Category: Law

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Law

Lindsay Lohan loses privacy lawsuit against maker of ‘Grand Theft Auto V’

Lindsay Lohan has lost a lawsuit to hold the maker of “Grand Theft Auto V” (GTAV) responsible for allegedly invading her privacy.

The computer-generated images of a character named “Lacey Jonas” who appears in the video game do not resemble the actress such that she can sue the company that makes and markets the game, New York’s Court of Appeals ruled on March 29.

Lohan, 31, sued Take Two Interactive in 2014, charging the company with creating the character, who describes herself as “really famous,” an “actress slash singer” and “the voice of a generation,” without Lohan’s permission.

New York law prohibits the use of someone’s name, likeness, portrait, picture or voice for use in advertising without their written consent.

But while a computer-generated image can invade someone’s privacy, the Jonas character “merely is an artistic description of a ‘twenty something’ woman without any particular identifying physical characteristics,” Judge Eugene Fahey wrote on behalf of five of his colleagues.

Lohan had charged that two scenes in the game – one featuring Jonas clad in denim shorts, white t-shirt and sunglasses, and another featuring the character wearing a red bikini and bracelets taking a selfie and displaying the peace sign – exploited her image in both the game and material that promoted the Grand Theft Auto series, which has sold more than 275 million units.

The court disagreed. The scenes at issue “are indistinct, satirical representations of the style, look, and persona of a modern beach-going young woman,” Fahey wrote. “Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as [Lohan] and therefore is not actionable under [the law].”

The ruling represents the latest in a string of lawsuits by Lohan, who in 2010 settled a $100 million claim against E-Trade over a Super Bowl commercial that Lohan alleged mocked her arrests for drugs and alcohol.

Three years later, Lohan sued the rapper Pitbull for defamation. The judge who oversaw the case dismissed it after determining that the song at issue was protected by the First Amendment.

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Law

Kmart customer injured in fight with store employee cannot sue security company, appeals court rules

A Kmart customer who was injured in a fight with a store employee inside the store cannot sue a company that Kmart hired to provide security, a New York appeals court has ruled in a case that highlights when a contract provides a third party with legal rights.

In addition to suing Kmart, Abel Santiago, the customer, sought to sue U.S. Security Aviation Services, which Kmart hired for “the protection of… customers… in the premises” at a store in the Bronx.

At trial, Santiago obtained permission from the court to sue both Kmart and U.S. Security, which he argued that he relied on, to his detriment, to secure the premises. The appeals court in Manhattan disagreed, reasoning that by law the contract between Kmart and U.S. Security afforded no legal rights to Santiago.

In general, a contract does not give rights to someone who is not a party to the agreement. Though a third party can obtain legal rights under a contract, those rights generally vest only when the third party learns of the contract and relies on it. Such rights also can arise if the agreement is so comprehensive that it displaces the obligation of the store, in this case Kmart, to secure its premises.

Santiago testified when the fight occurred he knew nothing of the contract between Kmart and U.S. Security. He further said he did not rely on the agreement, which in practice limited the role of U.S. Security to deterring shoplifting.

Nor did the contract displace the obligation of Kmart, which Santiago could sue, to secure its store “because Kmart retained supervisory authority over the security guards and required U.S. Security’s staff to complete training in accordance with its (Kmart’s) safety policies and procedures,” Justice Peter Moulton wrote for a unanimous court in a ruling dated Feb. 27.

By its terms, the contract also excluded third parties from obtaining legal rights as part of the agreement.

That distinguishes the facts of Santiago’s case from, for example, a 1994 ruling by the Court of Appeals involving a nurse who was injured when a wall-mounted fan at the hospital in Schenectady where she worked fell on her as she tended to a patient.

In that case, the court allowed the nurse to sue the company that the hospital had hired to inspect, maintain and repair the facilities as part of an agreement that also required the maintenance company to train and supervise all service personnel.

“We hold that when a party contracts to inspect and repair and possesses the exclusive management and control of real or personal property which results in negligent infliction of injury, its assumed duty extends to non-contracting individuals reasonably within the zone and contemplation of the intended safety services,” the court wrote.

