Daily Archives: August 3, 2017

Why Robert Mueller’s Grand Jury Isn’t a Big DealYet – TIME

Posted: August 3, 2017 at 11:56 pm

Legal experts warn not to read too much into a report that special counsel Robert Mueller has impaneled a grand jury as part of his probe into Russian interference in the 2016 election.

The decision was likely made for practical reasons, such as making it easier to call witnesses to testify, and does not necessarily indicate that the former FBI chief is ready to issue indictments, experts say.

When conducting an investigation, prosecutors commonly work with a grand jury, said Melinda Haag, former U.S. Attorney in San Francisco. Because of its significant legal power and investigative reach, Haag says, impaneling of a grand journey can happen at almost any point during an investigationnot just near the end.

The use of grand juries, which serve as forums for testimony and evidence gathering before a potential trial, is not uncommon in federal cases. Its a unique environment with special rules: because there are no defendants, legal counsel is not present, and the prosecutor has significant control over the proceedings. The process can lead to indictments if criminal evidence comes to light.

In part because it echoes the events of Watergate, Muellers decision to specially impanel a grand jury has been seen as revealing. That means that Mueller opted not to use a sitting grand jury to handle the case, or continue using the grand jury in Alexandria, Va., that had been used by federal prosecutors to investigate former national security advisor Michael Flynn.

But while the special formation of the jury is a highly visible and certainly important move in the ongoing investigation, it may be less dramatic than it initially appears.

Given the nature of the things that Mueller is investigating, it would be odd for him not to use a grand jury in the District of Columbia, said David Sklansky, a co-director at Stanford's Criminal Justice Center, adding that it would be weird for Mueller to rely on a standing jury for the investigation.

There are a number of reasons for that. Under law, grand juries are held to a certain term length and sometimes called to multiple cases, so for a complicated and potentially lengthy investigation it makes sense for a prosecutor to convene a new jury that can devote its entire term and attention to a single case.

And a sitting jury would not have been screened for participation in a high-profile and high intensity case like this one. A dedicated grand jury will be an administrative convenience, in a case that could involve numerous documents and participants, said Robert Weisberg, a criminal justice expert at Stanford Law School.

At an extreme, the formation of the jury could mean that Mueller believes he hasor could soon haveenough evidence to issue an indictment that could lead to a criminal case, says Hadar Aviram, a law professor at UC Hastings. But it could also simply mean the Mueller is hoping to utilize the powerful evidence-gathering machinery that a grand jury provides.

Aviram calls the grand jury process a powerful mechanism that has the capability of generating more evidence through its powers of subpoena, meaning the prosecutor can compel testimony and the handing over of documents. The latter is particularly potent, because, unlike with testimony, its nearly impossible for documents to be protected under the Fifth Amendment. And Weisberg points out that because those who testify are under oath and could end up as defendants in a later trial, and prosecutors can grant immunity in exchange for testimony, the grand jury tends to be a productive environment for revealing testimony and naming of further witnesses.

But Haag emphasizes that the impaneling may simply mean that Mueller plans to start subpoenaing documentsand, even if they are at a stage where they want to take testimony from one or more people, that, too doesnt mean theyre reaching the end of the investigation.

Regardless of the strategy behind the formation of the grand jury, many aspects of it will be mysteries for some time. The proceedings could be lengthy and are legally protected under strict rules of secrecythough witnesses are free to talk about their participation. If witnesses do choose to disclose their involvement, or any details of the subpoenas are leaked, it could provide clues into the shape of the investigation.

But for now, were mostly in the dark.

Everything is just a kind of tea leaf reading at this point, Wesiberg saidadding that any conclusions should be drawn with caution.

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Case Note: Allen and Conti – JD Supra (press release)

Posted: at 11:56 pm

This case, from the U.S. Federal Appeals Court, considers the applicability of the Fifth Amendments privilege against self-incrimination in relation to testimony compelled by a foreign government, on the present facts the UKs Financial Conduct Authority. It will therefore no doubt influence how the DOJ operates and interacts with UK investigatory authorities in the future.

The U.S. Court of Appeals for the Second Circuit, in a decision published on 19 July1, reversed the convictions of Anthony Allen and Anthony Conti. Allen and Conti (the Defendants) had previously been tried and convicted before the District Court (Southern District of New York) for wire fraud and related conspiracy offences, concerning the alleged manipulation of LIBOR. The appeal focused on the defendants claim that their privilege against self-incrimination under the Fifth Amendment had been violated. It was argued that the testimony of Paul Robson, a key witness in the case, had been tainted by statements the Defendants had made in compelled interviews with the UKs Financial Conduct Authority (FCA). The FCA had disclosed the transcripts of the Defendants interviews to Robson, pursuant to the regulatory proceedings against him. Robson had reviewed the transcripts prior to cooperating with the DOJ.

In reversing the District Courts decision, the Appeals Court held that the Government had failed to prove (as required under the Kastigar doctrine2) that Robsons evidence had been derived from a source wholly independent of the compelled testimony. In addition, the Appeals Court addressed a more fundamental issue which the District Court had previously declined to consider: whether the Fifth Amendment is even engaged by testimony compelled by a foreign government. Given the increasing prevalence of cross-border investigations this question was evidently important to resolve. The Appeals Court concluded that the protection offered by the Fifth Amendment applied to the use of all compelled testimony, irrespective of whether it had been obtained by a foreign Government. This blog piece summarises both elements of the Appeal Courts decision.

Application of the Fifth Amendment to foreign compelled testimony

In a previous blog post we analysed the competing arguments raised on behalf of the Government and the Defendants, before the District Court, on whether the Fifth Amendment applied to foreign compelled testimony. We concluded that it was difficult to reconcile the Governments position with Federal Appellate authority. The Appeals Court decision is not therefore overly surprising.

