Court upholds Handgun-Sales Age Requirement

This case again shows that regulating firearms is constitutional.

In NRA v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 11-10959 (5th Cir. Apr. 29, 2013), the court upheld 18 USC 922(b)(1) and (c)(1).  These laws prohibit federally licensed firearms dealers from selling handguns under the age of 21.

The NRA claimed that this federal statute was unconstitutional under the Second Amendment.  The court disagreed.

The Fifth Circuit Court of Appeals explained:

In a critical passafe, moreover, the Court emphasized that the ‘right secured by the Second Amendment is not unlimited.’ [Dist. of Columbia v. Heller, 554 US 570, at 626].  As the [Supreme] Court explained:

From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ills, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626-27 (emphasis added) (citations omitted).

Thus, the Circuit Court stated that “Congress designed its scheme to solve a particular problem: violent crimes associated with the trafficking of handguns from federal firearms to licensees to young adults.”  The court, further stated that Congress could have sought to prohibit all persons under 21 from possessing handguns or all guns.  Additionally, the court pointed that under the Census, 18-to-20-year-olds accounted for a disproportionately high percentage of arrests for violent crimes” in 2010.

Giving up your password when looking for a job?

Should your potential employer require you to give up your password to Twitter? Facebook? LinkedIn? Will your comments, background information, age, nationality, pictures be used against you?

What if the employer does not use that information, but still has access to it?  Would that raise a concern that it was in fact used against a job applicant?  Allowing the requirement of social media passwords bring potential liability issues to employers.

Minnesota Lawyer (subscription required) has a very interesting article.   The Minnesota proposed bill, introduced by Rep. Mary Franson (R-Alexandria) seeks to ban employers from asking job applicants for their social media passwords as part of the job interview.  It is important to note, as stated by the article, that the bill does not discuss already hired employees and the use of employer laptops, computers, smartphones, etc.

Pending legislation in Minnesota includes H.F. 293, H.F. 611, S.F. 484, and S.F. 596.  All of these bills seek to ban employers fro requiring social network passwords as a condition of employment.

The National Conference of State Legislation reports that there are at least 29 states with introduced or pending legislation seeking to ban employers from requiring/asking for these social media passwords.

Sup. Ct. Rejects Wiretapping challenge

I just realized that I never posted this decision.  The background of Clappler v. Amnesty Int’l USA, No. 11-1024 (Feb. 26, 2013) is as follows.  Attorneys for Guantanamo Bay prisoners challenged the surveillance of their attorney-client and confidential communications.  In this case, to avoid surveillance on attorney-client communications and confidential communications, attorneys traveled to Guantanamo and had face-to-face communications.  Respondents brought this lawsuit to prevent any current, past, or future surveillance on these communications.  The Supreme Court rejected all of respondents’ arguments.

This case solely focused on Foreign Intelligence Surveillance Act (“FISA”), 50 USC 1881a.  FISA allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who (1) are not “United States persons” and (2) are reasonably believed to be located outside of the United States.  Before any surveillance, the government must obtain the Foreign Intelligence Surveillance Court’s (“FISC”) approval.

This case, in other words, only dealt with the question of the powers of the United States when performing surveillance of foreign communications.

In the 5-4 vote, the Supreme Court ruled that the plaintiffs could not prove by “pointing to specific facts” that any surveillance actually happened. Justice Alito held,

Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under§1881a at some point in the future.  But respondents’ theory of future injury is too speculative to satisfy the well-established required that threatened injury must be “certainly impending.” And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to §1881a.

(Italics in original).

So what meets the burden of injury in fact? Justice Alito stated that “[a]lthough imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative… that the injury is certainly impending.” (Italics in original).

In sum, Justice Alito delineated how respondents might meet their burden.

Respondents must have “actual knowledge” that the government is performing surveillance on their contacts or clients.

Alternatively, respondents might meet their burden through imminent surveillance if two conditions are met.  First, respondents must bring about “specific facts demonstrating that the communications of their foreign contacts will be targeted.”  Second, if imminence was shown, respondents must show that the government “will seek to use <§1881a-authorized surveillance (rather than other methods) to do so” for the respondent’s contacts and clients, and that the court granted the FISC order.

What posits an interesting conundrum is how will parties know if they are or will be subjected to surveillance under the specific provision of § 1881a of FISA?  The government knows for sure whether the plaintiffs’ communications where intercepted.  Thus, the parties might only become aware when a case is brought against them with information gathered from a FISC order.

 

via Supreme Court Rejects Challenge to Surveillance Law – NYTimes.com.

