Category: Law

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Law

NSA phone records case shows the power of standing

Like many things, legal arguments can have an elegance about them.

Look no further than the arguments advanced by the plaintiffs in the lawsuit that led a federal appeals court to rule last week that the government’s collection of information about the telephone calls of Americans violates the USA Patriot Act.

The decision, which was reported widely, marks the first time an appeals court has declared the surveillance program that the National Security Agency has used to harvest telephone numbers and other details of calls made or received in the US for at least the past nine years to be illegal.

Besides invalidating the bulk collection of so-called metadata, the decision reveals some terrific lawyering by the American Civil Liberties Union, which filed the lawsuit on June 11, 2013, six days after The Guardian, reporting on leaks by former government contractor Edward Snowden, published an order from the FBI to Verizon directing the company to hand over metadata for all calls on its network that either began or ended in the US.

Under the Constitution, federal courts only have the power to resolve actual disputes between real parties. Thus, to sue, a plaintiff must show a concrete personal stake in the outcome of the case, a requirement known as standing. It’s not enough to dislike a law. You have to show injury.

For its lawsuit, the ACLU needed a Verizon customer whose phone records had been collected by the government. A customer who might claim that the government’s collecting his or her phone records harmed the plaintiff in some way. For that, the ACLU looked no further than its own offices.

As the ACLU charged in court papers, the organization was itself a customer of Verizon, which provided the ACLU with landline, Internet and wireless services throughout the period covered by the order. The NSA’s harvesting of the ACLU’s metadata exceeded the government’s authority and constituted a seizure in violation of the Fourth Amendment, the group charged.

In court papers, the ACLU described its standing as follows:

The information collected includes plaintiffs’ numbers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of plaintiffs and their contacts when talking on mobile phones. This information could readily be used to identify those who contact plaintiff for legal assistance or to report human-rights or civil liberties violations, as well as those whom plaintiffs contact in connection with their work. The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact plaintiff.

In other words, the ACLU communicates with people about matters that are sensitive or privileged and who depend, as the group noted, “on their ability to keep even the facts of their discussions” with the ACLU confidential.

The trial court determined that the ACLU had standing to file the lawsuit.

On appeal, the government took issue with the ruling, charging that the ACLU had failed to demonstrate that the NSA had reviewed any of the metadata collected from the group. Thus, the government charged, the ACLU had failed to allege an injury sufficiently concrete to support standing.

The US Court of Appeals for the 2nd Circuit disagreed, noting that the ACLU had alleged injury from the very collection of metadata, regardless whether the government reviewed the information.

“Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them,” wrote US Circuit Judge Gerard Lynch for the majority. “Appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the [Foreign Intelligence Surveillance Court]; and the records have been collected.”

The appeals court observed that the government admitted that when it searches its database its computers search all of the information stored in it. That means the government searches the ACLU’s records, which are among the millions of records stored in the database, electronically.

Finally, the court noted that the ACLU also had standing to challenge a violation of its right to freedom of association guaranteed by the First Amendment. As the court observed, the government’s forcing a group that’s engaged in advocating for the civil liberties of its membership to disclose its members can itself violate the right to associate freely.

“When the government collects appellants’ metadata, appellants’ members interests in keeping their associations and contacts private are implicated, and any potential ‘chilling effect’ is created at that point,” Lynch added.

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Law

Group behind Prophet Muhammad cartoon contest can run ad, court rules

A group run by the woman who organized the Prophet Muhammad cartoon contest that sparked a shooting last weekend in Texas has a right to display an anti-Muslim advertisement on city buses, a federal judge in Manhattan has ruled.

The Metropolitan Transportation Authority cannot refuse to run an ad submitted by the American Freedom Defense Initiative (AFDI), an advocacy organization headed by Pamela Geller, a New York blogger who took to denouncing Islam following the 9/11 attacks.

The ad, which began with a quote from “Hamas MTV” and stated “Killing Jews is worship that draws us closer to Allah. That’s his Jihad. What’s yours?” qualifies as speech protected by the First Amendment, according to the court, which held that the MTA cannot decline to run it based solely on a fear that the ad might incite violence.