The decision emphasizes that the Self-Incrimination Clausewhich enshrines a right not to testify against oneselfprovides a personal trial right to an accused in any US criminal case. A violation of the Clause therefore occurs only when the statement is used at trial, not at the point of its compulsion. In short, compelled testimony cannot be used to secure a conviction in an American Court.3

The Appeals Court rejected a policy argument raised by the Government in support of adopting a restrictive scope of the Fifth Amendments application. The Government suggested that foreign authorities could frustrate US prosecutions by publicizing compelled testimony, thereby submitting the US Government to the burden raised by Kastigar. The Appeals Court dismissed these concerns. Negligent publication, the Court held, seemed increasingly unlikely given the trend towards closer and earlier coordination between U.S. and foreign agencies. The tide of international criminal enforcement, the Court reasoned, bolstered the argument for having the Fifth Amendment apply to foreign compelled testimony:

If as a consequence of joint investigations with foreign nations we are to hale foreign men and women in to the courts of the United States to fend for their liberty we should not do so while denying them the full protection of a trial right we regard as fundamental and absolute.4

The Appeal Courts decision appears to resolve this issue unequivocally and will presumably inhibit recent attempts made by the DOJ to rely on foreign compelled testimony. In June, the DOJ requested the District Court for Northern California grant a subpoena for the production of a transcript of testimony compelled by the UKs Financial Reporting Council (FRC).5 Following the Allen and Conti decision it is hard to see how the FRC evidence could be deemed admissible, and therefore satisfy the preconditions for being the object of a subpoena.

Application of the Kastigar doctrine

Under Kastigar, where an individual is compelled to testify he is protected by use and derivative use immunity: neither his testimony, nor any evidence derived (directly or indirectly) from it, can be used as evidence against him in criminal proceedings. The prohibition on use is total. The testimony cannot, for example, be used as a basis to commence an investigatory enquiry. Kastigar also espouses a test by which the protection is enforced: the Government bears the burden of proving that all the evidence it proposes to rely upon was derived from legitimate sources, wholly independent from the compelled testimony. The burden is significant and must be proved by a preponderance of the evidence (in UK terms on the balance of probability).

In the present case, the Appeal Court reversed the District Courts conclusion that the Government had met its Kastigar burden. It emphasized that the presence of evidence which corroborated Robsons account was insufficient to meet the applicable standard.6 Instead the Government was required to prove that Robsons exposure to the compelled testimony had not shaped, altered or affected the information he had provided and which the Government had used. Such an analysis could be conducted effectively where a witness testimony is memorialized (or canned) prior to their exposure to any compelled statements.7

Here, Robson had himself provided testimony to the FCA prior to exposure. Far from assisting the Government, a comparative analysis of Robsons accounts (his compelled statement to the FCA and his trial testimony) revealed marked discrepancies. Furthermore, the level of material exposure appeared substantial, the Government accepted that many of the topics discussed by Robson in his testimony also featured in the Defendants compelled statements. Notwithstanding this Robson had not claimed, at any stage during his testimony, that he could segregate the effects of his exposure.8 These findings, and other aspects of Robsons evidence, undermined any suggestion that Robsons exposure to the Defendants compelled statements had not shaped, altered or affected his own testimony. The Appeal Court held that generalized and self-serving denials of any taint was an inadequate basis on which the Government could satisfy its burden under Kastigar.9

It remains to be seen how often foreign compelled testimony will give rise to a Kastigar motion in US criminal proceedings. This decision of the Appeals Court makes it more incumbent on US Federal agencies to interact closely with foreign governments and to coordinate cross-border investigations at their outset. Where a Kastigar claim can be foreseen the US prosecuting authority will need to consider how it can protect against potential witnesses being exposed to the compelled testimony of a suspect / defendant. Where a risk of exposure still exists, for example through the imminent publication of compelled testimony, the authority will need to move quickly in order to memorialize a witness account.

1www.pbwt.com/content/uploads/2017/07/USA-v-Allen.pdf 2Kastigar v. United States, 406 U.S. 441 (1972) 3 See pages 35-38 of the decision. 4 See pages 54-5 of the decision. 5 See Global Investigations Review, 19 June 2017- DOJ pursues ex-Autonomy directors compelled testimony. 6 See pages 60-1 of the decision. 7 See pages 61-2 of the decision. 8 This formulation was taken from the case of Poindexter, 951 F.2d at 376. 9 See page 63 and 70 of the decision.

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Symposium: Millions of tiny constables Time to set the record … – SCOTUSblog (blog)

Posted: at 11:55 pm

Alan Butler is senior counsel for the Electronic Privacy Information Center, which filed amici briefs in support of petitioner David Riley in Riley v. California and in support of respondent Antoine Jones in United States v. Jones.

The Supreme Courts Fourth Amendment opinions, especially those involving new surveillance technologies, are well stocked with metaphors and similes. Lower courts are faced with the challenge of applying abstract contours of constitutional law to techniques unimaginable when previous cases were decided. Usually courts reach for similes first this new technique is like the old technique considered in that famous case several decades ago in hopes of maintaining consistency. But, more recently, the Supreme Court has relied on new metaphors to explain how to adapt old doctrine to new facts. These doctrinal course corrections are necessary where the routine application of old rules to new facts produces absurd results. We will likely see a similar correction in Carpenter v. United States.

Multiple appellate courts, including the lower court in this case, have held that cellphone location records are not protected under the Fourth Amendment because they are similar to the logs of dialed numbers that were at issue in Smith v. Maryland. The Supreme Court granted certiorari in Carpenter, despite the lack of a circuit split, to address this important Fourth Amendment question. Now the court has an opportunity to set the record straight, and should avoid the conceptual pitfalls that have bedeviled lower courts over the last decade. The court should build upon its unanimous judgments in Jones and Riley to establish strong constitutional protection for location data.

