Category Archives: Fourth Amendment

A former Minneapolis police officer has been convicted of stealing drugs he seized during searchesand traffic stops.

Ty Jindra, 29, was found guilty in federal court of three counts of acquiring a controlled substance by deception and two counts of deprivation of rights under color of law, the U.S. Attorney's Office said Tuesday.

Ty Jindra failed to uphold his oath as a peace officer, he failed the community he was sworn to serve, and he failed his fellow officers, Acting United States Attorney W. Anders Folk said in a statement.

From September 2017-October 2019, while he was an officer with Minneapolis Police Department (MPD), Jindra obtained methamphetamine, oxycodone, fentanyl, tramadol and other drugs by conducting unconstitutional searches and seizures, and then didn't report, log or put the drugs into evidence, the release said.

Jindra, on some occasions, would search a person, vehicle or home so he could secretively recover drugs without his partner seeing him, the release said. And at times, he conducted searches that were beyond what was warranted in an attempt to recover drugs.

According to the Star Tribune, in one instance he stole Tramadol, a synthetic opioid, during a traffic stop for his own use and did not mention he discovered the drugs when he filed his report. In another instance, he separated some oxycodone pills for himself during a traffic stop, hiding the pills in a latex glove. He then submitted a false report claiming all the pills were in evidence.

He was also convicted of illegally searching vehicles during traffic stops in violation of the Fourth Amendment that prohibits unreasonable searches.

Sign up: Subscribe to our BREAKING NEWS newsletters

The U.S. Attorney's Office says Jindra faces a maximum sentence of up to four years in prison for each of the three counts of acquiring a controlled substance and a maximum of one year in prison for each of the two civil rights counts.

A sentencing date hasn't yet been scheduled.

Jindra was hired by the Minneapolis Police Department in 2013 and was fired in July 2020 after he violated department policies related to searches and seizures, charges said.

He was charged with an 11-count indictment in November 2020. His trial lasted nine days, the U.S. Attorney's Office said.He was found not guilty on six other counts he faced.

View post:
Ex-Minneapolis cop convicted of stealing drugs during searches - Bring Me The News

FORT WAYNE, Ind. (WANE) The City of Fort Wayne and the American Civil Liberties Union of Indiana have announced agreed principals to the original lawsuit stemming from the way police responded to local protests over Minneapolis police brutality of George Floyd in May of 2020.

The lawsuit between the two sides continues but the ACLU has agreed to withdraw a motion for a preliminary injunction. They could still end up in court over monetary damage claims if not resolved by a mutual agreement.

This was just sort of an understanding with them. So we worked with a neutral party, a mediator to come to an understanding about our policies, and that we have good policies, and that we will continue to respect peoples right to protest peacefully, said Fort Wayne City Attorney, Carol Helton.

Protesters believe the city was unreasonable in its use of tear gas without sufficient warning which prevented protesters from leaving and prevented peaceful protesters from gathering. The group of 13 individuals claimed their First and Fourth Amendment rights were violated and asked the court to prohibit the city from taking any future actions designed to stop protests, such as tear gas or rubber bullets. They also sought monetary damages. One plaintiff later withdrew from the lawsuit and the ACLU voluntarily dismissed Allen County Sheriff David Gladieux as a defendant.

I think the injunction was designed to get a formal order setting out certain standards, said Ken Falk, legal director for the ACLU of Indiana. I think these principles are not a court order. But they are a recognition by the city of how theyre going to view the constitutional rights of protesters in the future.

The city denied any wrongdoing and said the use of force by Fort Wayne Police officers was reasonable.

While the two parties continue to have disagreements about certain legal standards that apply to actions made by the City of Fort Wayne, they agree this new statement does not mean the city, police or individual officers admit to any wrongdoing.

Theres been no admission from the city that they did anything wrong, nor did we want admission at this point, Falk said. What we want at this point is to set it in place a framework so this does not happen again and as I said, I applaud the city in recognizing that we can go beyond finger-pointing and try and erect a structure that will prevent this from happening again.

Thursdays joint release also included eight points of agreement derived in part by a neutral mediator:

Going forward, there were learning things that we took away that we could do better that are consistent with our current policies but theyre within our consistent policy, said Sgt. Jeremy Webb, a spokesperson for the FWPD. Things are constantly evolving, our policies change and adapt as tactics and equipment change and adapt, and we try to stay on the cutting edge of that.

Since the protests, the department has made the decision to invest in equipment to increase communication during tense situations. They plan on investing in loudspeakers as well as use drones to make announcements. However, Webb said they stand by how they handled the situation.

Everything that we did, we currently do, was found to be pretty, pretty effective and within state and federal law, Webb said. If they dont like our policies, they need to look at the law of the land. Thats what dictates our policies. Our policies dont dictate law.

As of now, the lawsuit will continue in the Hoosier courts, but the ACLU sees the injunction withdrawal as progress.

I think the plaintiffs are very happy to have this resolved with taking some of the law and negotiation to get this far, said Falk. We may disagree as to where the fault lies, but anything that everyone can do to make sure this doesnt happen, again, is a real plus.

CORRECTION: An earlier version reported this agreement was a settlement to the lawsuit. The two sides have only announced agreed principles and the withdrawal of a preliminary injunction by the ACLU.

Continued here:
ACLU and Fort Wayne announce agreed principles in lawsuit on George Floyd protests - WANE

AUSTIN, Texas National Guard members deployed in Texas by Gov. Greg Abbott have arrested more than 32,000 people on state trespassing and human smuggling charges as part of a highly unusual operation that has turned soldiers into law enforcement officers, the Washington Examiner has learned.