“While the court is sensitive to the MTA’s security concerns, the defendants have not presented any objective evidence that the Killing Jews advertisement would be likely to incite imminent violence,” wrote U.S. District Judge John Koeltl in a ruling published Friday. “The defendants have restricted it based on its content without a compelling interest or a response narrowly tailored to achieving any such interest.”

The ad at issue was among at least four advertisements that the group submitted to the MTA last summer for display on buses and at subway entrances. The agency approved three of the ads but rejected the “Killing Jews” ad, concluding that it advocated attacks on Jews and that it was reasonably foreseeable the ad would provoke violence.

AFDI sued, claiming that the ad parodied an advertising campaign carried out in 2012 and 2013 by the Council on American-Islamic Relations, a civil rights advocacy group that sought to depict Muslims with positive messages, including “#MyJihad is to build friendships across the aisle. What’s yours?”

In court papers, MTA acknowledge that AFDI’s ad had appeared on buses in Chicago and San Francisco in 2013 without triggering acts of violence. Still, MTA’s director of security testified that although the likelihood of incitement was “hard to quantify in percentages” the ad—particularly the line “What is yours?—could spur people to act violently.

In determining whether the ad constitutes constitutionally protected speech, the court rejected the MTA’s contention that the content fell into the category of so-called fighting words—words that the US Supreme Court has found that by their very utterance tend to incite an immediate breach of the peace or to inflict injury—and therefore are not protected by the First Amendment.

The court also concluded that the ad was unlikely to produce so-called imminent lawless action that would authorize the government to forbid the ad as harmful.

According to the court, the MTA failed to present evidence of a threat to public safety sufficient to justify the restriction of the ad based on its content. “There is no evidence of any violent response to this same advertisement when it ran in Chicago and San Francisco, or even to any similar ad in any city,” wrote Koeltl.

“In order to show that the Killing Jews ad falls outside of the First Amendment’s protection, the defendants must make some objective showing that this ad is directed at producing and likely to product such violent actions,” he added. “The defendants have made no such showing.”

Geller, who achieved notoriety five years ago for battling a mosque and Islamic cultural center that its founders planned to build in Lower Manhattan, has a record of courting controversy. The Southern Poverty Law Center lists AFDI as an active anti-Muslim group.

For its part, AFDI says it aims to preserve “freedom of speech, freedom of religion and equal rights for all.”

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Law

Court accelerates review of Garner grand jury case

A state appeals court will accelerate review of a trial judge’s decision not to unseal grand jury records in the case of Eric Garner.

Briefs by the New York City Public Advocate, The Legal Aid Society of New York, the New York Civil Liberties Union, the Staten Island branch of the NAACP and The New York Post will be due May 5, the Appellate Division, Second Department, said in an order released Monday.

The reply brief from the Staten Island District Attorney will be due by May 26, with any responses due June 5.

“Very pleased our motion was granted,” tweeted Public Advocate Letitia James. “The public has the right to know what happened behind closed doors.”

On April 14, James filed papers seeking expedited appeal of a decision by Judge William E. Garnett, who ruled last month that the parties who sought release of grand jury minutes in the Garner case had failed to establish a sufficient need for the disclosure.

Eric Garner died on July 17 following a confrontation with police officers. Video of the confrontation, which included an officer placing Garner in a chokehold, circulated widely and led to protests calling on the district attorney to open the grand jury records.

By law, grand juries in New York State operate in secret, in part to protect witnesses and jurors. “In addition, those who were not charged by the grand jury have a reputational stake in not having their conduct reviewed again after the grand jury had already exonerated them,” Garnett wrote in an order released March 19.

According to Garnett, one who seeks release of grand jury minutes must show a compelling need for the material and explain the purpose for which that person seeks access to the minutes.

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Law

Warrant that police did not know about no defense against false imprisonment claim, New York court rules

The police cannot rely on a warrant they did not know about to later provide a legal basis for an arrest, a New York State appeals court has ruled.