The facts in Carpenter are similar to other recent location-data cases. Law-enforcement investigators obtained several months of the defendant Timothy Carpenters cellphone location records without a warrant. These records were obtained from Carpenters cellphone providers, and included a historical log showing which cellphone towers the target phones were connected to when they made or received calls during a six-month period. Unlike some other cellphone-tracking cases, this case does not involve real time location tracking or the use of GPS data.

The Supreme Court has made a point in its recent decisions in Jones and Riley to reject the wooden application of decades-old Fourth Amendment precedents to modern problems. In Riley, the court declined to apply the traditional search incident to arrest exception to permit the warrantless search of a cellphone in the defendants possession at the time of arrest. In a unanimous decision, the court dismissed the notion that a cellphone was materially indistinguishable from a cigarette pack or a wallet (That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.). Instead, the court found that the search of a cellphone is even more revealing than the search of a home.

In Jones, the Supreme Court considered whether the attachment and use of a GPS device to track the location of the defendants car was a search under the Fourth Amendment. The court had previously held in a pair of cases in the 1980s that the use of radio beepers to track the movement of a car on public roads over a month-long period was not a search. Some lower courts had found that a GPS tracker was like a beeper and that use of the device therefore would not trigger the Fourth Amendment. But the court unanimously rejected that conclusion, albeit under two distinct rationales. Four justices joined Justice Antonin Scalias majority opinion finding that the attachment of a GPS device was a physical trespass, akin to a constables concealing himself in the targets coach. Three justices joined Justice Samuel Alitos concurring opinion, which found that the tracking violated a reasonable expectation of privacy. Alito was skeptical of the usefulness of Scalias metaphor, because it would have required either a gigantic coach, a tiny constable, or both, but nevertheless agreed that prolonged location tracking triggered the Fourth Amendment.

In both Jones and Riley, the Supreme Court re-evaluated long held assumptions in light of new technological developments. The result in both cases was the unanimous conclusion that digital tracking and surveillance techniques trigger close Fourth Amendment scrutiny because they are more intrusive than their physical analogs. The collection of cellphone location data at issue in Carpenter v. United States is another example of changing technology that has enabled a level of intrusiveness that was impossible in an analog world. If officers can warrantlessly track every phone, then they can essentially deputize millions of tiny constables, hiding in our pockets and constantly recording our movements. Under the courts rationale in Jones, such extensive tracking is unreasonable, but lower courts have continued to apply analog cases to this new digital problem.

Lower courts have struggled for more than a decade to determine what Fourth Amendment and statutory protections apply to cellphone location data. In particular, courts have grappled with intersecting provisions in the Electronic Communications Privacy Act (the Stored Communications Act and Pen Register Statute) and with technological developments that have continually increased the precision of location-tracking methods. Three general trends have emerged from these cases. First, some courts have drawn a distinction between historical and prospective location data, finding that warrants are only required for prospective (or real time) tracking. Second, courts have focused on the precision of the location-tracking method in order to measure the degree of intrusiveness or the privacy interest at stake. Finally, courts have relied on the holding in Smith and the content/non-content distinction to find that location data are not protected by the Fourth Amendment.

None of the concepts used by lower courts real time vs. historical, precise vs. imprecise, and content vs. non-content provides a principled basis for crafting a Fourth Amendment rule. The Supreme Court would be wise to avoid these distinctions because they all present major pitfalls.

First, while some courts have assumed that real-time location tracking is inherently more intrusive than collecting historical data, the opposite is actually true. Historical data is more frequently used in criminal cases because it is inherently more revealing historical tracking can reveal patterns, associations, behaviors and other personal details that cannot be so easily derived from records in real time. It is the duration and extent of the tracking, not its temporal relationship to an investigation, that matters. Alito reached a similar conclusion in his concurring opinion in Jones, noting that the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.

Second, attempts to distinguish cases based on the precision of the location-tracking methods at issue have been inconsistent and arbitrary. The government has argued that collection of cellphone-tower data should not trigger Fourth Amendment scrutiny because the data do not reveal the users precise location. Many courts have assumed that cell-tower data are necessarily less precise than GPS data (the type of data at issue in Jones). But that assumption is wrong in many cases (tower data can be more precise than GPS data in urban areas) and is inherently short-sighted. The precision of location-tracking methods has only increased over time and will continue to do so as the density of cellphone towers increases and data analysis methods evolve. Indeed, federal law requires all cellphone providers to develop the capability to locate 911 callers precisely in an emergency.

Third, the traditional distinction between content and non-content (or metadata) does not map well onto location data because it does not provide a useful analytical framework for evaluating the privacy interests at stake. The Supreme Court protected the contents of the phone call in Katz v. United States even though those contents had been disclosed to another person (the recipient of the call). The fact that cellphone location records are held by a third party does not mean they are not entitled to protection. Indeed, Justice Potter Stewart recognized in his dissenting opinion in Smith that even the mere numbers dialed can reveal private facts, and thus are not without content. But the data generated by modern communications bear no resemblance to the minimal billing data generated by the analog telephone system in 1979.

Lower courts refusal to protect cellphone location data is especially troubling when, as here, Congress has already established higher privacy standards for location data in some contexts. When Congress enacted the Communications Assistance for Law Enforcement Act in 1994 at the behest of the FBI, it prohibited law enforcement from obtaining location data with a pen register (the same type of device at issue in Smith). But rather than view this statutory protection as an indication that individuals have a reasonable expectation of privacy in their location information, courts have held that cellphone-tower data are similar to the call records at issue in Smith and thus are not protected.