Most of those arrested are noncitizens who illegally crossed the international border from Mexico into Texas and, in doing so, trespassed onto private land, according to a spokeswoman for the Texas Military Department. The arrests began in July and the numbers go through late October.

NEW COALITION OF FEDERAL EMPLOYEES SUE BIDEN OVER VACCINE MANDATE

The military department has sent "thousands" of National Guard members to the border and has "thousands more coming," the spokeswoman said, one indication that migrant and smuggler arrests are expected to rise further in the coming months.

Under normal circumstances, members of the military are not allowed to make arrests or enforce laws. Until July, any state military forces sent to the border assisted Border Patrol, state police, and local law enforcement in ways that did not cause them to interact with migrants. They manned surveillance cameras and watched the border, among other tasks.

The Posse Comitatus Act forbids federal military like the U.S. Army from enforcing civilian law without the approval of Congress, explained Lora Ries, senior research fellow on homeland security at the Heritage Foundation, a conservative think tank in Washington. Texas found an exception by sending in its own National Guard.

"Up into this point, when the president has sent down the Guard, it's been a supporting role," said Ries. "This is a state commander telling state Guard to enforce state laws. And when these people cross the border and set foot in Texas, they're breaking state laws. And so the state Guard then can arrest for state crimes."

The Republican governor in March created a statewide initiative known as Operation Lone Star in which state troopers from DPS would be sent to the border to help arrest trespassers while Border Patrol agents are pulled from the field to transport and process people in custody.

In a letter sent on July 27, Abbott ordered TMD Major General Tracy Norris to take new action. Abbott cited Article IV, Section 7 of the Texas Constitution's authority for the governor to "call forth the militia to execute the laws of the State" and instructed Norris to do so.

Those arrested by the military would be transferred to law enforcement to be booked into the system. Texas Department of Public Safety Director Steven McCraw acknowledged that the military doing police work was unusual.

"Nobody's ever really used the Guard before in this capacity," McCraw said in an interview with Todd Bensman, a fellow for the Center for Immigration Studies, a right-leaning research group in Washington.

The Guard members were required to complete 40 hours of training on the Fourth Amendment and the use of force since they are authorized to use their weapons.

State officials would not provide additional information about the border operation, though Bensman wrote in a recent report for CIS that the state is only arresting men. Women, children, and families are turned over to the Border Patrol. More than 140 landowners have agreed to let the state erect fencing on their land and to "become complainants in misdemeanor-level criminal trespassing cases that DPS officers will charge (and have been charging since July)."

It is not clear what the state is doing with the tens of thousands of migrants apprehended for illegally crossing the border since just 1,300 have been charged with trespassing to date, according to Bensman's report.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

Between the unprecedented military arrests and arrests by state police, Texas authorities have taken into custody more than 80,000 this year, the governor's office and TMD told the Washington Examiner.

Of the 80,000 figure, 73,000 were apprehended by soldiers and troopers for trespassing as illegal immigrants. More than 7,000 others were arrested on allegations of committing a state crime, such as human or drug smuggling, according to Abbott spokeswoman Renae Eze.

Original Location: Texas National Guard has arrested tens of thousands of illegal immigrants at Mexican border

Washington Examiner Videos

Here is the original post:
Texas National Guard has arrested tens of thousands of illegal immigrants at Mexican border - Denver Gazette

On October 25, 2021, PGT Innovations, Inc. entered into a Fourth Amendment (the ?Fourth Amendment?) to the Credit Agreement (the ?Credit Agreement?) dated as of February 16, 2016, by and among the Company, the other credit party thereto, the lending institutions party thereto and Truist Bank (as successor by merger to SunTrust Bank), as Incremental Term A Lender, Administrative Agent, Collateral Agent, an LC Issuer and Swing Line Lender. The Fourth Amendment provides for, among other things, a new Term A loan maturing on October 31, 2024, in the aggregate principal amount of $60,000,000 (the ?New Term A Loan?), which has no regularly scheduled amortization. The Company used the proceeds of the New Term A Loan (and cash on hand) to (i) finance the acquisition described in Item 2.01 and (ii) pay fees and expenses incurred in connection with the foregoing transactions. The Company?s obligations under the Credit Agreement continue to be secured by substantially all of its and its direct and indirect subsidiaries? assets. Interest on the New Term A Loan is payable either quarterly or at the expiration of any LIBOR interest period applicable thereto. The New Term A Loan accrues interest at a rate equal to, at option, a base rate (with a floor of 100 basis points) or LIBOR (with a floor of 0 basis points) plus an applicable margin equal to 1.00% for base rate loans and 2.00% for LIBOR loans.

Excerpt from:
PGT Innovations, Inc Enters into Fourth Amendment to the Credit Agreement Dated as of February 16, 2016 - marketscreener.com

Petitions of the week ByAndrew Hamm on Oct 30, 2021 at 3:07 pm

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether federal prosecutors or defendants have the burden of proving their status as a Native American or not for purposes of criminal jurisdiction, and three conditional cross-petitions over Texas abortion ban.

Federal law generally provides that tribal courts, not federal or state courts, have jurisdiction to prosecute minor crimes committed by one Indian against the person or property of another Indian on tribal land. In Haggerty v. United States, federal authorities charged Justin Haggerty with committing malicious destruction of tribal property on the Tigua Indian Reservation in Texas. In the U.S. Court of Appeals for the 5th Circuit, Haggerty maintained that the prosecution had failed in its burden of proof because it never introduced any evidence that he was not Native American. The 5th Circuit rejected Haggertys contention, ruling that the burden was Haggertys to have raised a defense that he is Native American. Arguing that the circuits are split on this question, Haggerty asks the justices for review.

