Category Archives: Fourth Amendment

A fundamental right in our Constitution is the 4th Amendments protection against the governments conducting unreasonable searches and seizures. It does not prohibit all searches, only those that are determined to be unreasonable. A search is definitely unreasonable if there was no probable cause to believe that there was evidence of crime at the location identified. There are countless court cases on this topic.

The 4th Amendment was passed in reaction to the practice during colonial times of British soldiers using general writs of assistance to enter and search private homes, looking for contraband. After this constitutional protection was enacted, government officers could not force their way into your home, look through your belongings, or read your documents unless they had specific probable cause to do so.

And, just saying those words did not magically make it so. The reasons for the search, including the place or person to be searched and the evidence of crime believed to be there, must be presented under oath to a judge beforehand, to obtain a search warrant.

As you might imagine, that can feel like a hassle, and it takes time. A way that avoids this step is to get the consent of the owner of the property. If they agree, then requesting a warrant is not necessary. Sometimes that is fine, but people may feel they cannot refuse the police, so they feel pressured to consent.

Consent also could be a pathway for police to search without having probable cause. Maybe they have a hunch, but not enough to meet the legal standard. Or maybe they just want to harass the person, or hope they can find something to charge him with.

If nothing is found, a home was invaded unnecessarily. If the defendant is arrested, then every aspect can be challenged. If there was not voluntary consent, or probable cause, then a judge could well suppress the evidence so that it cannot be used in court. If there is no evidence, then the charges will be dismissed.

The judges role in issuing a search warrant is essential; the police cannot issue warrants to themselves. In reviewing whether law enforcement has legally sufficient evidence for a search warrant, the judge should be careful, thorough and independent. A judge should not simply be a rubber stamp, approving whatever the police request. Included in the courts assessment is whether there is evidence of a specific location and particular evidence. The judge is not limited to looking at paperwork for the warrant, but can also ask questions of the officers, who swear to the truth of what they are saying.

Under NY Criminal Procedure Law, a search warrant can be executed only between the hours of 6 a.m. and 9 p.m., unless the judge approves an exception. The law also requires the police to announce themselves before entering. This applies unless the judge specifically authorizes a No Knock Warrant. Before doing so, the judge should question the reasons the police have for not knocking.

The typical reasons are that the person inside would destroy the evidence if they are warned that the police are outside the door. Sometimes there is concern that law enforcement officers would be endangered if they had to announce themselves, and could not have the advantage of surprise. The destruction of evidence and danger to officers are two exceptions that could swallow the rule. The judge needs to be sure that there are reasons specific to this particular case that justify No Knock permission.

The judge also needs to try to ensure that the police are acting on reliable and current information. If they are looking for drugs at a particular location, you want probable cause to believe that (1) they have the exact correct address and (2) the drugs are there now, not just that they were there days or weeks ago. The judges oversight should be demanding, to help ensure the police have specific, accurate information. A mistake can invade the privacy of completely innocent people, and even be deadly.

There are many conversations around the country about whether to change policing policies, training and practices. One of the primary targets for reform is the No Knock warrant.

Penny Clute was Clinton County district attorney from 1989 through 2001, then Plattsburgh City Court judge until her retirement in January 2012.

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Resources

NY Criminal Procedure Law 690 covers search warrants

Issues around No Knock warrants -- https://www.cityandstateny.com/articles/policy/criminal-justice/no-knock-search-warrants-may-be-heading-out-door-new-york.html

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Warrants, searches and the Fourth Amendment | Opinion - Plattsburgh Press Republican

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Huzzah!

Thanksgiving is saved everyone. And you can go ahead and thank Representative Dan Crenshaw who scoured the Constitution and found a provision that makes it ILLEGAL for law enforcement to go after peoples Turkey & Superspreader Day! And its right there in the Fourth Amendment.

This is not accurate. That said, lets see if we can pinpoint where Dan jumps off the rails. Unsurprisingly, it seems to stem from the standard conservative fetishization of private property. As Chief Wiggum says:

Obviously, the Fourth Amendment does not prohibit prosecutions just because an infraction happens inside a home. Crimes happen inside houses all the time, and if the Fourth Amendment extended that far, then people would all be legally growing marijuana in their homes something Dan Crenshaw has affirmatively voted against.

The most charitable read of Crenshaws nonsense is that law enforcement should not be able to knock on your door and bust up your attempt to kill grandma with germs unless the cops have a warrant. Thats the Schoolhouse Rock version of the Fourth Amendment, anyway.

But thats not how it works in reality. Warrantless searches are blessed all the time and while one can quibble that this happens too often and the expansion of police power in this area is absolutely troubling its bonkers to pretend the Fourth Amendment is an ironclad fence. Exceptions to the Fourth Amendment are fact-specific inquiries, but generally turn on the reasonableness of the search and the strength of the government interest. They often lean far too heavily on the latter, but it is what it is.

Considering the world today, there is ample support for the proposition that a pandemic specifically would authorize state actors to intervene and approach someones home to protect the public. For instance, the Third Circuit in U.S. v. Ward a case Alito ruled on determined that stopping the spread of a communicable disease justified a blood test that would have otherwise violated the Fourth Amendment. Once public health is established as a justified interest, busting up a party when there are five cars parked on the lawn presents a decent case for exigent circumstances justifying swift action before Aunt Karen absorbs a full viral load.

Given the risks of abuse in handing over blank checks to law enforcement, one would hope that prosecutors use their discretion and not charge people here. Having the cops treat it like a noise complaint and just sending everyone home should be more than sufficient. If some prosecutor did pursue actual charges, a family may have defenses of varying quality available ranging from religious freedom to a generalizable right to privacy to discrimination claims (since its unfortunately safe to worry that the impact of unfettered police power will fall upon minority communities).

But they arent going to have a Fourth Amendment claim.

Joe Patriceis a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Read more here:
Dan Crenshaw Declares That Fourth Amendment Protects Thanksgiving (Psst It Doesnt) - Above the Law

25 November 2020

AFD China

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Design patent witnesses two crucial revisions in the newlyamended China Patent Law, which will significantly impact on thedesign patent prosecution and protection as of 1 June 2021, theeffective date of the new rules. Please be advised of the followingchanges:

Partial design is allowable now pursuant to the new rules. As of1 June 2021, IP owners can file design patent applications forprotecting their partial designs. This is a great development ofChinese IP system. We look forward to a new protection environmentof design patents.

For design patents filed on or after 1 June 2021, the patentterm will be extended from 10 years to 15 years from the filingdate. This is a signal that China is under the preparation forjoining the Hague Agreement, an international treaty thatstreamlines global design patent applications but requires a15-year patent term.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

POPULAR ARTICLES ON: Intellectual Property from China

Anand & Anand

The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.

Khurana and Khurana

WIPO defines patent as an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem

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Highlights Of The Fourth Amendment To China's Patent Law - Partial Design Patentable & Protection Extended - Intellectual Property - China -...

