First, we discussed recent developments in the Apple/FBI
iPhone Fight:
-
Apple filed a Motion to Vacate Magistrate’s
Order, in the San
Bernandino investigation case. The two main arguments were:
o
(i) the All Writs Act doesn’t allow the court to
order Apple to create new software enabling the gov’t to hack into iPhones
§
The main thrusts of this argument are that: (a)
the All Writs Act can’t be used to create new law; and (b) that the Executive
Branch and Congress have had numerous opportunities to give express authority
for courts to order telecommunications providers to assist the government in
obtaining access and have chosen not to do so
o
(ii) The Order
violates the First Amendment’s prohibitions against compelled speech and the 5th
Amendment’s DP Clause
§
The main thrust of this argument is that computer
code is considered speech and the First Amendment prohibits the government from
compelling someone to say a government-supported message. By compelling Apple
to write a new software system and digitally signing it, the Order will compel
Apple to speak in a way that is antithetical to their corporate position.
-
A few days ago, Magistrate Ornestein, in New
York’s Eastern District, issued an Order ruling in favor of Apple in a different
case
o
Importantly, in this case, Apple already had the
ability to unlock the iPhone without having to develop a new operating system
because the older iPhone does not have the feature of locking the device after
10 failed attempts.
o
The government plans to appeal the Order
Other recent developments in privacy law include:
-
On Tuesday, the House Judiciary Committee held a
hearing on the “The Encryption Tightrope: Balancing Americans’ Security and
Privacy”
-
NY Giants football play (Jason Pierre-Paul) who
injured his hand during 4th of July fireworks incident is suing ESPN
commentator Adam Schefter and ESPN for intentional violation of privacy
o
Adam Schefter tweeted a
copy of Jason’s medical records and Jason is suing under a theory of
publication of private facts. Although the story of Jason’s injury was already
known, Jason is suing because of the publication of his medial chart.
o
The greatest weakness in Jason’s suit will
likely be that: (i) there was no disclosure of private facts because the exerpt
of the medical chart showed nothing by the injury that was already well-known;
and (ii) that this was a news story—so it may be a legitimate matter of public
interest
We then discussed Question
of the Week No. 7, which asked: Which method for selecting the FISC judges
should be adopted by Congress?
-
We discussed the advantages and disadvantages of
the three most popular options:
o
Option #2: Judges nominated by President and
confirmed by U.S. Senate.
o
Advantages
§
Provides checks and balance
§
Involves 2 branches of gov’t
§
Existing system of judicial appointments
generally works well
§
Appointers are accountable to voters
o
Disadvantages
§
Too political
§
Allows filibusters
§
Takes too long; allows delay
§
Concentrates too much power in President
o
Option No. 3—Circuit Judges Appoint
§
Advantages
·
More appointers—thus, more diversified
appointments
·
Any biases distributed evenly
·
Insures geographic diversity
·
Utilizes “finest legal minds” in the country
§
Disadvantages
·
Too biased toward gov’t
·
Only involves one branch of gov’t
·
No check on power of appointers since term is
appointing judges is for life
o
(Chief Justice—life term)
o
Option No. 4— Three judges
appointed by Chief Justice and two judges appointed by the Majority and
Minority Leaders of both Houses of Congress, thus totaling 11 judges.
§
Advantages
·
Appointers are elected by persons citizens vote
for
·
Appointers more responsive to voters
·
Insures a diversity of political perspectives by
appointers
·
Will result in less ideological homogeneity of
appointees
§
Disadvantages
·
Concentrates power in only 3 persons
·
No check on appointment power by 2nd
branch of gov’t
·
Too dependent on 2-party political system
Finally, we discussed the Foreign Intelligence Surveillance Court
(FISC):
-
why was the FISC established? What was it
designed to do?
o
(i) Created to act as a check on the power of
the Executive branch, to prevent abuses like J. Edgar Hoover was doing
o
(ii) For when secrecy needed to protect national
security
o
(iii) and when expediency is needed
-
differences in the governing standards
o
(i) Article III courts—need probable case for a
search warrant
o
(ii) FISA court—need only a reasonable suspicion
that supporting terrorism, or have some connection to terrorism
-
The FISA addresses surveillance of two
particular types of persons….what are they?
o
(i) spies
o
(ii) terrorists
§
foreign and domestic
-
What changes to the FISC resulted from passage
of the USA Freedom Act of 2015?
o
(i) FISA court opinions which make signification
interpretation of law must be made public (but may be redacted to protect national
security)
o
(ii) 5 individuals appointed as public
advocates—amici—for novel and significant issues of law
o
(iii) ordered the Director of National
Intelligence to go back to all previous issued FISA court opinions and
declassify them if at all possible (with redactions where necessary)
-
What is the role of the amicus curiae?
o
Advisers—assist the court in reviewing any
government application that presents a novel or significant interpretation of
law, unless the court determines that the statute says it’s not appropriate
-
Have amicus curiae been utilized by the FISC?
o
There had been a request (see Laura’s comment
to John’s post) to have an amici—the first time the court was confronted with a
novel/significant interpretation of law—regarding whether the Business Records
provision of FISA referred back to the form devised by the Patriot Act, because
that section was not renewed in the USA Freedom Act
§
The FISA Court decided that they will not
appoint amici because it wasn’t needed due to the simplicity of the legal
question
-
Possible FISC Reforms Not Adopted by Congress
o
Full time FISC judges
o
En Banc consideration
o
Altering FISC voting rules
o
Mandatory public reporting of aggregate data
regarding FISA actions
-
Possible FISC Reforms
o
Permanent special advocate (SA)
o
Granting SA right expanding appeal rights
o
Imposing criminal probable cause standards on
warrants involving US citizens?
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