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Law

Trump lawsuit against California over immigration may rely on Obama era precedent

In charging the the state of California with interfering with  immigration enforcement, the Trump administration may rely in part on a ruling by the Supreme Court during the Obama administration that upheld the power of the federal government to regulate immigration

In 2010, the state of Arizona passed a law that aimed to ease the ability of officials there to identify, prosecute and deport immigrants who were in the country unlawfully. The Obama administration sued to block enforcement of the measure, which the administration contended interfered with federal enforcement.

A majority of the court agreed. Federal law trumped the Arizona measure, which required that aliens carry proof of registration with the federal government, barred unauthorized immigrants from seeking employment in the state, and allowed state police to arrest someone without a warrant based on suspicion they should be deported.

All conflicted with federal law, the court found. Writing for the majority, Justice Kennedy noted that the federal government has broad authority over immigration.

“With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse,” he wrote. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.”

In a lawsuit filed on Tuesday, the Trump administration accused California of undermining federal immigration enforcement by enacting a series of laws that promote so-called sanctuary policies.

In a speech on Wednesday, Attorney General Jeff Sessions accused the state of intentionally using “every power the legislature has to undermine the duly established immigration laws of America.”

California officials responded that the state’s legislation does not interfere with federal law enforcement. Governor Jerry Brown accused the administration of attempting “to further divide and polarize America.”

He pointed to a statement he made last October when he signed the measures. “In enshrining these new protections, it is important to note what the bill does not do,” he wrote. “This bill does not prevent or prohibit Immigration and Customs Enforcement or the Department of Homeland Security from doing their own work in any way.  They are free to use their own considerable resources to enforce federal immigration law in California.”

Legal experts agreed. The laws in Arizona and California differ, with the legislation in the Golden State unlikely to interfere with federal enforcement, Pratheepan Gulasekaram, a professor of law at Santa Clara University who studies state regulation of immigration, told the Associated Press.

Arizona created a “parallel immigration enforcement system” with its own laws, while California is setting standards for cooperation with federal immigration officials,”  Gulasekaram said.

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Law

Trump administration sues California over immigration enforcement

The Trump administration is suing the state of California, charging the state with undermining the ability of the federal government to enforce immigration laws.

At issue in the lawsuit filed Tuesday are three laws enacted last year by California that reinforce so-called sanctuary policies, which aim to protect immigrants who are in the state without documentation from deportation.

One statute bars employers in California from cooperating voluntarily with immigration agents. The second authorizes the state’s attorney general to monitor immigration enforcement by federal agents. A third relieves local officials of an obligation to inform federal agents about immigrants who may be living in the country illegally.

Taken together, the laws “violate the Supremacy Clause, by, among other things, constitution an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement,” the Justice Department charged in court papers filed in the U.S. District Court in Sacramento.

The lawsuit comes amid a crackdown by the Trump administration on sanctuary policies and follows the arrests by federal agents of 232 people in Northern California as part of the administration’s intensifying  enforcement in the region.

Libby Schaaf, the Democratic mayor of Oakland, warned of imminent raids by federal immigration agents in the San Francisco Bay area. The warning helped about 800 people avoid arrest, said federal officials, who blasted the mayor and said they would investigate her for obstructing justice.

“I do not regret sharing this information,” Schaaf said. “It is Oakland’s legal right to be a sanctuary city and we have not broken any laws.”

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Law

The Trump administration sabotaged a deal on immigration

In my last post, I noted the inability of the Trump administration and Congress to agree on changes to the nation’s immigration laws.

One of four measures – which came closest to passages failed by seven votes in the Senate last Thursday – would have protected hundreds of thousands of young immigrants (a priority of Democrats and some Republicans), provided funds to bolster security along the border with Mexico (a priority of the president), and curbed family-based migration (but not to the extent sought by the administration).

Now thanks to the Washington Post, we know that the administration “worked frantically into the night” to defeat the bill. “We’re going to bury it,” a senior administration official told a reporter on Wednesday night.

According to the Post:

“The assault was relentless — a flurry of attacks on the bill from DHS officials and the Justice Department, and a veto threat from the White House — and hours later, the measure died on the Senate floor.

