To identify people who had successfully reregistered, we matched names and birthdates in each list. We also texted a survey to people in Kentucky who might be eligible to vote to find out how much they knew about the new voting criteria, and followed up with a handful of respondents.

Similar efforts to quantify voting rights restoration efforts for formerly incarcerated people have also shown low rates of registration. The Miami Herald, Tampa Bay Times and ProPublica reported that only 80,000 of 1.4 million Floridians with felony convictions registered to vote in 2020. Republican lawmakers stymied registration efforts by requiring all fines and fees be paid before registering — sums that were often unaffordable for newly-released people. The courts issued more than $1 billion in fines and fees between 2013 and 2018, according to a report by the Florida Court Clerks and Comptrollers.

Those who do register often don’t show up to the polls in large numbers on election day, research shows. But the same research also notes: Turnout is greater in states that have actively informed formerly incarcerated people about their rights.

Lack of information hobbles registration efforts. None of the states we examined required automatic notification of the newly eligible voters. Because the corrections department and probation and parole offices interact with many of them, those departments could send letters to people in their custody, organizers said, or provide voter registration applications with their orientation paperwork.

“When you get a law passed, the hardest part is getting people to implement it,” said Pierce, who is on parole in New Jersey. “I had to actually tell my parole officer that he is supposed to be telling people they have the right. He didn’t even know we had the right to vote.”

The New Jersey State Parole Board said they have taken an active approach to voting rights education for parolees, noting “that parole officers must distribute and review voter registration materials with all parolees upon their release into the community.” The Probation Division and Department of Corrections did not respond to repeated requests for comment.

Some states have had success partnering with agencies to spread the word, but progress is uneven. In Nevada, neither the corrections department nor probation and parole are informing people about the changes in state law. In New Jersey, the probation department keeps track of every conversation about rights restoration and offers a one-hour credit towards community service for people who register and vote. While the Department of Corrections includes information about voting rights in its discharge papers, they come loaded onto a CD-ROM, making them virtually inaccessible.

In Kentucky, the Department of Corrections distributes a notification form through probation officers to help people determine their eligibility under the new law. But the forms do not include information about how to register to vote. A spokesperson for the Kentucky Department of Corrections said it notifies eligible voters upon release from prison, adding “if they are not eligible for automatic restoration, they are provided a civil rights restoration application and instructions on how to apply.”

A spokesperson for the Nevada Department of Corrections said they currently “do not do anything to assist in the voting issue,” but that they were “looking into making it part of the reentry curriculum.” A spokesperson for the Nevada Probation and Parole Division said they are “indirectly facilitating voter registration” by encouraging “each supervised individual to obtain Nevada identification.” Voter registration is automatic when applying for an ID.

It’s much more common for probation officers to inform people they’ve lost their voting rights. After Tip Moody got out of jail in 2018, his probation officer informed him he’d have to wait another 5 years until he could vote.

“I was enraged and totally stunned,” said Moody, who is 61. “To me, voting isn’t just a right. It’s an obligation.”

Moody got lucky. He was released from probation early, so he plans to vote in the upcoming elections.

One of the most enduring barriers to registering more people is the criminalization of voting for the formerly incarcerated. For decades, a felony conviction has been synonymous with disenfranchisement, so some people are skeptical the laws have actually changed. The fear of being sent back to prison for violating the law is paralyzing. And high profile cases, such as Crystal Mason’s in Texas, reverberate across the country. Mason is appealing a 5-year prison sentence for voting while under supervised release.

“I have heard multiple people bring up the case in Texas,” Pierce said. “It just shows just how effective it is even outside of Texas to suppress the vote.”

Reaching newly enfranchised voters poses another challenge, since difficulty finding employment and stable housing is one of the most pervasive collateral consequences of a felony conviction.

Chambers, a fellow with Silver State Voices in Nevada, turned to the local news to explain the changes in the law. In Kentucky, Dave Newman, an organizer with Kentuckians for the Commonwealth, combed through a list of potential voters provided by the corrections department and texted every viable cell phone number to explain the new rules.

Many of the obstacles to finding and registering formerly incarcerated people stem from the new laws themselves. Several states have confusing eligibility criteria. In New Jersey and Nevada, anyone no longer in prison is eligible to vote. But in Kentucky and Iowa, people with some felony convictions may not vote, nor can people on probation and parole. In addition, the laws in both states have changed multiple times over the years.

Roberts, who heard about the new voting criteria from the Marshall Project survey, said she wants to vote in the upcoming elections in Kentucky, but isn’t sure she is eligible to register based on the new criteria. One of her convictions is in Missouri.

“I don’t know if one is ok,” Roberts said. “And if you had more than one? Or if you had it in a different state? I read the description, but that’s why I was like, ‘wait a minute.’”

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The Kentucky Department of Corrections set up a website and a call center where people can check their eligibility. Some website searches are “inconclusive,” so people have to follow up over the phone, creating another obstacle for the incarcerated to navigate.

Fragmented data on who is actually eligible also complicates registration efforts. The ACLU in Iowa did receive a list of all potentially eligible people, but the data is so poorly maintained that the Des Moines Police Department was mistakenly listed. So was the mayor of Truro, a small town south of Des Moines.

A spokesperson for the Iowa Secretary of State pointed out that “no comprehensive list” of people with felony convictions exists, and added, “The contact list for Iowans with felony convictions is maintained by the Iowa Department of Corrections, and may or may not have current contact information for those individuals.”