A better way to resolve the issue in this case is to re-evaluate Smith in light of the changes in our communications systems since 1979. Justice Sonia Sotomayor alluded to the need to do so in her concurring opinion in Jones, positing that the rule adopted in Smith is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. Even Alitos concurring opinion in Jones implicitly recognized that long-term tracking was fundamentally different from the short-term, analog tracking methods in the 1980s beeper cases. If the Supreme Court rejects the conclusion that all personal data held by modern service providers are unprotected, and that the world has fundamentally changed since Smith was decided, then lower courts and Congress can finally begin to adopt appropriate digital-privacy rules.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Alan Butler, Symposium: Millions of tiny constables Time to set the record straight on the Fourth Amendment and location-data privacy, SCOTUSblog (Aug. 3, 2017, 10:50 AM), http://www.scotusblog.com/2017/08/symposium-millions-tiny-constables-time-set-record-straight-fourth-amendment-location-data-privacy/

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Federal Judge Rules Unlicensed Dogs Aren’t Protected By Fourth … – Reason (blog)

Posted: at 11:55 pm

Benjamin Beytekin/picture alliance / Benjamin Beyt/NewscomA federal judge ruled Wednesday that a Michigan woman has no basis to sue the Detroit Police Department (DPD) for shooting her three dogs because they were not properly licensed.

U.S. District Court Judge George Caram Steeh dismissed a federal civil rights lawsuit filed by Detroit resident Nikita Smith last last year after a marijuana raid by Detroit police left her three dogs shot to death.

The ruling is the first time a federal court has considered the question of whether an unlicensed petin violation of city or state codeis protected property under the Fourth Amendment. Federal courts have established that pets are protected from unreasonable seizures (read: killing) by police, but the city of Detroit argued in a motion in March that Smith's dogs, because they were unlicensed, were "contraband" for the purposes of the Fourth Amendment, meaning she had no legitimate property interest in them and therefore no basis to sue the officers or department.

In his Wednesday opinion Steeh agreed.

"The Court is aware that this conclusion may not sit well with dog owners and animal lovers in general," the judge wrote. "The reason for any unease stems from the fact that while pet owners consider their pets to be family members, the law considers pets to be property."

"The requirements of the Michigan Dog Law and the Detroit City Code, including that all dogs be current with their rabies vaccines, exist to safeguard the public from dangerous animals," he continued. "When a person owns a dog that is unlicensed, in the eyes of the law it is no different than owning any other type of illegal property or contraband. Without any legitimate possessory interest in the dogs, there can be no violation of the Fourth Amendment."

And without any Fourth Amendment violation, Steeh continued, there is no basis for a civil rights claim against the city. Steeh also ruled that Smith's suit would have been dismissed even if she had a cognizable property interest in the dogs, finding that the animals presented an imminent threat to the officers.

Smith's lawsuit characterized the Detroit police officers who raided her house as a "dog death squad." She claimed officers shot one of her pets through a closed bathroom door. Graphic photos from the raid on Smith's house showed the dog lying dead in a blood-soaked bathroom.

Smith's case is only one of several lawsuits that have been filed against the DPD for dog shootings over the past two years. The city of Detroit settled one of those suits for $100,000 after dash cam video showed an officer shooting a man's dog while it was chained to a fence. It was also one of three lawsuits against DPD for shooting dogs during marijuana raids. The most recent was filed in June after DPD officers allegedly shot a couple's dogs while the animals were behind a backyard fence.

A Reason investigation last year found the DPD's Major Violators Unit, which conducts drug raids in the city, has a track record of leaving dead dogs in its wake. One officer had shot 39 dogs over the course of his career before the raid on Smith's house, according to public records.

That officer is now up to 73 kills, according to the most recent records obtained by Reason.

Two other officers involved in the Smith raid testified during the trial that they had shot "fewer than 20" and "at least 19" dogs over the course of their careers.

The court's opinion notes that the "police officers conducting the search had not received any specific training on how to handle animal encounters during raids."

The ruling also noted that Detroit police supervisors found that the shooting of Smith's dogs by officers were all justified. "However, as in many other cases, the ratifying officers did so without speaking to the officers about what had transpired," the court wrote.

Reason's review of "destruction of animal" reports filed by Detroit police officers did not find a single instance where a supervisor found that a dog shooting was unjustified.

Detroit police obtained a search warrant for Smith's residence after receiving a tip that marijuana was being sold out of it. Police confiscated 25 grams of marijuana as a result of the raid, and Smith was charged with a misdemeanor.

However, the case against her was later dismissed when officers failed to appear at her court hearing.

Neither an attorney for Smith nor the Detroit Police Department were immediately available for comment.

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How the First Amendment could save Don Jr. – The Hill (blog)

Posted: at 11:54 pm

Certainly subsequent White House news has pushed Donald TrumpDonald TrumpBorder patrol was ordered not to engage with congressmen, lawyers during travel ban Trump says he never called White House 'a dump' Trump to sign memo on Chinese intel property trade practices Friday: report MORE Jr.s June 2016 meeting with a Russian lawyer allegedly pedaling Hillary ClintonHillary Rodham ClintonCongress wants Trump Jr. phone records related to Russia meeting Zuckerberg hires top Clinton pollster amid rumors of presidential run: report Democrats new 'Better Deal' comes up short for people of color MORE dirt to the sidelines. But as more details emerge, even Trump Jr.s brother-in-law, Jared Kushner, has tried to distance himself from the meeting in a statement before his recent closed-door testimony to the Senate intelligence committee.