The Trump administration’s extraordinary 11th-hour strategy to sabotage the bill showed how, after weeks of intense bipartisan negotiations on Capitol Hill, it was the White House that emerged as a key obstacle preventing a deal to help the dreamers.”

The attack on the measure killed what might have been a path to a deal that would have provided relief for so-called Dreamers and a wall along the border that the president has championed.

Meanwhile, a measure backed by the White House that would have slashed legal immigration garnered just 39 votes in the Senate.  “That’s a telling total, one that mirrors the percentage of Americans who still support [the president],” the Post editorialized. “Of the four immigration measures voted on in the Senate last week, the Trump bill had the least support.”

Categories
Law

How not to address immigration

Senators from both parties came together on Thursday to reject a series of proposals to overhaul the nation’s policies on immigration amid signs that a deal that Republicans and Democrats can agree on remains far off for now.

A proposal put forth by a bipartisan group of senators that fell six votes short of passage would have granted legal status to young immigrants, provided $25 billion over the next decade for security at the border with Mexico and curbed family-based migration but not to the extent sought by the Trump administration.

Before voting began, the administration attacked Senator Lindsay Graham, a Republican who helped to craft the measure.  Speaking on the condition of anonymity, a White House official accused Graham of being “an obstacle” for immigration reforms and charged him with “being part of the problem.”

A response by Graham suggested that the official was Stephen Miller, a White House aide and immigration hard-liner who has lobbied for strict limits on the number of people who can come to the U.S. “As long as the president allows Steve Miller and others to run the show down there, we’re never going to get anywhere,” Graham said.

Prospects for an immigration overhaul look no better in the House, where far-right Republicans are pressuring Speaker Paul Ryan to do no more than grant temporary work permits for so-called Dreamers. The conservatives also aim to clamp down on security at the border and restrict legal immigration beyond what the White House has proposed.

The difficulty of resolving differences over immigration by legislation ups the likelihood that the fate of Dreamers will be decided by the courts.

On Tuesday, a federal judge in Brooklyn blocked the Trump administration from ending Deferred Action for Childhood Arrivals (DACA), saying the government had not offered legally adequate reasons for doing so.

In a 55-page ruling, Judge Nicholas Garaufis noted the inconsistency between the administration’s decision to wind down the program with its “stated rationale for ending the program (namely, that DACA was unconstitutional).”

The ruling marked the second by a federal judge to order the administration to keep DACA in place as legal challenges to the rollback continue.

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Law New York City

Archbishop’s remains to stay in New York City for now, appeals court rules

The body of an archbishop of the Archdiocese of New York will remain buried in St. Patrick’s Cathedral pending the outcome of a hearing to determine his wishes.

That’s the decision of a state appeals court in Manhattan, which overturned a ruling by a trial judge who granted a request by the niece of Archbishop Fulton J. Sheen to move his remains to Peoria, Illinois from beneath the cathedral’s high altar.

The dispute came before the courts in June 2016, when Joan Sheen Cunningham brought a proceeding under state law to disinter the remains of her uncle and transfer them to a crypt in St. Mary’s Cathedral in Peoria.

The request followed a decision by the archdiocese to refuse a request by the Diocese of Peoria to transfer the remains of Archbishop Sheen, whom the diocese in Illinois sought to canonize.

Church officials in New York alleged that Cunningham had previously agreed to her uncle’s burial in St. Patrick’s and that Sheen, in a will signed five days before his death in 1979, directed that his funeral service be celebrated at St. Patrick’s and that he be buried at Calvary Cemetery in Queens.

Following Sheen’s death, the archbishop of New York sought Cunningham’s consent, which she gave, to bury her uncle in St. Patrick’s.

At trial, Cunningham asserted that had her uncle known during his lifetime that he would be declared a saint, he would have wished to be interred at St. Mary’s, where he attended services with his family as a boy, received his first communion and was ordained a priest.

The church countered with an affidavit of Monsignor Hilary Franco, who served as Sheen’s assistant from 1962 to 1967 and remained his friend. According to Franco, Sheen expressed a desire – one that may resonate with some New Yorkers – to remain in the city “even after his death.” According to Franco, Sheen also “was fond of repeating” that the cardinal had offered that he be buried in the crypt at St. Patrick’s.