Political alienation is one of the hardest barriers to overcome. When Robert Pate went to prison, he was struck by how many people felt like they weren’t part of society. “[Prison] made them feel like they didn’t have any rights, and it kept a lot of them from wanting or even having the desire to see things change in the community,” said Pate, who has helped register people in Iowa. In each state we surveyed, the work to register newly eligible voters is led by formerly incarcerated people. All know first-hand the stigma that accompanies a felony conviction, which allows them to be more persuasive.

Still, some people with felony convictions, like Nafeesah Goldsmith, question the benefit of voting. Every election season, Goldsmith says she watches as candidates descend on Black churches in New Jersey, promising congregants they’ll fix the roads and improve the schools. But as soon as the election is over, the officials disappear — their promises mostly unfulfilled.

“I am looking at these things and saying to myself: What really have we as a people gained?” she said. Voting, she added, “didn’t do anything for us.”

Goldsmith, who got out of prison in 2015 after 13 years, did not vote in the 2020 election, although she was eligible. She believes direct action — testifying in front of legislators or holding rallies and protests — is a more effective tool.

With primaries for the 2022 midterms looming, organizers are working to overcome the obstacles to getting these voters back on the rolls. The midterm elections offer an opportunity to motivate voters to select officials who shape criminal justice in ways that directly affect their lives.

In Nevada, all state senators are up for election, along with the Clark County district attorney and several sheriffs throughout the state. In New Jersey, when people express frustrations about policing, Pierce explains that the mayor picks the police commissioner. In Kentucky, organizers are stirring up support for a constitutional amendment that would enshrine automatic voting rights restoration for people who complete their felony sentence.

Organizers also remind potential voters that felony disenfranchisement laws have limited Black people’s political power. Nationwide, 1 out of every 16 Black adults is disenfranchised because of a felony conviction, a rate that is nearly four times higher than the rest of the population. In Kentucky, 1 out of every 7 Black adults is barred from voting. And in Iowa, as many as 1 in 10 Black adults were barred from voting before the executive order.

Likely voters get the most time and attention from campaigns, said David Danmore, chair of the political science department at the University of Nevada, Las Vegas. Political strategists have tended to avoid areas with high rates of incarceration and, therefore, disenfranchisement. Expanding voting rights for people with felony convictions could change the way politicians campaign.

“These voters are up for grabs,” Danmore said. “But someone has to think it’s worth the time and effort to track these voters down and get them in the pool.”

For Jovan Jackson, the first formerly incarcerated person in Nevada to register to vote under the new law, the impact of decades of disenfranchisement is visible in neighborhoods with high rates of poverty and imprisonment.

Nevada is one of a handful of states that sends people to jail for unpaid traffic tickets, and studies show Black drivers across the state are far more likely than White ones to be pulled over by the police. It’s a cycle that Jackson says has led to more poverty and disenfranchisement.

Ending the criminalization of unpaid traffic tickets is just one of the issues he highlights when encouraging the formerly incarcerated to register to vote. For too long, he says, they haven’t had a say in who would represent them, so their issues weren’t part of the political agenda.

“They didn’t have a voice. They didn’t have a vote,” Jackson said. “Now we can be the voice in our communities. Now we can elect officials that can represent us instead of just neglecting us.”

This story was published in partnership with Louisville Courier-Journal and USA Today Network.

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June 23, 2021 at 06:00AM

Officer Use-of-Force Sends Thousands to Emergency Room Every Year

Although there is almost no data on the nature or circumstances of their injuries, data from the Centers for Disease Control and Prevention show that since 2015, more than 400,000 people have been treated in emergency rooms because of a violent interaction with police or security guards, reports NBC News. When police do use force, more than half of the incidents ended with a suspect or civilian getting hurt, according to a 2020 analysis, but it is unclear how serious those injuries are. San Jose, which requires officers to report injuries and encourages them to bring wounded suspects to the hospital, offers a glimpse of the scale of the issue, with roughly 1,300 people ending up in the emergency room after interacting with city police from 2017 to 2020, according to an analysis of the data. “Control holds,” twisting arms or holding people down, played a role in 60 percent of the cases.

Almost 20 percent of people who went to the emergency room were shot with stun guns, and 10 percent were hit with an “impact weapon” such as a baton. In those four years, city data show, encounters with San Jose police left 72 people “seriously injured,” which includes broken bones, dog bites and internal injuries. Nine more people died from gunshot wounds. Rough arrests have cost the city more than $26 million in lawsuit payouts for civil rights violations since 2010. 43 percent of use of force incidents in San Jose end with a trip to the hospital, among the highest of the nine cities tracked for the analysis. Some police departments may have a low percentage of emergency-room visits because they have loose reporting requirements and don’t make officers seek medical treatment for people who are hurt.

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June 23, 2021 at 10:41AM

‘Zip Tie Guy’ and His Mother Plead Not Guilty to New Charges in U.S. Capitol Siege

The alleged “zip tie guy” photographed carrying plastic restraints while wearing military-style garb during the breach of the U.S. Capitol on Jan. 6 has pleaded not guilty to a first superseding indictment alleging he and his mother committed additional crimes.

Eric Gavelek Munchel entered the plea Wednesday morning. His mother, Lisa Marie Eisenhart, who is charged along with him, also pleaded not guilty. Attorneys for both defendants said they wished to preserve for the record all of their clients’ constitutional rights.