On Monday, the Supreme Court will hear oral arguments in two cases arising out of Texas ban on nearly all abortions after the sixth week of pregnancy, Whole Womans Health v. Jackson and United States v. Texas. The cases address the laws private-enforcement structure, which deputizes private individuals to bring lawsuits to enforce the ban, and whether the federal government has the right to sue in federal court to block the laws enforcement. As Amy Howe reported for SCOTUSblog, the justices orders on oral arguments suggest that they will not use these cases to directly weigh in on whether the law violates the constitutional right to abortion. Nonetheless, three conditional cross-petitions in Whole Womans Health ask the justices to address directly the prevailing abortion precedents, Roe v. Wade,Planned Parenthood v. Casey, and 2016s Whole Womans Health v. Hellerstedt. The cross-petitions are Dickson v. Whole Womans Health, Carlton v. Whole Womans Health, and Clarkston v. Whole Womans Health.

These and otherpetitions of the weekare below:

Shoop v. Twyford21-511Issues: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in28 U.S.C. 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.

Haggerty v. United States21-516Issues: (1) Whether the interracial nature of a minor offense in Indian Country is an element of18 U.S.C. 1152, rather than an affirmative defense, and thus must be both pled and proved by the prosecution; and (2) whether the government must plead and prove the interracial nature of a minor offense in Indian Country to establish federal subject matter jurisdiction under 18 U.S.C. 1152.

Simko v. United States Steel Corporation21-522Issue: Whether, or under what circumstances, a claim that an employer unlawfully retaliated against an employee for filing a charge of discrimination with the Equal Employment Opportunity Commission under the remedial structure of Title VII may be addressed in an ensuing civil action, if the employee did not file a second formal administrative charge specifically alleging the retaliation.

Martin v. Castro21-533Issues: (1) Whether, when a law enforcement officer reasonably deploys a police K9 to restrain a fleeing suspect known to have a history of violent crime and believed to be in possession of a deadly weapon and under the influence of an illegal stimulant, the Fourth Amendment is violated when the K9s handler commands the K9 to release the suspect within seconds after the suspect is handcuffed and ceases resisting arrest; (2) whether the U.S. Court of Appeals for the 9th Circuit erred when it failed to consider the totality of the circumstances in assessing the reasonableness of force used to restrain a suspect with a known history of violent crime who is actively resisting arrest and is believed to be in possession of a deadly weapon and under the influence of an illegal stimulant; and (3) whether the 9th Circuit violatedCity and County of San Francisco v. Sheehanand other binding precedent when it denied a police officer qualified immunity by defining clearly established law at too high a level of generality.

Reagle v. Lewis21-538Issue: Whether, after Roderick Lewiss counsel failed at sentencing to say anything more than that Lewis would speak on his own behalf, the U.S. Court of Appeals for the 7th Circuit misapplied28 U.S.C. 2254in holding that the failure to applyUnited States v. Cronic in which the Supreme Court suggested that, thoughStrickland v. Washingtonrequires an ineffective-assistance claimant to prove both deficient performance and prejudice, some circumstances. . . are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified violated clearly established Federal law, as determined by the Supreme Court of the United States.

Dickson v. Whole Womans Health21-582Issues: (1) Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey; and (2) whether the Supreme Court should overruleWhole Womans Health v. Hellerstedt, which refused to enforce an explicit severability requirement in a state abortion statute.

Carlton v. Whole Womans Health21-583Issue: Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey.

Clarkston v. Whole Womans Health21-587Issue: Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey.

Read more here:
Defendants' Native American status and more abortion petitions - SCOTUSblog

Scholarship by Duke Center for Firearms Law faculty is cited in a quarter of the 84 briefs filed in a major gun rights case before the Supreme Court, demonstrating the centers emergence as a leading source on Second Amendment issues.

In New York State Rifle & Pistol Assn., Inc. v. Bruen, the first gun rights case to be decided since 2008s District of Columbia v. Heller, the Court will rule on the constitutionality of New Yorks proper cause law regulating handgun carry licenses. A total of 84 amicus briefs have been submitted ahead of Nov. 3 oral arguments in the closely watched case. Articles, essays, and other writings by Lanty L. Smith 67 ProfessorJoseph Blocher andMelvin G. Shimm Professor of Law and Associate DeanDarrell Millerare cited in support of more than 20 briefs filed in the case, as is their book, The Positive Second Amendment: Rights, Regulation, and the Future of Heller (Sept. 2018, Cambridge University Press).

Blocherand Miller also authored,with Eric Ruben, a professor at SMU Dedman School of Law,a Brief of Second Amendment Law Professors that was submitted in support of neither party but has been repeatedly cited by the respondent. In it, they focus on a broader issue that is expected to be addressed by the Courts ruling: whether the two-part test that courts currently apply in evaluating the constitutionality of a challenged gun regulation should be replaced by the text, history, and tradition framework, which holds a gun regulation as constitutional if it has an historical precedent. The latter is favored by gun rights advocates, as well as Associate Justice Brett Kavanaugh, but Blocher, Miller, and Ruben urge the court to affirm the more nuanced two-part test as the proper doctrinal framework to adjudicate Second Amendment claims.

Blocher and Miller are faculty co-directors of the Center for Firearms Law. Scholarship and commentary by Jacob D. Charles 13, the centers executive director, is also cited, as are posts on the centers influential Second Thoughts blog. In addition, several briefs cite work by center faculty affiliates Philip J. Cook, the ITT/Sanford Professor Emeritus of Public Policy Studies at Duke and professor emeritus of economics, and Jeffrey Swanson, professor in psychiatry and behavioral sciences at Dukes School of Medicine.