The Insolvency and Bankruptcy Board of India (IBBI) on 13 November 2020 issued the Insolvency and Bankruptcy Board of India (Liquidation Process) (Fourth Amendment) Regulations, 2020 (Amendment) which introduced seminal changes to the liquidation regime under the Insolvency and Bankruptcy Code, 2016 (IBC). The Amendment has been introduced on the back of the discussion paper issued by IBBI on 26 August 2020 on Corporate Liquidation Process (Discussion Paper). This Amendment proposes solutions to resolve 2 major issues which plagued the efficacious and expeditious completion of a corporate liquidation process under the IBC, (a) assignment by a creditor of its claims / interest during liquidation; and (ii) disposal / assignment of non-readily realisable / illiquid assets. In this paper we are analysing these two issues, the manner in which the Amendments modify the corporate liquidation framework vis--vis these issues and their impact on the corporate liquidation process.

THE TWO KEY ISSUES

ISSUE 1: ASSIGNMENT OF CLAIMS/INTERESTS DURING LIQUIDATION

During the liquidation process, a creditor is required to file its claim with the liquidator. Subsequently, such claim gets settled pursuant to the realisation of the assets in the liquidation estate of the corporate debtor and its subsequent distribution in the manner set out in Section 53 of the IBC. This is a time-consuming process.

It is relevant to note that the scheme of the IBC allows a creditor to assign its claims in favour of a third party. Sections 5(7) and 5(20) of the IBC stipulate that the assignee of a financial debt or an operational debt shall also be considered as a financial creditor or an operational creditor, respectively. Further, in the context of a corporate insolvency resolution process, a creditor is allowed to assign the debt owed to it by a corporate debtor in favour of a third party in terms of Regulation 28 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations). However, the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations (Liquidation Regulations) did not, until the Amendment, set out an explicit mechanism by which a creditor could assign the debt owed to it by the corporate debtor, in favour of a third party.

Recognising this lacuna, the Discussion Paper proposed that a provision similar to that in the CIRP Regulations may be provided under Liquidation Regulations to enable exit of stakeholders who prefer not to wait until the realisation of assets and distribution of its proceeds. Pursuant to this suggestion offered in the Liquidation Regulations, the Amendment introduced Regulation 30A to the Liquidation Regulations, which inter alia, now stipulates that:

a. a creditor may assign or transfer the debt due to it or it to any other person during the liquidation process in accordance with the applicable laws dealing with such assignment or transfer;

b. in case of such assignment, both assignor and the assignee are required to provide the liquidator: (a) the terms of such assignment or transfer; and (b) the identity of the assignee or transferee;

c. further, pursuant to such assignment, the liquidator shall modify the list of stakeholders of the liquidator in the stakeholders consultation committee.

Thus, the Liquidation Regulations now provide a mechanism for assignment of claims which is similar to that already provided under the relevant regulations for the corporate insolvency resolution process (CIRP). Accordingly, an assignee of a creditors claim can be treated as a creditor during liquidation.

ISSUE 2: THE TREATMENT OF NON-READILY REALISABLE ASSETS DURING LIQUIDATION

It is a well settled principle that 2 of the most important objectives of the IBC are: (a) timebound resolution of stress of the corporate debtor; and (b) maximisation of value of the assets of the corporate debtor to ensure maximum recovery of dues by the creditors of such corporate debtor (Twin Objectives). The entire scheme of the IBC, including the CIRP and the liquidation process have been formulated in a manner which, inter-alia, ensures that the said Twin Objectives are met in a fixed time frame.

Under the IBC, the legal framework pertaining to liquidation process of the corporate debtor have been set out in Chapter III of Part II of the IBC read with the Liquidation Regulations. The said framework attempts to ensure that the said Twin Objectives are realised to the greatest extent possible. For example: (a) Regulation 44(1) of the Liquidation Regulations stipulates that a liquidator is required to complete the liquidation process within a period of 1 year from the date of commencement of the liquidation process of the corporate debtor; and (b) Regulation 32 read with Regulation 32A of the Liquidation Regulations stipulate 6 different methods by which a liquidator may sell the assets of a corporate debtor.

However, notwithstanding the above, the realisation of the Twin Objectives in the context of liquidation process of a corporate debtor has been severely impeded on account of the presence of non-readily realisable assets (NRRA) of the corporate debtor. Acknowledging the same, the Discussion Paper elucidated the challenges posed by the presence of NRRAs in the liquidation estate of a corporate debtor and set out the possible solutions to address these challenges. To put the issue in perspective, we have set out below (i) the meaning of NRRAs; (ii) the problems posed by them to the realisation of Twin Objectives; and (iii) means of resolving the problem of NRRAs in a liquidation estate.

Meaning of NRRAs: A liquidator pursuant to its appointment is required to take into his/her custody and control the assets of the corporate debtor, and form the liquidation estate in terms of Section 35 of the IBC. Some of these assets of the corporate debtor may not be readily convertible into cash and distributed among the stakeholders of the corporate debtor and/or may require an indefinite time for their realisation on account of peculiar nature of such assets or special circumstances. These assets include sundry debts (such as refunds from Government and its agencies), contingent receivables, disputed receivables, disputed assets, assets underlying avoidance transactions etc. The Discussion Paper defines such assets as NRRA.

The Problem Posed by NRRAs: The presence of NRRAs is detrimental to the achievement of the Twin Objectives, that too within the strict timelines prescribed under the IBC. Considering that the time taken to realise NRRAs is uncertain, the completion of the liquidation process and the subsequent dissolution of the corporate debtor may take an inordinate amount of time. This is in stark contravention to one of the most central tenets of the IBC ie., the expeditious and time bound resolution of stress of the corporate debtor. Further, as rightly observed in the Discussion Paper, if the dissolution is kept pending for want for realisation of such assets, then not only the liquidation cost keeps accruing continuously but also the value of the assets keeps on depreciating with time. This prejudicially affects the maximisation of value of the assets of the corporate debtor and as a result prejudicially affects credit recovery for the claimants.

A second conundrum pertaining to NRRAs is that the realisation of NRRAs would require time, effort and most importantly, costs on the part of the liquidator. A liquidator is required to take action to recover the amount receivable from the contingent assets (receivables) which may accrue to a corporate debtor based on an occurrence of uncertain future events over which the liquidator has no control whatsoever. Further, contingent receivables are usually a subject matter of litigation which not only leads to inordinate delays in crystallisation of such contingent claims but also entails the liquidator incurring substantial legal costs. The lack of funding during liquidation severely complicates the matters further for the liquidator. These delays and costs severely depreciate the value of the liquidation estate of the corporate debtor and prejudicially affect the monies recovered by the creditors of such corporate debtor pursuant to the completion of the liquidation process. However, if the NRRAs are left unrealised and the corporate debtor is dissolved, then the assets end up getting locked and no stakeholder finds merit in pursing assets with relevant authorities/ forums, which in turn leads to loss in value of unclaimed assets, which could otherwise have been used to maximise recoveries.

Proposed Solution: The Discussion Paper sets out that a viable solution to resolve the issue of NRRA is to allow the liquidator to assign the NRRAs for any such amount which the market is willing to pay, and distribute the same among stakeholders. Further, the Discussion Paper proposes that when the liquidation estate of the corporate debtor is insufficient to pay the debts, then the liquidators can be provided with the right to assign certain statutory rights of action (such as avoidance transactions actions, contingent claims etc.), to the third parties. This ensures an expeditious conversion of NRRAs into cash. Further, if the liquidator takes proactive measures to assign NRRAs then such assignment can be made for a lucrative consideration prior to the assets of the corporate debtor depreciating in value. Accordingly, allowing the liquidator to assign the NRRAs and thereby ensuring the better realisation of the Twin Objectives in a liquidation process.