The trial court found that the failure to follow Sheen’s request that he be buried at Calvary Cemetery and the absence of conflicting accounts of his wishes provided “good and substantial reasons” to disinter his remains and rebury them in Peoria.

The Appellate Division disagreed. “A hearing is required because there are disputed issues of material fact as to Archbishop Sheen’s wishes,” Justice Rosalyn Richter wrote for the majority.

The trial court “failed to give appropriate consideration to the affidavit of Monsignor Franco, and too narrowly defined the inquiry into Archbishop Sheen’s wishes,” said Richter, noting both that Franco had stated Sheen’s desire to remain in New York after his death and testimony by Cunningham that there was “nobody in the world closer to my uncle than me” and that Sheen was “a second father” to her.

According to the majority, it also remained unclear whether a statement in Sheen’s will that he desired to be buried in “Calvary Cemetery, the official cemetery of the Archdiocese of New York” showed an intention to remain buried in the city or merely described the cemetery.

Though a dissent by two of her colleagues relied on Sheen’s will to conclude that he did not wish to be buried in St. Patrick’s, the state’s highest court has “rejected such a narrow approach,” said Richter.

After leaving Peoria, Sheen taught for 25 years in Washington, D.C. While there, he traveled regularly to New York City to host The Catholic Hour, a weekly radio show that aired from 1930 to 1950.

From 1952 to 1957, Sheen, who was consecrated as a bishop in New York, hosted “Life is Worth Living,” a weekly television series that earned him an Emmy Award.

Categories
Law Politics

The Nunes memo shows why context matters

Republicans on the House Intelligence Committee released a memo on Friday that they contend undercuts the FBI’s investigation of Russian interference in the 2016 election.

The three-and-a-half-page memo, written by GOP congressional aides, faults the FBI for allegedly duping a federal judge into authorizing surveillance of Carter Page, a Trump campaign adviser, based on material paid for by the Hillary Clinton campaign and the Democratic National Committee (DNC).

The memo, which Republicans promoted via social media with a  campaign of #releasethememo, asserts that by relying on information procured by a political operative who was hired by Democrats, the FBI revealed a bias against Trump or, at the very least, allowed itself to be manipulated by Democratic propaganda.

The campaign, of which the memo forms part, aims to discredit a probe by special counsel Robert Mueller, whom the deputy attorney general appointed to lead the investigation. It aims to persuade Americans who may otherwise be too busy earning a living or simply living their lives to investigate all the facts of an anti-Trump bias at the highest levels of the Justice Department.

But the memo tells only part of the story. The document, which was published at the behest of Rep. Devin Nunes, the Intelligence Committee chairman, cherry-picks information to reach a conclusion that the investigators are biased against the president. That has allowed the president, who may be a target of the Russia investigation, to assert that the memo “totally vindicates” him, , as he tweeted on Saturday. (As it happens, Trump also approved the release of the memo.)

Here are some of the main ways that the memo may mislead readers:

The Nunes memo contends that the government’s case for a warrant relied solely on a report written by a paid political operative.

According to the memo, a dossier compiled by Christopher Steele, a private investigator, on behalf of the DNC and Clinton campaign, “formed an essential part” of the FBI’s application for a warrant to subject Page to surveillance starting in October 2016. But the memo fails to note that the FBI interviewed Page in 2013, as part of an investigation into possible efforts by Russia to recruit him as a spy.  That was the same year Page bragged about being an adviser to the Kremlin.

“The FBI had good reason to be concerned about Carter Page and would have been derelict in its responsibility to protect the country had it not sought a FISA warrant,” said Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, in a statement released on Friday.

What’s more, the Justice Department, which applied for the warrant on behalf of the FBI, told the court that information gleaned from material compiled by a paid political operative formed part of the application, according to two U.S. officials with knowledge of the matter. So, contrary to the suggestion of the Nunes memo, DOJ did not mislead the court about the source of some of the information that informed its application for a warrant.