In Bruen, the Supreme Court will consider the constitutionality of a New York State law that requires citizens to demonstrate proper cause to be granted a license to carry a concealed handgun outside the home. About half a dozen other states have similar laws, governing approximately 80 million Americans. The ruling will address a question left unanswered by Heller, in which the Court held that the Second Amendment protects an individual right to keep and bear arms for certain private purposes, including self-defense in the home. That decision did not say how that right applies outside the home, and lower courts have been divided on that issue.

A brief filed by more than 400 clergy and faith leaders in support of reasonable gun regulation ... to protect the safety and serenity of places of worship, cites Millers Constitutional Conflict and Sensitive Places, 28 Wm. & Mary Bill Rts. J. 459 (2019), in which Miller analyzes the sensitive places doctrine, which allows government to restrict or prohibit weapons from places deemed sensitive, such as schools, hospitals and government buildings. He concludes that some places are sensitive because they are sites of conflict between constitutional values, or where gun rights come into conflict with other public goods generated by other institutions enabled by other kinds of constitutional rights including the free exercise of religion in a place of worship, freedom of speech in a school or university, and the right to vote.

As the doctrine after Heller develops, and as legislators expand all the places and manners in which guns can be carried, we are certain to discover that there will be more and more areas where the basic conflict wont be rights versus regulation, but rights versus rights, Miller writes.

In Second Amendment Equilibria, 116 Nw. U. L. Rev. 239 (2021), cited in a brief filed by corpus linguistics professors that contests the respondents interpretation of the phrase keep and bear arms, Miller evaluates how equilibrium-adjustment theory, first articulated by Berkeley Law professor Orin Kerr for Fourth Amendment cases, may be used to resolve questions of Second Amendment doctrine that arise as technological and societal changes threaten the balance between the individual right to keep and bear arms and government power to regulate it.

New linguistic research of eighteenth-century sources ... proves convincingly that the Founding generation did not ordinarily use the phrase bear arms to mean carry weapons, he writes. It would seem that textualismat least of the original public meaning varietywill not suffice to steer the doctrine in the next decade; nor will purposivismif purpose is understood simply to mean self-defense. Equilibrium-adjustment theory may help resolve the impasse and set the doctrine on the right course.

Some pieces are cited by multiple parties, including Blochers Firearm Localism, 123 Yale L.J. 82 (2013), cited in 10 different briefs. In the article, Blocher points to a long historical tradition of locally tailored gun control, as well as differing rates of gun violence and recreational gun use across the country, to argue that Second Amendment doctrine and state preemption laws should make distinctions between urban and rural gun use and regulation.

And a recent essay written by Blocher and co-author Reva B. Siegel of Yale Law School is cited in seven briefs, including those filed by the American Civil Liberties Union, the League of Women Voters, and respondent Kevin P. Bruen, superintendent of the New York State Police. In When Guns Threaten the Public Sphere: A New Account of Public Safety Regulation Under Heller, 116 Nw. U. L. Rev. 139 (2021), Blocher and Siegel argue that governments public safety interest in regulating firearms includes preventing not just physical harms such as injury and death, but also social harms such as terror and intimidation. They also argue that government has a longstanding prerogative, rooted in the common law to regulate weapons in order to promote a sense of security among citizens going about their daily business and to protect the public sphere on which constitutional democracy depends.

Launched in August 2018, the Center for Firearms Law has become a reliable resource on issues surrounding firearms, gun rights and regulation, and the Second Amendment. In addition to scholarly output, events including symposia and conferences, and the blog, Blocher, Miller, and Charles are frequent media commentators on issues including gun carry regulations, the Second Amendment sanctuary movement, gun manufacturer liability, and extreme risk protection orders, also known as red flag laws.

The rest is here:
Center for Firearms Law scholars highly cited in closely watched Second Amendment case - Duke Today

Jaleel Stallings, a man found not guilty on all charges of shooting at Minneapolis police during the unrest that followed George Floyd's murder last year, filed a federal lawsuit Thursday against the city and several of its officers, alleging the use of excessive force and several constitutional rights violations.

Stallings' attorney, Eric Rice, released extensive body camera footage earlier this month that showed Stallings, who had a permit to carry a firearm in public, returning fire at police in self-defense after they fired a marking round at him without warning from an unmarked van on May 30, 2020. Stallings immediately surrendered upon learning they were police officers but was assaulted while on the ground, the video showed. In the footage released by Rice, Lt. Johnny Mercil can be heard saying he believed a group of protesters were white "because there's not looting and fires," while Cmdr. Bruce Folkens referenced "hunting people" during the unrest. Both have since left the department.

Filed in the U.S. District Court of Minnesota, the lawsuit alleges that 19 Minneapolis officers violated Stallings' Fourth Amendment rights by using excessive force and his First Amendment rights by using force to intimidate and deter him from protesting police brutality and racism. The suit alleges that officers also violated his 14th Amendment right to due process by conducting a "recklessly-flawed" investigation after the incident, and, lastly, his 14th Amendment right to equal protection by targeting Black civilians with force and false accusations of felonious conduct.

"These violations are part of a pattern of constitutional violations by the MPD," the complaint said. "Customs causing constitutional violations were long-known by the MPD and the community at-large before this incident. In fact, it was this historical pattern of constitutional violations and lack of accountability or deterrence that led the community to protest with such intensity after the murder of George Floyd."