The appeal arose in connection with the arrest of Malvin Omar Urena, who was arrested without explanation nearly two years ago while standing with friends in the courtyard of his apartment building in the Bronx.

Police later charged Urena with interfering with a so-called buy-and-bust operation by shouting “Police, police, police.” He was detained for more than a day before the District Attorney’s office declined to prosecute, citing a lack of probable cause for his arrest.

Urena later sued the city for false arrest and imprisonment. A trial judge dismissed the claims, finding that a warrant issued in December 2011 for Urena’s arrest provided a basis for police to apprehend him.

Not so, says the court’s appellate division.

“Since the police were unaware of the warrant when they arrested plaintiff, the arrest cannot be found to have been based on the warrant,” wrote a panel headed by Associate Justice Angela Mazzarelli in a decision published Friday.

“Plaintiff correctly argues that the warrant that had been issued for his arrest in December 2011 does not render his May 2013 arrest ‘privileged’ so as to preclude his claims,” the panel added.

In general, the law permits police to arrest suspects without a warrant provided the police have probable cause. That means there’s a reasonable basis for finding that a crime has been committed.

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Law

Standardized Test

Good to go?
Good to go

Government-issued ID that is current and contains a recent, recognizable photo, as well as our date of birth

Clear plastic bag (maximum size 1 gallon)

Non-mechanical pencils with erasers

Pencil sharpener

Hygiene product

Unwrapped cough drops

Off we went this morning, bag in tow, to take the Multistate Professional Responsibility Exam. We left the house nearly two hours early, flagged a car driven by a nice man from Nigeria, and headed down the FDR to the 70s, where we asked the driver to deposit us at a Starbucks near the test center.

Without a smartphone or watch to guide us – both items grounds for dismissal from the test center and cancellation of our scores – we asked others for the time. “It’s 7:45,” said a woman of about 60 with shaggy hair and a service dog — a yellow retriever — without looking up from her phone. Minutes later we spied a clock – with hands and a big dial – atop a post at the corner of 75th St. and First Ave., in case you’re on the Upper East Side and want to know the time and have neither a watch nor a phone nor a woman with a service dog.

At what felt like the right moment – not too early and not too late – we headed to the test center, which doubles as a high school named for Eleanor Roosevelt. We thought that might improve our fortunes because we would have voted for her husband for president had we been alive and at least 21 years old in 1932, 1936, 1940 or 1944.

Alas, we weren’t, which may explain what happened next. The lesson, if you read no further, is to thank your proctor the next time one does right by you and your fellow examinees. Ours didn’t.

“Once time has been called, all pencils are to be put down and no more marks are to made on the answer sheet,” according to the instructions set forth in the test day summary, which runs four pages.

The reverse side of the answer sheet contains, among other fields, a paragraph that examinees must transcribe, sign and date, all in our handwriting. Transcribing the paragraph takes about three or four minutes, depending on one’s handwriting and how carefully one transcribes. We thought we should try to write legibly.

We imagined that the proctor might instruct examinees to complete the paragraph at the start of the session, as part of filling in fields for biographical information on the answer sheet. Though the proctor provided about three minutes to fill in the biographical fields, he failed to state clearly that we should complete the fields on the reverse side of the answer sheet too.

Though we intuited a responsibility to fill in the fields, when we looked up from filling in our name, the last four digits of our Social Security number and other information on the front of the answer sheet – and we affirm that we filled in the information promptly, as instructed – we saw that a student to our right who holds a Brazilian passport had opened his booklet and started the test.

We asked the proctor, aloud, whether time had begun. He answered that it had, much to the surprise of everyone but the Brazilian, judging by the gasps from a majority of students in the room, who, like us, had yet to open their test books. Of course, as soon as the proctor told us that we could start the exam, we did.

That meant that we had yet to finish transcribing the paragraph. Thus, with about four minutes remaining in the 120 minutes allotted for the test, we stopped reviewing our answers so that we might finish transcribing. We thought, based on the instructions quoted above, when the proctor called time that no more marks would be permitted on the answer sheet. That pencils down means pencils down.