The superseding indictment filed June 2 alleges eight counts:  that Munchel and Eisenhart (1) conspired to obstruct congress; (2) obstructed an official proceeding (by aiding and abetting); (3) entered or remained in a restricted building or grounds with deadly or dangerous weapons (by aiding and abetting) while the Vice-President and the Vice-President Elect were physically present; (4) disorderly and disruptive conduct in a restricting building with a dangerous weapons (by aiding and abetting) while Mike Pence and Kamala Harris were present; (5) unlawful possession of a dangerous weapon on capitol grounds or building (by aiding and abetting) for carrying a taser in the capitol; (6) entering and remaining in the gallery of congress; (7) disorderly conduct in a capitol building (for “uttering loud, threatening, and abusive language,” among other things); and (8) parading, demonstrating, or picketing in a capitol building.

The original charging documents on file in the cases alleged only four crimes.

As has become the usual procedure during cases connected to the Capitol siege, prosecutors said some discovery had been turned over to the defense, but more was coming.

“There were a large number of tips that were submitted with respect to Mr. Munchel” to the FBI by internet sleuths, a federal prosecutor said. The tipsters figured out the defendants’ identities based on information available online, that prosecutor said, and sent the information to the FBI.

The process of turning over “that discovery is in progress,” the prosecutor said.

Lisa Marie Eisenhart and Eric Gavelek Munchel

Lisa Marie Eisenhart and Eric Gavelek Munchel are seen in surveillance camera footage from a hotel. (Image via the FBI/federal court records.)

Then prosecutors discussed the “larger discovery issue” of the “incredibly vast” amount of evidence in the capitol breach cases generally. Some of that cache “may contain material” that is “relevant” to the Munchels and which the defense deserves to have, prosecutors said — but they added that it would take time to sift through it.

The prosecutor then said the “extraordinary magnitude of evidence that has been collected in these cases” has prevented her from being “able to issue a plea offer as of yet.” The prosecutor proposed putting the cases on hold until late September. Senior U.S. District Judge Royce C. Lamberth agreed to a date of Sept. 20 for a status conference, which is one of the dates prosecutors suggested.

The defense attorneys agreed to waive Munchel’s and Eisenhart’s rights to a speedy trial; the judge agreed that the waiver was in the “interest of justice.”

Lisa Marie Eisenhart is seen in an image embedded in federal court documents.

“I hope we’re getting closer to see[ing] where it’s going to go,” Lambert said of the methodical but necessarily slow pace of the case.

Some capitol siege defendants have entered guilty pleas; the first is due to be sentenced later Wednesday.  Neither the prosecution nor the defense has suggested jail time in that case, but the facts are distinctly more advantageous to the defense than the facts in the Munchel and Eisenhart prosecutions.

Read the superseding indictment below:

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June 23, 2021 at 11:35AM

Supreme Court Finds Cops Cannot Simply Barge into a Home in Pursuit of Someone Suspected of a Misdemeanor

The Supreme Court ruled 9-0 on Wednesday in Lange v. California that the police are not universally authorized to make warrantless entries into private homes based on an officer’s suspicion that a person has committed a misdemeanor-level offense.

The case presented a tough question for the Court, and it became clear during oral arguments that justices were loathe to create a categorical rule would extend an exception to the warrant rule to every case involving a suspected misdemeanor.

The facts are as follows.  A police officer followed Arthur Gregory Lange one night as Lange drove home listening to loud music and honking his horn. As Lange approached his own driveway, the officer (who had, at that point activated his signal lights), continued to trail him. Lange opened his own garage door, pulled into the garage, and tried to close the electric garage door before the officer could follow him.

The officer, however, exited his squad car, stuck his foot under Lange’s garage door, and stopped the door from closing. When the officer got close to Lange, the officer allegedly smelled alcohol on Lange’s breath. The officer then ordered Lange out of the garage for a DUI investigation.

All this was done without a warrant. The officer maintained that under the Fourth Amendment, no warrant was necessary given that he had been in hot pursuit of Lange — an example of “exigent circumstances” that justify a warrantless search under a long-recognized exception to the constitutional requirement of a warrant as a general matter of law.

The case was complicated by the nature of the crime upon which the officer had based his warrantless search; the officer maintained that he believed Lange had committed misdemeanor violations of the California Vehicle Code by playing music and honking.

The Supreme Court decided that while suspicion of some misdemeanors might form the basis of a proper warrantless search, the rule is not absolute across all misdemeanors.

Justice Elena Kagan wrote for the Court, explaining the rationale behind the long-standing rule which allows warrantless searches in certain more serious circumstances:

One important exception is for exigent circumstances. It applies when “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.” The exception enables law enforcement officers to handle “emergenc[ies]”—situations presenting a “compelling need for official action and no time to secure a warrant.

Misdemeanors, however, range in seriousness from the violent to the trivial; therefore, the court ruled that the commission of a misdemeanor should not trigger any across-the-board right for police to enter a home without a warrant. Rather, Kagan explained, the gravity of the offense and the surrounding circumstances must be examined on case-by-case basis in order to determine whether the police are justified in departing from the usual Fourth Amendment requirement that a warrant be issued by a neutral magistrate upon a showing of probable cause prior to any police search.

Although the Court’s ruling was a win for Lange, it is by no means a basis to invalidate an entire class of warrantless searches. Moreover, Lange’s win may be short-lived, as the case is remanded for the lower court to determine whether the officer’s entry had been appropriate.

Kagan explained that the ruling declined to create a categorical rule applicable to all suspected misdemeanants:

When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency.

Kagan concluded:

On many occasions, the officer will have good reason to enter — to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so — even though the misdemeanant fled.

While all the justices agreed with the outcome in the Lange case, several justices opted to pen their own concurrences, elaborating on their reasoning.