Amendment to the Liquidation Regulations: Acknowledging the issue identified in the Discussion Paper and the solution offered to redress this issue, the Amendment introduced Regulation 37A to the Liquidation Regulations which introduces the concept of NRRAs to IBC. Regulation 37A defines NRRA as an asset which is included in the liquidation estate of the corporate debtor which could not be sold through available options. It further clarifies that NRRAs inter-alia include contingent or disputed assets and assets underlying proceedings for preferential, undervalued, extortionate credit and fraudulent transactions referred to in Sections 43 to 51 and Section 66 of the IBC.

Further, Regulation 37A stipulates that a liquidator may assign or transfer a NRRA through a transparent process, in consultation with the stakeholders consultation committee set up under Regulation 31A of the Liquidation Regulations. It further sets out that such assignment cannot be made by the liquidator in favour of a person who is disqualified to submit a resolution plan for a corporate debtor undergoing corporate insolvency resolution process under the provisions of Chapter II of Part II of the IBC (Ineligible Person). This condition is consistent with the general principle set out in proviso to Section 35(1)(f) of the IBC, which sets out that a liquidator cannot sell movable or immovable properties of the corporate debtor or actionable claims of the corporate debtor in a liquidation process to an Ineligible Person.

In addition to the above, the Amendment also modified Regulation 38 of the Liquidation Regulations. Prior to the Amendment, Regulation 38 provided that a liquidator may, with the permission of the Adjudicating Authority, distribute amongst the stakeholders, an asset that cannot be readily or advantageously sold due to its peculiar nature or other special circumstances. The Amendment modifies Regulation 38 of the Liquidation Regulations, and the same now reads as a liquidator may, with the permission of the Adjudicating Authority, distribute amongst the stakeholders, an asset that could not be sold, assigned or transferred due to its peculiar nature or other special circumstances. Vide this amendment to Regulation 38, the Amendment harmonises the language of Regulation 38 with the newly inserted Regulation 37A of the Liquidation Regulations.

Comment:

The issues set out in the Discussion Paper are indeed substantial issues which have been causing serious detriment to the efficacious and swift completion of a liquidation process. The presence of illiquid assets not only hamper the value maximisation of the liquidation estate of the corporate debtor but also substantially slow down the pace of the liquidation process. It is relevant to note that as per the figures set out in the Quarterly Newsletter published by the IBBI for the months of April to June 2020, out of the 955 cases wherein liquidation was initiated, only 88 cases have been finally completed. It is relevant to note that out of the remaining 867, around 428 cases have been under liquidation for more than the period of 1 year, as stipulated in terms of Regulation 44 of the Liquidation Regulations.

The changes introduced by way of the Amendment are expected to effectively address both the aforementioned issues. The right conferred on the liquidator to assign NRRAs will help create a niche market for such illiquid assets allowing the buyers with deep pockets and specialisation to acquire these assets and pursue recoveries. This not only helps in the monetisation of otherwise illiquid assets but also helps speed up the liquidation process by relieving the liquidator of the obligation to invest time and expenses in realising these assets. This is more often in cases where the liquidator does not have sufficient funds to meet the mounting legal expenses. Additionally, as rightly set out in the Discussion Paper, the right conferred on the creditors to assign their exposure in the liquidator, in favour of the liquidator, is to enable exit of stakeholders who prefer swifter recoveries at a fair discount.

The content of this document do not necessarily reflect the views / position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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Transfer of illiquid assets and assignment of creditor claims: ibbi amends liquidation regulations to hasten the process - Lexology

In August 2016, a Bloomberg report revealed a secret aerial surveillance program in Baltimore led by the citys police department. Over eight months, planes equipped with cameras collected over 300 hours of footage, used by the police to investigate alleged crimes. Hardly anyone outside police department leadership and the vendor, Persistent Surveillance Systems, knew.

Baltimores police commissioner at the time, Kevin Davis, defended both the planes and the secrecy. The citys murder rate was spiking, the stretched police department was responding to thousands of calls per day, and footage from the planes was helping police find suspects.

The planes were grounded amid backlash from residents and civil liberties groups, who called for the immediate suspension of the program and details on what data the city had been collecting. Commissioner Davis was eventually fired after failing to curb the citys homicide rate. His replacement, Darryl De Sousa, resigned in a tax evasion scandal. The next year, Mayor Catherine Pugh resigned in a separate financial scandal.

Four years later, the planes were back in the air, but under different circumstances. In 2019, Persistent Surveillance Systems CEO Ross McNutt pitched the city on restarting the program. By flying over a 32-square-mile portion of the city, the planes could monitor the citys most troubled areas, the sites of 80 percent of the citys gun homicides. Funded entirely by donors, McNutt pitched the planes as an inexpensive but game-changing tool to curb the rising murder rate.

The new program, dubbed Aerial Investigation Research (AIR), underwent public comment and found robust support among the citys Black and religious communities. The citys Board of Estimates approved it in April by a vote of 3 to 2. The planes began flying in May for a six-month pilot that ended in October.

The current police commissioner, Michael Harrison, supports the program. If it doesn't work, you have my commitment that we will ground the planes, Harrison said at the April Board of Estimates meeting.

The problem with what happened in 2016 wasnt that it was done in secret, it was that it was done at all.

David Rocah, senior staff attorney, ACLU Maryland

Some activists, including the ACLU, still oppose the program. They say the transparency is immaterial as the planes are inherently invasive and unconstitutional. The problem with what happened in 2016 wasnt that it was done in secret, it was that it was done at all, says David Rocah, senior staff attorney at the ACLU Maryland.

The reemergence of Baltimores aerial surveillance program comes at a moment of increasing scrutiny on policing. Local governments are restricting police technology. City leaders in San Francisco, Oakland, and Boston approved restrictions on police use of facial recognition as major vendors like Amazon and Microsoft placed temporary moratoriums on sales of the tech to police. California has passed two privacy laws in the past two years, while Michigan voters endorsed new rules around police access to suspect data.

Baltimores increasing murder rate, however, marks the city as an outlier. Residents have long complained of a complicated cycle of violence in the city. Robust police responses can trigger violent backlashes, while passive approaches frustrate residents, who feel ignored. The revolving door of police commissioners has contributed to a lack of trust in police, which frustrates authorities, who complain they cant solve crimes without the help from potential witnesses. These same witnesses feel police are powerless to protect them from retribution. All the while, murder rises.

I understand the fears of people who live in Baltimore because I live in Baltimore, Rocah says. But, he adds, if that's a sufficient justification for this, then the Fourth Amendment is completely irrelevant.

These tiny flyers are going to fill the skies, transforming entire industries for the betterand worse.

In April, the ACLU filed a complaint against the BPD, arguing that the ongoing, warrantless nature of the program violated Fourth Amendment protections against unfair searches. Three times since then, judges have ruled against the ACLU, and allowed the program to continue.

Read more here:
As Cities Curb Surveillance, Baltimore Police Took to the Air - WIRED

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Twelve years from the third amendment of China's patent law,the fourth amendment was approved by the Standing Committee of theNational People's Congress on October 17, 2020. The newamendment will take effect on June 1, 2021. This article provides adetailed review of the changes from the current patent law.

The first aspect of changes relates to enhanced protection ofpatent rights. Specifically, it includes punitive damages,increased statutory damage, reversed burden of proof, increasedfine for passingoff, and extended time limit for initiatinglitigation.