Nevertheless, after calling time, the proctor announced that we could continue to transcribe the paragraph on the reverse side of the answer sheet.

Had we known the proctor would allot the time, we could have devoted at least four more minutes to reviewing answers that we might have doubted on the first pass. Sometimes we return to answer choices later and the correct answer seems clear. Thus, in a test where time is of the essence, four minutes may mean the difference between a correct or incorrect answer, which in turn may determine whether we pass and become attorneys-at-law.

The failure by the proctor to administer time as laid out in the rules of the test contravened the instructions provided to examinees. We found the experience to be maddening.

Bookish
Bookish

We suppose we’re sad because the day was supposed to culminate a year of study. On Friday, we took photographs, like the one above, in the library, to memorialize the time we spent in the stacks.

The time had its charms. Besides drinking coffee, we browsed whole shelves on the history of colonialism in Africa, the rise of Mao and the founding of the People’s Republic of China. We learned that Mao purged some of his fellow revolutionaries. We skimmed a history of the East India Company that included something about pepper merchants in Antwerp.

We made outlines. Though the better term might be built outlines because we layer them in over time. With successive rounds of study, the outline starts to feel comfortable in the hand. It acquires a weight, markings and wear that eventually become part of us. That stands in contrast with the start of the process, when every entry feels awkward and difficult to set down on the page.

Item in our outline: “For purposes of the attorney-client privilege, the relationship between and attorney and client starts when someone seeks legal services.” The rule is plain enough, but the process of arriving at that sentence took weeks. The words told us, finally, what we needed to know.

We hoped that Friday might conclude this latest stretch in the stacks, where we’ve been regulars the past year. “Welcome back,” the guard at the entrance to the library greeted us, smiling, when we arrived Friday. “Thank you, sir,” we answered, smiling back.

Depending on the outcome of the test, we may be reprising that greeting in the months to come.

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Law

Press for advantage, act ethically, avoid spinachy

For the second time in a year I’m studying for a test that constitutes part of admission to the New York bar.

This one goes by the name of Multistate Professional Responsibility Exam (MPRE). It has 60 multiple-choice questions and tests knowledge of the rules of professional and judicial conduct.

Alert: reading about the bar exam may feel, to borrow a word from the novelist (and lawyer) Ayelet Waldman, “spinachy.”

I had forgotten about the MPRE when I set out a year ago to pass the bar exam and apply for a law license here in the Empire State. Last fall, I received a letter advising me that I passed, but the letter went on to say that the examiners would hold off on certifying me for admission until I passed the MPRE too.

Oh. That.

Thus, I’m studying for the MPRE, which takes place on March 28. Spinachy. Still, the material illuminates something about the law that appeals to me.

For example, you may have heard it said that a lawyer should represent his or her client zealously. That matters in our adversary system, which assumes that opposing sides, represented zealously within the bounds of law, will produce justice.

However, a lawyer also owes a duty of candor to the court. According to the rules, an attorney is subject to discipline for knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Suppose you represent a client in a New York court, and your opponent fails to call the court’s attention to a case from the state’s Court of Appeals that directly counters a position taken by your client. You must cite the case.

That doesn’t mean that you have an obligation to volunteer facts that are harmful to your client – we trust the opposing side to handle that – or that you have to cite a case from Virginia, for example, here in New York. But it does mean that you have a responsibility to the tribunal that transcends even your duty to your client.

In short, press for advantage but remember that you have a responsibility to act ethically.

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Law

A final note (for now) on the ‘Blurred Lines’ verdict

Whatever your take on the verdict Tuesday that awarded the estate of Marvin Gaye a win in its claim that Robin Thicke and Pharrell Williams plagiarized part of “Blurred Lines” from a song that Gaye copyrighted in 1977, it may be helpful to remember that we aren’t the jury.

We didn’t hear the evidence, nor did we try our best – assuming that’s what jurors do – to follow an instruction from Judge John Kronstadt regarding the law that applies. Thus, imagine that we’re jurors, we’ve heard all the testimony – including Thicke’s serenading us with segments of popular songs – and now the judge instructs us.