Some have dubbed the Russia meeting a category 5 hurricaneand many have called for a federal prosecution of the Presidents son. Still, the debate has ignored the First Amendment, a constitutional bulwark that may save the younger Trump.

The right to free speech shields the receipt and dissemination of information. Indeed, truthful information about candidates for high office lies at the heart of constitutional protection. In this case, there is no suggestion that Trump Jr. thought the Russians would feed him falsehoods about Democratic presidential hopeful Clinton. He wanted to learn and perhaps disseminate facts damaging to his fathers opponent.

The First Amendment exists in part to serve this very function the disclosure of truthful information about the people seeking to govern us. As James Madison put it, a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.

What makes this situation complicated is that the Russian government might have obtained the information by breaking hacking or espionage laws in the first place.

Trump Jr. says Russian attorney Natalia Veselnitskaya did not actually have any meaningful information in the June 9, 2016 meeting. But for the sake of argument, lets assume the worst about Trump Jr.s state of mind going into the meeting.

Lets assume he thought he was going to receive information that he knew the Russians obtained through criminal activity.

As long as Trump Jr. did not participate in or encourage the Russian governments illegal activity and there is no evidence in the public domain that he did he has a strong argument that the First Amendment immunizes his conduct. He was just agreeing to receive truthful information.

The Supreme Court considered a similar situation in Bartnicki v. Vopper, a 2001 case in which a journalist received a tape of a conversation among union leaders that someone had recorded in secret, in violation of federal wiretap laws. The journalist did not put anyone up to the illegal recording. The journalist did, however, publicize the recording, and the Court assumed that the journalist knew that the person who made the recording broke the law.

Drawing on the famous Pentagon Papers Case, the 1971 decision that allowed the media to publish classified documents about the Vietnam War, the Bartnicki Court held that the First Amendment protected the journalists right to publicize the recording.

In the current situation, Trump Jr. stands in the shoes of the journalist in Bartnicki, and the Russian government stands in the shoes of the illegal recorder. Like the recorder, the Russian government may have obtained the information illegally.

Like the journalist, Trump Jr. may have known or strongly suspected that the information was obtained illegally, but there is no evidence at present that he participated in or encouraged any illegality.

If special counsel Robert Mueller in his investigation of Russian interference in the 2016 election sought to prosecute Trump Jr. for the meeting, he would likely rely on a campaign finance law that criminalizes accepting money or other thing of value from foreign nationals.

Surely a thing of value means that a campaign cannot accept stocks, bonds, bars of gold, and Renoir paintings from foreign nationals. But deciding whether truthful information about a competing presidential candidate is a thing of value under the statute is more complicated.

The question is so thorny that judges would likely rely on a doctrine called constitutional avoidance. That rule posits that if a statute is ambiguous between two meanings, one of which is potentially unconstitutional and one of which is safely constitutional, the court should opt for the more narrow, and safely constitutional, interpretation.

A narrow reading of the term thing of value that does not criminalize mere information avoids any potential First Amendment problem. Courts would likely adopt that reading of the law. Good news for Don Jr.

To be sure, trouble may lie ahead for the Presidents first born if evidence emerges that he encouraged or participated in Russian criminality. Perhaps Mueller has or will find statements to the Russians from Trump Jr. or others in the campaign like this is greatget me more. The First Amendment does not protect people who join or abet a crime. Or perhaps the presence of Rinat Akhmetshin, a possible Russian spy, at the meeting will lead to evidence that Trump. Jr. was colluding in espionage.

If anyone in the campaign or the family actually were recruited, that would be a serious crime, but the emails released to date suggest that Trump Jr. had no idea that Akhmetshin would attend.

Such is the irony, and the power, of the right to free speech. It protects to everyone, even members of President Trumps inner circle who may well hold the First Amendment in contempt. The elder Trumps disdain for the media is legendary, and he was just sued for First Amendment violations related to his Twitter account.

The Trump family may not like the First Amendment, but they are going to need it.

David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center, a clinical assistant professor of law at Northwestern Pritzker School of Law, Chicago, and a Public Voices Fellow through The OpEd Project. He worked previously as a First Amendment and media lawyer in private practice.

The views expressed by contributors are their own and not the views of The Hill.

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Police confront ‘First Amendment auditors’ – Post Register

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Police confront 'First Amendment auditors'
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Search First Amendment Audit on YouTube, and you'll likely find hundreds of videos of people recording law enforcement in public areas and refusing to share their names with officers even when requested. One such incident happened June 12 outside the ...

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Loudoun County resident’s First Amendment case may benefit free-speech group’s suit against Trump – Loudoun Times-Mirror

Posted: at 11:54 pm

After months of a pending verdict in a case that raised consequential questions about the constitutional limitations on politicians' social media accounts, a federal court ruled last week that Loudoun County Chairwoman Phyllis Randall (D-At Large) violated Lansdowne resident Brian Davisons right to free speech by temporarily banning him from her Facebook page.

From a circuit court in Richmond to a federal district court in Alexandria, Davison, a software engineer and father of two, has won and lost battles in courtrooms in his pursuit of defending the First Amendment and accessing public records.

But the latest outcome of Davisons suit is one likely to affect politicians around the country, and maybe all the way up to the White House.

What started off as a pro se free speech suit by Davison against the countys chairwoman and Board of Supervisors could now play a key role in a recent lawsuit against President Donald Trump brought by the Knight First Amendment Institute at Columbia University alleging the president suppressed dissent by blocking critics from his Twitter account.

More and more elected officials are turning to online tools to conduct policy, to engage their constituencies, to advance their political agendas. But theyre also using the tools of censorship in those online platforms, and theyve been doing so without an honest conversation about what the First Amendment has to say about that censorship, Alex Abdo, senior staff attorney at the Knight institute, said. We wanted to start that conversation, and the case in Loudoun County has provided an excellent roadmap for how to think about governmental use of social media in the digital age.