Chief Justice John Roberts wrote his own opinion, which was joined by Justice Samuel Alito — and it sounded more like a dissent than a concurrence. Specifically, Roberts and Alito took issue with the Court’s holding that flight itself is insufficient to trigger an exception to the warrant requirement.

“Suppose a police officer on patrol responds to a report of a man assaulting a teenager,” Roberts hypothesized. He laid out the hypothetical problem as follows:

Arriving at the scene, the officer sees the teenager vainly trying to ward off the assailant. The officer attempts to place the assailant under arrest, but he takes off on foot. He leads the officer on a chase over several blocks as the officer yells for him to stop. With the officer closing in, the suspect leaps over a fence and then stands on a home’s front yard. He claims it’s his home and tells the officer to stay away. What is the officer to do?

Roberts reasoned that both the Fourth Amendment and common sense support the officer’s right to proceed without a warrant. Requiring the police to obtain a warrant in this situation would cause delay such that “the suspect may stroll into the home and then dash out the back door,” or perhaps worse, that the suspect could “get a gun and take aim from inside.”

According to Roberts, the issue isn’t whether the suspect may have committed a misdemeanor or a felony, but rather, that the person fled. “It is the flight, not the underlying offense, that has always been understood to justify the general rule” which excuses the need for a warrant, explained the Chief Justice.  “The Court errs by departing from that well-established rule.”

Justice Brett Kavanaugh penned his own concurrence highlighting his agreement with Roberts’ point, but Kavanaugh took a distinct “there’s more that unites us than divides us” approach to the case.

“[I]n my view,” Kavanaugh wrote, “there is almost no daylight in practice between the Court’s opinion and THE CHIEF JUSTICE’s opinion concurring in the judgment.”

Calling Roberts’ concurrence “thoughtful,” Kavanaugh explained that in his view, fleeing misdemeanants “will almost always also involve a recognized exigent circumstance — such as a risk of escape, destruction of evidence, or harm to others,” and that therefore, Kagan’s and Roberts’ approaches may contain distinctions without meaningful differences.

Justice Clarence Thomas authored a concurrence of his own, which was joined in part by Justice Kavanaugh. Thomas wrote:

I write separately to note two things: the general case-by-case rule that the Court announces today is subject to historical, categorical exceptions; and under our precedent, the federal exclusionary rule does not apply to evidence discovered in the course of pursuing a fleeing suspect.

Justice Thomas detailed some examples of relevant “historical, categorical exceptions,” such as a person escaping after having been arrested, or a person en route to committing a felony.

On another topic entirely, Justice Thomas took the opportunity to make a point with which Justice Kavanaugh agreed: “even if the state courts on remand conclude that the officer’s entry here was unlawful, the federal exclusionary rule does not require suppressing any evidence.”

If the court below ultimately finds that entering Lange’s home was illegal, Lange might have some remedy at law — but that remedy does not require that evidence the officer obtained be suppressed.

[image via Erin Schaff/pool/AFP via Getty Images]

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June 23, 2021 at 12:19PM

Supreme Court Sides with High School Cheerleader Who Posted ‘F*** School F*** Softball F*** Cheer F*** Everything’ on Snapchat

The justices of the Supreme Court, except for Justice Clarence Thomas, sided with Brandi Levy, a high school cheerleader who was suspended from the junior varsity squad for a year after dropping multiple F-bombs on Snapchat.

The teen, frustrated that she did not make the varsity team, posted a picture of herself and a friend in a Snapchat story. The picture showed both girls with middle fingers extended and the caption “Fuck school fuck softball fuck cheer fuck everything.” A second post said, “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?”

When the post came to the school’s attention, Levy was suspended from the junior varsity team. Levy’s parents appealed the school’s decision on her behalf, but the athletic director, school principal, district superintendent, and school board all sided with the Mahanoy Area School District in Pennsylvania. Levy’s parents then filed a First Amendment lawsuit, and they won both in district court and at the Third Circuit. Levy had previously only been identified as B.L., but she has appeared on the news and given her name.

The Supreme Court faced the question of how to protect the free speech rights of kids while not entirely stripping schools of all power to regulate disruptive behavior like harassment and bullying. In this case, the high court sided with Levy’s free expression. The holding:

While public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.

The majority opinion concluded that the school violated Levy’s First Amendment rights.

“A public high school student used, and transmitted to her Snapchat friends, vulgar language and gestures criticizing both the school and the school’s cheerleading team. The student’s speech took place outside of school hours and away from the school’s campus. In response, the school suspended the student for a year from the cheerleading team. We must decide whether the Court of Appeals for the Third Circuit correctly held that the school’s decision violated the First Amendment,” Justice Stephen Breyer’s majority opinion began. “Although we do not agree with the reasoning of the Third Circuit panel’s majority, we do agree with its conclusion that the school’s disciplinary action violated the First Amendment.”

“Consider B. L.’s speech. Putting aside the vulgar language, the listener would hear criticism, of the team, the team’s coaches, and the school—in a word or two, criticism of the rules of a community of which B. L. forms a part. This criticism did not involve features that would place it outside the First Amendment’s ordinary protection. B. L.’s posts, while crude, did not amount to fighting words,” the opinion continued. “And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”

The court noted that the speech occurred outside of a school setting and was not targeted at any individual, thereby diminishing the school’s interest in punishing Levy:

Consider too when, where, and how B. L. spoke. Her posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B. L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends. These features of her speech, while risking transmission to the school itself, nonetheless (for reasons we have just explained, supra, at 7–8) diminish the school’s interest in punishing B. L.’s utterance.

Breyer said that although “[i]t might be tempting to dismiss B. L.’s words as unworthy of the robust First Amendment protections,” sometimes it is “necessary to protect the superfluous in order to preserve the necessary.”

