Archive for the 'Criminal Law' CategoryPage 9 of 91

Will Clinton’s Email Controversy Benefit Whistleblowers?

Is Hilary Clinton any different than Edward Snowden? Well, there’s one major difference between the two—Snowden purposefully leaked top-secret documents on U.S. surveillance programs whereas Clinton claims no such thing in how she handled classified emails.

Despite the fact Clinton may have had no intentional or malicious intent, there are plenty of other government employees who have gotten the axe for much less. Does the fact that Clinton was not indicted for mishandling classified emails mean whistleblowers are off the hook?

If you’re not familiar with the Clinton email controversy, here’s the low down. As Secretary of State, Clinton used her family’s private email server for official communications that should have been used on the official State Department email accounts located on federal servers.  Why the big deal?  Well, thousands of these emails were later marked as classified, posing a potential security threat if on the off chance any of those emails were hacked.

While many seem split on whether Clinton committed a crime, others say it’s likely she violated government procedures and rules but didn’t violate the law in and of itself. Clinton acted “extremely careless”, according to FBI Director Comey, but no laws were broken. Clinton

Contrast with Edward Snowden, a former government contractor who purposefully leaked national security information from the NSA, who is obviously pretty peeved no charges were brought against Clinton considering he’s facing up to 30 years in prison if he steps a foot back into the U.S. In a Twitter post, Snowden’s response to the news was more than unenthusiastic:

“Break classification rules for the public’s benefit, and you could be exiled. Do it for personal benefit, and you could be President”

Whistleblower Protection Act Only Offers Protections to Some

The 1989 Whistleblower Protection Act protects federal employees from agency backlash for whistleblowing.  Even despite the law, many employees were often fired, demoted, reassigned, or lost their security clearances after stepping forward against their government employers.  At the beginning of Barack Obama’s presidential campaign, one thing he promised was to strengthen the laws to better protect whistleblowers from negative repercussions.

Obama promised to speed up the review process of claims and grant whistleblowers full access to jury trials and due process. Although he followed through on part of his promise, one area remains unprotected—free speech protections don’t extend to whistleblowers in the intelligence community.

Obama did, however, pass an executive order appearing to extend the same protections to the intelligence community by allowing them to use internal channels, rather than the media, but many advocates suggest this is merely a façade and doesn’t afford the same protections as a Congressional law.

Does Clinton’s Lack of Indictment Set a Precedent Offering More Employee Protections?

Despite Clinton’s reprieve, the government’s insistence on punishing secrecy violations shows no sign of a change. As with any other criminal case, situations will be investigated on a case-by-case basis, which means Clinton’s lack of indictment isn’t going to offer any sort of blanket coverage, especially when you consider the fact that the Obama administration has prosecuted more leakers under the 1917 Espionage Act than all prior administrations combined.

In 2015, David Petraeus, former CIA Director, plead guilty to a felony charge of unauthorized removal and retention of classified information for providing his mistress with classified information. Petty Officer First Class Kristian Saucier used a cellphone camera to take photos in a classified engine room of the nuclear submarine where he worked as a mechanic.  In May, he entered a guilty plea for unlawful retention of national defense information.  These are just a few examples.

Regardless of whether protections are offered under whistleblower laws, none of them would have protected Snowden.  One important thing to remember is that whistleblower protection, whether at the government or private level, are only triggered if employees go through the appropriate channels—not leaks to the media.

Even so, where are the protections when, in cases like Clinton or Petty Officer Saucier, information is simply mishandled without malicious intent?  These kinds of cases where information is mishandled shouldn’t even warrant criminal charges, but nonetheless, they do and there definitely seems to be an imbalance in terms of who gets prosecuted and who doesn’t.

 

Facebook Accused of Funding Terrorist Activity

Facebook is being accused of funding terrorist activity in the West Bank region. A family of Israeli and American citizens have brought forth a lawsuit seeking $1 billion in damages from Facebook for supposedly funding Palestinian military attacks. Palestine and Israel have been in conflict for many decades now and it is an issue that has no end in sight.

There are many underlying factors to the conflict, including religious difference, territorial claim, and regional dominance. Countless lives have been lost from both sides. The plaintiffs too have lost relatives in the conflict and they now seek damages from Facebook because they believe Facebook has supported Hamas in its attacks against Israel. Hamas, which is a pro-Palestinian movement, has been considered a terrorist organization by many nations.

Myriad of Accusations

This is not the first time that Facebook has been accused of such claims. Other such claims against Facebook are that, as a conduit of information, it gives FBI access to its user accounts, or that Facebook has some sort of hidden agenda unbeknownst to the general public. Of course, there is not much evidence to support such claims yet these charges do pop up every now and then. And it is not just Facebook.