Note that the first researchers to investigate possible Trump ties to Russia were not hired by Hillary Clinton or a Democrat for that matter. They were paid by the Washington Free Beacon, a conservative website funded by Paul Singer, a hedge fund titan who backed a White House bid by Republican Senator Marco Rubio and who continued to fund efforts to block Trump from receiving the nomination even after Rubio dropped out of the race.

In May 2016, Rubio instructed Fusion GPS, the firm that later outsourced some of the work to Steele, to stop doing research on Trump after it became apparent that Trump would clinch the nomination. After Trump earned the nomination, Fusion was hired by the Clinton campaign and the DNC to gather information about Trump. Fusion GPS then hired Steele to investigate possible ties.

“The basis [for hiring Steele] was [Trump] made a number of trips to Russia and talked about doing a number of business deals but never did one, and that struck me as a little bit odd and calling for an explanation,” Glenn Simpson, a co-founder of Fusion GPS, told the Senate Judiciary Committee in August.

The memo contends that, without the information from Steele, the FBI would not have sought a warrant to eavesdrop on Page.

According to the Nunes memo, former FBI Deputy Director Andrew McCabe testified before the Intelligence Committee in December that no warrant would have been sought “without the Steele dossier information.”

The application for the warrant remains classified, so we cannot know what the government argued to the court. But Rep. Schiff has accused House Republicans of omitting from their memo what McCabe told the Intelligence Committee about the origins of the investigation.

Of course, as chairman of the committee, Nunes can order the release of McCabe’s testimony, so we all could know what he said. But Nunes has neither authorized release of the testimony nor suggested that he might do so.

The FBI allegedly abused its authority by applying to the FISA court to surveil a U.S. citizen.

 The Foreign Intelligence Surveillance Act (FISA), signed into law in 1978, authorizes the government to eavesdrop on Americans who officials reasonably believe to “engage in clandestine intelligence activities in the United States contrary to the interests of the United States” on behalf of a foreign power.

To authorize such surveillance, a judge on the Foreign Intelligence Surveillance Court must agree there is reason to believe the target knowingly engaged in such activities or is knowingly aiding or conspiring with someone else who is doing so.

Steele maintained contact with Bruce Ohr, a senior DOJ lawyer whose wife worked for the firm that commissioned the Steele dossier.

The Nunes memo notes that Steele kept up contact with Bruce Ohr, who at the time served in a senior capacity at DOJ, where he advised both Sally Yates, the acting attorney general appointed by President Obama and later fired by President Trump, and Rod Rosenstein, the deputy attorney general, whom Trump appointed.

According to the memo, Steele stated to Ohr the former’s aim that Trump not be elected president – a bias that Ohr noted. At the same time, Ohr’s wife worked for Fusion GPS, which, as noted, commissioned the Steele dossier. The Nunes memo charges that the Ohrs’ relationships with both Steele and Fusion GPS were omitted from the application for a FISA warrant.

But as the Times has reported, there is no evidence that’s been made public that suggests Ohr, who handles narcotics investigations, played any role in the application for the warrant. As Josh Gerstein, who covers the White House for Politico notes, “the fact that Ohr reported Steele’s comments – that he was intent on preventing Trump from becoming president – to the FBI undercuts the notion that Ohr was a raging partisan.”

Here again, if Nunes has information that undermines that reporting or suggests that Ohr did, in fact, bias the application against Trump, he alone has the authority to release it.

The Nunes memo charges that the government relied in its application for a warrant on an article published in Yahoo News that was sourced from Steele himself.

According to House Republicans, the article, which the government cited in its application for a warrant, does not corroborate the Steele dossier because the reporting that informed the article was leaked from Steele himself.

But as David Kris, a FISA expert who led DOJ’s national security division for two years ending in 2011, told the Washington Post, it’s more likely the government cited the article “to show that the investigation had become public and that the target [Page] therefore might take steps to destroy evidence or cover his tracks.”

Rep. Schiff called the Republicans’ citing portrayal of the Yahoo News article “a serious mischaracterization.”

The FISA warrant was based on information that could not be verified.