Chief Justice John Roberts, and Justices Samuel Alito, Sonia Sotomayor, Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch and Elena Kagan all joined Breyer. Alito also filed a concurrence that Gorsuch joined.

But Justice Thomas said his colleagues ignored the “historical rule” for situations like this and reached a wrong result that stands on an unstable foundation.

“The Court transparently takes a common-law approach to today’s decision. In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an ‘example’ and ‘leav[es] for future cases’ the job of developing this new common-law doctrine. But the Court’s foundation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means,” Thomas dissented. “Perhaps there are good constitutional reasons to depart from the historical rule, and perhaps this Court and lower courts will identify and explain these reasons in the future. But because the Court does not do so today, and because it reaches the wrong result under the appropriate historical test, I respectfully dissent.”

UPenn Professor Sigal Ben-Porath has written a book titled “Free Speech on Campus” and teaches in the university’s Graduate School of Education and is an affiliated member of the University of Pennsylvania Carey Law School’s Institute for Law and Philosophy. She said that the Supreme Court’s decision sends a “strong statement” in support of the First Amendment.

“The court sided with the cheerleader, with Thomas the sole justice dissenting, suggesting that the vulgarity is reason enough for punishment. The school, Justice Breyer’s opinion states, sometimes has a special interest in regulating speech that consists of ‘fighting words’ or obscenities. But the school also has an interest in protecting her speech, because public schools are ‘the nurseries of democracy,’” Ben-Porath said in a statement to Law&Crime. “This is a strong statement by the court in support of student speech rights, and advocates of free speech should welcome it, no matter their stance on 4-letter words.”

The professor backed an amicus brief in the case.

Elura Nanos contributed to this report.

[image via ABC 6 screengrab]

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June 23, 2021 at 10:59AM

Ring gave cops free cameras to build and promote surveillance network

When Ring wanted to boost sales of it surveillance cameras and burnish its self-styled image as a crime-fighting company, it embarked on a brand-ambassador marketing campaign that would be familiar to many startups. But rather than chase down the Instagram influencers or beat bloggers, the company instead wooed officers at the Los Angeles Police Department.

For years, including during Amazon’s early ownership of the company, Ring gave no fewer than 100 LAPD officers free devices or discount codes worth tens of thousands of dollars, and possibly more, according to a new report from the Los Angeles Times.

Emails obtained by the LA Times through a public records request reveal Ring employees encouraging LAPD officers to “spread the word about how this doorbell is proven to reduce crime in neighborhoods” and offering freebies and discounts.

“Ring and its relationship with police departments, including the LAPD, is but one example of a burgeoning problem in which there is a lack of clarity as to where the public sector ends and private surveillance capitalism begins,” Mohammad Tajsar, senior staff attorney with the ACLU of Southern California, told Ars.

As word of the influencer campaign spread through the LAPD, officers who weren’t approached by Ring employees reached out to them anyway, requesting free products and discounts.

“We have a favor to ask..,” wrote Officer Maria Gray. “Every year, we have a West LA Division Beach party… We use our measly station fund and buy some gifts to raffle off as prizes. Without me asking, do you see where I’m going with this email? More importantly, we’d love for you to come and attend. Bring some friends, our treat.” August Cziment, Ring’s director of operations, replied, “We’d be happy to donate a Ring Doorbell and perhaps a new Solar Powered Security sign if that’s of interest? :)”

Another station received more than $12,000 in freebies after an officer sent an email containing promotional language that he first had Cziment approve.

Ethics concerns

LAPD has an ethics code, of course. It says that officers may not “use their position to secure directly or indirectly unwarranted privileges or exemptions for themselves or others” and they “shall not accept any gifts, gratuities or favors of any kind which might reasonably be interpreted as an attempt to influence their actions with respect to City business.” But for many of the cases the Times uncovered, the LAPD did not appear to be concerned. Discount codes are “generally not in conflict with our Code of Ethics,” Det. Meghan Aguilar told the LA Times. “Of course, each situation is looked at on a case by case basis.”

One email exchange shows how officers blurred the lines between advocating for a class of security products like security cameras—which is allowed and sometimes encouraged—and becoming outright salespeople for specific brands like Ring. Officer Eric Mollinedo emailed Ring’s Cziment in April 2016 asking for promo codes and a free doorbell, mentioning that he would be working a booth at a public safety fair. Cziment happily sent him a free unit along with flyers for the booth. Mollinedo later emailed Cziment, saying, “Was a good day today at the Public Safety fair… talked up Ring and had (5) officers/reserve officers purchase them!”

Tajsar, the ACLU attorney, said this sort of arrangement isn’t surprising. “Ring in particular has a history of poaching police chiefs and executives, hiring them, and then using them to peddle Ring’s wares with the connections they have from their former lives,” he said. “It really is a revolving door Ring has created to gain market share across the country. That raises a whole host of ethical concerns about corruption, pay to play, and ethics rules around disclosures.”

Questionable evidence

Ring’s campaign came at a time when the company had partnered with LAPD to give out 500 free video doorbells in Los Angeles’ Wilshire Park neighborhood in an attempt to prove its crime-fighting claims. In March 2016, LAPD and Ring held a joint news conference announcing that, after installing just 40 cameras in the neighborhood, burglaries had dropped by 55 percent in six months. Later, the company would amend the results, saying the drop occurred over seven months, not six.

