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Daily Archives: July 23, 2017
China media set much store by NSA visit – The Hindu
Posted: July 23, 2017 at 12:53 am
The Hindu | China media set much store by NSA visit The Hindu The NSA's visit will be key to solving the current dispute and if the two sides failed to reach some agreement on the issue, the China-India ties would be severely damaged, Mr. Ma observed. The daily prefaced the anticipation of Mr. Doval's visit by ... Doklam standoff: India-China row may continue till November, says former NSA NSA Ajit Doval's Visit to Beijing Key to Ease Sikkim Standoff: Chinese Analyst Ajit Doval to visit Beijing for BRICS NSA's meet on July 27-28 |
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Update on Fingerprints, Phones, and the Fifth Amendment …
Posted: at 12:52 am
Can a court order a suspect to use the suspects fingerprint to unlock his or her smartphone? Or would that violate the suspects Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion.
Background. The Fifth Amendment provides in part that no person may be compelled in any criminal case to be a witness against himself. This privilege against self-incrimination applies during the investigative phase of a case as well as at trial. And it applies to the disclosure of information that may lead to incriminating evidence even if the information is not itself directly indicative of guilt. However, it applies only to testimonial activity, not to nontestimonial actions like providing fingerprints, blood samples, or voice exemplars. The act of producing evidence that is not itself testimonial may have a compelled testimonial aspect, as when the act of producing the evidence constitutes an admission that the evidence was in the suspects possession or control. United States v. Hubbell, 530 U.S. 27 (2000) (ruling that tax fraud charges must be dismissed because the charges were based on documents the defendant produced in response to a grand jury subpoena; the defendants act of producing the documents was testimonial because the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of any incriminating documents; [t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox).
Smartphones are often secured by passcodes or fingerprint sensors. Ive written about computer passwords, which present the same Fifth Amendment issues as passcodes, here and here. In brief, some courts view compelling a suspect to provide a passcode as requiring a testimonial act because the passcode is contained in the suspects mind, and because providing the passcode may constitute an admission that the phone belongs to the suspect or is under the suspects control. That doesnt necessarily mean that a court can never order a suspect to provide a passcode. If the court concludes that it is obvious that the phone in question belongs to the suspect so that the act of providing the passcode wouldnt further incriminate the suspect, the court may rule that the suspects knowledge of the passcode is a foregone conclusion, rendering the Fifth Amendment inapplicable. Or the court might rule that the suspect may be required to provide the passcode if given immunity for the act of providing it. Both those possibilities involve complex legal questions that I hope to explore in a future post.
Although passcodes present thorny Fifth Amendment issues, the early authority on point regarding fingerprint sensors suggests that compelling a suspect to use his or her finger to unlock a phone is not testimonial. The suspect is required only to do a physical act placing his or her finger on a sensor and need not admit anything in his or her mind. My earlier post cited the authority available at that time, but we have some new case law now and it points in the same direction.
New cases. The most significant new case is State v. Diamond, __ N.W.2d __, 2017 WL 163710 (Minn. Ct. App. Jan. 17, 2017). The court ruled that a court order compelling a criminal defendant to provide a fingerprint to unlock the defendants cellphone does not violate the Fifth Amendment privilege against compelled self-incrimination.
In brief, the police arrested a burglary suspect and found that he was in possession of a cell phone. They obtained a search warrant for the phone and a court order requiring the suspect to provide a fingerprint to unlock the phone. On appeal, the defendant argued that this violated his Fifth Amendment right to be free from self-incrimination. The reviewing court disagreed because the order did not require the defendant to do anything that was testimonial. The court observed that the order did not require him to disclose any knowledge he might have and reasoned that it was no different than an order to provide a voice exemplar or a blood sample.
Less important but also worth noting is State v. Stahl, __ So. 3d __, 2016 WL 7118574 (Fla. Dist. Ct. App. Dec. 6, 2016). Stahl is a case about a courts authority to order a suspect to provide the passcode to a phone, not a fingerprint. But in the course of discussing the passcode issue, the court stated: Compelling an individual to place his finger on [an] iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar.