Other social media outlets such as Twitter have been under attack too for supposedly promoting terrorism. ISIS, which has been grabbing headlines for the past few months, has been using the Twitter platform as a means of recruitment and sending out its message, and Twitter has seemingly done nothing to stop this.

Facebook and Twitter Comparison

For sake of comparison, the Twitter and Facebook claims have similarities and differences. In Twitter, there is indication that ISIS is using the platform as a vehicle to promote its agenda. However, under the First Amendment, which permits freedom of speech and press, it is hard to charge someone simply for expressing their viewpoints. Granted, ISIS propaganda should be put to a stop but where do we draw the line.

Should constitutional rights be diminished in order to promote national security? The government should not violate First Amendment rights when it can help it. There are times when the government, for security purposes, will make an exception. In any event, the benefit of the doubt will be given to the Constitution. Not all ISIS related posts will be grounds for criminal charge. Hamas Facebook

Likewise, with Facebook, if there are posts on the platform that in some way support Hamas, this is not grounds alone to go after a user, let alone Facebook itself. Under the Communications Decency Act of 1996, service providers such as Facebook and Twitter cannot be held personally liable for content that is published by their users.

The difference between the two scenarios however is that there is no indication that Twitter directly promotes ISIS activity. However, with Facebook, although there is currently not enough evidence, if it was established that Facebook did directly support Hamas through promotional material or other means not associated with user content, then there might be a valid claim. Even then, the First Amendment might prevent such claims. Until more hard evidence actually emerges, it will be very difficult for these grieving families to put up a decent claim against Facebook.

Many times, false accusations are thrown at big corporations such as Facebook in the hopes that that they can snatch the big prize. I am not implying that these particular plaintiffs fall in this category, but false accusations are common, especially against a large corporation such as Facebook. Media conglomerates such as Fox and Time Warner have been accused of such things too. It does not start and end with media industry either. Sometimes, these accusations should be taken with a grain of salt.

Preemptive Measures

People are not yet ready to give up their basic rights. As Benjamin Franklin said, “Those who surrender freedom for security will not have either one.” This is a powerful statement that resonates today with all of us.

However, Ben Franklin lived in a completely different time with very different issues at play. Today, international terrorism has become a huge threat and only tightening down on security measures can we hope to combat such a threat. If it means giving up some rights for the greater good, then this is something that we should consider.

And just as these social media outlets are used by terrorist organizations to convey their message, they can also be used to create awareness among communities to unite and stand against such a threat. Social media has been the trigger for many events these past few years, such as the Arab Spring and the Brexit deal.

Social media is a powerful tool that can be used to bring change, for better or for worse. Who uses it and how they use it can have consequences as well. Preemptive measures can be taken through these outlets to combat terrorism and to address other issues as well.

Should Suspected Criminals Expect Any Right to Privacy?

What sort of measures should authorities be allowed to take to capture alleged criminals? On June 23rd, a federal judge ruled that the FBI didn’t need to obtain a search warrant before they hacked into the computer of a man who had allegedly viewed child pornography. In his ruling, Judge Henry Morgan argued that the defendant, Edward Matish, had no “reasonable expectation” of privacy in his IP address.

 Should the Government Be Able to Use Any Technology to Catch Criminal Activity?

The case against Edward Matish centered around a child pornography site, Playpen, that was only accessible through Tor, a browser designed for anonymous web surfing. After taking control of Playpen in early 2015 (and arresting its operator), the FBI secretly gathered information about its users through a tool known as a NIT, or network investigative technique, that let investigators see the IP address of each individual who logged on to the site.

Attorneys for Matish said that the evidence gathered by the FBI’S NIT should not be allowed to be presented in court. After all, his attorneys argued, there was no search warrant specifically naming Matish when the FBI hacked into his computer. FBI

However, Judge Morgan took the opposite view, stating that in Matish’s case the government’s duty to protect its citizens superseded any concern over Matish’s privacy in the face of electronic surveillance. In his remarks, Judge Morgan added: “The Government should be able to use the most advanced technological means to overcome criminal activity that is conducted in secret.”

Interestingly, not all cases involving people who were unknowingly put under digital surveillance before being accused of viewing child pornography have ended in a ruling like the one levied against Edward Matish. Federal judges in at least two similar cases have ruled in favor of the defendant, saying that the FBI’s Virginia-issued warrants (which called for the use of the FBI’s NIT) were invalid because the defendant’s alleged crimes did not occur in Virginia.

If the government’s duty to protect its citizens is so powerful, why didn’t federal judges in other cases involving underground child pornography declare the FBI’s NTT warrants valid? Could those other federal judge’s rulings signal that the FBI’s use of digital surveillance techniques is not always the best option in rooting out criminals?

But Shouldnt the Government Do What It Can to Root Out Child Pornography?