Neither claim was peer-reviewed, and Ring hasn’t released the specifics of its study, but a report by MIT Technology Review cast doubt on the findings. After receiving the locations of the installed cameras from the neighborhood association and after examining public data on crime in those districts, reporter Mark Harris found that burglaries had, in fact, increased when compared with the previous year. What’s more, by 2017, burglaries had surged to their highest in seven years. Nonetheless, Ring continued to tout its “crime fighting” capabilities.

Civil liberty concerns

Ring wound down its influencer campaign in 2019, according to a spokesperson. That was around the time it rolled out its Neighbors app, which allows users to share and comment on nearby videos. LAPD was given access to a special Ring-provided portal to locate and request footage. The company bills the portal as a time-saver, saying in videos it sends to police departments, “No more going door-to-door to look for cameras and asking for footage.” All investigators have to do is set a specific time and area of interest and Ring assists in contacting users whose camera logs match the query.

In addition to the arrangement with the LAPD, Ring has made deals with hundreds of police departments across the US to give them access to the law enforcement portal. Ring’s privacy policy regarding footage is “lax,” Tajsar said.

“That’s exactly why Ring is so aggressively marketing toward police departments,” Tajsar said. “They see police departments as the cat’s paw. They can do Ring’s marketing for them rather than Ring coming directly to us.”

The portal also allows law enforcement in many instances to sidestep the need for a warrant, which provides judicial oversight and greater transparency. Since many Ring users voluntarily post videos to the Neighbors app, departments have access to a pool of people who are more willing to share footage with them.

After the LA Times contacted Ring for comment ahead of the story, the company updated its policies so people can view footage requests from law enforcement agencies by adding a post category called “Request for Assistance.” Ring told Ars it had been working on the feature “long before the LA Times reached out.” The hitch, though? You have to use the Neighbors app to view the requests.

The spread of a privately controlled surveillance network that offers ready access for law enforcement has privacy advocates concerned. “The potential for abuse here is tremendous,” Tajsar said.

“It has so much room for civil liberties violations,” Heidi Boghosian, a lawyer and former executive director of the National Lawyers Guild, told the LA Times. “When you have the escalation of people’s fears of property or violent crime, it changes the way they interpret ordinary actions of someone walking down the street or ringing their doorbell,” she said, “And that can [lead to] communities of color [being] falsely accused of crimes.”

Update 10 am EDT: A Ring spokesperson sent Ars the following statement: “The practices and programs in question do not reflect Ring today. We stopped donating to law enforcement and encouraging police to promote our products years ago. As Ring has grown, our practices have evolved, and we are always looking for ways to better serve our customers and their communities.”

via Ars Technica https://arstechnica.com

June 18, 2021 at 09:38AM

Despite U.S. War on Drugs, Americans’ Use Soars

With June marking its 50th anniversary, and the United States spending over a trillion dollars enforcing its drug policies thus far, both liberal and conservative observers say that the war has not paid off as drug use continues to climb more quickly than ever, reports NBC News. According to the Substance Abuse and Mental Health Services Administration, the number of illicit drug users rose to 13 percent of Americans 12 years or older in 2019, nearly returning to its peak from 40 years ago. In 2020, overdose deaths in the United States exceeded 90,000, compared with 70,630 in 2019, according to research from the Commonwealth Fund. Despite these results, the federal government still spent $34.6 billion to enforce outdated and ineffective drug policies, a 1,090 percent increase in just 39 years when adjusted for inflation.

The national drug control budget is estimated to hit a historic level of $41 billion by 2022. The results of this spending contributes to the problem of mass incarceration, with The Prison Policy Initiative, a think tank and criminal justice advocacy group, finding that one in five currently incarcerated people in the U.S. are locked up for a drug offense, costing roughly $37,500 annually per inmate and resulting in mass incarcerations costs that reach at least $182 billion every year. Meanwhile, according to the Drug Policy Alliance, nearly 80 percent of the people in federal prison and almost 60 percent of people in state prison for drug offenses are Black or Latino. In 2019, despite making up just 13.4 percent of the U.S. population, the FBI reported that more than a quarter of the drug-related arrests were of Black American adults.

via The Crime Report https://ift.tt/2myW3Gx

June 18, 2021 at 10:26AM

Judge Resigns After Being Accused of Shoving One Prosecutor, Calling Another ‘Anti-Semitic’ for Refusing to Cut Husband’s Associate a Plea Deal

A Long Island village judge resigned in May while being investigated on misconduct allegations that included shoving a Suffolk County assistant district attorney (ADA) and calling a different ADA “anti-Semitic” for not giving her husband’s associate a lenient plea deal in a vehicle and traffic case, the New York State Commission on Judicial Conduct announced in a Thursday press release.

According to the release, former Head of the Harbor Village Justice Ellen D. Fishkin, who first took office in 1996, was under investigation when she resigned May 6.  She signed a stipulation agreeing to “never seek or accept” another judicial office at any time in the future, the release says.

In addition to the misconduct concerning the two ADAs, Fishkin was also being investigated for turning the court’s recording equipment on and off in the middle of proceedings, presiding over and accepting pleas in traffic court without an ADA present, locking the court while she was away to prevent others from presiding over matters when she wasn’t there, and exhibiting an “inappropriate demeanor” in dealings with prosecutors, litigants, and attorneys.

“The allegations against Judge Fishkin were multiple and serious,” Commission Administrator Robert Tembeckjian said in Thursday’s press release. “Under the circumstances, Judge Fishkin’s departure from office is appropriate.”

The Stipulation signed by Fishkin further stated that the Office of Court Administration notified the Commission of her resignation on May 11, the same day the Commission informed Fishkin that she was being investigated in a new matter concerning an audit of the court’s finances performed by the Office of the State Comptroller.

