Daily Archives: March 13, 2013

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.

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Judicial Ethics and Social Media

On February 21, 2013, the American Bar Association released a formal opinion (#462) regarding judicial ethics in the social media context.  The ABA concluded,

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impartiality.

So what does this mean?

Electronic Social Media and the Judicial Independence, impartiality, and integrity

The ABA recognized that social networking is a part of worldwide culture and that electronic social media interactions might be beneficial to judges in order to prevent them from being thought of as isolated or out of touch.

So how should judges then behave in this electronic environment?  Given the oath and importance of promoting public confidence in the independence, integrity, and impartiality,” the judge must be sensitive to the appearance of relationships with others.

It is important to understand that relations over the internet are difficult to manage because messages may be taken out of context, misinterpreted, or relayed incorrectly.

In other words, judges must assume that comments, images, or profile information, as well as any other information, might be publicly revealed without the judge’s permission.

In addition, judges should not form relationships with persons or organizations that might be violative of Judicial Ethics because these relationships convey that the individuals or organizations are in a position to influence the judge.

Furthermore, there might be disclosure or disqualification concerns regarding judges when the sites that were “friended” or “liked” which are used by lawyers or others who may appear before the judge.  The context is important here when assessing the judge’s relationship to attorneys or others who may appear before them.

Electronic Social Media and Election Campaigns

In the ABA Model Code (which may be adopted as a whole or in part by states), a judge or judicial candidate may engage in political or campaign activity with certain enumerated exceptions.

Of great importance is that judges and judicial candidates must “be free and appear to be free from political influence and political pressure.” ABA Model Rule 4.1 [1].

Similarly of equal importance, the judge or judicial candidate is prohibited from personally soliciting or accepting campaign contributions other than through a campaign committee.  ABA Model Rule 4.1(A)(8); see also ABA Model Rule 4.4.  In the Model Rules, the method of communication is not addressed or restricted.

In addition, judges and judicial candidates are prohibited from “publicly endorsing or opposing a candidate for any public office.” ABA Model Rule 4.1(A)(3).  This means that judges or judicial candidates should be aware that by “liking” or becoming a “fan” of, or by “sharing” messages, photos, or other content, this Model Rule might be violated.

In sum, judges and judicial candidates can use social media but must be aware of the potential pitfalls that might arise. These might arise from “friending,” “liking,” “sharing,” being a “fan” of, and posting comments, photos, or other information that might be distributed.  It is also important for judges and judicial candidates to be aware that any information on the Internet might be distributed by others and made public with or without their consent.

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In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

Similarly, in addition to other significant amendments to Rule 26, Rule 26.02(b) has been amended to require that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”  While such limitations to discovery were previously acknowledged, the amended rule more strongly emphasizes the importance of proportionality.

Significant amendments to other rules were also adopted.  Notably, an order attaching “corrective amendments” was entered several days later.  Those orders are available HERE and HERE.  The newly adopted amendments become effective July 1, 2013.

via In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality : Electronic Discovery Law.

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Economic state – a close up examination

So what is the employment state of the US right now?  You would be surprised at what the numbers really mean.

On Friday March 8th the Bureau of Labor Statistics released the most anticipated report of the employment situation.  The report found:

  • Unemployment decreased to 7.7% in February.  The number of unemployed persons also edged lower in February to 12 million.
  • Total nonfarm payroll employment increased by 236,000 in February.

So does this mean that the economy state keeps booming every month?  Not really.

It is important to look at a very important report, which is usually clouded: The Job Openings and Labor Turnover.

Why is this report so important?  For one, it shows the population’s confidence on whether they would find other employment if they quit their current job.  Second, it really shows a clear picture of how many people lost their job.  So hypothetically, if the US lost 1 million jobs, but only gained 500,000 – this doesn’t bode very well for the economy.

On Tuesday March 12th, the Bureau of Labor Statistics released the Job  Openings and Labor Turnover.  This report found:

Jon Openings

  • The number of job openings (3.7 million) did not change much from December.
  • The number of openings rose in professional and business services.
  • However, it decreased in health care and social assistance.
  • All remaining industries did not change much from January.

Hires Rate

  • The hires rate (3.1%) changed little from January.  The hires rate was not seasonally adjusted.
  • The hires rate decreased in mining and logging and in the arts, entertainment, and recreation.
  • The hires rate was unchanged for total nonfarm, private, and government.

Separation Rate

  • The separation rate includes: (1) quits; (2) layoffs; and (3) discharges.  The overall separations rate (3%) changed little from January.
  • The overall quits rate was unchanged at 1.6%.  The quits rate was not seasonally adjusted.
  • The quits rate edged up for total private in January.
  • The quits rate for government was unchanged.
  • The layoffs and discharges rate was seasonally adjusted.  The layoffs and discharges rate changed little from January at 1.1%.

So what does these statistics show?  For one, that the overall rate of job openings has not really changed.  Similarly, the overall rate of separation rate has not really changed.

Most interesting is the fact that upon close examination – the where of these job openings has changed.

In the health care and social assistance industries, the rate of job openings have decreased.  The question posed is – will this affect the services accessibility to the public?

The education and health services rate was 3.1% (January 2012), 3.2% (December 2012), and 2.8% (January 2013).  Since December 2012 to January 2013, we are seeing a 0.4% decrease.

The health care and assistance rate was 3.4% (January 2012), 3.4% (December 2012), and 3.0% (January 2013).  From December 2012 to January 2013, we also saw a 0.4% decrease.

On the more positive side, the job openings rate increased in the professional and business services, as well as in construction.

The construction industry rate has been slowly increasing. The rate is 1.4% (January 2012), 1.6% (December 2012), and 1.7% (January 2013).

The professional and business services also show a very promising increase.  In other words, we are almost back to January 2012 rates.  The rate is 3.7% (January 2012), 3.1% (December 2012), and 3.6% (January 2013).  This means that we have seen a jump of 0.5%, which puts at near the rate of January 2012.

 

via Job Openings and Labor Turnover Summary.

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