At its core, infringement requires a finding of similarity of expression that’s protected by copyright. “Similarity that is confined to ideas and general concepts is not infringing,” Kronstadt explained. “Similarities derived from the use of common ideas are not protected.” He continued.

Trivial copying is not copyright infringement. Copying is trivial if the average audience would not recognize the copying of the Gaye Parties’ work in the Thicke Parties’ work.

You must determine whether any copying of the Gaye Parties’ work in the Thicke Parties’ work is trivial. If the copying is trivial, then the Thicke Parties’ did not infringe the Gaye Parties’ copyright.

Thus, the jurors unanimously found, after hearing the evidence, that “Blurred Lines” bears a similarity to “Got to Give it Up” that is more than an idea or concept.

The “verdict sets a terrible precedent,” according to Adam Pasick at Quartz, who notes that the finding that Thicke and Williams infringed merely by trying to evoke the feeling of Gaye’s song – as lawyers for the duo argued – “could have a chilling effect on musicians trying to create new songs.”

That may be. Yet as Kronstadt instructed jurors, “Intrinsic similarity is shown if an ordinary, reasonable listener would conclude that the total concept and feel of the Gaye Parties’ work and the Thicke Parties’ work are substantially similar.”

Jurors seem to have followed his instruction.

Others have said the court misapplied the law more broadly. “The Gaye estate’s copyright covers only the notes of his song (the composition), and not the way it was played (the sound recording),” writes Tim Wu, a professor of law at Columbia, in The New Yorker.

According to Wu, who notes that Gaye registered a copyright for the composition but not for the recording:

With a broader copyright, Gaye’s estate would have a stronger claim to owning some of his particularly distinctive style choices. But, given that the copyright covers only the notes and Pharrell did not borrow any note sequences, the judge was legally obliged to throw out the case.

That also may be decided on appeal. For now, imagine you are a juror and Kronstadt has charged you as follows.

If the Gaye family showed that is more likely than not that there was a substantial similarity between the songs, then you can presume that Thicke and Pharrell copied.

According to Kronstadt, Thicke and Pharrell could rebut that presumption if they showed that it is more likely than not “that they independently created the infringing work or works.”

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Law

Robin Thicke performs at ‘Blurred Lines’ trial

Robin Thicke may be hoping his testimony hit the right note.

The singer of “Blurred Lines” serenaded jurors in a federal courtroom recently as part of an effort to show that he and his fellow songwriters did not copy “Got to Give it Up” by Marvin Gaye.

At issue is a claim by Gaye’s children, who charge Thicke and songwriters Pharrell Williams and T.I. with infringing their father’s composition.

To aid Thicke’s testimony, U.S. District Judge John Kronstadt authorized the songwriters to set up an electronic keyboard in the courtroom.

As part of a demonstration to show how easily a song can be structured to sound like others, Thicke reportedly played some of “Blurred Lines ” along with songs by the Beatles and U2.

Part of the performance included Thicke’s attempting to substantiate that songs with similar chords – such as “With or Without You” and “Let it Be” – can be recorded differently. The medley by Thicke also included Bob Marley’s “No Woman No Cry,” Michael Jackson’s “Man in the Mirror” and “Forever Young” by Alphaville.

Musicality aside, the demonstration was notable, because “essentially what Thicke and Pharrell are arguing is exactly the opposite, which is that however similar the recording of ‘Blurred Lines’ and ‘Got To Give It Up,’ they found the actual underlying compositions are very different,” Austin Siegemund-Broka, who is covering the trial for The Hollywood Reporter, told Southern California Public Radio.

According to Siegemund-Broka, the writers of “Blurred Lines” contend that their song uses two chords — E-major and A-major — while Gaye’s composition uses eight chords

Besides an electronic keyboard, Thicke also obtained permission to carry in power cords, an amplifier, amplifier cables, a speaker, a keyboard stand and a surge protector, according to an order that Kronstadt signed on Feb. 24.

Here are the songs. See what you think.

