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Category Archives: SCOTUS

Conflicting Court Opinions on NSA Surveillance

One year ago, the U.S. Supreme Court issued the case of Amnesty International v. Clapper and… few people cared.obama-shepard-fairey-nsa-prism-1

After all, “Clapper I,” as it became known, held that political activists had no standing to even discover if the government was spying on them.

But four months later, the floodgates opened with the Snowden disclosures that everyone was under mass surveillance.

This article, from the February 2014 Palm Beach Bar Bulletin, explains the basic origin of the NSA’s bulk telephony surveillance as well as the two conflicting court opinions in ACLU v. Clapper (“Clapper II”) and Klayman v. Obama (“Klayman I”).

Government GPS Tracking Since U.S. v. Jones

The Supreme Court’s 2012 decision in U.S. v. Jones involving GPS tracking is trending towards being a landmark decision in how the Court interprets the Fourth Amendment in technology cases.  dart

But what has happened to GPS tracking since the Jones decision?

This February 2014 article from the Palm Beach Bar Bulletin explains three cases from 2013 and the lingering four issues since Jones.

For comparison, see our pre-opinion analysis from 2011 in “U.S. Supreme Court, GPS Darts, and George Orwell.”

Supreme Court: If You Possess Any Child Pornography, Do You Owe the Victim Restitution?

The case of Paroline v. United States will be argued before the U.S. Supreme Court today.  This is one of those cases where emotions are appropriately high but ultimately court observers may find that the Court may dryly rule upon statutory construction issues… meaning grammar.  But this case highlights a law which many internet viewers may not know about — a statute which says if a person possesses child pornography, that person owes restitution.  Even if it is just two images.scotus

In Paroline, a minor named “Amy” was abused by her uncle who then spread images far and wide across the internet.  Under the Mandatory Restitution for Sexual Exploitation of Children Act, a victim is entitled to restitution.  ”Amy” has apparently filed nearly 150 claims in cases where her images in evidence and has obtained orders in her favor between $100 and $3.5 million dollars.  Of note, there appears to be no support for the uncle or a defendant who had 30,000 child pornography images on his computer — at the U.S. Supreme Court, there’s more than a dozen amici briefs and none support the defendants.

A “single violator” could be hit with a joint-and-several award for the full amount of the victim’s losses.  Indeed, it appears that victims can receive more than one award of their total damages (presumably, the chance of getting paid on these is low although Amy has reportedly collected $1.5 million over the years).  In short, someone found with even a small amount of child porn images could find it costing millions.  To wit, defendant Paroline had two (2) images of Amy on his computer and faces a $3.4 million award.

The dispute arises from interpretation of the statute.  The Act calls for a mandatory restitution order if someone is found guilty which is “the full amount of the victim’s losses.”  Section 2259(b)(1) lists off six types of losses (e.g., medical, therapy, various expenses, income, and fees) and that list ends with “any other losses suffered by the victim as a proximate result of the offense.”  Thus, the question is whether the “proximate result” requirement applies to ONLY the last item or does it refer to the entire list (incidentally, “proximate result” is synonymous with “proximate cause”).  This triggers what is called The Rule of The Last Antecedent (or Last Antecedent Rule).

But policy is an important factor.  On the one hand, victim advocates claim that a proximate cause requirement would be difficult, if not impossible (Amy apparently met that burden using a psychologist expert).  Moreover, the law is premised upon the public policy that viewing such images is damaging to the victim and perpetuates production of child pornography.  In short, if the law can eradicate the interest, it may decrease victimization.

The argument for defendants is that someone who, perhaps unaware that the image depicted minors, could be found guilty and hit with a large restitution award; to that end, the suggestion is that criminal statutes should be extremely clear and that a “proximate cause” requirement is befitting traditional tort elements.  Such policy arguments may or may not rule the day on this statute interpretation question.  It is conceivable that a strong public policy exists but the statute was simply not written correctly.

A Constitutional issue arises as to whether this is an excessive fine under the Eighth Amendment (e.g., someone possesses one or a few images but is hit with a million dollar award).  The Fifth Circuit was unpersuaded that this was even a punishment since it is “restitution” and not “punitive.”  Alternatively, that court held, “while the imposition of full restitution may appear harsh, it is not grossly disproportionate to the crime of receiving and possessing child pornography.”