The complaint names 14 officers as defendants. An additional five are also listed but referred to as John Does because they have yet to be identified, according to the complaint.

"During Jaleel's criminal matter, we did not receive any information that those officers were being investigated or held accountable," Rice said. "We hope that this civil lawsuit is one way in which there can be oversight and accountability for anything that the officers did improperly."

Following the May 30 incident, Stallings was charged with second-degree attempted murder, first-degree assault, second-degree assault and second-degree riot, among other counts. He rejected a plea deal that included a nearly 13-year prison term and instead took the case to trial in June. He was fully acquitted, which was first reported by the Minnesota Reformer.

Now, according to the lawsuit, Stallings seeks redress, including compensation and punitive damages to prevent future violations.

The Police Department declined to comment, citing the active litigation.

"The City Attorney's Office is still reviewing the lawsuit and has no comment at this time," city spokeswoman Sarah McKenzie said.

The beating left Stallings with several injuries, the lawsuit said: a fractured eye socket, bruising, trauma, paranoia and anxiety. He had also been shot in the chest with a marking round, which resulted in labored breathing, the suit said.

When he was transported to the hospital, "Stallings was not permitted to privately discuss the incident or his injuries with medical personnel," the complaint said. "Officers stood nearby and listened to everything."

The lawsuit alleges that the involved officers provided false, misleading statements to justify their use of force and concealed evidence to implicate Stallings.

Those false statements and the narrative that Stallings "attempted to kill officers has continued even after his acquittal," the lawsuit said.

Originally posted here:
Man cleared of unknowingly firing at Minneapolis officers in self-defense files lawsuit alleging force and constitutional rights violations -...

Earlier this month and last month, the National Security Commission on Artificial Intelligence, the Reiss Center on Law and Security at NYU School of Law, the Berkman Klein Center for Internet & Society at Harvard University, and Just Security convened a three-part virtual symposium of experts to debate critical legal issues around the growing use and influence of artificial intelligence (AI). Titled Security, Privacy and Innovation: Reshaping Law for the AI Era, the symposium comprised three sessions convening leading scholars, practitioners, and thought leaders on some of the most difficult and urgent facets of the AI era. In case you missed the event, this recap describes highlights from each panel. Further details of the symposium can be accessed here. These descriptions and observations are our own and are not necessarily shared by each of the panelists.

Jonathan Zittrain, Faculty Director of the Berkman Klein Center for Internet & Society, moderated the first panel. The panel featured Olufunmilayo Arewa, Murray H. Shusterman Professor of Transactional and Business Law at Temple Universitys Beasley School of Law; Chinmayi Arun, Resident Fellow at Yale Law School; Ronald Deibert, Director of the Citizen Lab at University of Torontos Munk School of Global Affairs & Public Policy; and Ambassador Eileen Donahoe, Executive Director of Stanford Universitys Global Digital Policy Incubator.

The panelists focused on multiple, interconnected areas of concern, including the quick development of AI technologies paired with the inapt legal safeguards of the past, the use of AI technologies to perpetuate human rights abuses, and the global nature of these issues. As Deibert put it, we all live in this new kind of global ether of data that is connected to but separate from us. Each panelist drew out unique angles of the potential harms of AI. Arewa highlighted the potential for abuse due to concentration of power in technology companies like Facebook and Google. Arun spoke about how datafication of people can lead to erasure of certain groups, giving the example of how datafying people as male or female erases those who do not identify along the gender binary. She also spoke about how, when dealing with cross border questions, international law offers us powerful norm setting, but largely does not create accountability for powerful technology companies.

Ambassador Donahoe narrowed in on AI technologies deployed by authoritarian regimes to shape citizen motivation and behavior, like Chinas social credit system. She noted that such technologies not only violate privacy and civil liberties, but they really undermine human agency and go to the heart of human dignity. Her biggest concern was the threat of digital authoritarianism as a governance model, especially as it spreads across the world and competes with democracy.

The panelists also provided guidance on how civil society and governments in democratic states can tackle the harmful effects of AI on multiple levels. In the international arena, Ambassador Donahoe argued that on the democratic side, we have basically failed to provide a compelling alternative to the digital authoritarian regime. She laid out a three-part geopolitical framework, which she subsequently elaborated on here. The three components were: develop a democratic governance model for digital society, invest in values-based international leadership, and win the technological innovation battle to keep power in democratic states. Deibert suggested building momentum in countering abusive despotism as a service practices by enhancing domestic oversight of surveillance companies and technologies, starting with agencies such as the U.S. National Security Agency (NSA) and Canadas Communications Security Establishment (CSE).

Arewa articulated a framework for regulating private actors based on both transparency and liability, but she also acknowledged the obstacle of regulatory capture, even in countries that respected the rule of law. On the transparency side, she gave the example of how Apples app tracking transparency led to many fewer users opting to be tracked. On the liability side, she pointed out that although Mark Zuckerberg relies on the liability limitations embedded in corporate law, that may not be appropriate for someone like him who serves as a companys controlling shareholder and CEO and also sits on the board.

Arun favored an approach that followed computer scientists research to understand how accountability can be hardwired into the building of these systems. In addition to anticipating harms, she advocated for monitoring each use of AI and creating mechanisms to walk back any harmful effects.

The panelists concluded by articulating hopes for a future where democratic values are infused into AI technology.

Julie Owono, the Executive Director of Internet Sans Frontires (Internet Without Borders), a member of the Facebook Oversight Board who is also affiliated with the Berkman Klein Center on Internet & Society, moderated the second panel. The panel featured Glenn Gerstell, a senior advisor on international security with the Center for Strategic & International Studies and the former general counsel for NSA; Aziz Z. Huq, the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School; and Riana Pfefferkorn, a Research Scholar at the Stanford Internet Observatory.