Both Davison and the institutes lawsuits grapple with what is becoming a growing trend of politicians barring critics from their social media pages.

The issue has created a legal gray area around public forums in the digital age and peoples web protections under the First Amendment.

Do the social media accounts of politicians create a public forum protected by the First Amendment when they open up their pages to constituents? And if an elected official blocks or deletes critical comments of a user in that forum, does it violate their rights under the First Amendment?

According to U.S. District Judge James C. Cacheris July 25 ruling, yes, it does.

By prohibiting Plaintiff from participating in her online forum because [Randall] took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment, Cacheris stated in a 44-page ruling.

Although Cacheris admitted the consequences of Randalls overnight ban of Davison from her page were fairly minor, he said the court could not treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate ones message.

Loudoun officials say the county is considering appealing Cacheris ruling.

Meanwhile, the Knight First Amendment Institutes suit against Trump and his associates argues the presidents @realDonaldTrump Twitter account is a public forum protected under the First Amendment that he uses as a key channel for official communication to make formal announcements and defend the administrations positions.

The institute alleges Trumps view-point based blocking of the seven users from his @realDonaldTrump account infringes the Individual Plaintiffs First Amendment rights and imposes an unconstitutional restriction on their participation in a designated public forum.

A murky outcome

But as lawyers from the First Amendment Institute point to Judge Cacheris ruling to help their case against the president, other legal experts say litigating the institute's case and similar suits going forward will be difficult.

A separate ruling just three days after Cacheris' on a free speech suit Davison brought against members of the Loudoun County School Board from a different judge in the same federal court is already showing signs of the legal conundrum.

In a 20-page ruling, U.S. District Judge Anthony J. Trenga said it was unclear whether Davisons First Amendment was violated by several members of the School Board after they removed his critical posts on their Facebook pages.

Here, the law is less than settled as to whether the plaintiff had a right to post on a Facebook page maintained by a public official and that this right was violated when those postings were removed or when plaintiff was prevented from posting his comments, Trenga said.

Trenga noted it was not clear as a legal matter whether the Facebook pages in question were limited or public forums.

These [cases] are relatively new and every court could come up with a different decision, said Clay Hansen, executive director of the Charlottesville-based Thomas Jefferson Center for the Protection of Free Expression. ... I think until we have some conflicting rulings where we have a split among courts that is at the federal circuit level and we can see this being resolved by a supreme court until we get to that stage we wont have any clear sense of how any particular court will handle it.

Hansen said the Trump case will likely be harder to litigate because the president uses both the @realDonaldTrump handle -- an account he created before assuming office -- as well as the official @POTUS account that has been handed off from one administration to the next.

In the case against Randall, the chairwoman tried to argue her Chair Phyllis J. Randall Facebook account was a personal page, but Cacheris pointed out that Randall created the page the day before she assumed public office with the help of her chief of staff. He also noted she created the account for the purpose of addressing her constituents and asked them to post on the page in question, thus, the account was born out of and inextricably linked to the fact of Randall's public office.

Following Trengas decision, County Attorney Leo Rogers said an appellate court would need to clarify how and when social media constitute public forums.

Eric Goldman, a California-based law professor at Santa Clara University who heads a blog that has closely followed Davisons suits, thinks although Cacheris ruling will be persuasive evidence in the First Amendment Institutes case, but the contrasting set of facts in the Randall and Trump cases could be problematic in litigating a case against the president and similar ones in the future.

I think this ruling gives the plaintiffs additional support for their legal arguments. So, I'm sure they'll be citing it and I'm sure that the judge will be interested in it, Goldman said. Whether or not the facts are extrapolatable enough is I think going to be a point of contention. And so, the defense arguments will be this is different and here's all the reasons why: Trump is in a different position than the supervisor in this case, or the implications of blocking somebody on Facebook are different than the implications of blocking someone on Twitter.

Goldman said the judge in the Trump case will also need to consider, from a philosophical perspective, the implications a favorable ruling could have on the nation.

I think that any judge is going to have to think very carefully about what it means to say that the president violated the Constitution, Goldman said. ... Judges are going to see in their career dozens of burglaries, but they're probably not all going to have one case where they rule on the top elected official in our country having violated our foundational principles.

The cost of activism

In addition to Davisons two suits against the county's Board of Supervisors and School Board, in a separate suit he has challenged Loudoun Commonwealths Attorney Jim Plowman (R). All of the suits accuse the defendants of either blocking him from their Facebook pages or deleting critical comments he posted.

In March, Judge Cacheris ruled that Plowman did not violate Davisons First Amendment right by deleting the Lansdowne residents Facebook posts.

However, Davison is in the process of appealing Cacheris March decision and says he plans to also appeal Trengas ruling in his suit against the School Board.

Davison is now in the midst of a Freedom of Information Act (FOIA) Act suit against state Sen. Siobhan Dunnavant (R) in Henrico County.

He says a victory in a Richmond Circuit Court last year in his request for the Virginia Department of Education to release test score data showing student growth instilled a sense of confidence in him to pursue his First Amendment cases.

But his legal pursuits have not come without a cost. Davison says the repercussions of the suits will follow him for the rest of his professional career.

If Im a politician or Im an attorney, these cases help me, Davison said. In no way shape or form do these cases help me. When we have government clients, if they look my name up and see, Oh wow theres controversy around this person' that can only hurt me. There can be no near-term advantages that I can see, only consequences.

Still, he believes he's fighting for a fundamental American freedom.

From my perspective, it was just, 'Hey, am I going to sit here and watch it and put up with it? And I finally just got tired and thought I could help, Davison said of his lawsuits.