(1) Punitive Damages and Increased StatutoryDamage

Under the current patent law, the concepts of willfulinfringement and associated punitive damages are not available.These are included in Article 71 of the fourth amendment of thepatent law. Specifically, for willful infringement on a patentright, if the circumstance is serious, the amount of damages may beincreased up to five times of the calculated damages. The amount ofdamages for patent right infringement shall be determined by tryingthe following methods in the following order. First, the amount ofdamages may be determined according to the patentee's actuallosses caused by the infringement or the benefits acquired by theinfringer through the infringement. Where it is difficult todetermine the losses of the patentee or the benefits acquired bythe infringer, the amount of damages may be determined according tothe reasonably multiples of the royalties of that patent. It is tobe noted that compared with the current provisions, Article 71slightly revised the order of the methods for calculating damagesthat should be used. Either the patentee's actual losses or thebenefits acquired by the infringer can be used first, whereas thecurrent law requires that the actual losses must be triedfirst.

If it is difficult to determine the losses of the patentee,benefits of the infringer, or royalties of the patent, thepeople's court may, on the basis of the factors such as thetype of patent right, nature of the infringement, and seriousnessof the case, determine the amount of compensation within the rangefrom RMB30,000 to RMB5,000,000 (US$4,500 to US$750,000). Thisis referred to as statutory damage and it's lower and upperlimits are respectively raised to 3 times and 5 times of thecurrent ones.

(2) Reversed Burden of Proof

One of the biggest difficulties faced by a patent right holderin a patent infringement law suit in China is the lack ofdiscovery. It is often the case that infringement is found butthere is no good evidence to calculate damages as the evidence isin the possession of the defendant. To deal with this problem,Article 71 of the fourth amendment of the patent law provides wherethe right holder has tried his best to provide evidence but theaccount book and materials related to the infringement are mainlyin the possession of the infringer, in order to determine theamount of damages, the people's court may order the infringerto provide the account book and materials related to theinfringement acts.

Where the infringer fails to provide the account book ormaterials or provide fake account book or materials, thepeople's court may determine the amount of damages based on theclaim made and the evidence provided by the right holder. Itfollows that the plaintiff may want to claim high when launching aninfringement law suit. However, one factor that needs to beconsidered is that the court fees are related to the amount atstake. Even if China does not have a loserpay system, i.e.the losing party does not need to cover the cost of the winningparty in a law suit, overclaiming increases the risk ofhaving to pay higher court fees if the plaintiff does not win thecase.

The punitive damages and the increased statutory damages,together with the reversed burden of proof for calculating damagesare likely to significantly increase the amount of damages awardedin future patent infringement cases in China, which will creategreater deterrence to potential infringers.

(3) Increased Fine for PassingOff

Patent passingoff can be generally understood as fraud,such as false patent marking. Article 68 of the fourth amendmentprovides that when handling a patent passingoff case, apatent enforcement authority can confiscate the illegal gains ofthe party who passes off a patent and, in addition, impose a fineof not more than five times the illegal gain, which is increasedfrom the current limit of four times of the illegal gain. In casethere is no illegal gain or the illegal gain is less than RMB50,000(US$7,500), a patent enforcement authority may impose a fine of upto RMB250,000 (US$37,500). It is to be noted that the fine is atype of punishment on the party who passes off a patent but thepatent right holder will not gain any financial benefit from thefine. Of course, in addition to confiscation and fine, the partywho passes off a patent also has to bear civil liability, e.g.compensation to the patent right holder.

According to the current patent law, when a patent enforcementauthority investigates and handles the suspected passingoffof a patent, it may, based on evidence obtained, (1) inquire theparties concerned and investigate the circumstances related to thesuspected illegal act; (2) conduct onsite inspection of theplaces where the suspected illegal act is committed; (3) review andduplicate the relevant contracts, invoices, account books and otherrelated materials; (4) inspect the products related to thesuspected illegal act; and (5) seal or confiscate the productswhich pass off the patent.

In China, a patent right holder can enforce a patent rightthrough judicial route, i.e. people's court or administrativeroute, e.g. local IP offices. However, local IP offices' powerto review and duplicate the relevant contracts, invoices, accountbooks and other related materials and to seal or confiscate theproducts which pass off the patent, as mentioned above, is limitedto patent passingoff cases only. The fourth amendment of thepatent law still does not give local IP offices such power inhandling patent infringement cases.

(4) Extended Time limit for InitiatingLitigation

According to Article 74 of the fourth amendment of the patentlaw, the time limit for taking legal action against patent rightinfringement was extended from two years to three years, commencingfrom the date when the patentee or interested party knows or shouldhave known of the infringing activity and the infringer. Similarly,if a patentee wants to sue another party for compensation duringthe period from the publication of the invention patent applicationto the grant of the patent right, the time limit for taking legalaction is also extended from two years to three years, commencingfrom the date when the patentee knows or should have known of theuse of the patent by that other party. However, the time limitshall commence from the date when the patent right is granted, ifthe patentee knows or should have known of the use before thepatent right is granted.

In the fourth amendment, the second aspect of changes from thecurrent patent law relates to design patent practice. Specifically,it includes extended patent term for design, allowance of partialdesign and possibility of claiming domestic priority for designapplications.

According to Article 42 of the fourth amendment of the patentlaw, the term of a design patent shall be 15 years, extended from10 years as prescribed in the current patent law. It is believedthat this change is part of China's effort to join the HagueAgreement.

Article 2 of the fourth amendment redefines design as any newdesign of the shape, the pattern or their combination, or thecombination of the color with shape or pattern, of the whole or apart of a product, which creates an aesthetic feeling and is fitfor industrial application. This makes it possible to protect aportion of a product, often referred to as "partialdesign". Under the current law, a design patent can onlyprotects a complete product but not a portion of a product whichcannot be separated or cannot be sold and used independently.Allowance of partial design makes design practice in China moresimilar to that in many other jurisdictions and offers broaderprotection of design patents. Without having to limit their designpatent to specific complete products even though the design pointsare only related to certain part of such products, design patentright holders will be in a better position to protect themselvesfrom infringers who may be able to avoid the risk of infringementby only copying their design points and using them in a differentshaped product.

The allowance of partial design also renders design patentprotection for graphic user interface (GUI) more useful. Applicantsdo not have to protect the product, i.e. the display screen panel,with the GUI, in their design patents, as under the currentpractice. Instead, a design patent may be used to protect thedesign of the GUI itself, with the other parts of the productdisclaimed and presented by dotted lines. Even in the GUI itself,some parts may be disclaimed through the use of dotted lines. Itwill be interesting to see what standard will be used in theexamination of partial design application.

Article 29 of the fourth amendment of the patent law includesdomestic priority for design applications, which is not availableunder the current patent law. Specifically, if within 6 months fromthe date an applicant first files an application for a designpatent in China, he files another design application in China forthe same subject matter, the applicant may enjoy the right ofpriority. Under the current domestic priority practice forinvention and utility model applications, when domestic priority isclaimed, the first filed Chinese application will be deemed to bewithdrawn. Therefore, it is not possible to keep both applications.It is reasonable to believe that this also applies to designapplications.

In the fourth amendment, the third aspect of changes from thecurrent patent law relates to drug patents. Specifically, itincludes patent term extension and patent linkage system.

