Author: admin

With apologies for the lateness of this post, Episode 263 of The Cyberlaw Podcast tells the sad tale of yet another US government leaker who unwisely trusted The Intercept not to compromise its source. As Nick Weaver points out, The Intercept also took forever to actually report on some of the material it received.

In other news, Brian Egan and Nate Jones agree that Israel broke no new ground in bombing the headquarters of Hamas’s rudimentary hacking operation during active hostilities.

Nick and I dig into the significance of China’s use of intrusion tools pioneered by NSA. We also question the New York Times‘s grasp of the issue.

The first overt cyberattack on the US electric grid was a bust, I note, but that’s not much comfort.

How many years of being told “I’m washing my hair that night” does it take before you realize you’re not getting anywhere? The FCC probably thought China Mobile should have gotten the hint after eight years of no action on the company’s application to provide US phone  service, but just in case the message didn’t get through, the Commission finally pulled the plug last week.

Delegating to Big Social the policing of terrorist content has a surprising downside, as Nate points out. Sometimes the government or civil society need that data to make a court case.

We touch briefly on Facebook’s FTC woes and whether Sen. Hawley (R-MO) should be using the privacy stick to beat a company he’s mad at for other reasons. I reprise my longstanding view that privacy law is almost entirely about beating companies that you’re mad at for other reasons.

Download the 263rd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

from Latest – Reason.com http://bit.ly/2VtJARm
via IFTTT

When Donald Trump claimed in 2015 that Mexican immigrants will ravage our women, destroy our neighborhoods, and taint our ethnic and cultural purity, he entered into a long-standing, well-cultivated American tradition of xenophobia and fear-mongering.  

In the late 19th century, poet Emma Lazarus celebrated the “huddled masses yearning to breathe free” and “the wretched refuse” who came to America for a better life. But Prescott F. Hall, the co-founder of the powerful Immigration Restriction League, offered a rebuttal verse:

Enough! Enough! We want no more

Of ye immigrant from a foreign shore

Already is our land o’er run

With toiler, beggar, thief and scum.

After over a century of mostly open borders, in which tens of millions of European immigrants became Americans, members of the WASP establishment decided in the 1920s that the United States could no longer accept what they denounced as “beaten men from beaten races.” In terms that will sound familiar today, they claimed Jews, Italians, and others were incapable of assimilating into a country based on private property, limited government, and hard work.

In 1924, the restrictionists won a massive and long-lasting legislative battle with passage of The Johnson-Reed Act, which completely prohibited immigration from Asia and sharply limited immigration from Europe based on the country of origin. Under the new law, for instance, just 4,000 Italians were allowed to enter the country each year, down from an average well over 200,000 in each year of the preceding decade. National origins would remain the basis of U.S. immigration law until 1965.

The Guarded Gate: Bigotry, Eugenics, and the Law That Kept Two Generations of Jews, Italians, and Other European Immigrants Out of America, a new book by Daniel Okrent, looks at the ways in which xenophobia and pseudo-science combined to fundamentally alter immigration policy at the start of what became known as “the American Century.” Okrent was the first public editor of The New York Times and is the author of Last Call, a history of Prohibition. He sat down with Reason to talk about how old debates over immigration and America’s national character are newly relevant to contemporary politics.

Edited by Ian Keyser. Intro by Todd Krainin. Cameras by Jim Epstein and Kevin Alexander.

‘Modum’ by Kai Engel is licensed under CC By 4.0

Subscribe to our YouTube channel.

Like us on Facebook.

Follow us on Twitter.

Subscribe to our podcast at iTunes.

from Latest – Reason.com http://bit.ly/30oHXYV
via IFTTT

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Take now, pay later. Over at Forbes.com, IJ’s Andrew Wimer explains that courts all over the country are allowing pipeline companies to seize land without paying property owners—sometimes for years. Which violates federal law and the Constitution. Click here for our cert petition asking the U.S. Supreme Court to intervene.

