June 2017

  • June 28, 2017

    by Caroline Fredrickson

    On June 23, hours before a midnight deadline, the Department of Justice filed a petition for a writ of certiorari with the Supreme Court asking them to review a case that may define the territorial reach of U.S. warrants.

    In U.S. v. Microsoft, the U.S. Court of Appeals for the Second Circuit held that Microsoft had no obligation to produce to the government customer emails stored on an overseas server. In so ruling, the Second Circuit held that the Electronic Communications Privacy Act (ECPA) did not apply extraterritorially and that the Department of Justice had to rely on the processes outlined in the United States-Ireland Mutual Legal Assistance Treaty should they want to access the information.

    As Judge Susan Carney on the U.S. Court of Appeals for the Second Circuit correctly pointed out in her written concurrence in the order denying rehearing en banc: “It is overdue for a congressional revision that would continue to protect privacy but would more effectively balance concerns of international comity with law enforcement needs and service provider obligations in the global context in which this case arose.” Notably, Carney was also part of the original Second Circuit panel decision.

    Since the Second Circuit’s decision both the House and the Senate have held hearings to update the Electronic Communications Privacy Act

    Read the Department of Justice’s June 23 petition. And here is a link to Microsoft’s response.

  • June 28, 2017
    Guest Post

    *This piece originally appeared on Microsoft on the Issues on June 23, 2017.

    by Brad Smith, President and Chief Legal Officer, Microsoft

    Today the U.S. Justice Department asked the Supreme Court to reconsider a legal decision, in a case brought by Microsoft, which found that U.S. warrants cannot be unilaterally applied to email in other countries. It seems backward to keep arguing in court when there is positive momentum in Congress toward better law for everyone. The DOJ’s position would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans.

    DOJ’s request follows House and Senate hearings earlier this month which demonstrated strong support for modernizing the 31-year-old law at issue in the case and implementing updated data-sharing treaties with our allies. Those in agreement include members of Congress, the business community, academic researchers, our international allies and the Justice Department itself. In fact, Congress has already taken steps to address this important issue and DOJ has already negotiated the first new international agreement. Last year, the International Communications Privacy Act (“ICPA”) was introduced by Sens. Orrin Hatch and Christopher Coons and Reps. Tom Marino and Suzan DelBene to create a modern legal framework. We understand the sponsors may reintroduce the bill after incorporating input from a range of stakeholders. These solutions consider the current needs of law enforcement, the realities of modern technology and the application of people’s traditional rights in today’s world.

    As Judge Gerard E. Lynch stated in his concurring opinion in our case, “Although I believe that we have reached the correct result as a matter of interpreting the statute before us, I believe even more strongly that the statute should be revised, with a view to maintaining and strengthening the Act’s privacy protections, rationalizing and modernizing the provisions permitting law enforcement access to stored electronic communications and other data where compelling interests warrant it, and clarifying the international reach of those provisions after carefully balancing the needs of law enforcement (particularly investigations addressing the most serious kinds of transnational crime) against the interests of other sovereign nations.”

  • June 28, 2017
    Guest Post

    by Ira C. Lupu, F. Elwood and Eleanor Davis Professor Emeritus of Law and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, George Washington University Law School

    In Trinity Lutheran Church (“TLC”) v. Comer, the Supreme Court confronted a novel question – does the Free Exercise Clause require a state to treat houses of worship identically with other non-profit entities seeking a discretionary grant aimed at enhancing health and safety? By a 7-2 vote, the Court said yes. The number of votes for the result, however, masks very deep divisions among its supporters about Religion Clause and federalism principles.

    The case involved Missouri’s program for grants to subsidize the cost of resurfacing playgrounds with materials from scrap rubber tires. TLC had applied for such a grant, and the Missouri Department of Public Resources denied the grant solely on the basis of a provision in the State Constitution that prohibits public funding of houses of worship.

    In an opinion by Chief Justice Roberts, the Court brushed aside concerns of federalism and church-state separation. Instead, the opinion focuses on discrimination based on “religious identity,” and asserts that state interests in church-state separation cannot justify such discrimination. If a state creates a public benefit, even if not widely available, it may not categorically exclude houses of worship. In this case, the purpose of the grant – playground safety – reinforced this approach.  

    The opinion fails to engage seriously with the Religion Clause principles implicated by these facts. The three decisions on which the Court relies did NOT involve discretionary benefits OR houses of worship. In Widmar v. Vincent and Rosenberger v. Rectors and Visitors, the Free Exercise Clause played no part whatsoever. And all three, including McDaniel v. Paty, involved denial of separate constitutional rights to religious persons or groups, not the denial of funds to religious entities.

  • June 26, 2017

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

    On June 26, the Supreme Court agreed to hear cases involving the travel ban and also reinstated portions of the ban. Specifically, the Court will hear the case during the October 2017 term and also allow sections 2 and 6 of the travel ban to be applied to foreign nationals “who lack any bona fide relationship with a person or entity in the United States.” This outcome is both disappointing and confusing.

    The travel ban (sometimes known as a Muslim Ban) refers to an Executive Order signed by President Donald Trump on March 6, 2017. This Executive Order is the second of its kind and among other provisions, suspends the entry of foreign nationals from Iran, Libya, Sudan, Somalia, Yemen and Syria for a period of 90 days; freezes the refugee admissions program for a period of 120 days; and slashes the refugee numbers by one half. The litigation around Muslim Ban 2.0 was immediate and resulted in two federal court decisions blocking the most controversial portions of the travel ban. These decisions were upheld by appellate courts. On June 1, the government filed papers in the Supreme Court appealing these decisions and also asking it to reinstate the travel ban.

    The June 26 decision opens with a history of the travel ban and the constitutional and statutory arguments made before the federal courts. The prevailing constitutional argument raised was that the travel ban violates the Establishment Clause of the First Amendment. The primary statutory argument surrounded whether the travel ban violates a section of the Immigration and Nationality Act that prohibits discrimination with regard to the issuance of immigrant visas.

  • June 20, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium considers topics featured at the three day convention, which took place on June 8-10, 2017. Learn more about the Convention here

    by Jeff Mandell, Partner, Stafford Rosenbaum LLP

    The ACS National Convention is always an opportunity to see old friends, to make new connections, and to be inspired. But one of my favorite aspects of the convention is that I always learn something new. As I reflect on this year’s convention, the session that resonates with me is the one on antitrust law. This is particularly surprising because I have never worked on an antitrust case, never took an antitrust class and truly have no knowledge of antitrust law beyond what I have gleaned by osmosis over the years.

    The panel discussion—titled “A Second Gilded Age: The Consolidation of Wealth and Corporate Power”—was engaging and illuminating. It provided a basic overview of the history of antitrust regulation, the evolution of the key theories courts use in evaluating antitrust claims, and a window into new thinking in the academy and how that might apply in practice. This is a tall order for ninety minutes, and the panel was expertly moderated by Ganesh Sitaraman, a professor at Vanderbilt Law School whose recent book, The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic, is garnering acclaim. Professor Sitaraman kept the conversation moving, but also posed pointed questions to specific panelists, ensuring that the discussion was balanced and did not veer into arcana.