(1) Patent Term Extension

Article 42 of the fourth amendment provides that in order tocompensate for the time spent in the review and marketing approvalof new drugs, at the request of the patentee, CNIPA (China NationalIntellectual Property Administration) may grant compensation forthe term of the invention patent related to the new drug which hasbeen approved for marketing in China. The compensation period shallnot exceed five years, and the total effective period of patentright after the new drug is approved for marketing shall not exceed14 years.

It is to be noted that "Bolar exemption" is availableunder the current patent law, i.e. use of a drug patent for thepurpose of application for drug approval is not considered a patentinfringing activity, but extension of patent term is not available.The inclusion of patent term extension in the fourth amendment ofthe patent law better balances the interest of innovative drugcompanies and the generic companies. There are no detailedprovisions available yet regarding how the extension will becalculated. However, it can be expected that this new provisionencourages innovative drug companies, especially foreign drugoriginators to bring their new drugs to the Chinese market as earlyas possible and hence make new drugs more accessible to the Chinesepeople.

(2) Patent Linkage System

Article 76 of the fourth amendment of the patent law providesthat in the process of review and marketing approval of a drug, ifa dispute arises between the applicant for the marketing approvalof the drug and the relevant patentee or interested party due tothe patent right related to the drug applying for registration, therelevant party may bring a suit in the people's court andrequest a judgment be made on whether the related technicalsolution of the drug applying for registration falls within thescope of protection of other's drug patent. The drug regulatorydepartment of the State Council may, within the prescribed timelimit, make a decision on whether to suspend the marketing approvalof the relevant drug based on the effective judgment of thepeople's court.

The applicant for marketing approval of a drug and the relevantpatentee or interested party may also request an administrativeruling from CNIPA for the dispute over the patent right related tothe drug applying for registration.

Article 76 further provides that the drug regulatory departmentof the State Council, in conjunction with CNIPA, shall formulatespecific measures for the connection between the marketing approvalof drugs and the resolution of patent disputes in the stage ofapplication for marketing approval of drugs, which shall beimplemented after the approval of the State Council.

The newly added article introduces the socalled"patent linkage system" into the patent law, whichprovides an early resolution mechanism for drug patent disputes,aiming to resolve potential patent disputes before relevant drugsare marketed. However, by the completion of this article, detailedrules in this area still need to be formulated, such asavailability of experimental data protection period for drugs, andthe establishment of China's Patent Information RegistrationPlatform for Approved Drugs, equivalent to the correspondingcontent in "Approved Drug Products with TherapeuticEquivalence Evaluations" in the US, commonly known as the"Orange Book". Other drug related measures may also needto be updated to reflect the changes in this regard, such as anupdated application process for drug approval, or a revised Catalogof Approved Drugs.

As a matter of fact, on September 11, 2020, the National MedicalProducts Administration and CNIPA jointly issued"Implementation Measures for the Early Resolution Mechanismfor Drug Patent Disputes (Trial Version) (Draft for Comment)"for public comments. On April 25, 2018, the National MedicalProducts Administration issued "Implementation Measures forthe Protection of Drug Experimental Data (Trial Version)" forpublic comments. Neither one has been finalized and implementedyet. However, it is reasonable to expect that a full system similarto that established by HatchWaxman Act in the US will beavailable in China soon.

Articles 50 to 52 of the fourth amendment of the patent lawprovide an "Open License" system. Specifically, apatentee may express in writing to CNIPA its willingness to licensetheir patents to anyone and specify relevant royalties and methodof payment. CNIPA will announce the patentee's statement andoffer the open license. Patent right evaluation report should beprovided with the offer of an open license for utility model ordesign patent. If a patentee withdraws its offer of open license,it must do so in writing and CNIPA will announce the withdrawalstatement. In this case, any previously granted open license shallnot be affected.

According to Article 51, anyone that is willing to exploit thepatent which is open licensed gets the license to exploit thepatent after it informs the patentee in writing, and pay thelicense fee according to the open license announcement. In otherwords, anyone that complies with the above provision automaticallygets a license. In addition, the same article specifies that thepatentee that offers the open license and potential licensees canstill negotiate on license fees. However, the patentee that offersthe open license may only grant ordinary licenses and shall notgrant a sole or exclusive license for the patent concerned.Moreover, if any dispute arises with respect to the open license,the relevant parties may either request mediation from CNIPA orlaunch a law suit in people's court.

Interestingly, in order to encourage patentees to offer openlicenses, the fourth amendment of the patent law provides thatduring the implementation period of the open license, the annuitiespaid by the patentee shall be reduced or exempted.

(1) Patent Term Adjustment

Patent term adjustment is made available in Article 42 of thefourth amendment of the patent law. It is believed that this changewas made in line with the ChinaUS phase 1 trade agreement.Specifically, where an invention patent right was granted afterfour years from the filing date of the invention patent applicationand after three years from the date of the substantive examinationrequest, CNIPA shall, at the request of the patentee, providecompensation for the term of the patent with respect to theunreasonable delay in the examination stage of the inventionpatent. Not detailed calculation method is available yet.

(2) A New Grace Period Provision

Article 24 of the fourth amendment includes a new provision thatrelates to grace period. Specifically, disclosure of an inventionfor public interest in case of national emergency can enjoy thegrace period of 6 month.

(3) Patent Right Evaluation Report

Under the current patent law, if a dispute over patentinfringement involves a utility model patent or a design patent,the people's court or the administration office may require thepatentee or the interested parties to present a patent rightevaluation report prepared by the CNIPA through searching,analyzing, and assessing the relevant utility model or design,which shall serve as evidence for trying or handling the patentinfringement dispute. Currently only patentees or the licenseesthat have the right to launch law suits have the right to requestpatent right evaluation reports. In the fourth amendment of thepatent law, it is provided that relevant parties from both sides ofthe law suit may request the patent right evaluation reportproduced by CNIPA. This means that not only the patentee canrequest the CNIPA to produce the patent right evaluation report butthe defendant is also able to do so. It provides a new vehicle foralleged infringers to defend themselves.

However, for a party that is not involved in an infringement lawsuit but is concerned with potentially infringement on a utilitymodel or a design patent, it is still not possible to request apatent right evaluation report from CNIPA.

(4) Extended Deadline to Submit PriorityDocuments

According to Article 30 of the fourth amendment, an applicantwho claims priority from an invention or a utility model patentapplication shall submit a written declaration at the time offiling an application and submit copies of the patent applicationdocuments filed for the first time, within 16 months from the dateon which the invention or utility model patent application wasfiled for the first time. In other words, for invention or utilitymodel applications, the deadline for submitting priority documentsis extended from 3 months from claiming priority to 16 months fromthe priority date.

Copies of priority documents for claiming priority from a designapplication should be submitted within 3 months from filing anapplication for design patent.

