Archive for the 'Evidence' Category

Rep. Devin Nunes: Understanding Rep. Nunes Fall From Grace

Another day, another scandal.  Temperamental tweets from Trump are becoming the norm, yet Trump’s recent claims that Obama wiretapped him prior to winning the election still came as somewhat of a surprise.

There were previous reports that, while monitoring Russians, the intelligence community may have intercepted communications from members of the Trump team, but Trump’s tweet claimed Obama specifically ordered the wiretapping.  That’s a pretty hefty claim to make and he did so without any substantiating evidence.  Then along came Devin Nunes, who recently held a press conference making statements that appear to somewhat validate Trump’s claims.  The Congressman has been under heavy scrutiny ever since and people are questioning his ethics.

Rep. Devin NunesLet’s Take a Step Back to Get Some Context

Earlier this year, the House Intelligence Committee was tasked with investigating whether there was Russian interference into the 2016 elections as well as collusion between Russia and Donald Trump’s campaign.  The House Intelligence Committee is led by chairman Devin Nunes, which, until recently, wasn’t necessarily a household name.

A week ago, Nunes held a press conference and, to keep it simple, he announced that an unnamed source had given him information that appeared to validate, at least somewhat, Trump’s wiretapping allegations.  Here’s what Nunes said:

“First, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition.  Details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value, were widely disseminated in the intelligence community reporting.  Third, I have confirmed that additional names of Trump transition team members were unmasked.  Fourth and finally, I want to be clear. None of this surveillance was related to Russia, or the investigation of Russian activities or of the Trump team.”

Because Nunes says that the information wasn’t related to the surveillance on Russia and that it also wasn’t related to the Trump-Russia investigation, Nunes’ statements suggest that some of the members of the Trump transition team were in fact under surveillance.

Why All the Fuss?

Here’s a brief rundown of how it went down:

  • On March 21st Nunes made an unscheduled trip to the White House where an unnamed source provided Nunes with information about incidental collection of Trump and his associates. That information, according to Nunes’ press conference, contained unmasked names.
  • On March 22nd Nunes held the press conference with the statement above. Nunes claims the information came from FISA surveillance.  Nunes then went directly to the White House to brief Trump on the intelligence reports.  Adam Schiff, the ranking Democrat on the House Intelligence Committee, released a statement that Nunes did not share this information with other members of the Committee before going to brief Trump.

The press conference itself wasn’t necessarily the issue; the issue is where the documents came from and why did Nunes go to Trump with the information before his own Committee members?  Regardless of whether the information was unrelated to the Trump-Russia investigation, Nunes still should have presented the information to the Committee first.  Even after Nunes apologized for going to Trump first, the water has gotten even murkier on whether Nunes had any real evidence to support the statements as he has yet to release the documents to the Committee.

Actions Affect the Committee’s Investigation

Who did Nunes meet at the White House?  Why did Nunes need to meet his source at the White House?  Why didn’t Nunes take the information straight to the Committee?  These are the unanswered questions floating around that make what Nunes did suspicious.  The running theme coming from the Democrats is that, because Nunes was a member of Trump’s transition team, Nunes is improperly providing political cover for Trump’s claims that Obama wiretapped his phone.

Nunes’ actions do affect the House Intelligence Committee’s investigation because it tarnishes the office’s credibility.  Being chairman of the House Intelligence Committee holds certain responsibilities and, as a member of that Committee, Nunes’ loyalty should have been to the Committee, especially since Trump is currently being investigated.  Instead, Nunes claimed he felt he “had a duty and obligation” to tell Trump because “he’s [Trump] taking a lot of heat in the news media”.

If Nunes is covering for Trump, he’s not being an impartial member of the Committee.  Not only does it tarnish the creditability of the House Intelligence Committee, but it also jeopardizes the ongoing Trump-Russia investigation.  There’s also a good argument Nunes’ actions violate protocols for handling classified information, which is why he’s received numerous ethics complaints.

Despite statements that all the fuss is “entirely false and politically motivated”, Nunes has since stepped aside from the Trump-Russia investigation.

