ACSBlog

  • July 30, 2014
    Guest Post

    by Cameron F. Kerry. Kerry is the Sara R. & Andrew H. Tisch Distinguished Visiting Fellow at the Brookings Institution and a Visiting Scholar at the MIT Media Lab. He is the former General Counsel and Acting Secretary of the U.S. Department of Commerce.

    Yesterday, I moderated a panel on Microsoft’s federal court challenge to a warrant seeking email records that Microsoft stores at a data center in Ireland.  Microsoft is contending that the governing statute, the stored communications provisions of the Electronic Communications Privacy Act (ECPA), does not apply outside the territory of the United States.

    My take-away from the panel is that discussion of reforms to bring ECPA up-to-date with the way we use devices and cloud services in the 21st Century needs to take up the difficult questions presented by services and networks that flow freely across national borders.  As I put it during the discussion, “what does extraterritoriality mean in a virtual world?”

    The panel featured James Garland of Covington & Burling, who is arguing the case on behalf of Microsoft in the Federal District Court for the Southern District of New York this Thursday, along with other lawyers involved in the case.  The case has been the deserving subject of wide attention, including a stern letter from the European Commission’s Justice Commissioner and a July 27 New York Times editorial.  It involves a warrant issued last December for email records “owned, maintained, controlled or operated by Microsoft” for a particular email address.  Microsoft produced records located in the United States that did not involve the content of the emails, but objected to producing the emails themselves because they are stored in a data center in Dublin, Ireland.  They are there because the Dublin servers are closest to the country that the email customer identified in establishing the account, reducing latency in email transmission.  Microsoft only recently established overseas data centers and, so far as anyone knows, this is the first time any Internet service provider has challenged the extraterritorial application of authorities for law enforcement access to Internet communications.

    The issues center on the interpretation of Section 2703 (c)(A) of the Stored Communications Act in the decision by a federal magistrate in New York issued April 25.  In some respects, the issues are narrow:  for example, does the SCA contain language that overcomes the Supreme Court’s “presumption against extraterritorial application” of U.S. statutes; does the “warrant” required by the SCA to obtain most content of electronic communications incorporate requirements for a warrant under the Fourth Amendment?

  • July 30, 2014

    by Ellery Weil

    Brad Smith, General Counsel and Executive Vice President for Legal and Corporate Affairs at Microsoft, writes in a Wall Street Journal op-ed that Microsoft will argue in federal court that the federal government’s classification of emails which are stored on remote servers (i.e., the cloud) are not “business records,” but rather should be afforded the same privacy protections as letters in the U.S. Mail. At the 2013 ACS National Convention, Mr. Smith was presented with a Progressive Champion Award.

    In a piece for Bloomberg News, Laurel Calkins and Andrew Harris report on a 2-1 decision by the U.S. Court of Appeals for the Fifth Circuit affirming a trial court’s entry of a preliminary injunction against a Mississippi law that requires all doctors who work at an abortion provider to obtain hospital admitting privleges. If enforced, the law would shutter  Mississippi’s lone abortion clinic.

    Sarah Solon, writing for the ACLU, discusses the drop in crime since 1990 in relation to mass incarceration, concluding that mass incarceration does not actually make communities any safer.

    MSNBC’s Ned Resnikoff reports on a major decision by the general counsel for National Labor Relations Board, ruling that the McDonald’s corporation must share joint legal responsibility for the working conditions in its franchise locations.

    Emma Green, reporting for The Atlantic, explores the Satanic Temple’s attempt to use the Hobby Lobby decision to grant their members religious exemption from “informed consent” state abortion laws, which require doctors to distribute anti-abortion information before performing an abortion. The Satanists claim that their religion calls for medical decisions to be made without clouding the mind with “unscientific” claims. 

  • July 29, 2014

    by Ellery Weil

    The Burlington Free Press reports on the death of Cheryl Hanna, who was the Vice President for External Relations and Professor of Law at Vermont Law School professor. A noted legal analyst, Professor Hanna was also the faculty adviser to the ACS Student Chapter at Vermont Law School. ACS extends its condolences to her family and friends.