Update on NYPD’s surveillance and infiltration of Muslim groupds

Are Muslim communities being unfairly targeted by law enforcement?  This is the conversation being raised after the New York Civil Liberties Union sought to revisit a 41-year old case.

You may have heard about news articles discussing NYPD’s surveillance and infiltration of New York-based Muslim groups.  Last year, the Associated Press confirmed the existence of a program, called the Assessment Program, formerly known as the Demographics Unit, which spied on Muslims.

As way of background, in 1985, a Manhattan federal judge ordered a consent decree (known as “Handschu guidelines”) whereby the police is barred from investigating political and religious organizations without “specific information” linking the group to a crime.  In that case, Handschu v. Special Services Division, the police had extensive dossiers on a large array of political groups, including the Black Panthers.

After 9-11, the judge loosened the Handschu guidelines to give police wider powers to investigate political groups in the war on terror.

The New York Civil Liberties Union released a memorandum, submitted to the court, seeking to end the NYPD’s Assessment Program.  In the memorandum there is testimony stating that an informant was paid as much as $1,500 a month to take part in the NYPD’s alleged “create and capture” program.  The informant stated,

This meant I was to pretend to be a devout Muslim and start an inflammatory conversation about jihad or terrorism and then capture the respond to sent to the NYPD.

I did this on numerous occasions with people I met at the mosques and other locations.

The question to be decided is – how much latitude law enforcement given when conducting surveillance of political and religious groups?

As a side note, you may have also come across the story regarding the FBI’s surveillance on Muslims groups, known as “Operation Flex.”  That story has been reported in many news circles, including the Business Insider here.

via Courthouse News Service.

Online Retailer and Personal Information

If you have bought anything online, you are aware that the online retailer keeps information that you provide.  For example, your name, your credit card, your address, your phone number.  The question decided in California regarded the anti fraud statute.  Can online retailers require you to provide this information?

The California Supreme Court held in Apple Inc. v. Superior Court of Los Angeles County, et al., (Feb 4, 2013) that Apple could require personal information from customers who make downloadable purchases on iTunes.

The plaintiffs alleged Apple violated the Song-Beverly Credit Card Act, section 1747.08(d), by requiring this information from customers.

The California Supreme Court rejected this claim because:

Unlike a brick-and-mortar retailer, an online retailer cannot visually inspect the credit card, the signature on the back of the card, or the customer’s photo identification.

Thus, section 1747.08(d) – the key anti fraud mechanism in the statutory scheme – has no practical application to online transactions involving electronically downloadable products.  We cannot conclude that if the Legislature in 1990 had been prescient enough to anticipate online transactions involving electronically downloadable products, it would have intended section 1747.08(a)’s prohibitions to apply to such transactions despite the unavailability of section 1747.08(d)’s safeguards.

 

via Courthouse News Service.

DNA collection of arrested individuals

This month, the Supreme Court will hear arguments on the issue of whether it is constitutional for the State to require DNA collection of arrested individuals.  The case is Maryland v. King.  The argument is set for February 26, 2013.

As way of background:

• The federal government and at least 26 states (including California, Illinois, and Florida) take DNA samples from some or all who are arrested but not yet convicted of serious crimes.
• Last month, President Obama signed into law the Katie Sepich Enhanced DNA Collection Act.  The statute will help pay the start-up costs for other states to begin testing people who are arrested.

So what does this issue mean?  The issue is whether the State, without a search warrant, can take a DNA swap of an arrested individual – who has not been convicted.

The Maryland Court of Appeals stated the 4th amendment, which bars unreasonable searches, protects people who haven’t been convicted from having to provide DNA evidence.  In addition, the court stated, “Although arrestees do not have all the expectations of privacy enjoyed by the general public, the presumption of innocence bestows on them greater protections than convicted felons, parolees or probationers.”

The Maryland Court of Appeals further explained that DNA samples “contain a massive amount of deeply personal information.”

 

No Probable Cause vs. 1st and 4th amendment?

This is an interesting decision, allowing the first and fourth amendment claims of Port Militarization Resistance, an anti-war group, to go ahead.

The lawsuit arose when allegedly two civilian U.S. Army employees (Towery and Rudd) spied on the anti-war members and secretly disrupted protests.  The anti-war group was protesting the use of sea ports in Washington State for shipments of military supplies to Iraq and Afghanistan.

The lawsuit alleges defendants befriended the anti-war group and “influenced and directed” tactics to disrupt protests without cause, and that defendants broke into a confidential attorney-client list serve.

The district court dismissed most of the claims, but allowed First and Fourth Amendment allegations against Towery and Rudd to go ahead, despite their motion for qualified immunity.  The Ninth Circuit Court of Appeals affirmed.

