• September 2, 2015
    Guest Post

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

    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.

  • September 1, 2015
    Guest Post

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

    For a union-side labor lawyer, identifying the employer for the purposes of bargaining and unfair labor practices is akin to a search for the Holy Grail. Three years of law school and courses in labor and employment law ― from excellent professors at Emory Law ― could not prepare me for the challenge of this search which consumed virtually all of my time when I was a Washington, D.C.-based attorney for the Service Employees International Union from 1985 to 1990.

    The search began for me in the winter of 1985. SEIU had negotiated a city-wide contract covering its Pittsburgh janitors. Rather than allowing its union contractor to continue to service its buildings under the new labor agreement, Mellon Bank terminated its janitorial vendor and its union workforce. Nearly 70 workers lost their jobs and the benefits that went with them. They were replaced by low-wage, part-time workers who were not accorded nearly the same level of benefits. I was challenged to find a legal solution.  

    In the late hours of the night, poring through the case reporters at the University of Pittsburgh Law Library, I came across the Supreme Court’s decision in Boire v. Greyhound which established the joint employer doctrine. To my delight, I learned that an entity could be considered an employer even where employees were paid by another company. I also came across a Third Circuit case, NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., which ― in my mind as a young lawyer ― made things quite clear: Two or more employers can be co-employers “if they share or codetermine those matters governing the essential terms and conditions of employment.” If only the analysis were that simple.

  • September 1, 2015
    Guest Post

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

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

    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.