Related coverage:

-"Loudoun resident files civil rights suits against county officials over social media censorship" -"Federal judge sides with Loudoun commonwealths attorney in First Amendment suit" -"Loudoun County chairwoman, Lansdowne resident meet in federal court" -"U.S. District judge rules Randall violated Lansdowne residents First Amendment right" -"Federal court dismisses Lansdowne residents free speech suit against Loudoun County School Board"

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Loudoun County resident's First Amendment case may benefit free-speech group's suit against Trump - Loudoun Times-Mirror

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Justice Souter, the First Amendment and the case of the synagogue standoff – Reuters

Posted: at 11:54 pm

(Reuters) - Thanks to the First Amendments Establishment Clause, U.S. courts have to be extremely wary of taking sides in doctrinal disputes between religious groups. On the other hand, as retired U.S. Supreme Court Justice David Souter pointed out Wednesday in his opinion for the 1st U.S. Circuit Court of Appeals in Congregation Jeshuat Israel v. Congregation Shearith Israel, the Free Exercise Clause means courts cant interfere with religious autonomy.

Judges have to navigate between those twin risks, Justice Souter said, using the map the Supreme Court provided in 1969s Presbyterian Church v. Mary Elizabeth Blue Hull: When property disputes reflect religious cleavages, courts should avoid entanglement with the doctrinal issues and hew closely to civil law.

So, according to the 1st Circuit, no matter how fascinating the history of one of the oldest synagogues in the U.S. nor how rich the tale of the divide between the Sephardic and Ashkenazi Jews who worshipped there, the dispute between two warring congregations comes down to ordinary documents: 1903 and 1908 leases, a 1945 agreement with the U.S. government and a 2001 deal with the National Trust.

It is these common instruments for establishing ownership and control that most readily enable a court to apply the required, neutral principles in evaluating disputed property claims, wrote Justice Souter for a panel that also included Judge Sandra Lynch and 10th Circuit Judge Bobby Baldock, sitting by designation. When such provisions of deeds, charters, contracts, and the like are available and to the point, then, they should be the lodestones of adjudication.

Reversing an epic 2016 decisionby U.S. District Judge John McConnell of Providence, the 1st Circuit found that the documents proved New York Citys Congregation Shearith Israel to be the rightful owner of a 250-year-old synagogue in Newport, Rhode Island, even though Newports Congregation Jeshuat Israel has worshipped there and maintained the building for more than 100 years.

The Newport synagogue - formally known as the Touro Synagogue in honor of two brothers who bequeathed thousands of dollars to keep it standing in the 1800s embodies the divide between Americas original Jewish settlers from Spain and Portugal and those who arrived two hundred years later in a wave of immigrants from Central Europe.

The first Jews to arrive in Newport, in 1658, were Sephardim, mostly of Spanish and Portuguese descent. By the mid-1700s, their community was sufficiently well-rooted to begin raising money to build a synagogue. Sephardic Jewish communities from around the world, including the New York City congregation known as Shearith Israel, contributed to the Newport appeal. In 1763, the Newport congregation, Yeshuat Israel, or the Salvation of Israel, celebrated the dedication of its brand-new synagogue. Myer Myers, a colonial silversmith who was a member of the congregation, created elaborate silver-and-gold finials, known as rimonim, to adorn Yeshuat Israels Torah scrolls.

Alas, most of the Sephardic Jews who founded Yeshuat Israel left Rhode Island when the Revolutionary War decimated Newports shipping industry. The last of Newports Jews died in 1822, according to Judge McConnells utterly compelling 2016 opinion.

As Judge McConnell recounted the story, many of the Sephardic Jews who left Newport ended up joining New York Citys Shearith Israel. The New York congregation cared for the Newport synagogue and the synagogues contents for several decades in the 19th century, when Newport didnt have enough Jews to sustain it.

But over the last half of the 1800s, a new wave of Jews arrived in Rhode Island. Unlike their Sephardic predecessors, these Jews were mostly Ashkenazi from Russia and Central Europe. The two cultures followed slightly different religious rituals. The crucial doctrinal difference, as it would turn out, is that the Sephardim prohibit the disposition of ritual objects and the Ashkenazi do not.

At the turn of the nineteenth century, the Newport Ashkenazi staged a year-long occupation of Touro Synagogue at the turn of the century, after the New York Sephardim from Shearith Israel shut them out of the building in a dispute over the appointment of a new religious leader. The warring congregations eventually put aside their differences to execute a 1903 lease agreement allowing Congregation Jeshuat Israel to use the building, although the lease specified that the Ashkenazis must conduct services according to the ritual rites and customs of the (Sephardic) Jews as at this time practiced.

The two congregations renewed the lease in 1908. In 1945, the New York group reached an agreement with the U.S. Department of the Interior to preserve Touro Synagogue as a national historic site. The Newport congregation signed the agreement as a leaseholder. Congregation Jeshuat Israel similarly affirmed its leaseholder status in a 2001 agreement between the congregation, a group known as the Society of Friends of Touro Synagogue and the National Trust for Historic Preservation. That contract, according to the 1st Circuit, described the Newport congregation as having possession of the site through a lease with Congregation Shearith Israel as owner.

Despite their mutual respect for Touro Synagogue as a landmark of American Jewish history, relations between the New York and Newport congregations were prickly. (Justice Souters exceedingly dry description: a want of cordiality.) Matters exploded in 2011, when the Newport group proposed selling the historic Myers Torah ornaments to establish an endowment for their congregations activities. Bostons Museum of Fine Arts offered more than $7 million. The New York congregation protested that a sale would violate the terms of the lease agreement, which required adherence to Sephardic practices. Litigation ensued.