(5) AntiMonopoly Provision

The fourth amendment of the patent law includes a new Article 20which is a very broad antimonopoly provision. Specifically,it provides that the application for and the use of patent rightsshould follow the principle of good faith. Patent right should notbe abused to damage public interest and other's legitimaterights. Abuse of patent rights to exclude or restrict competition,which constitutes monopolistic behavior, shall be dealt with inaccordance with the AntiMonopoly Law of China. Currently,there are several laws, regulations or judicial interpretations inplace to address the abuse of intellectual property right. However,it will be interesting to see how this provision is applied inlitigation in the future.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

See the article here:
Review Of The 4th Amendment Of China's Patent Law - Intellectual Property - China - Mondaq News Alerts

With increasing frequency, law enforcement is using unconstitutional digital dragnet searches to attempt to identify unknown suspects in criminal cases. In Commonwealth v. Dunkins, currently pending before the Pennsylvania Supreme Court, EFF and the ACLU are challenging a new type of dragnet: law enforcements use of WiFi data to retrospectively track individuals precise physical location.

Phones, computers, and tablets connect to WiFi networksand in turn, the Internetthrough a physical access point. Since a single access point can only service a limited number of devices within a certain range, WiFi networks that have many users and cover larger geographic areas have multiple stationary access points. When a device owner moves through a WiFi network with multiple access points, their device seamlessly switches to the nearest available point. This means that an access point can serve as a proxy for a device owners physical location. As an access point records a unique identifier for each device that connects to it, along with the time the device connected, access point logs can reveal a devices precise location over time.

In Dunkins, police were investigating a robbery that occurred in the middle of the night in a dorm at Moravian College in eastern Pennsylvania. To identify a suspect, police obtained logs of every device that connected to the 80-90 access points in the dormabout one access point for every other dorm roomaround the time of the robbery. From there, police identified devices belonging to several dozen students. They then narrowed their list to include only non-residents. That produced a list of three devices: two appeared to belong to women and one appeared to belong to a man who later turned out to be Dunkins. Since police believed the suspect was a man, they focused their investigation on that device. They then obtained records of Dunkins phone for five hours on the night of the robbery, showing each WiFi access point on campus that his phone connected to during that time. Dunkins was ultimately charged with the crime.

We argued in our brief that searches like this violate the Fourth Amendment. The WiFi log data can reveal sensitive location information, so it is essentially identical to the cell phone location records that the Supreme Court ruled in Carpenter require a warrant. Just like cell phone records, the WiFi logs offered the police the ability to retrospectively track a persons movement, including inside constitutionally protected spaces like students dorm rooms. And just as the Carpenter court recognized that cell phones are essential for participation in modern life, accessing a college WiFi network is equally indispensable to college life.

Additionally, we argued that even if police had obtained a warrant, such a warrant would be invalid. The Fourth Amendment requires law enforcement to obtain a warrant based on probable cause before searching a particular target. But in this case, police only knew that a crime occurredthey did not have a suspect or even a target device identifier. Assessing virtually the same situation in the context of a geofence warrant, two federal judges recently ruled that the governments application to obtain location records from a certain place during a specific time period failed to satisfy the Fourth Amendments particularity and probable cause requirements.

The polices tactics in this case illustrate exactly why indiscriminate searches are a threat to a free society. In acquiring and analyzing the records from everyone in the dorm, the police not only violated the defendants rights but they also wrongly learned the location of every student who was in the dormitory in the middle of the night. In particular, police determined that two women wholly unconnected to the robbery were not in their own dorm rooms on the night of the crime. Thats exactly the type of dragnet surveillance that the Fourth Amendment defends against.

The outcome of this case could have far-reaching consequences. In Pennsylvania and across the nation, public WiFi networks are everywhere. And for poor people and people of color, free public WiFi is often a crucial lifeline. Those communities should not be at a greater risk of surveillance than people who have the means to set up their own private networks. We hope the court will realize whats at stake here and rule that these types of warrantless searches are illegal.

More:
EFF Files Amicus Brief Arguing That Law Enforcement Access to Wi-Fi Derived Location Data Violates the Fourth Amendment - EFF

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China's National People's Congress has approved theFourth Amendment to Chinese Patent Law on October 17, 2020. Theamended law will be effective from June 1, 2021. We also expectthat the Implementing Regulations of the Chinese Patent Law and thePatent Examination Guidelines will also be amended accordingly,before the effective date of the amended law. These regulations andrules will provide more explanation and details regarding theAmendment.

Although the approved version of the Fourth Amendment issomewhat different from the previous versions, we do not think itis necessary to discuss these differences. Rather, we will discusskeys changes in the approved version as compared to the currentlaw. We haveparaphrased and highlighted inblue the key changes below,followed by ourcomments in black.

Article 2.4 Partial designs will be allowed.

A much welcomed change. It will provide flexibility to allapplicants and much convenience to applicants from countries wherepartial designs are allowed.

Article 15.2 For service-inventions, the state encouragesemployers to implement ownership incentives and adopt means such asequities, options, and profit sharing, etc., to allow the inventorsto reasonably share the benefits of innovation.

Although the provision is only an "encouragement",rather than a requirement, we do not think that it is necessary orproper. We think that the employers should be left freely, withinthe boundary of law, to decide on how to reward and remunerate theinventors. We look forward to more details.

Article 20.1 In exercising the application or patent right, oneshould follow the principle of honesty and credibility, but shallnot abuse the right to harm public interest or other'slegitimate rights.

We think that the stated principle is appropriate, but lookforward to further interpretation and details.

20.2 Abusing patent right, excluding or restricting competition,if constituting monopolistic conduct, shall be treated according toAnti-Monopoly Law of China.

This provision corresponds with the Anti-Monopoly Law.

Article 24.1 (1) Newly added exception to novelty-defeatingdisclosures: Disclosures made within 6 months of application dateand for public interest purposes during national emergency orextraordinary situation.

We think that a typical example of the exception would be forsomeone to publish a research paper regarding treatment or vaccinefor the corona virus before filing the relevant patent application,but look forward to further interpretation and details.

Article 29 Applicant may claim priority to its own first-filedChinese design patent application within six (6) months of thefirst filing and for the same subject matter.

Applicant can already do so in invention and utility modelpatent applications.

Article 42.1 Design patent term will be extended to fifteen (15)years, from the current ten (10) years.

It is generally believed that this provision will help clear theway for China to join the Hague Agreement, which other majorcountries have all joined.

42.2 For patents granted after four (4) years since applicationdate and three (3) years since request for substantive examination,applicant may request for patent term extension on the basis ofunreasonable delays during prosecution of the patent, except fordelays caused by the applicant.

We look forward to further details.

42.3 In order to compensate for time used for new drugevaluation and approval, the term of a relevant patent for anapproved new drug in China may be extended by up to five (5) yearsupon request by patentee. However, after the new drug entersmarket, the total remaining term of the relevant patent may notexceed fourteen (14) years.

A much welcomed provision for the pharmaceutical industry. Welook forward to further details.

Articles 50 52 Provisions regarding Open PatentLicenses, setting out mechanisms and procedures whereby patentowners can publish, through the CNIPA, their intentions to licensetheir patents to any interested party. Annuities will be reduced orwaived during the license period.

The provisions will help to further commercialize Chinesepatents. We look forward to more details.

Article 66.2 In an infringement action involving a utility modelor design patent before court or administrative agency, all partiescan submit the Patentability Assessment Report on their own.Currently only the patentee and interested party can do so uponrequest by court.

The report will be more important when enforcing utility modelor design patents.

Article 70.1 CNIPA, at the request of patentee or interestedparty, may handle patent infringement disputes that havesignificant impact nationwide.

We think this is an inappropriate enlargement of the CNIPA'sauthority and jurisdiction, but look forward to more details.