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Law News

‘Hamilton,’ hip-hop and immigration

hamilton

I had the pleasure recently of seeing “Hamilton,” the new musical at The Public Theatre about the immigrant from the West Indies who helped found the nation, wrote two-thirds of the Federalist Papers and practically invented the U.S. financial system.

The show, by Lin-Manuel Miranda, is the “buzziest” of the spring, according to The Wall Street Journal. As the Journal reports, “The founding fathers and Mr. Burr are played by non-white actors—Mr. Miranda was born in New York to Puerto Rican parents—to underscore the diverse American experience.” The show’s run has been extended three times.

As it happens, the anticipation that awaits “Hamilton” comes as Republicans in the U.S. Senate tried for a third time last week to stop President Obama from allowing as many as five million immigrants who arrived in the U.S. unlawfully as children to remain here and work, study or serve in the military without fear of deportation.

The wrangling in the Senate follows passage along party lines in the House of a measure that would gut the president’s latest order and a similar initiative from three years ago. As the GOP’s moves suggest, immigration continues to drag down Republicans, who, with some exceptions, remain captive to the Tea Party, which opposes any action that might connote an easing at the border. As Elizabeth Drew writes in the latest issue of The New York Review of Books:

In less than two weeks in office, the House also voted to strip enforcement provisions from the Dodd–Frank bill to reform financial institutions, and to roll back some of the president’s immigration initiatives, a move that could end in the deportation of millions—this despite the deep concern of Republican pragmatists, including party chairman Reince Priebus, that unless the party can attract a great many more votes of Hispanics and other minorities, its chances in the Electoral College are dim for 2016.

Though Hamilton himself, who arrived in North America at about age 17, would have been too old and possibly too undocumented to qualify for the president’s policies, his spirit imbues them. As someone who has the privilege of performing pro bono legal service on behalf of immigrants, I have seen first hand the anticipation that accompanies the documenting of oneself and the hopefulness that greets the ability to work in, serve or otherwise contribute to this country. It’s hard to get more Hamiltonian.

Miranda depicts the Founding Fathers as upstarts who birthed a nation and as the forbears of the pushing back, from civil rights to hip-hop, that follows. Miranda traces a line from one to the other and captures the energy that America on its best days draws from those of us assembled here. “To me there’s nothing more fascinating than a roomful of young people just trying to look at the world and seeing how they can affect it as they’re being affected by it,” Christopher Jackson, who plays George Washington in the show, told the Times.

The idea of having a stake in one’s country runs through both the president’s order and Miranda’s show. “By telling the story of the founding of the country through the eyes of a bastard, immigrant orphan, told entirely by people of color, [Miranda] is saying, ‘This is our country. We get to lay claim to it,’” Oskar Eustis, the artistic director of the Public, told The New Yorker.

For his part, the president, recognizing the extent to which his actions resonate with this nation of immigrants, practically dares Republicans to go forward with their plans. “I will veto any legislation that got to my desk that took away the chance of these young people who grew up here and who are prepared to contribute to this country” he told young immigrants in a meeting last Wednesday.

The people whom the president aims to assist have been referred to as “Dreamers,” an acronym inspired by “Development, Relief and Education for Alien Minors,” a cleanup of immigration laws first introduced nearly 14 years ago that would provide a path to citizenship for certain groups of green card holders.

Of course, dreams have spurred immigrants as long as there’s been an America. “Hey, you, I’m just like my country. I’m young, scrappy and hungry,” Miranda’s Hamilton announces in verse. “And I’m not throwing away my shot.”

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Law News

‘Millions March NYC’ images

(Photo by Brian Browdie)
(Photo by Brian Browdie)

At least 25,000 people marched through Manhattan on Saturday to highlight the deaths of Eric Garner, Michael Brown and other unarmed black men who died during encounters with police.

Some images from the day.

(Photo by Brian Browdie)
(Photo by Brian Browdie)

 

(Photo by Brian Browdie)
(Photo by Brian Browdie)
(Photo by Brian Browdie)
(Photo by Brian Browdie)
(Photo by Brian Browdie)
(Photo by Brian Browdie)
(Photo by Brian Browdie)
(Photo by Brian Browdie)