• September 1, 2015
    Guest Post

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

    by Andrew K. Woods, Assistant Professor of Law, University of Kentucky College of Law

    There is growing consensus that ECPA reform is necessary.  ECPA was passed in 1986, a time when the Internet was more a research curiosity than what it is today: the global backbone for modern communications and commerce. And indeed, the time for ECPA reform has never been more urgent. President Obama is negotiating a treaty with the U.K. regarding data access, which could have an effect on some of ECPA’s provisions, and just as importantly the Microsoft Ireland case is working its way through the courts, which may lead Congress to respond. So it is welcome news that Congress is currently entertaining at least three bills that would reform ECPA – the LEADS Act, the ECPA Amendments Act of 2015, and the Email Privacy Act. There’s just one problem:  none of these reforms would fix the most significant problem with ECPA.

    By nearly every metric, the Internet has gone global, and it is dominated by American companies. U.S. Internet users now constitute only ten percent of the world’s Internet users, and the majority of Google and Facebook users are outside the U.S.. Yet, according to, the top websites and web service companies in many countries – Brazil, the U.K., India, France and many more – are mostly American. Moreover, as Orin Kerr has written, the drafters of ECPA simply did not contemplate an Internet that would cross national borders. Because the Internet is global, and because so many of the world’s leading websites are based in the U.S., ECPA has a number of nasty extraterritorial effects. 

    Imagine a police officer in the U.K. investigating a kidnapping in London in 2015. The prime suspect has a Gmail and Facebook account, so the police go to a magistrate and get a warrant to search the suspect’s apartment and to access his online accounts. The British investigators then take their U.K. warrant to Google and Facebook and ask to see the suspect’s private communications.  The response: “Sorry, ECPA prohibits us from handing that data over without a warrant from a U.S. judge.” This means that the British investigator will need to request mutual legal assistance from the U.S., in accordance with the U.S.-U.K. Mutual Legal Assistance Treaty (MLAT), which dates from 1996.  As I noted in a report for the Global Network Initiative earlier this year, the MLAT process is painfully slow, with requests regularly taking longer than a year. (The LEADS Act, to its credit, proposes a number of much-needed reforms to the existing MLAT process; however, the act does not change the fact that foreign law enforcement must still engage the U.S. government’s help to get cloud-based evidence held in the U.S.)

  • September 1, 2015

    by Jim Thompson

    In The New York TimesAdam Liptak reports that Judge Richard J. Leon of the United States District Court for the District of Columbia ruled Monday that employers do not need to provide health insurance for contraception where their objections are moral but not religious.

    A press release from Americans United for Separation of Church and State urges state officials to take precautions to ensure church-state separation during the Pope’s upcoming visit.

    Alan Blinder and Richard Pérez-Peña write in The New York Times that Rowan County, Kentucky clerk Kim Davis’s emergency petition for a stay was denied without comment by the U.S. Supreme Court.

  • August 31, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; member, ACS Board of Directors

    This month, former United States Congressman Michael Grimm will begin an extended vacation courtesy of the United States Federal Bureau of Prisons. Mr. Grimm was awarded an eight month getaway as the prize for a scheme to defraud the Internal Revenue Service while running a New York health food restaurant. He pled guilty last December but was formally sentenced in July, 2015.

    A December 23, 2014 press release issued by the United States Attorney’s Office for the Eastern District of New York stated that “Michael Grimm has now publicly admitted that he hired unauthorized workers whom he paid ‘off the books’ in cash, took deliberate steps to obstruct the federal and state governments from collecting taxes he properly owed, cheated New York State out of workers’ compensation insurance premiums, caused numerous false business and personal tax returns to be filed for several years, and lied under oath to cover up his crimes.”

    As Mr. Grimm counts down his final days of freedom, there is no question that the summer of 2015 is for him a far cry from his summer of 2011 when he was a member of the House Finance Committee and hawked legislation requiring whistleblowers to report wrongdoing to corporate internal compliance groups before disclosing information to the Securities and Exchange Commission. Back then Grimm explained that “most companies want to know if an employee is doing something wrong or hurting customers.” Mr. Grimm’s choice of words was telling. Employees doing something wrong? What about their bosses?

    These days Mr. Grimm is a poster child for why employees should not be required to blow the whistle internally before reporting to government regulators. What is the likelihood that one of Mr. Grimm’s employees would have had their grievances fully and completely addressed if they complained about being paid off the books? The truth is that when the boss is the culprit, internal compliance programs are not a viable means of redress for employees. Enron, Tyco and WorldCom all had internal compliance programs, none of which worked.

  • August 31, 2015

    by Jim Thompson

    At The Marshall Project, Maurice Chammah examines the legal crisis surrounding the death penalty in Missouri. Meanwhile, Erik Eckholm at The New York Times reports that the U.S. Court of Appeals for the Ninth Circuit will consider if long delays between conviction and execution constitute cruel and unusual punishment.

    Gary D. Robertson writes for the Associated Press that the Supreme Court of North Carolina will revisit a case regarding the state’s discriminatory redistricting efforts.

    Steve Bittenbender at Reuters reports that a Kentucky county clerk has petitioned the U.S. Supreme Court for an emergency order that would allow her to continue refusing marriage licenses to same-sex couples.

    In The New York Times, Adam Liptak discusses why the Supreme Court’s “long conference” is more inhospitable to petitions for certiorari than all other conferences held throughout the year.

  • August 28, 2015
    Guest Post

    by Erin Casey, Executive Director of Pennsylvania Voice

    Across the country, states are leading the way in modernizing our voting system so it reflects and is responsive to the way people live today. Yesterday, Pennsylvania joined this movement, becoming the 23rd state in the nation to offer online voter registration. Five additional states and the District of Columbia have taken steps towards allowing online voter registration but have not yet implemented it. In an era when we shop online, bank online and even file our taxes online, it makes sense that we should be able to go online to register to vote as well.

    Online registration gives citizens an easier and more convenient way to register, in addition to traditional paper forms. Instead of waiting in line at the DMV or going to the post office to get and send in a registration form, eligible voters can sign up using their computers, tablets or smart phones from anywhere at any time of day. This will ensure that all eligible voters, including veterans, seniors, working people and people with disabilities have an equal opportunity to make their voices heard.

    During the 2014 general election, just 35 percent of Pennsylvania’s voting age population turned out to vote. And while there are many reasons for this low turnout, the fact that one out of every five of the state’s adults was not registered certainly contributed. Online registration will strengthen our democracy by bringing more voters onto the rolls and increasing the likelihood that they participate in our elections.