Under the terms of the stipulation, should Fishkin ever hold any judicial period at any time in the future, the investigation into the misconduct complaints against her would be revived, she would be served with a formal complaint, and the matter would proceed to a hearing.

Newsday in April reported that the “findings of an audit of the Head of the Harbor Village Justice Court were referred to the Suffolk County District Attorney’s Office” when investigators found that financial records had disappeared.

According to the report, in 2016 and 2017, a former part-time clerk was charged with performing all the court’s financial duties. During that time the court failed to retain any “deposit slips, credit card settlement reports, or bank reconciliations.”

“The clerk did not work sufficient hours to properly conduct the administrative and financial business of the court,” and the presiding court justice “did not provide adequate oversight,” the newspaper stated, citing to the auditors’ report.

Fishkin’s term would have expired on April 3, 2023, had she remained in office.

Read the relevant document file below.

[image via YouTube screengrab]

The post Judge Resigns After Being Accused of Shoving One Prosecutor, Calling Another ‘Anti-Semitic’ for Refusing to Cut Husband’s Associate a Plea Deal first appeared on Law & Crime.

via Law & Crime https://lawandcrime.com

June 18, 2021 at 01:07PM

15 Ways Your Firm – or Business – Can Avoid Exposure To Cyber Crime

Most cyber experts acknowledge that virtually every domestic enterprise will experience one or more cyber-attacks in the coming years – the appropriate question is when the attack(s) will occur, not whether it will happen 

Business Exposure to Internet Crime

Each year, the Internet Crime Complaint Center (“IC3”) of the Federal Bureau of Investigation publishes its Internet Crime Report.  The IC3’s 2020 Internet Crime Report includes startling information about the continuing increase in internet crime.

  • IC3 received from the American public 791,790 complaints of Internet crime in 2020, a 69% increase from 2019.
  • The reported losses associated with those complaints exceeded $4.1 billion
  • Business email compromise schemes were the most costly—19,369 complaints with adjusted losses of $1.8 billion.
  • Phishing schemes were the most numerous—241,324 complaints with adjusted losses of $54 million.
  • There were 2,474 ransomware incidents reported to IC3; the number of ransomware attacks is likely higher as many victims do not report them to IC3.

Perpetrators of internet crime schemes are operating from many foreign countries as well as the United States.  They seek easy targets, those businesses, and individuals that are the most susceptible to attack – those with vulnerabilities in their physical and digital defenses.  Their methods evolve and have become more sophisticated and harder to detect. 

Most cyber experts acknowledge that virtually every domestic enterprise will experience one or more cyber-attacks in the coming years – the appropriate question is when the attack(s) will occur, not whether it will happen. 

The potential consequences to a business of a successful cyber-attack range from moderate to catastrophic, including the loss of access to the business’s data and/or computer systems, the inability of the business to conduct normal operations, unauthorized funds transfers, theft of business secrets, exfiltration of the business’s data containing personal identifying information of employer and customers, and payment of ransomware demands ranging from $50,000 to $10,000,000 or more.

Because criminals find new ways to gain access to computer systems, there is no absolute solution to the risk of cyber-attacks.  Burr’s cyber team recommends that a business enterprise implement the following methods and strategies in preparation for the inevitable attacks.