Hyperlink Hysteria: When is Posting a Hyperlink Breaking the Law?

It’s no understatement to say that hyperlinks are essential to a functioning internet. You clicked one to get here and you’ll probably click plenty more today. However, under a new Court of Justice of the European Union (CJEU) ruling, posting the wrong link in the wrong way can get you in legal hot water.

The case pitted Playboy magazine against a Dutch company whose business and website involved posting links to unauthorized replications of stills from Playboy magazine. Playboy took issue with this and sued, arguing that posting these links infringed their copyrights in the photos.

In their recent explanation of their initial opinion from a few months back, the CJEU sided with Playboy and created brand new rules describing the situations where posting a hyperlink can get you in trouble in the EU.

The EU’s New Ruling

First and foremost, where freely available content is posted to the internet with the copyright owner’s consent there is never copyright infringement. However, when the link posted is to unauthorized material, access to which would otherwise be restricted, the situation changes.

Under the new rules, a person posting such a link is liable for copyright infringement in two situations. First, where the link was posted “in pursuit of financial gain,” there is a presumption that the person posting knew they were not authorized to post the link and guilty of copyright infringement unless they produce evidence to rebut that presumption. Second, where the link is not posted for financial gain but the poster knew or should have known that the content they linked to was illegally published the poster is also guilty of copyright infringement.

The CJEU found that the Dutch company, GS Media, had posted both for profit and with knowledge they were linking to unauthorized content. However, the court was notably sparse as to the details of what counted as “for profit.” This means that the law, while certainly a boon to content creators seeking to protect the works they put on the internet, leaves many businesses in lurch.

The presumption of copyright infringement, barring any other legal defense, is something quite uncommon in law. Does a poster have to profit from the link itself? Is it enough that the website with the link makes profit from additional web traffic? As it stands, those who directly profit from links by putting them behind a pay wall and small bloggers posting links on articles earning ad revenue could both be in the same copyright infringement boat.

What’s more, the CJEU ruling makes it clear that when a post is “for profit” the onus is on the poster to ensure the legality of anything they chose to link. This puts a pretty hefty burden on small bloggers who may not have the money or legal expertise to ensure that every link they post is above board.

As for here in the U.S. of A, this ruling is unlikely to impact the links you post on social media. However, businesses that operate internationally will have to be especially careful about what and how they post. The ruling will have a substantial effect on companies offering internet search engines, such as Google, because these companies must take extra steps to determine if their listed sites contain unauthorized material so as to avoid the effects of the infringement presumption. They also will need to deal with increased instances of demands from companies wanting them to delist links to websites that include infringing material.

EU Law Compared to US Law

These new developments abroad probably have you asking, how does U.S. law treat hyperlinks? Well, rest easy, your usual posts on Facebook are unlikely to get in trouble.  It is long settled U.S. case law that the mere posting of a link does not give rise to a direct copyright infringement claim without more. This being said, you can still commit infringement where—as in the EU—a link is posted either for profit or with knowledge of it connecting to infringing material.  However, these facts don’t create a presumption against you as they do in the EU.  Instead, they are relevant evidence in an alternative cause of action to direct infringement—contributory infringement. While in the EU these facts could now leave you on the backfoot in a claim against you, they are the bare minimum to a plaintiff establishing a claim here in the states.

In practice, unless the posting is en masse and coming from a known company with deep pockets, most links to infringing material are dealt with through the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The DMCA provides protection for websites which host content so long as they have a statutorily compliant takedown policy in place and respond appropriately to takedown requests—requests to remove infringing content from a hosting site—from content owners. This obviously doesn’t apply where the website itself is posting the infringing links, but when it comes to links posted by private parties the expense of litigation and difficulty of identifying the person behind the computer make it preferable for content creators to focus on taking down the infringing links.

The CJEU ruling has pushed the potential for copyright infringement through posting hyperlinks to unprecedented levels. Unless these changes make the unlikely jump across the pond, they will only really impact internationally operating business within the U.S.  However, it is still important to be careful what links you post—especially if you make any sort of profit off those posts.

Do Trump’s Poll Watchers Break the Law?