The conversation focused broadly on how the American constitutional system is challenged by many emergent problems with the use, development, and deployment of AI. As a starting point, Gerstell described AI tools as critical, pervasive, and problematic.

The panelists discussed how foreign adversaries like China have invested heavily in AI technologies to closely surveil their own populaces, gain a competitive edge in the global marketplace, and quickly sort through intelligence. In order to keep up with technological innovation and protect important national security interests, the United States must continue to develop and rely on AI. But the panelists emphasized that existing legal parameters do not sufficiently protect the privacy interests of everyday Americans or provide adequate protections and remedies for bad actions by governments or private companies.

As for the existing legal structure, the panelists focused on the limited protections offered by the Fourth and Fourteenth Amendments. They agreed that the Fourth Amendment provides a limited guardrail around the use of AI technologies by national security institutions and acknowledged that important questions still exist about whether AI can give rise to probable cause for a warrant. Gerstell pointed out that the most relevant case about the limits of government surveillance under the Fourth Amendment, Carpenter v. United States, provides little on-point guidance about the limits on data the government can collect.

Huq asserted that the Fourteenth Amendment was unable to address the most pressing concerns about government use of AI, such as disproportionately high false positives that negatively impact racial minorities and women. While the Equal Protection Clause prohibits governmental actions based on racially discriminatory intent, AI technologies, he argued, are rarely designed with the intent to discriminate; instead they incorporate biases through negligence or inattention.

Pfefferkorn further explained the numerous challenges posed by AI in a criminal justice context, where prosecutors may be unable to fully explain AI technologies used to collect or analyze evidence against defendants. This may be because the technology is opaque even to its inventors, or because contractual or national security obligations prevent the vendors from disclosing how the tools operate.

The panelists further pointed out that the threat posed by the use of AI comes not only from the government but from companies that are not bound by constitutional limitations. The power and value of AI technologies require gathering vast amounts of data about individuals, and this data often comes from these companies consumers. Accordingly, the panelists contended that a rights-focused framework is inadequate in the context of the threats posed by AI.

The panelists stressed the urgent need for legislation that more clearly delineates privacy rights for Americans, defines who can collect their data in public spaces and what that data can be used for, and bans some AI applications in particularly sensitive areas. Pfefferkorn pointed out that privacy legislation and doctrine from the 1960s and 1970s are far behind the current technological capabilities today, and that changing technology may correspond to a change in the definition of reasonable expectation of privacy. Huq advocated for a federal agency similar to the FDA or CDC with administrative authority to regulate the AI industry; however, he cautioned that political will for such an agency does not exist.

Ruth Okediji, Jeremiah Smith, Jr. Professor of Law at Harvard Law School, moderated the first panel, which featured Paul Michel, former Chief Judge of the Federal Circuit; Andrei Iancu, former Undersecretary of Commerce for Intellectual Property and former Director of the U.S. Patent and Trademark Office (USPTO); and David Jones, Executive Director of the High Tech Inventors Alliance.

Okediji introduced the topic of patent eligibility reform, and noted the National Security Commission on Artificial Intelligences final report was released in March 2021. That report includes a non-exhaustive list of 10 intellectual property-related considerations for the United States to assess as part of its national security strategy. One of those considerations is patent eligibility reform.

Judge Michel provided critical background on the issue. Patent eligibility is one of the threshold requirements for a patent to be granted or for an issued patent to be upheld when challenged in litigation. Under Section 101 of the Patent Act, four broad categories of inventions are patent-eligible: processes, machines, manufactures, and compositions of matter. According to Judge Michel, the Supreme Courts decisions in Mayo v. Prometheus (2012) and Alice Corp. v. CLS Bank International (2014) changed the patent eligibility landscape. These decisions expanded the scope of three judicial exceptions laws of nature, products or phenomena of nature, and abstract ideas to the four statutory patent-eligible categories mentioned above. Judge Michel opined that, prior to 2012, the U.S. patent eligibility regime was clear and consistent, and challenges to eligibility were rare, but eligibility challenges have become commonplace since Mayo and Alice. Meanwhile, 27 European countries and many Asian countries have significantly broadened their patent eligibility criteria, and hundreds of patents deemed ineligible in the United States have been deemed eligible elsewhere. Judge Michel concluded his remarks by calling for congressional reform of the U.S. patent eligibility regime. Reform efforts in 2019 stalled, but some discussions on Capitol Hill are currently underway again.

Iancu and Jones then engaged in a spirited debate. Iancu generally agreed with Judge Michel that the law of patent eligibility is in a state of unpredictability. He argued that the private sector will require greater clarity and certainty from the patent system in order to feel incentivized to innovate and invest in new, disruptive technologies, such as AI. AI-related inventions have often been rejected by the current patent regime, which frequently views them as mathematical formulas and abstract ideas. According to Iancu, the procedure for defining abstract ideas and determining whether a particular invention should be patent-eligible or not is still unclear. He highlighted new guidelines that the USPTO issued in 2019 to synthesize court decisions and provide an analytical framework for patent eligibility evaluation. But this alone isnt sufficient, he acknowledged, calling on Congress to reform the eligibility statute itself, which was written in 1790, when technologies such as blockchain, AI, and quantum computing could not have been fathomed.