By law, applications to the FISA court are secret in order to protect national security information. Thus, we cannot know what information the government’s application to eavesdrop on Steele contained. But as Charlie Savage has explained in the Times:

“According to several former officials, a typical application ranges from 30 to 100 pages and centers on a factual affidavit by a senior F.B.I. agent working on the investigation at headquarters, which in turn compiles information submitted by other agents in the field. This document primarily explains what evidence the bureau has gathered to establish that a target is probably a foreign agent.

A typical application would also include a legal memorandum by a career Justice Department intelligence lawyer; a certification explaining the purpose and necessity of the requested surveillance and signed by the F.B.I. director; and approval for the broader package signed by a senior, Senate-confirmed Justice Department official — the attorney general, the deputy attorney general or the head of the National Security Division.

Occasionally the package may be supplemented with other materials. For example, it may include a news article to show that an investigation has become public knowledge, which could make it more likely that a target is taking steps to conceal his activities.”

Though the application remains classified, there is no evidence to suggest that the government could have hoped to persuade the court to issue a warrant based on evidence that lacked a reasonable basis. The 11 judges who sit on the FISA court are federal district court judges who are designated by the Chief Justice of the United States.

The government claimed, without basis, a connection between Page and Trump campaign adviser George Papadopoulos.

According to the Nunes memo, the application for a warrant to surveil Page mentions information regarding George Papadopoulos, a foreign policy adviser to the Trump campaign who in October pleaded guilty to lying to federal investigators about his relationship with a professor who claimed to have connections with senior officials in the Russian government who had “dirt” on Hillary Clinton in the form of thousands of emails.

The Nunes memo criticizes DOJ for including Papadopoulos in its application for a warrant, noting “there is no evidence of any cooperation or conspiracy between Page and Papadopoulos.” But, as Rep. Schiff noted on Friday, that misstates why the FBI included the information about Papadopoulos in the warrant application.

“The DOJ appropriately provided the court with a comprehensive explanation of Russia’s election interference, including evidence that Russian agents courted another Trump campaign foreign policy adviser, George Papadopoulos,” Schiff noted. As we know from the guilty plea by Papadopoulos, he relayed those efforts to senior officials in the Trump campaign.

Senior DOJ officials renewed the warrant application on at least three occasions even though they knew the Steele dossier lacked credibility.

The Nunes memo says that Yates, McCabe and James Comey, the former FBI director, applied on three occasions to renew the warrant to eavesdrop on Page despite questions about the validity of the Steele dossier. That, suggests House Republicans, shows anti-Trump bias among senior DOJ officials.

But the assertion overlooks a reality of the process for renewing a FISA warrant, which is that every 90 days, the government must show the court that agents are obtaining information through the warrant that is consistent with the original application and that justifies a renewal. In short, the court expects a progress report each time the government asks it to renew the warrant. After the initial grant of the warrant, the basis for extending it cannot be hypothetical.

What’s more, Rosenstein, a Trump appointee, and Dana Boente, who served as acting attorney general after Trump fired Yates, also reviewed the information and signed off on the submissions to the FISA court.

Either DOJ misled the FISA court, or the court knew the alleged shortcomings in the evidence and approved the warrant anyway.

As the information above suggests, there is little to suggest that the government somehow persuaded the court into granting a warrant on the basis of the Steele dossier alone. Might the judge who granted the warrant have done so based on a misreading of the evidence or a desire to pursue a partisan investigation of the Trump administration?

Two realities suggest otherwise. First, the process for obtaining a FISA warrant is far more onerous than the Nunes memo suggests. As outlined above, the court issues a warrant based on a submission that includes an affidavit – a statement under oath – of one or more FBI agents. “We didn’t put in every fact, but we put in enough facts to allow the court to judge bias and motive and credibility of the sourcing,” Matthew Olsen, former deputy assistant attorney general for national security who oversaw the Justice Department’s FISA program from 2006 to 2009, told the Washington Post.

And were a judge to issue a warrant that lacked a reasonable basis, you can be sure the defendant in any prosecution that ensued would seek to suppress the evidence, as criminal defendants do whenever they have reason to think that the government obtained evidence illegally or without probable cause.