Donald Trump has been calling on his supporters to watch polling places for signs of fraud. His website offers sign-ups for “poll monitors” to observe polling in “other communities.”  Trump argues it is out of concern that the entire election is rigged.  For instance, he was quoted as saying “I am leading in Florida. The polls all show it. If I lose Florida, we will know that there’s voter fraud. If there’s voter fraud, this election will be illegitimate, the election of the winner will be illegitimate, we will have a constitutional crisis, widespread civil disobedience, and the government will no longer be the government.” When Trump made this statement, he was behind in the Florida polls by an average of 5 points.

The concern, “rigged election” aside, is that the “poll monitors” will be a thinly veiled excuse to target minorities in the polling place.  Beyond Trump’s not so ambiguous “other communities” comments, he has made it clear that he believes a wave of illegal immigrants will be let into the country in order to vote for Hillary.  Those signing up for the program have not alleviated concerns.  One Florida volunteer posted a picture of a truck festooned in American flags with a cage around the bed of the truck and a comment reading “Florida we gonna landslide TRUMP….wear’n red at polls… We gonna be watch’n fer shenanigans…& haul ya away..”  Another made concerning statements about his intent on election day, saying “ I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American,” he said. “I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”

Is Trump’s plan for these poll watchers doing legal? Unfortunately, it is to an extent.  The issue hinges on voter challenge and voter intimidation laws nationwide.

Voter Challenge Laws Across the Nation

Whether or not Trump’s tactics are legal, they are certainly not new. For example, in 2012, a Tea Party group recruited over a million poll watchers with the goal of making voting “like driving and seeing the police following you.”  The problems hinge on abuse of existing voter challenge laws.

46 states have laws which allow a private citizen to challenge a person’s status as an eligible voter up to and on election day. While the exact details of the statute vary slightly from state to state, only 15 of these states require the challenger to provide any sort of documentation to support their challenge with most laws placing the burden on the person challenged to establish that they are a legal voter.  In Wisconsin, Virginia, Oregon, and South Carolina the challenger needs only a suspicion that the person is not qualified. 

Trump’s primary target for his poll watchers, Pennsylvania, has seen abuse of their broad voter challenge statute in the past. As recently as 2004, hundreds of students had to wait hours to vote after attorneys from the republican party challenged every young person who came to vote pursuant to Pennsylvania’s voter challenge laws.  The law in Pennsylvania allows private citizens to challenge voter status of any person seeking to vote leading up to and on election day.  The challenger doesn’t have to provide any evidence for their challenge, but in 2004 through today, the challenged party must find a friend to sign an affidavit of their voter status and residence before they are allowed to vote.

Over the last decade, states such as Virginia, Colorado, Nevada, Iowa, and New Hampshire have enhanced the burden on those challenging a voter to avoid abuse. Just this year, the constitutionality of the voter challenge laws of Texas, North Carolina, Ohio and Wisconsin have all come up before the Supreme Court—although the court has been deadlocked 4-4 or failed to yet rule on each case. Florida requires challengers to state a valid reason for the challenge in writing; North Carolina requires “affirmative evidence” that the voter is ineligible.

Pennsylvania has taken a different approach to its history with its challenge law. While the law itself has not changed since 2004, Pennsylvania currently has a law dealing with voter challenge in their legislature…to allow poll watchers to be certified to go anywhere statewide as opposed to just their own county.

While the ability to challenge the voter registration where a person is not properly registered is not independently a bad thing, the vulnerability to abuse can make the laws dangerous.  Across the nation, sweeping challenges targeting students and minorities are shockingly common. The laws have led to anecdotes such as an older white man challenging every black person who entered a polling place, requiring them all to defend their registration and sign an affidavit.  In Ohio’s 2004 election, 97% of new voters in predominately black locations faced challenges.  This is in contrast to 14% in predominantly white locations.

Abuse of these laws, and the voting system has reached the highest levels. A series of cases through the eighties and nineties, brought by the Democratic National Committee (DNC) against the Republican National Committee (RNC), has forbidden the RNC from engaging in any kind of “ballot security program” other than “normal poll watch functions” after they targeted 150,000 voters in predominantly African-American precincts in the early eighties.