70.2 Patent administrative authority of a local government, atthe request of patentee or interested party to handle patentinfringement disputes, may combine cases involving the same patentwithin its jurisdiction. The authority may also request a higherlevel local government authority to handle cases involving the samepatent across different jurisdictions.

This is further streamlining of the administrativeauthority's handling of patent disputes.

Article 71.1 Patentee's loss and infringer's gain aretreated equally as basis for determining damage amounts.

This provides more option/freedom to the patentee in provingdamage amounts.

71.1 In case of willful infringing act, if the circumstances aresevere, the court may set the amount of damages to be one (1) tofive (5) times of the determined amount.

While this may provide more deterrence, it could also beexcessive.

71.2 Statutory damage amount will be under RMB 5 million (aboutUS$715,000). Currently the amount is under RMB 1 million.

A much welcomed change as damage amounts in most cases are stilldetermined based on the statutory amount.

71.4 In order to determine the amount of damages, if theplaintiff has done everything within its ability and the relevantaccount books and materials are mainly under the infringer'scontrol, the court may order the infringer to provide such accountbooks and materials. If the infringer does not provide or providefalse account books or materials, the court may determine thedamage amount by considering the plaintiff's request andevidence.

This will make it easier for the patentee to prove the damageamount.

Article 74.1 Statute of limitation for filing infringementlawsuit is three (3) years (currently two years) from when patenteeknew or should have known the infringement action and theinfringer.

This is in line with China's civil procedure law.

Article 76.1 During administrative review and approval for adrug, the party seeking drug approval and the patentee of arelevant patent may initiate legal proceeding with the court todetermine whether the drug falls within the protection scope of thepatent. The drug regulatory agency, within a specified period oftime, may decide whether to suspend the drug review and approvalprocess based on an effective judgment by the court.

This generally sets up a mechanism for settling patent disputesin drug regulatory review and approval process. But there are manydetails that will need to be clarified.

76.2 The parties may also request the CNIPA to make anadministrative decision regarding the patent dispute.

This is an enlargement of the CNIPA's jurisdiction. We lookforward to more details.

76.3 The Drug Regulatory Authority and the CNIPA will formulatespecific linkage methods regarding drug marketing approval andpatent dispute resolution during the approval period.

We look forward to more details.

As can be seen, the Fourth Amendment introduced a number ofmajor changes to the Chinese Patent Law. At the same time, theimplementation of these changes will largely depend oninterpretation and further details regarding the provisions. Welook forward to the corresponding Implementing Regulations by theState Council and the Patent Examination Guidelines by the CNIPA inthe coming months. We will keep you informed.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

Link:
Main Points Of The Fourth Amendment To Chinese Patent Law (Approved On October 17, 2020, Effective From June 1, 2021) - Intellectual Property - China...

Nearly <https://www.pewinternet.org/fact-sheet/mobile/> every American<https://www.pewinternet.org/fact-sheet/mobile/> owns a cell phone that can track their every movement and store sensitive information. But this convenience doesnt mean Michiganders give up their expectation of privacy. On Nov. 3, voters have a chance to ensure that our right to privacy in digital matters is respected by law enforcement when they vote on Proposal 2.

This ballot proposal would require law enforcement to acquire a search warrant before accessing a persons electronic data and communications. This may seem like a commonsense protection of privacy. But, currently, law enforcement is able to access Michiganders data essentially at will.

This issue has been a big deal in Michigan for the better part of a decade. In 2011, as a result of suspected criminal activity in Detroit, the <https://www.aclu.org/legal-document/united-states-v-carpenter-supreme-court-decision> FBI acquired<https://www.aclu.org/legal-document/united-states-v-carpenter-supreme-court-decision> several months worth of Timothy Carpenters cellphone location records without a warrant. These records revealed over 13,000 locations Carpenter had visited, yet the FBI didnt even have to ask a judge to get that information.

Fortunately, the American Civil Liberties Union took on Carpenters case, which went all the way to the United States Supreme Court. In 2018, the court held that Fourth Amendment protections apply to cellphone location records and that law enforcement must obtain a search warrant before accessing this sensitive information.

But heres the problem: The Supreme Courts decision only applied to location data. It didnt apply to the rest of the data that people access every day financial documents, photos, calendar appointments, and more. Law enforcement can still access this information without a warrant. In fact, law enforcement could conceivably access enough information to put together a profile of virtually every citizen in the state. Location data may be protected, but so much other data that paints an even better picture of a person is still open to access and abuse.

One thing is certain: Americans dont like the status quo. Approximately <https://www.pewresearch.org/internet/2015/05/20/americans-attitudes-about-privacy-security-and-surveillance/> 88% of Americans<https://www.pewresearch.org/internet/2015/05/20/americans-attitudes-about-privacy-security-and-surveillance/> say it is important that there isnt anyone watching or listening to them without their permission. Unfortunately, the law hasnt caught up.

Other states have taken steps to solve this problem. It started in Missouri in 2014. After the passage of a bill in the state legislature, a remarkable 75%<https://time.com/3087608/missouri-electronic-privacy-amendment/> of voters added much broader data protections to the state constitution through a referendum.

Last year, Utah followed suit. Lawmakers introduced a bill stating that a government entity may not obtain, use, copy, or disclose any third-party data without first obtaining a warrant unless the owner has consented or a judicially recognized exception to a warrant exists. After unanimous support from the Utah Legislature, the bill became law.

Now Michigan has a chance to set the standard. In June 2019, Michigan state Sen. Jim Runestad introduced <http://www.legislature.mi.gov/(S(zoatowoaywtmbnhskxax21bk))/mileg.aspx?page=GetObject&objectname=2019-SJR-G> Senate Resolution G<http://www.legislature.mi.gov/(S(zoatowoaywtmbnhskxax21bk))/mileg.aspx?page=GetObject&objectname=2019-SJR-G>, which is similar to the protection enacted in Missouri. After a year in the Michigan Legislature, it passed and has become <https://ballotpedia.org/Michigan_Proposal_2,_Search_Warrant_for_Electronic_Data_Amendment_(2020)> Michigan Proposal 2: Search Warrant for Electronic Data Amendment<https://ballotpedia.org/Michigan_Proposal_2,_Search_Warrant_for_Electronic_Data_Amendment_(2020)>.

Justice Samuel Alito once wrote, It would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.

Rather than punt this issue to the slow-moving courts, its imperative that state legislatures continue discussing, as well as passing these updated protections for the electronic communications and data of various individuals.

Jarrett Skorup is director of marketing and communications at the Mackinac Center for Public Policy, a free-market research and educational institute in Midland, MI. Connor Boyack is president of Libertas Institute, a free-market think tank in Utah.

See more here:
Column: Michigan can bring privacy into the 21st century - The Oakland Press

In this Novembers general election, voters will get to decide the fate of six statewide amendments to the Constitution of Alabama.

Yellowhammer News has prepared a guide to each statewide amendment and its impact on Alabama if enacted.

The six amendments mentioned will be on every ballot handed to an Alabamian on Election Day. Other local amendments may appear on the ballot in certain counties.

How the first amendment will appear on the ballot:

Proposing an amendment to the Constitution of Alabama of 1901, to amend Article VIII of the Constitution of Alabama of 1901, now appearing as Section 177 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, to provide that only a citizen of the United States has the right to vote.