  1. Regular Backups. Regular (at least weekly) backups of business data, system images, and configurations to servers that are offline and completely isolated from the business’s servers provide significant business continuity protection. These should be supplemented by daily (or more frequent) online backups.  All backups should be tested regularly.
  2. Software Updates. Businesses should regularly update their software systems as patches become available.  Out-of-date software can be an early target for cybercriminals especially if the software contains known weaknesses.  The longer software has been out of date, the more time attackers have to weaponize exploits to take advantage of vulnerabilities. It can be difficult to implement regular software patching.
  3. Asset Management. A business cannot protect its data and systems unless it is fully aware in real-time of all computers and devices that comprise the systems or have access to them.
  4. Regular Employee Training. Phishing attacks represent the most common successful method of attack. And a single mistake by a single employee can introduce damaging malware into the business’s system.  A business should invest in regular training of all employees so they can recognize and avoid phishing attacks and social engineering.  The training should provide instructions for employees on how to report internally a potential phishing attempt or other suspicious activity.  Additionally, businesses should work to develop a culture of disclosure as opposed to cover up regarding cyber incidents.  Employees should be incented promptly to report any suspicious activity, even if the employee has made a mistake and unwittingly facilitated an attack.
  5. Computer System Secure Architecture. It is imperative that a business implement (i) network segmentation – compartmentalize and isolate servers with sensitive information, and the principle of least privilege – limit access to those servers to only those persons who need access to carry out their responsibilities. The Burr cyber team strongly recommends multifactor authentication for all users with privileged access.
  6. Outsourced IT. If the business uses a third party for IT services, periodic and detailed review by counsel and computer consultants of the third party’s practices, procedures, and contractual obligations to the business is warranted, in particular the reporting obligations owed by the third party to the business regarding cyber incidents.  The third-party IT is likely motivated to minimize, and not report, incidents to the business.  Thus, independent oversight of the third-party IT provider on a periodic basis can add a layer of protection.
  7. Cyber Insurance. As the frequency and intensity of cyber-attacks increase, it is imperative that businesses secure appropriate cyber insurance. Insurance coverage under traditional policies, such as crime coverage, may specifically exclude cyber losses. There are a host of new cyber insurance coverages available, including for breach, incident response, forensic investigation, data and system restoration, attorney’s fees, public relations, ransoms, and third-party litigation and liability.  Businesses should explore these new coverages in light of their particular computer systems, information stored, and risks from cyber-attacks.  It is crucial for a business to examine the choice of attorney and forensic investigator requirements in each cyber policy to determine the need for pre-incident conflict waivers and the requirements regarding notice, cooperation, and retention of outside professionals. Also, make sure that the coverage amounts are sufficient to adequately address a potential breach. A review of a business’s existing and potential future cyber insurance coverage by counsel and cyber broker is recommended.  Finally, if a business has cyber insurance coverage, it is essential that all information regarding the coverage, including the existence of the policy and the policy limits, be maintained offline to avoid discovery in a ransomware attack.
  8. Incident Response Plan. An essential tool for any business is the incident response plan – the written plan for how the business will react and respond to a cyber-attack.  The plan should include checklists of the many tasks to be accomplished soon after the attack is recognized and assign responsibility for the performance of those tasks, provide for an alternative communications methodology for the team in the event the business’s email system is unavailable or compromised, and establish decision-making authority.  Before the plan is adopted, it should be tested in a mock cyber event.  The test may reveal that the plan cannot be effectively or efficiently implemented (perhaps one team member is overburdened with tasks).  The tests may help a business determine under what conditions, if any, it would be willing to pay a ransomware demand.  Once adopted, the plan should be reviewed and updated periodically.
  9. Third-Party Forensic Auditing & Testing. Utilization by a business of independent, third-party forensic computer consultants to audit the business’s computer security systems and practices and/or to conduct penetration testing of the business’s systems can provide unvarnished information to the business’s senior management and board as to the business’s readiness to fend off the cyber-attacks of the future.
  10. Communication Consultants. In the event a business suffers a cyber-attack that renders the business’s servers unavailable or otherwise adversely impacts the business’s operations, an immediate challenge facing the business will be communications – the information to be provided about the situation, what person delivers the communications on behalf of the business, the constituencies that receive the information, and the timing of the communications.  A communications consulting firm can be of enormous assistance to a business in a cyber-attack crisis.  Engagement of the communications specialist in advance of the inevitable cyber-attack improves both the business’s preparation for the potential crisis presented by the attack and the business’s ability to communicate quickly and effectively during a crisis.
  11. Computer Consultants. Outside computer consultants can add value to a business in many ways, including dealing with a cyber-attack.  Prior familiarity with the business’s servers and systems on the part of these consultants will of course enhance their ability to help the business thwart an attack, determine how the cybercriminals gained access, and protect the business’s systems as soon as possible.
  12. Engagement with Law Enforcement. One of the initial steps in certain cyber-attacks is to report the attack to law enforcement, in particular the Federal Bureau of Investigation and IC3.  Establishing a relationship with the local FBI office can facilitate coordination and assistance in the event of a cyber event, especially a ransomware attack.  Law enforcement may be able to provide information regarding particular groups involved in an attack, such as any known association with sanctioned entities (see item 15 below).
  13. Alternate Communications System. A business’s email network may become unavailable as a result of a cyber-attack.  To minimize the impact of such an event, the persons on the cyber response team should be prepared to communicate without business email via an alternative communication system, such as a secure messaging application like Signal.  Additionally, employee personal phone numbers should be maintained and stored offline.
  14. Contract Review. A business may be subject to contractual obligations with customers, vendors, and other third parties that mandate specific disclosures or actions by the business in the event of cyber events, especially events involving the exfiltration of data.  The regular, periodic review of the business’s contracts to determine and catalog obligations potentially triggered by cyber-attacks eliminates the need to conduct such a review during a cyber-attack.
  15. Sanctions Compliance Program. The adoption and use by a business of a compliance program with respect to U.S. sanctions regulations can help a business avoid violations of such sanctions regulations in connection with the payment of ransomware.  Additionally, the adoption and use of such a program may enable a business to avoid civil penalties that can be levied by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) related to ransomware payments.  OFAC issued an advisory on October 1, 2020, to highlight the sanctions risks associated with ransomware payments related to malicious cyber-enabled activities.  Victims of ransomware attacks that pay ransomware demands, along with financial institutions and other entities, including cyber insurance businesses, that facilitate such payments, risk imposition of civil penalties by OFAC based on strict liability under U.S. sanctions regulations if the recipient of the payments is a “prohibited person” – a person on OFAC’s Specially Designated Nationals and Blocked Persons List, other blocked persons, or a person covered by comprehensive country or region embargoes (e.g. Cuba, Iran, North Korea, and Syria).  Because these civil penalties can be imposed by OFAC under strict liability, a ransomware victim paying the demand to a prohibited person is potentially subject to such civil penalties even if the victim did not know or have reason to know that it was engaging in a transaction with a prohibited person.  OFAC reiterated in the October 1, 2020 advisory that it encourages all financial institutions and other businesses (including victims of ransomware attacks) to implement a risk-based compliance program to mitigate exposure to sanctions-related violations.  Under OFAC’s Economic Sanctions Enforcement Guidelines, in the event of an apparent violation of U.S. sanctions laws or regulations, “the existence, nature, and adequacy of a sanctions compliance program is a factor that OFAC may consider when determining an appropriate enforcement response (including the amount of civil monetary penalty, if any).”

Author –

David Dowd is a partner at Burr + Forman and practices in the firm’s Corporate and Tax Practice Group and previously served for several years as the leader of that Practice Group. He has extensive experience in transactions in the manufacturing, distribution, solar energy, health care, and telecommunications industries, and involving distressed businesses.

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June 18, 2021 at 10:29PM