Fifth Circuit opinion is here.

SCOTUSBlog has all the pleadings here.  And a nice summary.  Their live blog of the oral argument is here.

US Supreme Court Denies Cert in Osama Bin Laden Burial Photos

On January 13, 2014, the U.S. Supreme Court denied cert in the case of Judicial Watch v. Department of Defense and Central Intelligence Agency (scroll down to page 5). scotus

This case arose from a FOIA request for photos and/or video of Osama Bin Laden corpse and burial at sea.  The Obama Administration and CIA both claimed that these images were top secret and exempt.  The government argued that the photos were “very graphic” and would inflame international attentions.

This case brings up an interesting issue with FOIA requests.  Here, Judicial Watch tried to use speed as leverage by FOIA’ing the images the day after President Obama announced the death of Osama Bin Laden.  The hope was that the images were not classified top secret by the time that the FOIA was received.  Incidentally, the DOD had no images and the CIA indicated it had 59 images (some media reports incorrectly report 52 images).

But, in this FOIA-race, the CIA had marked the images as top secret except it was done by someone at the Agency without full authority (derivative classification).  During the course of litigation, the CIA supplemented its position by filing various declarations that the images were appropriately classified and giving reasons for the same.  Judicial Watch claimed that, procedurally, it was too late.

Both the trial and appellate courts held otherwise.  While there was some minor criticism of the CIA’s response, the Court held that the initial classification was ratified and thus procedurally acceptable.  Substantively, the explanations for the classification were deemed “plausible” and “logical.”

At least in this case, there is no ruling on whether a speedy FOIA request received prior to a document’s classification might require disclosure even if the document is later deemed classified.  However, since both courts approved the CIA’s method of ratifying classification, it is not encouraging that a “race to the courthouse” approach will apply to quick-witted FOIA requesters.

For those interested in the underlying documents, see the CIA’s Response to the FOIA Request.

For the legal arguments and court opinions, see the Petition of Cert, which includes (1) the U.S. Court of Appeals for the District of Columbia’s May 2013 per curiam opinion (page 23 of PDF) and (2) the underlying April 2012 summary judgment memorandum opinion from the U.S. District Court for the District of Columbia (page 41 of PDF).

In short, SCOTUS’ denial of cert means that the May 2013 decision stands.

Meanwhile, yes, one can do a Google search for alleged photos of Bin Laden’s dead body, but those appear to be fake.

Don’t Bring a Video Game to a Gun Fight

In the aftermath of the Sandy Hook and Gabrielle Giffords’ shooting stories (and hundreds others), the National Rifle Association and other gun proponents have argued that video games are a contributing factor — if not the reason — for gun violence in the United States.  It was suggested by the NRA that the Center for Disease Control undertake a study to detect a connection.  mario

We have, however, a long history of blaming entertainment for societal ills… even to the point of Congressional hearings on the comic book.

Moreover, as a legal issue, we’ve been down this road quite recently — the 2011 US Supreme Court decision of Brown v. Entertainment, which discussed these very issues at length as well as the “evidence” surrounding a connection between games and guns.

The article, Don’t Bring a Video Game to a Gun Fight, discusses these issues in the March 2013 Palm Beach Bar Bulletin.

The discussion continues and we could probably clean up much of society in a number of ways to fix gun violence.  Re-read Brown and see how you feel about spending time and money on video games (and whether laws regulating video games are worth the effort).

U.S. Supreme Court, GPS Darts & George Orwell

The case of U.S. v. Jones is set for oral argument before the U.S. Supreme Court next week and may resolve whether police may physically attach a GPS transmitter on a person’s car to track its movements for an extended period of time — without a warrant.

Read the article from this month’s Palm Beach Bar Bulletin, “The Supreme Court, GPS Darts & George Orwell.”

The underlying opinion is here.  The order on rehearing is here.  The SCOTUS briefing schedule is here.

The ABA Journal piece, Sky-High Spy, is here.

Another recent cellphone tracking case (in Florida) is here.