• “It stands our criminal justice system on its head to hold that even a single extra day of imprisonment can be imposed for a crime that the jury says the defendant did not commit.” So says D.C. Circuit Judge Millett, objecting to the practice of increasing defendants’ criminal sentences on the basis of charges that a jury acquitted on.
• South Carolina prisoner, handcuffed and surrounded by multiple guards, refuses to let them take his picture. After seven-ish minutes, one guard has had enough, and she tases the prisoner three times. (The guards get their picture.) Cruel and unusual punishment? Fourth Circuit: No if the guard was trying to secure compliance in good faith, but yes if she was acting maliciously. And this looks malicious enough to get past summary judgment.
• Court emails notice of final judgment to attorney. But it goes to his spam folder, and he misses the deadline to appeal. Fifth Circuit, in two-page opinion: So no appealing.
• Marquette, Mich. railway trackman sues his employer, alleging an on-the-job injury. Employer schedules an independent medical exam to assess his injuries. Trackman refuses to fill out medical questionnaire and refuses to answer examiner’s questions. Also, his lawyer tags along to the exam, which is . . . uncommon. And the lawyer secretly records the exam on his cell phone. District court: Given the “flagrant and repeated misconduct exhibited by Plaintiff and his attorney,” the entire case is dismissed. Sixth Circuit: Affirmed. Although we’re generally reluctant to dismiss a plaintiff’s suit merely to sanction the plaintiff’s lawyer, both the trackman and his lawyer behaved badly here. Judge Sutton, concurring: Also, we shouldn’t be at all reluctant to hold parties accountable for their lawyers’ misdeeds, even if the parties themselves are not at fault.
• It takes an awful lot to vacate a conviction under the plain-error standard of review. So why did the Sixth Circuit give two admitted drug dealers a new trial? Let’s go to the transcript: “Defendant: I’m just a Catholic believer. Prosecutor: Catholic believer? Do you understand that there is a Commandment that says thou shall not have any god before me? Def: Yes, I understand. Pros: But yet you prayed to the idol for drug traffickers [Malverde] for protection?” Later, in closing: “Pros: I wonder how many prayers he has said to Malverde before he walked into the courtroom yesterday. I wonder if what’s going through his mind this morning was, I’m going to say another prayer for protection from the jurors of Central Kentucky.”
• Robber flees a Fort Wayne, Ind. store. In the split second he opens the door, he’s shot by a policeman. The officer says he thought the robber was armed. The robber says he was trying to surrender (or at least needed a chance to). The officer: I should have won at summary judgment; don’t make me go to trial. Seventh Circuit: The district court said the facts are disputed, so we can’t hear your appeal yet.
• Brace yourself for a habeas head-scratcher. In 2008, Kenosha County, Wisc. husband is convicted in state court of murdering his wife. But at trial, the court admitted a “voice from the grave” letter in which wife wrote that she feared her husband would kill her. Seventh Circuit (2015): Which was a very wrong application of the Sixth Amendment’s Confrontation Clause. District court (2015): So within 90 days, the state must either “initiate[] proceedings to retry” the husband or set him free. State court: Proceedings initiated. But wait! Intervening Supreme Court decisions have clarified that wife’s letter is admissible after all. So since there’s no point in holding a new trial, conviction reinstated. Seventh Circuit (2019): Technically, the state “initiate[d] proceedings to retry” the husband, which is all the federal district court required of it. So as far as appeals go, it’s back to square one for the husband.
• Milwaukee police patrolling high-crime neighborhood espy man with suspicious bulge in his pocket. He walks briskly away from them, appears to place an object between the screen door and front door of nearby home—his home. Officers follow him up onto the porch, check between the doors, find a gun. Suppress the evidence? No need, says two-thirds of a Seventh Circuit panel.
• Mexican citizen (with U.S. citizen wife and kids) seeks to develop San Diego waterfront, contributes to local elected officials. Which is illegal. Does it violate foreign nationals’ First Amendment rights to bar them from contributing to political campaigns? Ninth Circuit: No. Nor does it violate the Second Amendment to bar them from possessing firearms. (More on that from Eugene Volokh.)
• In 2010, Fremont, Calif. landlord conducts background check of potential tenant, which reveals several criminal charges (but only one conviction). The would-be tenant’s application is rejected. He sues the company that did the background check. Did the company violate federal and state law by including a 2000 charge (that was dismissed in 2004) in its report to the landlord? The suit should not have been dismissed, says a partially divided Ninth Circuit panel.
• And in en banc news, the Sixth Circuit will not reconsider its decision permitting a substantive due process claim to proceed against officials responsible for the Flint, Mich. municipal water crisis. Judge Sutton, concurring in denial of rehearing en banc: If officials intentionally poisoned the water this case should proceed. But if officials were merely grossly negligent, the district court should put an end to this litigation. Judge Kethledge, dissenting: All decent people are sympathetic to plaintiffs, but the law is against them. Officials weren’t on notice that there is a right to bodily integrity that can be violated by supplying bad water.

This month, Florida legislators passed a criminal justice omnibus bill that will, among other things, remove unnecessary restrictions on people with criminal records getting occupational licenses. Hear, hear! “When you take away someone’s ability to earn a lawful living, the risk of recidivism increases. Clearing the way for people to earn an honest living is one of the best ways to prevent recently released individuals from re-offending,” says Justin Pearson, managing attorney of the IJ Florida Office, who testified during the committee process. “But strict occupational licensing requirements make it harder for ex-offenders to find work.” The bill now awaits the Governor’s signature. Click here for more.

from Latest – Reason.com http://bit.ly/30qMFoV
via IFTTT