One of the issues raised in United States v. Matish was whether the defendant’s Fourth Amendment right against unreasonable searches and seizures by the government was violated when the FBI hacked his computer. Whether a search is considered reasonable under the law is determined by considering whether the government’s legitimate interests, such as public safety, outweigh an individual’s right to privacy.

In other words, the government has to decide whether a crime’s danger to the public is even more pressing then the alleged criminal’s Fourth Amendment rights.

Judge Morgan cited a Supreme Court decision to bolster his reasoning that the FBI’s actions in Matish’s case amounted topeering into a gap in closed blinds, “which does not violate the Fourth Amendment. Judge Morgan’s choice of words, which conjure up the FBI taking only a quick glance at the underground child pornography site, do not seem to align with what actually occurred in the investigation.

In fact, the FBI gathered Playpen users information over the course of 13 days, using their NIT that some have characterized as “malware.” The FBI has actually taken steps to keep the code to the NIT used in the Playpen investigation secret, calling it a matter of national security.

Judge Morgan’s assertion that Edward Matish had no “reasonable expectation” of privacy in his IP address drew outrage, even in the face of the defendant’s alleged viewing of child pornography. Privacy advocates argued that the implications of Judge Morgan’s ruling were staggering–that it set the precedent for law enforcement to remotely search and seize information from anyone’s computer without a warrant or even probable cause.

While some might argue that the capture of someone who has allegedly viewed child pornography is more important than any concern about the government violating their privacy, a couple of questions cannot be ignored. Does anyone, according to Judge Morgan’s logic, have a reasonable expectation of privacy in their IP address? And what other ways could the government employ the use of NIT in the future?

Warrantless Blood Draws Unconstitutional, But Breath Tests Still Legal

Drivers pulled over on suspicion of DUI no longer have to worry about facing criminal charges for refusing to submit to a warrantless blood draw. The Supreme Court ruled in a 7-1 opinion that states may not prosecute suspected drunk drivers for refusing warrantless blood draws.  States can, however, require warrantless breath tests incident to an arrest.

The case stemmed from a lower court case in which a defendant, who was not prosecuted for any drunk driving charges, was charged with a refusal. He claimed warrantless searches, more specifically warrantless blood draws, were a violation of the 4th Amendment search and seizure requirements.  The Supreme Court agreed.

The 4th Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… Breath Test

Except in certain instances, like an exigent circumstance, our court has already established that search and seizures are unreasonable without a warrant. Additionally, taking blood samples or the administration of a breath test has been well established as a search.

Searches Incident to a Lawful Arrest are Legal

Officers can search the person and areas immediately surrounding the person’s reach, but does this include a breath or blood draw? There’s a lack of case law specifically on the issue of warrantless searches incident to lawful arrest as applied to drunk drivers. The Court was left to use the reasoning applied in Riley v. California, which says courts must look at:

  1. The degree of intrusiveness on an individual’s privacy, and
  2. The degree that intrusiveness is necessary for promotion of a legitimate government interest.

Breath Test Less Intrusive Than Blood Test

The Court found the physical intrusion of breath tests “negligible.” The breathalyzer requires inflating a balloon by blowing into a machine for about 4-15 seconds, is only capable of revealing one specific piece of information, and doesn’t really implicate any privacy concerns.  The machines must adhere to federal guidelines and are generally regarded as very reliable, providing accurate results; there’s no reason officers shouldn’t use this less intrusive method over the more intrusive blood draw.

Blood draws pierce the skin, can reveal highly personal information (not just BAC content) about the donor, and allow the use of preserved samples to extract information beyond a BAC reading, all resulting in a more intrusive invasion of privacy. Many states don’t even allow blood draws when an arrestee refuses because of the risk involved with forcibly trying to stick a needle in an unwilling arm.

What About the State’s Interest in Highway Safety?

The impact of breath tests on privacy is slight, and the need for BAC testing is great.

States have a compelling interest in creating effective deterrents to drinking and driving and, thus, hopefully encouraging drivers to make responsible decisions that won’t threaten the safety of themselves, but more importantly, the safety of others. The loss of driving privileges is not enough, alone, to deter the most dangerous offenders.

Further, requiring a warrant for every BAC breath test would place a substantial burden on the justice system. Especially when magistrates approving warrant requests have only the evidence offered by the requesting officer to base their approval, thus having no real adequate benefit of waiting to get a judge’s approval.

Further, because blood tests are significantly more intrusive than a breath test, the Court found there to be no reasonable alternative as to why a warrantless blood draw would be necessary over a breath test. In the rare situations that a blood draw would be needed, officers can apply for a warrant.

Drivers Cannot Implicitly Consent to Criminal Charges

Many would refuse the test if they had the option, which is why implied consent laws were created in the first place, but those laws are only implied civil penalties, i.e. loss of driving privileges. According to the opinion, the conditions upon which implied consent laws rest must be related to the privilege of driving itself and have proportionate penalties to the severity of a violation.  It’s unreasonable to assume that, when agreeing to a state’s implied consent laws in order to obtain a license, prospective drivers agree to criminal charges for refusing to submit to an intrusive and warrantless blood test.