Caveat. Although requiring a suspect to press the suspects finger to a phone may not require any testimonial activity, orders on this point must be crafted carefully to avoid infringing on a suspects constitutional rights. An order requiring a suspect to unlock a phone, or to provide officers with an impression from the finger that unlocks a phone, might implicate the Fifth Amendment because such an order would require the suspect to decide which finger to use and so to share the suspects knowledge of which finger operates the sensor. Unless the foregone conclusion doctrine applies or the Fifth Amendment issue can be removed through the provision of appropriate immunity, such an order might be improper.
Worthwhile secondary sources. I cited a couple of secondary sources in my previous post. Id like to add to the list two blog posts by Professor Orin Kerr, a leading scholar in this area. His principal post on the topic is here, and a shorter one discussing the Diamond case is here.
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Co-founder of firm behind Trump-Russia dossier to plead the Fifth – Fox News
Posted: at 12:52 am
Glenn Simpson, whose Fusion GPS firm has been tied to anti-Trump efforts and pro-Russian lobbying, will not talk to lawmakers in response to a subpoena, the leaders of the Senate Judiciary Committe said Friday.
Committee chairman Chuck Grassley, R-Iowa, and ranking member Dianne Feinstein, D-Calif., confirmed in a statement that they subpoenaed Simpson to appear before the committee Wednesday as part of a hearing about the influence of foreign lobbying in last year's presidential election.
"Simpsons attorney has asserted that his client will invoke his Fifth Amendment rights in response to the subpoena," Grassley and Feinstein said.
Fusion GPS co-founder Glenn Simpson is seen at the Aspen Security Forum in Aspen, Colo. Friday (Pam Browne/Fox News)
During the campaign, Fusion GPS contracted former MI-6 agent Christopher Steele to look into rumors about Trump's financial and social connections in Russia. The resulting "dossier," which was leaked to the media following Trump's victory in November included a number of sordid allegations about the president's sexual proclivities.
Last week, Fox News reported that Fusion GPS had ties to Russian efforts to undermine U.S. sanctions that were led by attorney Natalia Veselnitskaya.
Investment manager Bill Browder claims Simpson was hired by one of Veselnitskaya's clients, Prevezon Holdings, as part of an effort to repeal the Magnitsky Act, named for Sergei Magnitsky an attorney for Browder who was beaten to death in a Moscow prison after accusing Russian authorities of stealing hundreds of millions of dollars through tax refunds and then laundering the money through New York banks.
Veselnitskaya became the center of a political storm earlier this month after Donald Trump Jr. made public emails indicating that he had taken a meeting with her on the promise of receiving damaging information about Hillary Clinton.
Grassley and Feinstein also noted that both Trump Jr., who met with Veselnitskaya in June of last year, and former Trump campaign manager Paul Manafort, who sat in on the meeting, are negotiating their appearances and the possibility of turning over documents, but left open the possibility that the pair would be subpoenaed.
Fusion GPS has said it had nothing to do with the Trump Jr.-Veselnitskaya meeting.
Fusion GPS learned about this meeting from news reports and had no prior knowledge of it. Any claim that Fusion GPS arranged or facilitated this meeting in any way is absolutely false, the company said in a statement.
Manafort had attracted scrutiny for months from congressional committees and Mueller. The Associated Press reported in June that Mueller's probe has incorporated a long-standing federal investigation into Manafort's financial dealings. That investigation is scrutinizing political consulting work he did for a pro-Russian political party in Ukraine and the country's former president, Viktor Yanukovych.
Manafort has denied any wrongdoing related to his Ukrainian work, saying through a spokesman that it "was totally open and appropriate."
Manafort also recently registered with the Justice Department as a foreign agent for parts of Ukrainian work that occurred in Washington. The filing under the Foreign Agents Registration Act came retroactively, a tacit acknowledgement that he operated in Washington in violation of the federal transparency law.
The Associated Press contributed to this report.