The Ninth Court stated,

“It is clearly established that intentionally enabling arrests without probable cause in order to suppress speech violates the First Amendment,” the unsigned and unpublished opinion from Seattle states.

“Plaintiffs have pled a plausible violation of their clearly established First Amendment rights,” the ruling states. “Plaintiffs have alleged that defendants ‘deterred or chilled the plaintiff’s political speech’ and that such deterrence motivated defendants’ conduct.”

via Courthouse News Service.

NLRB Clarifies Social Media Case Analysis

I mentioned this case before in a prior post.  Nevertheless, it warrants a follow up post dealing specifically with this case: Hispanic United of Buffalo.

In Hispanic United of Buffalo,the NLRB clarified the analysis for Facebook and other social media cases.

The facts are fairly typical for the increasing number of Facebook cases.  One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss.  The co-worker posted a message on her Facebook page noting the criticism, saying she had “about had it,” and asking her fellow co-workers how they felt.  Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers.  The employer fired all five for bullying the critical employee on Facebook.

All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations–Meyers Industries–is applicable.  There wasn’t much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it’s newer and cooler than more traditional forms of communication.  This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it’s obviously a lot more helpful for the Board to make that clear.

via Workplace Prof Blog: NLRB Clarifies Social Media Case Analysis.

What NOT to include in your social media policy

HR.BLR has a good list to keep in mind when drafting your social media policy.  Please read this very carefully.

Social Media Policies: What NOT To Do

When creating your social media policies, here’s what NOT to do:

• Don’t screen applicants on social media and/or ask for passwords to such sites. “Increasingly [such practices] will be prohibited by both federal and state law,” Scott explained. Additionally, screening on social media opens the risk for discrimination claims based on protected class status that may be discovered in social media postings.
• “Don’t adopt social media policies which are overbroad, or which unreasonably chill the exercise of protected concerted activity rights under the NLRA.” Scott continued.
• Don’t fire or discipline employees for social media content without first reviewing with counsel to ensure you are not crossing the line. Remember that the line is moving quickly as technology changes!
• Don’t use third-party apps that are overbroad in their access to applicant and employee information.
• Don’t refuse to hire applicants (or fire or discipline employees) based on information culled from social media without checking with experienced legal counsel.

Social Media Policies: What TO Do

Here are some “dos” for social media policies

• Create a current, effective and enforceable social media policy.
• Instruct employees not to use vulgar, obscene, threatening, intimidating or harassing language; attack people based on protected status (e.g., union status or activity, disability, national origin, etc.); disparage company products and services; or disclose confidential or proprietary company information.
• Create a companion privacy policy, establishing guidelines to prevent the disclosure of confidential employee or company information. Confidential employee information may include things such as home addresses, birthdays, employee personal data (including medical data), and protected status information. Company proprietary information could be financial, trade secrets, or other business information deemed confidential. (These lists contain examples, but are not comprehensive.)
• Train employees about social media policies.
• “Use a non-decision-maker to filter the contents of the social media page” if you do use social media as part of applicant screening, Semler advised. This is so you don’t get charged with the knowledge of protected status.
• Monitor ongoing legal developments and conform your practices to those changes. For example, monitor the constantly changing laws, regulations and rules established and implemented by federal and state legislatures, agencies and courts.

via What NOT to include in your social media policy.

Facebook is collecting your data — 500 terabytes a day

With more than 950 million users, Facebook is collecting a lot of data. Every time you click a notification, visit a page, upload a photo, or check out a friend’s link, you’re generating data for the company to track. Multiply that by 950 million people, who spend on average more than 6.5 hours on the site every month, and you have a lot of information to deal with.

Here are some of the stats the company provided Wednesday to demonstrate just how big Facebook’s data really is:

• 2.5 billion content items shared per day (status updates + wall posts + photos + videos + comments)
• 2.7 billion Likes per day
• 300 million photos uploaded per day
• 100+ petabytes of disk space in one of FB’s largest Hadoop (HDFS) clusters
• 105 terabytes of data scanned via Hive, Facebook’s Hadoop query language, every 30 minutes
• 70,000 queries executed on these databases per day
• 500+terabytes of new data ingested into the databases every day

“If you aren’t taking advantage of big data, then you don’t have big data, you have just a pile of data,” said Jay Parikh, VP of infrastructure at Facebook on Wednesday. “Everything is interesting to us.”

Parikh said the company is constantly trying to figure out how to better analyze and make sense of the data, including doing extensive A/B testing on all potential updates to the site, and making sure it responds in real time to user input.

“We’re growing fast, but everyone else is growing faster,” he said.

via Facebook is collecting your data — 500 terabytes a day — Data | GigaOM.