The consent decree binding the RNC was enforced and extended in 2009, with the judge finding that “[v]oter intimidation presents an ongoing threat to the participation of minority individuals in the political process, and continues to pose a far greater danger to the integrity of that process than the type of voter fraud the RNC is prevented from addressing by the Decree.” With the consent decree set to expire in January 2017, the DNC has sued the RNC a little over a week ago over their alleged support of Trump’s poll watching campaign.  They seek, among other things, to extend the consent decree.

Regardless of the legality of the RNC’s potential involvement, the broad nature of most voter challenge laws makes much of what Trump’s poll watchers are likely to do come election day legal. The exception to this is when their actions cross the line from challenge to voter intimidation—as mentioned in the renewal of the consent decree against the RNC.

Federal Voter Intimidation Statute

Federal law makes it a crime in all 50 states to intimidate, threaten, coerce, or attempts to intimidate, threaten, or coerce, a person trying to vote.

The actions of Trump supporters discussed above would clearly rise to the level of criminal voter intimidation. However, a person need not go to such extremes to be guilty of voter intimidation.  Courts have found intimidation where people gather in groups around, or even within 100 feet, of voting places as such gatherings could easily deter nervous voters.  Bringing a weapon of any type to a voting place and remaining there would also likely be voter intimidation—some states specifically ban the practice.

While voter intimidation is a fact specific crime, any voter who feels intimidated should immediately report the actions against them to authorities. Poll watching and voter challenges, depending on how confrontational they are, can easily cross the line from challenge to crime.  Legal threat (including threats of deportation) and economic threat both count as intimidation.  In many states, such as Ohio, misleading a person as to voting information is also a crime.

Trump’s poll watchers are acting in a way that flirts with criminal intimidation. Know your rights this election day; don’t allow poll watchers to criminally intimidate you.

Can a Wife Be Charged as an Accessory for Her Husband’s Sexual Assault?

At what point is someone an accessory to a crime? More specifically, does an attempt to cover up someone’s sexual assault make you an accessory to that crime.

There’s quite the controversy surrounding many of Donald Trump’s comments regarding women and claims of sexual assault, but Hillary Clinton is no exception to the scrutiny surrounding these issues. There’s been plenty of negative media following Hillary around regarding her alleged attempt to cover up her husband’s past sexual assault allegations.

Juanita Broaddrick has revived her allegations against the Clintons. If you aren’t familiar with that name, back in 1999 Broaddrick went on national television and alleged that in the 1970’s Bill Clinton raped her in a hotel room. Many doubt the truth of Broaddrick’s allegations, but the rape allegations have resurfaced right before the 2016 Presidential elections—along with some new claims. Broaddrick has expressed her support for Trump because she claims not only did Hillary know about the 1970’s rape, but that Hillary tried to threaten her into remaining silent about it.

This has of course caused an outrage and many are now accusing Hillary of being an accessory to a sexual assault. If the allegations were true, could simple knowledge of the crime be enough to warrant accessory charges? What about threats to remain silent about the crime?

What Exactly Constitutes an Accessory to a Crime?

A person can be considered a party to a crime for a number of different reasons; they can participate in the crime before, during, and/or after the crime is committed. The terms aiding and abetting and accessories are sometimes used interchangeably, but they can be quite different.

Parties to crimes are classified as either a principal or an accessory. The key distinction is what they do to participate in the crime and when they contribute to the crime. Generally, an accessory gets involved after the crime whereas aiding and abetting a crime would be assisting in the criminal act prior to or during the crime. Helping someone evade capture, prosecution, or simply helping to conceal the crime would all be actions that would warrant charges of an accessory after the fact.

Assistance can come in many different forms, though, and doesn’t have to just be actions of concealment or physical assistance. Financial assistance would be another obvious way a person could be an accessory to a crime, but many may not realize providing emotional assistance, depending on the circumstances, could also factor into a prosecution.