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The Fourth Amendment Implications of Sharing Server Space – JD Supra (press release)
Posted: at 12:52 am
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Voice of the people – Huntington Herald Dispatch
Posted: at 12:52 am
Columnist's facts on gun violence are inaccurate
Milt Hankin's recent column demonizing rifles is short on facts and inaccurate on laying blame. Mr. Hankins inquires whether America is more violent now than ever. According to the FBI, crime has fallen drastically over the last 20 years, including crimes involving the misuse of firearms, and accidental firearms fatalities are their lowest level since record keeping began in 1903, according to the National Safety Council.
He argues the Second Amendment was written with muskets in mind. But the Fourth Amendment applies to computers and cellphones even though it was written with a quill pen. The Supreme Court in Heller addressed this specious argument in its decision holding the Second Amendment applies to bearable arms commonly owned, not just muskets that existed at the time the Bill of Rights was ratified.
Mr. Hankins blames the tool instead of the criminal wielding the tool. He mislabels the most popular rifle in America, the AR-15, as an "automatic" firearm, which it is clearly not. Automatic firearms, like the military M-16, are, with extremely limited exception, heavily regulated from private ownership.
Mr. Hankins evokes the tragedies of Newtown and Aurora to suggest law-abiding gun owners are a ticking time bomb. His answer is to ban the manufacture and sale of modern sporting rifles like the AR-15. America tried that. From 1994-2004, the sale of these rifles was banned but the ban had no effect on crime rates. It's not the rifle. It's the criminal.
Senior vice president, general counsel
National Shooting Sports Foundation
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Second Amendment rights – The Constitution
Posted: at 12:51 am
The Preamble to The Bill of Rights
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the Bill of Rights.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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Second Amendment rights - The Constitution
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Second Amendment to the United States Constitution – Wikiquote
Posted: at 12:51 am
The Second Amendment to the United States Constitution, relating to the right of people to bear arms, was enacted as part of the Bill of Rights, its ratification occurring on 15 December 1791 with the support of the Virginia Legislature.
The Second Amendment, as passed by the House and Senate and later ratified by the States, reads:
The hand-written copy of the Bill of Rights which hangs in the National Archives had slightly different capitalization and punctuation inserted by William Lambert, the scribe who prepared it. This copy reads:
Both versions are commonly used by "official" U.S. government publications.
George Mason is considered the "Father of the Bill of Rights." Mason wrote the Virginia Declaration of Rights, which detailed specific rights of citizens. He was later a leader of those who pressed for the addition of explicitly stated individual rights as part of the U.S. Constitution.
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‘Nobody Speak’: How Billionaires Are Silencing the First Amendment – HuffPost
Posted: at 12:51 am
When documentary filmmaker Brian Knappenberger set out to make a film about Hulk Hogans lawsuit against Gawker Media, he didnt fully realize the impact of the trial on the future of journalism. It wasnt until the revelation that Peter Thiel was behind thisaka bankrolling Hogans lawsuitthat he realized suddenly this was a very different story, this was about how very wealthy individuals could silence their critics.
Knappenbergers past films, Robert Scheer notes, talk about the possibilities for good and evil in the internet, and his latest, Nobody Speak: Hulk Hogan, Gawker, and the Trial of a Free Press, is no exception. In this weeks episode of KCRWs Scheer Intelligence, Knappenberger sits down with Scheer for a discussion of freedom of the press in the age of Donald Trump, and the future of online journalism.
I found the Hulk Hogan/Gawker case to be really compelling just by itself. It was the first time a sex tape case like this had ever gone to trial, and there was this kind of veneer of tabloid sensationalism to it. You could tell that there were some bigger-picture things going on, Knappenberger says. There were some, I think, really important First Amendment versus privacy issues happening here, and so I thought that was just really, really interesting.
The movie has resonance beyond whether you like Gawker or not, Scheer says. Its really a question of whats going to happening now with the free press, when you have all this money sloshing around that can punish people, and you have a president who seems to be quite hostile to the press.
Knappenberger goes on to explain how Trump has drastically impacted freedom of the press, and notes that Thiel also financially supported Trumps presidential campaign. I think theyre kindred spirits, certainly, in their hatred of the media, he says.
So how does Knappenberger feel about the future of the free press, especially considering the media consolidation happening under companies like Sinclair Broadcast Group?