Jones, on the other hand, argued that the current regime is working well and spurring innovation. He cited, for example, an empirical study that demonstrated that companies increased their research and development (R&D) investments after Alice because they could not simply rely on patents for technologies that were no longer eligible for protection. Limiting the scope of eligibility is helpful, he suggested; patent applicants should not be able to merely add the magic words, on a computer and claim an abstract idea to be patentable. Jones also argued that the post-Mayo/Alice regime has been fairly predictable, and that patent applicants have adapted very quickly to changes in the jurisprudence.

The panelists also discussed U.S. patent eligibility specifically in the context of national competitiveness. Jones explained that under the TRIPS agreement which has been described by the WTO as the most comprehensive multilateral agreement on intellectual property the signatory countries (which comprise most of the world) are obligated to treat foreign inventors and domestic inventors in the same manner. Thus, companies will not necessarily migrate their R&D efforts away from the United States (if they are seeking U.S. patents), Jones argued. On the other hand, Judge Michel warned that capital is fleeing the United States and fleeing hard technology for less risky investments. Iancu said that the United States needs to do more to incentivize startups, small-and-medium enterprises, and venture capital firms to invest in disruptive technologies here at home in order to match competition and innovation from China. He argued that providing adequate protections for patents is a way of creating those incentives. Jones countered that some studies show there has been an increase, not a decrease, in startups access to venture capital investment in the aftermath of Alice.

Okediji concluded the first panel by noting the importance of discussing these issues for national competitiveness and considerations of what can be done with patent levers.

Kristen Jakobsen Osenga, Austin E. Owen Research Scholar & Professor of Law at the University of Richmond School of Law, moderated the second panel. The panel featured Ryan Abbott, Professor of Law and Health Sciences, University of Surrey School of Law, and Adjunct Assistant Professor of Medicine at UCLAs David Geffen School of Medicine; Drew Hirshfield, who is currently performing the functions and duties of the Undersecretary of Commerce for Intellectual Property and Director of the USPTO; Hans Sauer, Deputy General Counsel and Vice President for IP at the Biotechnology Innovation Organization; and Laura Sheridan, Senior Patent Counsel and Head of Patent Policy at Google.

Osenga opened the discussion by noting that the panel would expand on the first panel and discuss some on-the-ground, practical implications of patent eligibility issues.

In their opening remarks, each panelist shared their initial observations on patent eligibility issues. Hirshfield called for greater predictability in patent eligibility laws, a more efficient process for evaluating patents, and a national strategy for protecting AI. Sheridan opined that the current patent eligibility regime is balanced and supportive of AI innovation. Any disruption of the balance would actually harm innovation and emerging technologies, not help it patenting in AI is actually flourishing, despite what the [National Security Commission on AI] report says, she argued. Sauer noted that countries around the world pay close attention to U.S. patent law, including any systematic divergences in outcomes in the United States versus elsewhere. We have lived with a disparate state of affairs, he said, referring to the biotech industrys challenges in obtaining patents in the United States compared to other countries. Abbott spoke to the differences between AIs disruptiveness and previous generations of technologies, particularly emphasizing AIs unique ability to generate its own art, music, and inventions. How the U.S. patent system treats AI-generated inventions (compared to traditional, human-invented IP), Abbot observed, will have important legal and economic ramifications in the years to come.

Commenting on the current landscape of patent applications, Hirshfield noted that 18 to 19 percent of applications to the USPTO now have some form of AI in them. Recognizing the trends, the USPTO is undertaking a range of initiatives related to AI, he said. He also spoke of the challenges emanating from a lack of clarity in patent eligibility jurisprudence and raised concerns about what that might mean for the AI innovations of tomorrow.

Sheridan added that Google has encouraged the USPTO to provide a robust technical training to its patent examiners, such that examiners can stay up-to-date on emerging technologies. She also mentioned that Googles decision on whether to keep an invention a trade secret is not based on patent eligibility law; rather, it is based on business and product-driven considerations, the nature of the technology, and whether Google is comfortable with disclosure.

Sauer suggested that U.S. patent law, as it stands, could potentially invite copyists given the lack of clear protections, and that certain biotech patents might be better protected in China. He also noted that the higher bar for patentability in the United States is leading the biotech industry particularly diagnostics companies to focus its investments more on technologies that can be kept confidential (i.e., trade secrets) or on tools used in the R&D process.

Abbott argued that the law, even as it stands today, should allow for patents to be awarded for AI-generated inventions. He acknowledged that there is currently a split on this question in jurisdictions across the globe. [T]he Patent Act was designed to encourage technological progress and generating socially valuable activities, and that this is exactly the sort of activity that patent law was meant to accommodate, and reading the law with that purpose in mind, there is no principled reason that an AI couldnt invent something and that someone couldnt get a patent on that sort of thing, he said.

In concluding, Sauer mused that we may someday witness a battle of AIs, with AI-generated IP being scrutinized by an AI-driven patent agency evaluation process.

More:
Symposium Recap: Security, Privacy and Innovation Reshaping Law for the AI Era - Just Security

from the it's-time-to-move-past-'but-the-border-tho' dept

Invasive searches of people's phones at border crossings and international airports have become standard operating procedure for US border control agencies. The usual justifications have been made: national security and preventing contraband from crossing the border.

Those claims may have some merit, but it doesn't explain why the number of invasive searches has exploded over the past few years, even though the number of border crossings hasn't. It also doesn't explain why agencies like Customs and Border Patrol (CBP) continue to claim the program is too important to be curtailed, yet somehow not important enough to be competently supervised or quantified.

For the most part, courts have agreed with the government's assertions that searching devices without warrants or (in many cases) articulable suspicion is just good national security work. Only one court has pushed back, requiring searches to be limited to rooting out suspected contraband, rather than just examining phone contents until agents find something to get reasonably suspicious about.

