ACSBlog

  • September 3, 2015
    Guest Post

    Greg Nojeim, Director of the Freedom, Security and Technology Project at the Center for Democracy & Technology.

    *This post is part of ACSblog’s symposium examining proposed reforms to the Electronic Communications Privacy Act (ECPA).

    As more and more data flows across state borders, the ability of law enforcement agencies to access information stored outside their jurisdiction or managed by a foreign company becomes increasingly complex. What country’s laws should apply to data requests? How quickly should access be granted and to whom? Should there be different standards for different countries? Mutual Legal Assistance  (MLA) processes have been one way to address these questions.

    MLA processes are those that law enforcement officials in one country trigger in another country to gain access to information over which the 2nd country has jurisdiction.  The information sought may range from witness testimony to communications content and metadata.  For example, if an investigating official in France needs communications content of a Gmail user in France to investigate a crime, she does not make the request directly to Google, but rather approaches a central authority in France which makes a request for mutual legal assistance of the US Department of Justice (DOJ), which can provide that assistance by applying for a warrant to serve on Google to compel disclosure of this information. 

    It is widely perceived that MLA processes are too slow for law enforcement investigations in the digital era and that they are not up to the task of dealing with the volume of cross-border demands for data that law enforcement agencies need to make.  A number of ideas are being put forth to address this problem and its many complexities.  This post is an attempt by the Center for Democracy & Technology (CDT) to spur public debate on one such idea and to solicit input that would inform a solid MLAT reform proposal. 

  • September 3, 2015

    by Jim Thompson

    In The New York Times, Linda Greenhouse, a member of the ACS Board of Directors, argues that conservatives are now taking a broader approach to standing, a stark departure from past canons of conservative thought.

    Rosie Flores at The Nation argues that a criminal record should not disqualify someone from public assistance, reasoning that “no one should go hungry for a crime they have already served time for.”

    In The New Republic, Brian Beutler warns against the waxing tide of libertarian scholars seeking to dismantle legal gains of the New Deal.

    Timothy Williams reports in The New York Times that the Association of State Correctional Administrators, the nation’s leading organization for prison and jail administrators, has called for sharply reducing or altogether eliminating the use of solitary confinement for extended periods of time. 

  • September 3, 2015
    Guest Post

    by Leslie Brueckner, Senior Attorney, Public Justice

    *This piece first appeared at Public Justice Blog

    The U.S. Supreme Court is poised to decide an issue of huge importance to everyone who cares about access to justice. The question, in Campbell-Ewald v. Gomez, is whether corporate defendants in class actions are entitled to bribe class representatives to abandon the rest of the potential class members. 

    Yes, you read that right. According to the corporation who was sued, it should be allowed to cancel out a class action against it simply by offering to settle the named plaintiff’s individual claims. Under the defendant’s view of the law, corporations accused of ripping off millions of people could avoid accountability by repeatedly picking off the few named plaintiffs who are willing to step forward. Campbell-Ewald has even gone so far as to argue that class representatives are bound by such offers, accepted or not, even if it effectively denies all other class members the ability to obtain any relief at all.

    The craziest part about the theory they’ve put forth is that it turns the whole notion of adequacy of representation 180 degrees. As we explained in an amici brief we just filed with the Court (along with the AARP), one of the most basic rules of class actions is that class representatives are supposed to represent the others impacted by the wrongdoing. Not only is this required by Rule 23 (the federal class action rule), it’s also required by the U.S. Constitution (due process, anyone?). This means not just that the class representatives are supposed to be competent, they are also supposed to be loyal to the rest of the class members. And that means the class representatives are not supposed to file potential class actions just to make money for themselves, they are supposed to be standing up for everyone in the class. 

  • September 2, 2015

    by Jim Thompson

    In the Los Angeles Times, Tracey Lien reports that a federal judge ruled Tuesday that a group of Uber drivers may move forward with a class action lawsuit that aims to classify them as employees, not contract workers.

    In The Chicago Tribune, Dina Bass encourages lawmakers to develop a legal framework for international data access protocols.

    A press release from the Center for Constitutional Rights celebrates a landmark settlement in the federal class action case Ashker v. Governor of California that effectively ends indeterminate, long-term solitary confinement in California prisons.

  • September 2, 2015
    Guest Post

    by Kate Westmoreland, Non-Residential Fellow, The Center for Internet & Society at Stanford Law School

    *This post is part of ACSblog’s symposium examining proposed reforms to the Electronic Communications Privacy Act (ECPA).

    As internet companies and cloud providers hold more and more communications and user data, access to this information has become a key part of criminal investigations and prosecutions. The current system for managing international access to this data is struggling under the increased demand. Microsoft’s Brad Smith has been vocal in his calls for a new international convention on access to user data for criminal matters. But is a whole new convention really necessary?

    The answer depends on (1) whether the system is actually broken and, if so, (2) whether a new international convention is the right solution. Perhaps I should give a spoiler alert on this, but I think the answer is “yes, but don’t put all your eggs in the one basket.” Ultimately, we should be working towards a new international system for managing government requests for user data, but this is a very long-term, ambitious project. In the meantime, we need to pursue a range of shorter-term improvements at the domestic and international levels.

    There is a growing consensus that the current system for international government access to user data in criminal matters is broken. It is governed by a creaky old system of bilateral and multilateral treaties (mutual legal assistance treaties or “MLATs”), relationships between law enforcement officers and companies, and a mishmash of domestic legislation. A government report last year stated that MLAT requests to the United States take an average of at least 10 months to process. The White House then called for increased funding to process the requests more quickly, but the appropriation has stalled. When law enforcement agencies feel that they cannot access the information through mutual legal assistance, they turn to alternative, informal methods, including directly asking companies to hand over the data.