Theres a lot of examples, and troubling examples, of big money in news and in media. Theres no question about that, he says. I think what were seeing here in the last year, and what Im responding to in the film, is the beginning of this stuff really ratcheting up, and the stakes getting higher and higher.
Listen to the full interview in the player above. Find past editions of Scheer Intelligence here.
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Even in (religious liberty) victory, First Amendment advocates must … – Washington Examiner
Posted: at 12:51 am
Underneath the myriad political stories dominating the news sucking up time and energy like traffic on a Los Angeles freeway, a culture war ripples like an earthquake fault line underneath our feet. Religious liberty, however unpretentious and boring it may appear to be, remains a pressing issue on the importance of societal well-being. Last week, there was another victory for schools associated with all faiths.
Joanne Fratello was the principal of St. Anthony School. As such, she led students in religious activities such as prayer, mass, and encouraging religious-based curriculum. The school eventually did not renew Fratello's contract when they determined she was not advancing the school's Catholic values.
So she sued. Her lawyer claimed the school was not allowed to hire a principal who would promote the Catholic faith at St. Anthony School.
The Becket Fund for Religious Liberty, which represented the school, announced that a New York court recently ruled St. Anthony School and the Roman Archdiocese of New York "can choose a principal who shares their faith." Eric Rassbach, deputy general counsel at Becket, a nonprofit religious liberty law firm, said, "The court saw right through this blatantly anti-Catholic lawsuit, agreeing with the Supreme Court that the church, not the state, should pick religious leaders."
It was clear in the opposing trial lawyer's arguments he was vehemently opposed to religious freedom. He "accused the Catholic Church of being "dangerous to society," the Russian Orthodox Church as "indoctrinating children with Stalinist communism," and the Supreme Court's unanimous decision as an aid to "potential jihadists.'" Such rhetoric is not only divisive, even for a lawyer, but more importantly has no place in a court of law when the First Amendment to the U.S. Constitution clearly reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
In the decision, which went to the Second Circuit Court of Appeals, the court ignored the opposing counsel's illogical bluster and instead said there is historical precedent for this case when "a stammering Moses was chosen to lead the people, and a scrawny David to slay a giant." That a New York appellate court would cite centuries-old Jewish history for a 2017 religious liberty case should make any First Amendment fanatic's heart skip with glee even as it no doubt filled opposing counsel with disdain for religious history.
This aligns with a similar decision the Supreme Court unanimously decided five years ago, when the state tried to intervene with a Lutheran school about what kind of leaders the school could choose.
Even though religious liberty cases keep popping up in the court system nationwide, it's heartening to see (for people of all faith or no faith) that the First Amendment remains authoritative and secure.
That said, when cases like this, where a woman sues a religious school because she believes she was unlawfully fired because that school reserved the right to hire someone who promotes their religious values, reaches an appellate court, religious liberty advocates must remain vigilant.
Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.
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Bitcoin surges as miners avert split for now – MarketWatch
Posted: at 12:49 am
Bitcoin prices surged this week as an overwhelming majority of miners, the computer operators who maintain its network, backed a software upgrade that will boost the speed of processing transactions, likely averting a split that could have resulted in multiple versions of the digital currency.
Through an online voting mechanism, miners representing 99% of the cryptocurrencys computing power, backed a new piece of software, known as Segregated Witness, or SegWit, that would boost bitcoins processing power without altering the underlying software, The Wall Street Journal reported Friday.
See: Bitcoin may have reached a tipping point, now that Downtown Josh Brown has invested
The debate leading up to the vote marked a split that largely pitted miners and entrepreneurs, who wanted to increase block size and maximize bitcoins value as a payments network, versus developers who fear larger block sizes will increase operating costs for miners, driving some out and leading to more centralized control, wrote the Journals Paul Vigna.
Bitcoin prices dipped early this week on fears over a potential split. Bitcoin BTCUSD, -2.80% One bitcoin traded at $2,813 at midday Saturday, according to Coinbase, up nearly 40% on the week.
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Bitcoin surges as miners avert split for now - MarketWatch
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