Supreme Court Decision Allows Admission of Evidence After Illegal Stop

A recent U.S. Supreme Court decision is making headlines and putting people up in arms about the potential implications. Is it as bad as they say?  It definitely could play out that way and, although the Supreme Court allowed the admission of evidence obtained after an illegal stop, the Justices didn’t completely throw probable cause out the window.

The case stemmed from a surveillance operation of a home after local police received an anonymous tip suggesting frequent drug activity. Over the course of the surveillance, an officer observed numerous brief visits in and out of the house and eventually detained an individual, apparently at random, upon leaving the house.  The officer identified himself, asked the individual what he was doing at the house, requested identification, and then relayed the information to dispatch, subsequently finding an active arrest warrant for a traffic violation.  The officer arrested and searched him, and found methamphetamine and drug paraphernalia on his person.

The defendant moved to suppress the evidence based on an unlawful investigatory stop, i.e. no probable cause, which was initially denied. However,  the Utah Court of Appeals reversed and ultimately suppressed the evidence.  The Supreme Court disagreed.

The 4th Amendment and the Exclusionary Rule

The 4th Amendment protects us from unreasonable searches and seizures. Case law protects us from the admission of illegally obtained evidence—the exclusionary rule. Evidence obtained as a direct result of an illegal search and seizure, as well as evidence later discovered as part of that illegality, is not admissible.  You can’t use the fruit from the poisonous tree. Search

As with most things, exceptions apply and the exclusionary rule is no different. When the costs of exclusion outweigh its deterrent benefits, the exclusionary rule will not apply. Officers can admit evidence obtained from an unlawful search if that evidence was obtained from an independently acquired source or if it would have been discovered regardless of an unconstitutional source.  But, it’s the 3rd exception the Supreme Court used when handing down their recent decision.

The attenuation doctrine says when evidence “has become so attenuated as to dissipate the taint” it will be admissible. What does that even mean?  Evidence discovered through government misconduct is admissible if the connection between the misconduct and the discovery of the evidence is sufficiently weak.

Justice Thomas’s Majority Opinion vs. Justice Sotomayor’s Dissent

When applying the attenuation doctrine, courts are to consider:

  1.  “temporal proximity” between unconstitutional conduct and discovery of evidence to determine how closely discovery of evidence followed an unconstitutional search,
  2. “presence of intervening circumstances,” and
  3. “purpose and flagrancy of the official misconduct.”

Justice Thomas’s opinion explains discovery of the defendant’s “valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence…” The opinion rationalizes, although the temporal proximity of time between the illegal stop and discovery of evidence favors suppression, presence of a valid arrest warrant unrelated to an illegal stop and a lack of purposeful or flagrant disregard for constitutional rights is enough to weaken the casual link.

The opinion goes on to explain, despite the fact that the officer should have asked the defendant if he could speak to him, rather than demanding so, these mistakes didn’t rise to the level of a 4th Amendment violation, but merely “at most negligent” and an “isolated incident in connection with a bona fide investigation of a suspected drug house.” Nothing prevents an officer from approaching an individual simply to ask.

Justice Sotomayor’s dissent argues pretty flawlessly the decision allows officers to stop anyone off the street, ask for their license, check for pending warrants, even small ones such as unpaid traffic tickets, and ultimately forgive any officer wrongdoing upon finding an arrest warrant.

“Fruit that must be cast aside includes not only evidence directly found by an illegal search but also evidence ‘come at by exploitation of that illegality’”

Asking questions doesn’t result in a seizure, but, Justice Sotomayor explains, the officer “exploited his illegal stop to discover” the drugs. The drugs were found only after learning of the traffic violation and he only learned of that traffic violation because he unlawfully stopped to check the defendant’s license. Classic fruit of the poisonous tree argument.

Further, she reasons the officer acknowledged his sole purpose for stopping the defendant was investigative and not an isolated incident. Warrant checks incident to a traffic stop are integral to the safety of the roadways whereas, here, the officer had no probable cause to believe the defendant was a danger.  Justice Sotomayor goes on to explain the warrant check was for the sole and hopeful purpose of finding something against the defendant.  In other words, finding an arrest warrant wasn’t an intervening circumstance leading to a break in the casual link.

Although Justice Sotomayor’s dissent that the majority wrongfully applied the rule hit the nail on the head, the silver lining is that the majority opinion rests on the particular facts of this case and doesn’t seem to be intended as a blanket rule applying to any illegal stops. However, in application, the effects of this ruling will inevitably be challenged and it will be interesting to see how this decision’s applied in other situations.