More directly, the Alabama constitution would be changed to say only a citizen of the United States who meets certain qualifications has the right to vote

It currently says every citizen of the United States who meets certain qualifications has the right to vote.

The change that would occur if Amendment 1 passes is primarily technical; legal scholars agree current Alabama law permits only citizens to vote. Proponents of the amendment say the change is a needed clarification.

Alabama Senate Pro Tem. Del Marsh (R-Anniston) sponsored Amendment 1, and it passed the upper chamber unanimously. Marsh told Yellowhammer News at the time that his goal was to affirm that only citizens can vote in Alabamas elections.

How the second amendment will appear on the ballot:

Proposing an amendment to the Constitution of Alabama of 1901, to increase the membership of the Judicial Inquiry Commission and further provide for the appointment of the additional members; further provide for the membership of the Court of the Judiciary and further provide for the appointment of the additional members; further provide for the process of disqualifying an active judge; repeal provisions providing for the impeachment of Supreme Court Justices and appellate judges and the removal for cause of the judges of the district and circuit courts, judges of the probate courts, and judges of certain other courts by the Supreme Court; delete the authority of the Chief Justice of the Supreme Court to appoint an Administrative Director Courts; provide the Supreme Court of Alabama with authority to appoint an Administrative Director of Courts; require the Legislature to establish procedures for the appointment of the Administrative Director of Courts; delete the requirement that a district court hold court in each incorporated municipality with a population of 1,000 or more where there is no municipal court; provide that the procedure for the filling of vacancies in the office of a judge may be changed by local constitutional amendment; delete certain language relating to the position of constable holding more than one state office; delete a provision providing for the temporary maintenance of the prior judicial system; repeal the office of circuit solicitor; and make certain nonsubstantive stylistic changes.

The Fair Ballot Commission summarized in plain language the six primary changes that would be made by Amendment 2:

1. It provides that county district courts do not have to hold city court in a city with a population of less than 1,000.

2. It allows the Alabama Supreme Court, rather than the chief justice, to appoint the administrative director of courts.

3. It increases from nine to 11 the total membership of the Judicial Inquiry Commission and determines who appoints each member (the Judicial Inquiry Commission evaluates ethics complaints filed against judges).

4. It allows the governor, rather than the lieutenant governor, to appoint a member of the Court of the Judiciary (the Court of the Judiciary hears complaints filed by the Judicial Inquiry Commission).

5. It prevents a judge from being automatically disqualified from holding office simply because a complaint was filed with the Judiciary Inquiry Commission.

6. It provides that a judge can be removed from office only by the Court of the Judiciary.

Amendment 2 also changes the statutes governing Alabamas constables; these changes are opposed by the Alabama Constables Association.

The amendment was sponsored by State Senators Arthur Orr (R-Decatur) and Cam Ward (R-Alabaster).

Amendment 2 is the result of work done by a task force comprised of legislators and members of the judicial branch of government.

Advocates for the amendment say it simplifies several administrative procedures that govern Alabamas judicial system, which they argue is needed since many of the current procedures were written several decades ago and are no longer relevant.

Opponents of the measure argue that removing municipal courts from small towns with less than 1,000 residents will inconvenience the people who live there.

They also say that removing the legislatures ability to impeach judges the amendment makes the Judicial Inquiry Commission the only institution that can do so takes away the ability of the peoples representatives to get rid of bad judges.

More information on what the Judicial Inquiry Commission is and what it does can be found here.

How the third amendment will appear on the ballot:

Proposing an amendment to the Constitution of Alabama of 1901, to provide that a judge, other than a judge of probate, appointed to fill a vacancy would serve an initial term until the first Monday after the second Tuesday in January following the next general election after the judge has completed two years in office.

Most simply, the amendment would extend the time that judges who are appointed to fill an empty seat may serve.

If Amendment 3 is approved, appointed judges would run for reelection in the first general election after they have served two years in their appointed job.

Currently, appointed judges run in the first general election to occur after they have served for one year.

Tom Spencer of the Public Affairs Research Council of Alabama (PARCA)authored a report on the proposed amendments.

He noted with regards to Amendment 3, This change might make it more attractive for nominees to accept a judicial appointment. At the same time, this change gives the appointee longer to build up the advantage of incumbency before running for a full term.

Judgeships come open when a sitting judge dies, resigns, retires or is removed. The amendment would not apply to probate judges.

Amendment 3 was sponsored by State Representative David Faulkner (R-Mountain Brook) and co-sponsored by State Representative Matt Fridy (R-Montevallo).

How the fourth amendment will appear on the ballot:

Proposing an amendment to the Constitution of Alabama of 1901, to authorize the Legislature to recompile the Alabama Constitution and submit it during the 2022 Regular Session, and provide a process for its ratification by the voters of this state.

If Amendment 4 is passed, state legislators would have permission to rearrange the state constitution to do four things, per the Fair Ballot Commission:

1. Remove racist language.2. Remove language that is repeated or no longer applies.3. Combine language related to economic development.4. Combine language that relates to the same county.

Only changes in those four categories could be made.

The proposed changes would be submitted during the 2022 legislative session for approval by both chambers of the legislature.

If the updated constitution is approved by the legislature, it would then be voted on by the people of Alabama in the 2022 general election.

Only if the legislature and the people of Alabama give the updated constitution their approval in 2022 would the changes become permanent. Amendment 4 could be thought of as permission for lawmakers and legislative staff to get started on the process.

As such, Amendment 4 will not affect how the state is governed; it only permits cosmetic changes and even those have to be approved by the public in two years.

Proponents say removing racist and redundant language is a worthy change to the states primary governing document.

Amendment 4 comes from a bipartisan place; it was sponsored by State Representative Merika Coleman (D-Birmingham) and co-sponsored by State House Speaker Mac McCutcheon (R-Monrovia), among others.

How the fifth and sixth amendments will appear on the ballot:

Relating to Franklin County, proposing an amendment to the Constitution of Alabama of 1901, to provide that a person is not liable for using deadly physical force in self-defense or in the defense of another person on the premises of a church under certain conditions.

Statewide Amendment 6 reads in full:

Relating to Lauderdale County, proposing an amendment to the Constitution of Alabama of 1901, to provide that a person is not liable for using deadly physical force in self-defense or in the defense of another person on the premises of a church under certain conditions.

Both amendments would create special stand your ground laws for the churches in their respective counties.

Alabama Attorney General Steve Marshall already interprets Alabamas statewide stand your ground law as applicable to churches.

Local legislators in both Franklin and Lauderdale counties believe an additional measure stating the stand your ground law applies to churches in their counties is needed as a form of clarification.

The passage of Amendment 5 and Amendment 6 requires a majority of Alabama voters and a majority of the voters in the relevant counties.

The Fair Ballot Commissions breakdown, in plain language, of all six amendments is available here, and the full analysis from PARCA is available here.

The Fair Ballot Commission is an independent state entity that receives technical assistance from several agencies, but primarily the secretary of states office.

Sample ballots for each of Alabamas 67 counties can be found here.

Yellowhammer received guidance from Jason Isbell, a lawyer in Montgomery and a member of the Fair Ballot Commission, in putting this guide together.

Henry Thornton is a staff writer for Yellowhammer News. You can contact him by email: henry@yellowhammernews.comor on Twitter@HenryThornton95

Go here to see the original:
A guide to the statewide constitutional amendments on the ballot in November 2020 - Yellowhammer News