Judge McConnell concluded after a nine-day bench trial and copious historical research that the New York congregation was actually a trustee for Touro Synagogue, not the owner, and that the Newport congregation has a right to oust the New York group as trustee. The judge also found the Newport congregation to be the outright owner of the Myers Torah adornments.

The judge tried to follow the U.S. Supreme Courts directive from the Presbyterian case, grounding his opinion in the legal agreements between the two congregations, as well as ancient deeds, wills, trust documents and congregation account books.

But when the 1st Circuit reviewed his opinion, it concluded Judge McConnell wasnt quite careful enough. As Justice Souter put it, with great delicacy: These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court's plenary enquiry into centuries of the parties' conduct by examining their internal documentation that had been generated without resort to the formalities of the civil law.

In a strict reading of the documents, the 1st Circuit found no reference to a trust in the lease agreements between the New York and Newport congregations, which assumed the New York group owned Touro Synagogue. The appeals court also held the Torah ornaments are encompassed in the leases reference to paraphernalia, so the New York congregation owns them as well.

The New York congregation is represented by Greenberg Traurig and Locke Lord. Greenberg partner Louis Solomon, who argued before the 1st Circuit, told my Reuters colleague Chris Kenning that his clients will continue to uphold their obligations to Touro Synagogue and look forward to putting this unfortunate litigation behind us. Gary Naftalis of Kramer Levin, who argued for the Newport congregation, said hes exploring the groups options.

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Justice Souter, the First Amendment and the case of the synagogue standoff - Reuters

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Tor Co-Founder: There Is No Dark Web The Merkle – The Merkle

Posted: at 11:54 pm

At the DEF CON hacking convention in Las Vegas, one of the three co-founders of Tor, Roger Dingledine, corrected a few misconceptions regardingwhat the Tor Project is really being used for and slammed journalists for the negative way it has been covered in the media. According to Dingledine, a mere 3% of Tor users employthe browser to access .onion websites.

According to The Register, Roger Dingledine decided to use part of his speaking time at DEF CON to criticize journalists for the way they have painted the Tor Project in the media as a tool for drug dealers and pedophiles to hide from law enforcement and get away with criminal activity.

He added that only 3% of Tor users connect to hidden (.onion) websites, meaningthe other 97% use the browser to anonymously browse clearnet sitessuch as Reddit, Wikipedia, Yahoo, and The Merkle. In Dingledines mind, most Tor users are just people wishing to hide their identities from website owners, not new-age criminals.

Dingledine even dismissed the concept of the dark web, implying that what people call the dark web is so insignificant that it should not even get its own term. He notably stated:

There is basically no dark web. It doesnt exist. Its only a very few webpages.

During his talk, he also addressed the fear of law enforcement agencies infiltratingthe network and running a large number of nodes. The concernis that this would allow them to reveal the true identity of Tors users.

Edward Snowden had previously revealed that nodes were being run by intelligence agencies. According to Dingledine, however, there were only a few such infiltrators and these could not compromise the network. He added that he himself knew two-thirds of the people running Tor relays, and that agencies do not need to set up nodes of their own. If they really wanted to compromise the network, they could merely monitor those who do run them.

The Tor Projects co-founder revealed that the most visited website by Tor users is Facebook, which opened its doors to Tor back in 2014 when it launched an .onion address. At the time, Facebooks senior engineer,Alec Muffet, stated:

The idea is that the Facebook onion address connects you to Facebooks Core WWW Infrastructure check the URL again, youll see what we did there and it reflects one benefit of accessing Facebook this way: that it provides end-to-end communication, from your browser directly into a Facebook datacentre.

Facebook had barred Tor users from accessing its website in the past, citing security concerns. At the time, it claimed that the network could be used to attack its servers. Now, according to reports, as many as one million people use Facebook via the Tor browser. This may be an insignificant amount for Facebook, but it is a major figure for Tor.

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Tor Co-Founder: There Is No Dark Web The Merkle - The Merkle

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China is Majorly Experimenting in the Cryptocurrency and Blockchain Space with NEO – Influencive

Posted: at 11:53 pm

Brian D. Evans

Founder/CEO, Influencive.

Last week, certificate authorities in China quietly formed a partnership with NEO, which was formerly known as AntShares but has gone through a rebrand. The idea was to tie in real-world assets and smart-contracts in China in a major way, much like Ethereum did with their smart contracts but with a few differences.

NEO is currently getting marketed as the Ethereum of China. But they are taking it a step further by tying in real world assets. The big picture vision of NEO is to create an entire smart economy. This is where real world assets tie in and begin to become digitized. Essentially every asset could one day be digitally represented and tied into a smart economy. Their version of a smart economy also involves intelligently automating things like payments.

But when you start automating payments and using things in the realm of AI there are some important things to consider. The first roadblocks and hurdles in creating a true smart economy in places like China would be security issues and the decentralization issue with governments involved.

If this experiment is successful and if the power of China gets behind them, things could get interesting really fast. Having an entire country backing a cryptocurrency and blockchain platform could do wonderful things for the industry as a whole. If NEO is successful in a major way in bringing blockchain directly into mainstream use in China, and as long as the key concepts and purposes of blockchain stay intact it could make for very exciting times for the industry.

NEO is the talk of the cryptocurrency and blockchain space right now since their recent meeting at Microsofts headquarters in Beijing where this news first surfaced. NEO also recently partnered with Coindash, Bancor, Binance, Nest Fund, and Agrello.

If this means that an entire countrys government is about to back and support a blockchain platform and cryptocurrency it will at least make for some exciting times ahead.

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China is Majorly Experimenting in the Cryptocurrency and Blockchain Space with NEO - Influencive

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