    The New York Times Editorial Board continues its series calling for an end to the government’s failed war on marijuana. In “The Injustice of Marijuana Arrests,” the board states what many legal scholars and others have noted for a long time – arrests for marijuana possession target black men and ruin too many of their lives. The newspaper’s editorial board states:

    The sheer volume of law enforcement resources devoted to marijuana is bad enough. What makes the situation far worse is racial disparity. Whites and blacks use marijuana at roughly the same rates; on average, however, blacks are 3.7 times more likely than whites to be arrested for possession, according to a comprehensive 2013 report by the ACLU.

    Emma Green of The Atlantic discusses the new same-sex marriage ruling in Virginia, and how it differs from other pro-marriage equality rulings in the past.

    Writing for The Constitutional Accountability Center, Doug Kendall praises the Senate’s “nuclear option” to prevent filibusters in federal judicial confirmation hearings, particularly in light of the recent Senate confirmation of Pamela Harris.

    In a piece for the ACLU, Alex Sinha discusses what Edward Snowden’s reports on government surveillance mean for the law, and the new measures lawyers must take to ensure attorney-client privilege remains unbroken.

  • July 28, 2014
    Guest Post

    by Christine Chiu and Sascha Murillo. Chiu is staff attorney and Murillo is community organizer at New York Lawyers for the Public Interest

    With more than 900,000 people enrolled in insurance plans through New York’s Health Plan Marketplace, New York is an “Obamacare” success story. A recently released New York State Department of Health (DOH) report, detailing demographic information of consumers who signed up for insurance through the Marketplace from October 1, 2013 to April 15, 2014, showed that more than 80 percent of enrollees were previously uninsured – some receiving coverage for the first time in their lives. Furthermore, nearly three-quarters of enrollees received tax credits or cost-sharing reductions to make their coverage more affordable.

    While thousands of individuals now enjoy the benefits of health insurance, many New Yorkers, particularly those who are limited-English proficient (LEP), still lack coverage. According to the State’s report, only 15 percent of enrollees self-reported that they preferred to speak a language other than English. Before the launch of the Marketplace, the State estimated that 36 percent of potential enrollees would be LEP. The difference between potential and actual self-reported LEP enrollees may be indicative of the barriers that these New Yorkers encountered when accessing the Marketplace during the first open enrollment period. For example, the Marketplace website and online application were available only in English, and the homepage of the Marketplace website did not contain taglines directing consumers to materials and information in their language.

    In order for health reform to achieve its full potential, it is critical that these immigrant and LEP populations enroll in health insurance; immigrants are more likely than U.S. born citizens to be uninsured and less likely to obtain needed medical services. Additionally, providing immigrants and LEP New Yorkers access to health insurance is not only the right thing to do; it’s also fiscally responsible.  Enrolling LEP New Yorkers in health insurance will not only improve access to health care for these populations, but will also help reduce the cost of healthcare for everyone, as immigrants tend to be younger and healthier than U.S. citizens.

  • July 28, 2014

    by Ellery Weil

    The New York Times is calling for the federal government to repeal laws banning marijuana, saying that as a substance it is less dangerous than alcohol, and the social costs of keeping it illegal are too vast to justify its current legal status. “The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to the FBI figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.”

    Prachi Gupta in a piece for Salon explores the recent federal judge’s ruling that D.C.’s public handgun ban is unconstitutional.

    NPR’s Rebecca Buckwalter-Poza discusses Alabama’s high rate of death penalty sentences, especially in light of recent debate surrounding capital punishment. On MSNBC’s “Melissa Harris-Perry,” ACS Vice President of Network Advancement Sarah Knight discussed the recent Arizona death penalty debacle, where it took the state almost two hours to execute a condemned death row inmate. 

    Sarah Kliff at Vox reports on pro-choice legislators using the Supreme Court buffer zone ruling as a guideline for new, safer abortion clinics which can be protected as effectively as possible. On the same “Melissa Harris-Perry” show, ACS’s Sarah Knight joined a discussion about the Supreme Court’s opinion earlier this summer invalidating Massachusetts’ abortion clinic buffer zone law.