The Supreme Court said warrants are needed to search the contents of cell phones. Unfortunately, our nation's borders have long been considered blanket warrant exceptions -- an exception that extends 100 miles inland from every border and international airport. It also limited this to searches "incident to an arrest," and in many cases, people whose devices are searched at the border are never arrested.

This ruling tends to work well away from the border, since seizures of phones without an arrest is generally considered an obvious violation of rights, which makes any subsequent searches illegal. But this phrase doesn't do much to limit searches at the border where rights are assumed to be mostly waived, making the initial seizures lawful, paving the way for warrantless searches that may violate the Fourth Amendment, but in a place where courts have said violating the Constitution is cool and good.

And so the courts, having abdicated their checks and balances mandate, tell plaintiffs "hey, if this bothers y'all, maybe ask Congress to get it changed." Because if Congress says it's ok to waive all rights near the border, who are the courts to decide direct Supreme Court precedent applies to border phone searches?

Well, maybe the courts need to do a little local application because Congress can't be arsed. A bill to restore the Fourth Amendment at the border has been submitted and denied in the past. It's back again. Maybe this time -- given the increasing distrust of law enforcement and federal border control efforts -- it will get further than it has in the past.

Here's the EFF's summary of Ron Wyden's "Protecting Data at the Border Act," which (against all sanity) offers up the novel idea that the federal government should respect people's rights.

Unfettered border searches of electronic devices pose a significant threat to personal privacy. Thats why we urge Congress to pass the Protecting Data at the Border Act, a bill recently re-introduced by Sen. Ron Wyden (D-OR) and Sen. Rand Paul (R-KY) that would create a warrant requirement for these types of searches, thereby protecting our constitutional rights at the border.

As the EFF points out, this is the third attempt to restore the Fourth Amendment in the federal government's gray area -- the large parts of the United States known unofficially as the "Constitution-Free Zone." The bill wouldn't go so far as to enact a warrant requirement, but it does add a bunch of protections that currently don't exist.

Consent must be obtained in written form. No more Google Translate or pidgin Spanglish from border control officers who will take consent even if it's expressed with upside down question marks. And it's not all of the Fourth Amendment, but it's more than we have now: border control officers need to have probable cause someone committed a felony before seizing their device. If they don't have that, any post-seizure search would be a de facto rights violation.

There are also reporting requirements that mandate more transparency from border control agencies on searches and seizures of devices. And agencies are forbidden from retaining communications and data that can't be shown to be related to criminal investigations or charges.

It's not perfect but it's far more than we have now. And, if enacted, would curb CBP's thirst for warrantless searches, forbidding it from getting the boys in the boat to sail out on fishing expeditions just because. This is the third try for Wyden's bill. Let's hope it's the charm.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

Filed Under: 4th amendment, border, border exception, border searches, cbp, device searches, protecting data at the border act, ron wyden

Read more:
If Courts Won't Protect People's Phones At The Border, Congress Needs To Act Now - Techdirt

BRADENTON, Fla. (WFLA) Incomplete information on a criminal arrest warrant may have led to a mistake by U.S. Marshals in Bradenton.

The US Marshals are part of a task force that was sent to arrest Shamar Johnson, wanted in connection with a murder that happened on Sept. 11, 2021.

Johnson was being sought in connection with the shooting death of a man at the Preserve on 51st Apartments in Bradenton. A warrant for Johnsons arrest lists the main address for the Preserve Apartments.

On Oct. 22, when US Marshals arrived at the Preserve Apartment Complex to arrest Johnson they arrived at the Apartment of Kada Staples. The address of an apartment listed in the warrant is different from that of Johnson and she has no connection to Staples.

When armed US Marshals arrived at Staples apartment they demanded to know where he is saying, We know hes in there. We have the place surrounded.

Staples, who is just 21 says she was napping with her three month old baby and had no idea why armed men were at her apartment door.

They start screaming at me, US Marshalls, open up, we know hes in there, yelling to come out and I just kind of start freaking out, so Im trying to hurry up and put my dog away in his cage, said Staples.

She says eventually the Marshals figured out they were at the wrong apartment.

Then one of the guys in the hallway is like, wait, this is apartment and then said my apartment number and then kind of repeated it again and then they ran out and said, thats the wrong apartment, wrong apartment, said Staples.

USF Criminology Professor Dr. Lori Fridell says the lack of specific information on the warrant is a problem for the Marshals.

When police apply search warrant, they have to particularly describe the place to be searched as well as the things to be seized and this is the actual wording from the fourth amendment of the Constitution. So, its not unusual when police apply for a warrant to have not just an address listed in the warrant request, but a description of the location. It is not unusual to have a picture of the location and of course, if the location has an apartment number, this is going to be included, said Dr. Fridell.

That lack of specific information could have led to a dangerous situation for an innocent person.

If this apartment had a clearly marked number, that did not match the warrant, then we have negligence on the part of the marshals. We have sloppy work, that brought unnecessary fear and distress to one of our residents, said Fridell.

Staples apartment does have a clearly marked number. There are 200 units in the Preserve complex and yet Tampa Attorney Bryant Camareno says it may be difficult for Staples to sue the U.S. Marshals service and recover any damages.

Because its law enforcement and its federal, they have whats known as qualified immunity, so they are protected to some extent, but at the end of the day, I dont think shell have much remedy in court, said Camareno

Read this article:
Incomplete info on arrest warrant may have led to US Marshals holding Bradenton mom, baby at gunpoint - WFLA