ACSBlog

  • April 22, 2014
    Today, the Supreme Court “upheld a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities.” In a dissenting opinion, Justice Sonia Sotomayor stated that “the Constitution does not protect racial minorities from political defeat…but neither does it give the majority free rein to erect selective barriers against racial minorities.” Adam Liptak at The New York Times has the story.
     
    Earlier this morning, the Supreme Court heard oral argument in Susan B. Anthony List v. Driehaus. The case deals with the issue of whether it can be a crime to falsify information about a candidate in a political campaign.  NPR’s Katie Barlow and Nina Totenberg break down this issue of free speech.
     
    Writing for The American Prospect, Virginia Eubanks explains why “Big Data might have disproportionate impacts on the poor, women, or racial and religious minorities.”
     
    David Gans at Balkinization responds to George Will’s column for The Washington Post , defending progressive’s constitutional interpretation which “does not force us to choose between liberty and democracy.”  
     
    At The Brennan Center for Justice, Walter Shapiro “[demystifies] the power of money in politics.” 
  • April 21, 2014
    Guest Post

    by Mark M. Jaycox, Legislative Analyst, Electronic Frontier Foundation

    The Electronic Communications Privacy Act (ECPA), which governs when service providers may disclose private online messages like Twitter direct messages, was ahead of its time in 1986. In the nearly three decades since it passed however, it has fallen woefully out of date. The government has used one archaic section to skirt the Fourth Amendment’s warrant requirement and obtain online messages older than 180 days with a simple subpoena based on much less than probable cause. Courts are leading the charge to ensure ECPA doesn't violate the Fourth Amendment, but Congress must step to the plate and make common sense changes to ECPA by explicitly requiring a warrant before the government can access your private online messages or your mobile phone location data.

    Just because your emails are stored online must not mean they have any less protection than if they were printed out and sitting on your desk. The Fourth Amendment's warrant requirement can not be ignored. The archaic law is an example of a typical statute that isn't "technology neutral." Nowadays people store emails and other private messages they care about most for extended periods of time online.

    The statute is also out of date regarding how law enforcement can obtain location data from your mobile phone. ECPA does not specifically say when geolocation can be obtained by law enforcement, so many law enforcement agencies don't currently obtain a warrant when they want your mobile location in the past or present. It's another example of how flaws in ECPA have been abused by the government to skirt the Fourth Amendment’s protections.

    In both instances, Courts are leading the charge to ensure ECPA is in line with Fourth Amendment requirements. In a U.S. Court of Appeals for the Sixth Circuit opinion called U.S. v. Warshak, the Court noted that emails and other private communications are protected by the Fourth Amendment. As a result, many Internet providers and other companies storing online communications require a warrant in all cases, despite any language in ECPA to the contrary. When it comes to issuing a warrant for geolocation, a circuit split exists between the U.S. Court of Appeals for the Third Circuit, which ruled that a warrant could be required for location information, and the U.S. Court of Appeals for the Fifth Circuit, which ruled that an order based on a lower threshold suffices. At the state level, courts in New Jersey and Massachusetts have firmly sided on ensuring law enforcement obtains a warrant, while states like Utah, Indiana and Montana passed laws requiring a warrant for geolocation.

    Congress is only now beginning to catch up with the judiciary. Representatives Kevin Yoder, Tom Graves, and Jared Polis have introduced The Email Privacy Act, which provides a "clean" update to ECPA by requiring law enforcement obtain a warrant before seeking any online private messages. And Senator Ron Wyden and Representative Jason Chaffetz have introduced the GPS Act, which requires law enforcement to obtain a warrant before obtaining geolocation.

  • April 21, 2014

    Alabama’s criminal sentencing laws have faced criticism for their ineffectiveness which “leads to overcrowded, dangerous prisons that breed more crime.” Writing for AL.com retired Alabama Supreme Court Chief Justice, Sue Bell Cobb describes what the state legislature must do to “remedy this deplorable situation.”  
     
    At The Huffington PostGeoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, explains why his former conservative constitutional mentor Philip Kurland “would be appalled by the conduct of the current Court.”
     
    Gerard Magliocca at Concurring Opinions examines the purpose of “describing the first ten amendments as the Bill of Rights.”
     
    The NAACP Legal Defense and Educational Fund has filed a “friend-of-the-court brief in Bostic v. Schaefer” a case which “seeks to overturn Virginia’s same-sex marriage ban.” 
  • April 18, 2014

    TPM’s Brendan James notes a recent study from Princeton on the state of American democracy. “The central point that emerges from our research,” the study’s authors Martin Gilens and Benjamin I. Page write, “is that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while mass-based interest groups and average citizens have little or no independent influence.”

    The U.S. Department of Justice is requesting that Texas legislators provide documents that "may shed light on the state’s motivation for enacting the 2011 congressional redistricting plans.” Writing for Legal Times, Todd Ruger discusses Perez v. Perry, an on-going case that has the DOJ addressing the “gutted key provision of the voting rights law” in Texas.

    Mississippi recently passed religious freedom legislation that allows businesses to discriminate against same-sex couples. Now, more than 500 businesses are joining together to make it clear that their doors are open to everyone. Adam Serwer at MSNBC reports on the “If You’re Buying, We’re Selling Campaign.”

    At SCOTUSblog, Lyle Denniston breaks down SmithKline Beecham Corp. v. Abbott Laboratories and its implications on the “constitutionality of state bans on same-sex marriage.”

  • April 17, 2014

    by ACS Staff

    New laws throughout the country are restricting access to abortion clinics. In 2013, “22 US states adopted 70 different restrictions on abortion, including late-abortion bans, doctor and clinic regulations, limits on medication abortions, and bans on insurance coverage.” Writing for The Guardian, Erika L. Sánchez explains why those who can’t reverse Roe v.  Wade are “focusing on generating enough red tape to shut down as many abortion facilities as possible.”
     
    The U.S. Court of Appeals for the Tenth Circuit is preparing for oral argument in a case challenging Oklahoma’s same-sex marriage ban. Similar to Utah’s controversial law at issue in Kitchen v. Herbert, Oklahoma’s law “prohibits gay couples from marrying and prevents the state government from recognizing such unions performed anywhere else.”  Emma Margolin at MSNBC breaks down Bishop v. Oklahoma.  

    Writing for The New York Times, ACS Board Member Linda Greenhouse breaks down McCutcheon v. Federal Election Commission and its “indecent burial” of campaign finance.

    Tonight on C-SPAN, Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia will discuss the First Amendment and “the contemporary meaning of freedom.”