***

The Nunes memo gets something else wrong. Even if the FBI relied in part on information prepared by a political operative, the decision by the FISA court whether to issue a warrant depends on whether the government demonstrated a reasonable basis for concluding that Page might have knowingly conspired with a foreign government.

All of the information that might lead investigators to conclude that was the case, becomes relevant in that context. Of course, both the investigators and the court have an obligation to assess the credibility of the information. That matters more than its source.

As chairman of the Intelligence Committee, Devin Nunes can release the testimony of McCabe along with any other information that he thinks would bolster his party’s assertion that the government has engaged in a partisan effort to discredit the president. So far, all we have is a memo that disregards the totality of information that constitutes the public record.

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Law Privacy

New York ruling that lets police follow cellphone locations without a warrant highlights significance of Supreme Court review in Carpenter case

New Yorkers have no constitutionally protected right to privacy in information about our whereabouts that can be deduced from the data emitted by our cellphones, an appeals court in Rochester has ruled in a case that underscores the significance of a ruling expected this spring from the U.S. Supreme Court.

Sharhad Jiles was sentenced to 25 years to life in prison after being found guilty in the shooting death of Sheldon Hepburn during a 2011 robbery. At trial, prosecutors used records obtained from the company that provided Jiles’ cellphone service to place him in the location of the murder.

Jiles asked the judge to exclude the records, which revealed his location over a period of four days beginning on the data of the robbery; information that Jiles contended prosecutors needed a warrant to obtain.

Prosecutors had acquired the records, which track every time our cellphones register with the nearest tower, via a subpoena issued to the provider pursuant to the federal Stored Communications Act, which allows the government to obtain such data without a showing of probable cause of a crime. The trial judge sided with prosecutors and Jiles appealed.

On appeal, Jiles argued that so-called cell site location information is protected by the Fourth Amendment by two rulings of the Supreme Court: a 2012 decision that overturned the conviction of a Maryland man based on evidence obtained from a GPS device that police, acting without a warrant, affixed for 28 days to the underside of his automobile; and a 2014 ruling by the court that police may not, without a warrant, search the contents of a cellphone obtained from someone who has been arrested.

The New York court disagreed, citing a series of rulings by federal courts that suspects have no constitutionally protected privacy in records they voluntarily supply to a third party such as checks, deposit slips and other records filed with banks or telephone numbers they dial.

“We remain bound by the third-party doctrine when interpreting the Fourth Amendment [until] a majority of justices on the [Supreme] Court instructs us otherwise,” Justice Gerald Whalen wrote on behalf of the court in a Dec. 22 ruling.

The instruction should arrive this spring, when the Supreme Court is expected to rule in an appeal from Timothy Carpenter, who was convicted and sentenced to 116 years in prison for a series of robberies in Ohio and Michigan.

At trial, prosecutors introduced evidence of Carpenter’s location they gleaned from records obtained from his cellphone provider that revealed his movements over a period of 127 days.

Like Jiles, Carpenter contended that the government should have obtained a warrant for the records, but both the trial judge and the 6th U.S. Circuit Court of Appeals disagreed.

The Supreme Court heard arguments in the appeal on Nov. 29. Nathan Wessler, an attorney with the American Civil Liberties Union who argued on behalf of Carpenter, distinguished business records such as those filed with a bank from the location data collected by the towers that carry calls from our cellphones.

“The information in bank records can be quite sensitive, but what it cannot do is chart a minute-by-minute account of a person’s locations and movements and associations over a long period regardless of what the person is doing at any given moment,” Wessler said in response to a question by Justice Alito.

Such data gives the government “a categorically new power that is made possible by these perfect tracking devices that 95 percent of Americans carry in their pockets,” he said later in response to a question from Justice Kennedy.

Arguing for the government, Deputy Solicitor General Michael Dreeben dismissed the distinction. By obtaining records that reveal a suspect’s historical location, the government “is doing the same thing” it did in the case of bank records, he told the justices. “It is asking a business to provide information about the business’s own transactions with a customer. And under the third-party doctrine, that does not implicate the Fourth Amendment rights of the customers,” Dreeben added.

As Amy Howe at Scotusblog noted, the challenge for the justices may be where to draw the line between information that is entitled to protection of the Fourth Amendment and that which the government can obtain with a subpoena.

“This is highly personal information,” Justice Breyer remarked, referring to location data that can be gleaned from cell towers.

Justice Sotomayor took note of the erosion on privacy that can accompany developments technology. “Right now, we’re only talking about the cell sites records, but as I understand it, a cell phone can be pinged in your bedroom, “she said. “It can be pinged at your doctor’s office. It can ping you in the most intimate details of your life. Presumably at some point even in a dressing room as you’re undressing. So I am not beyond the belief that someday a provider could turn on my cell phone and listen to my conversations.”

Justice Alito pushed back, challenging Wessler to distinguish cell site location data from bank records or telephone numbers called. Cellphone service contracts advise subscribers that the company can disclose location information to the government pursuant to a court order.

Wessler replied that the Stored Communications Act provides two ways the government can obtain records: either by a court order or a warrant. That, he argued, suggests that anyone looking at the law “would be quite reasonable and right to assume that the reason there’s a warrant prong is to deal with records like these in which there’s a strong privacy interest.”

Some experts say the march of technology means it’s time for the court to discard the third-party doctrine entirely. Writing recently in The Washington Post, Bruce Schneier, a technologist and lecturer at Harvard’s Kennedy School, noted that we store most of our data on computers that belong to other people.

“It’s our email, text messages, photos, Google docs, and more — all in the cloud,” Schneier wrote. “All this data will be collected and saved by third parties, sometimes for years. The result is a detailed dossier of your activities more complete than any private investigator — or police officer — could possibly collect by following you around.”

Police should be able to draw on the data to help solve crimes, Schneier said. But they first should be required to have probable cause and obtain a warrant.

“It’s long past time the Supreme Court recognized that… my emails and other personal data deserve the same protections, whether they’re on my laptop or on Google’s servers,” he noted.

Categories
Law New York City

Building owners in NYC reminded to remove snow from sidewalks

With the start of winter two weeks away, a pair of rulings from a state appeals court in Brooklyn shed light on the obligation of landlords in New York City to keep sidewalks free of ice and snow.

Building owners in the city are required by law to maintain sidewalks adjacent to their properties in a reasonably safe condition, which includes removing snow and ice.

In the first ruling, the court sided with Maria Michalska, who accused the owner of an apartment building in the Coney Island section of Brooklyn with failing to clear the sidewalk outside the premises.

Michalska said she injured herself after slipping on Feb. 4, 2014 at 9:30 p.m. on ice that covered a path that had been shoveled through snow on the sidewalk adjacent to the building. According to Michalska, the sidewalk was slippery when she had used it a night earlier.

A weather report showed that 6.7 inches of snow fell as of 5 p.m. on Feb. 3, about 26.5 hours before Michalska slipped, and that no snow fell on the day of the accident.

Though the building’s superintendent testified that he could not remember whether he removed snow from the sidewalk on either day, the testimony conflicted with an affidavit in which he stated that he personally checked the sidewalk at the end of his shift at 5 p.m. on the day Michalska fell and observed neither snow nor ice.

The evidence “failed to eliminate all… issues… as to whether the [landlord caused or exacerbated the alleged icy condition on the subject sidewalk or had notice of it,” Justice William Mastro wrote on behalf of three of his colleagues in a Nov. 29 ruling that returned the lawsuit to the trial court.

Storm in progress

In a second ruling the same day, the court sided with Toni Maria Pecoraro, who accused the owners of a building in Brooklyn with failing to clear snow that she allegedly slipped on.

The owners cited a rule that relieves an owner of a building from responsibility to remove snow during a storm or for a reasonable time thereafter.

To bolster their claim, the owners presented weather data that they said showed snow falling at the time of the accident, a claim Pecoraro contested.

The court returned the case to the trial court to resolve the differences in their accounts. “The climatological data submitted by [the owners] … contradicted [Pecoraro’s] deposition testimony… as to whether precipitation was falling at or near the time of the accident,” Justice Ruth Balkin wrote on behalf of three of her colleagues.