Prosecutors Need to Be Able to Prove Certain Elements First

Of course, every state is different, but there are general elements that need to be proven in order for a state to bring a case against someone as an accessory after the fact. The first is the actual commission of a felony, but probably the most important piece is knowledge. Not only must the person possess awareness of the crime, but they must also have knowledge of the assailant’s identity. A person cannot unwittingly help a felon avoid arrest if they had no knowledge of the crime or no knowledge of who the person was in the first place.

For example, housing a criminal wouldn’t warrant an accessory charge if the person had no knowledge of the crime ever taking place and no knowledge of who the person was they were housing. However, housing the criminal to evade police, despite having the knowledge they committed a crime, would warrant accessory charges even if the person took no part in the crime itself.

To sum it up, if a wife, or any person for that matter, helped a sexual assailant conceal their crime then, yes, that person could be charged as an accessory. Threatening a victim to keep them silent would warrant accessory charges because it’s active concealment. It gets trickier, though, when you start talking about simple knowledge of the crime without any active concealment or help to evade prosecution.

Blowing the Whistle: Former Illinois Police Officer’s Retaliation Lawsuit

The police are there to ensure that laws are neutrally enforced. However, when police start showing favoritism to those with political connections, it often must be the police themselves who bring it to the attention of the public.  This was the situation which, at least allegedly, faced former Village of Orland Hills police officer Mr. David Kristofek.

Mr. Kristofek has been embroiled in a lawsuit with both the Village and its police chief for several years, accusing them of firing him in retaliation for his reporting inappropriate police behavior to the FBI. After narrowly avoiding dismissal several times, his case has just recently  passed the summary judgement phase.

The Village of Orland Hills Turns a Blind Eye

The facts certainly don’t look good for the Orland Hills police. After a traffic stop revealed that that a young man named Alonzo Marshall was driving a car with a suspended registration due to lack of insurance, Mr. Kristofek—along with two other police officers—arrested the man per police department policy.

However, after a slew of phone calls between Mr. Marshall, his mother, the Mayor of Village of Orland Hills, and the police chief Thomas Scully, Mr. Marshall was released and all record of the arrest was confiscated from Mr. Kristofek and deleted from police computers.  When Mr. Kristofek complained to the deputy police chief about the situation, he was told ““Did you not understand what you were [expletive] told?”  The deputy later told Mr. Kristofek that the situation was “above you and me.” Body Cam

Several months later, Mr. Kristofek attended a training seminar on official police misconduct. Ironically, the seminar included a hypothetical with near identical facts to the incident with Mr. Marshall and described it as official misconduct.  Mr. Kristofek grew concerned that he may be criminally liable for his actions and sought legal advice on the issue.  He was advised to report the incident to the FBI and reached out to the other two police officers on the arrest to join him in reporting the misconduct.  The other two officers both declined and Mr. Kristofek reported the incident alone.  What the two officers did do, however, was inform the police chief—Mr. Scully—that Mr. Kristofek was speaking with the FBI.

After learning this, Mr. Scully called Mr. Kristofek to his office, had him confirm that he was speaking to the FBI, and offered him a choice to resign or be fired. Kristofek refused to tender his resignation and was fired.  Scully spoke with a Village Administrator who approved the firing.  The stated reason was that Kristofek “contacted several members of this agency, telling them that the Chief of Police was a criminal and was going to be indicted,” and had “accused the Village of being corrupt.”

Mr. Kristofek filed a retaliation lawsuit against both Police Chief Scully and the Village of Orland Hills itself shortly after this.

Retaliation Explained

Retaliation, at its most basic, is where an employer takes negative employment action (firing, demoting, etc.) against an employee for some sort of protected conduct. Most retaliation lawsuits deal with an employee being fired for reporting an employer’s illegal employment practices.  However, it can apply where an employer takes negative employment action for basically any action an employee takes that is protected by law.

Here, Mr. Kristofek is making a First Amendment retaliation claim, arguing that he—as an employee of the government—was fired for exercising his right to free speech. This a claim that only really applies to public employees as private employers have a great deal of leeway when it comes to firing you for speech they don’t agree with.

In order to succeed in a First Amendment retaliation claim, a public employee such as Mr. Kristofek must show three things:

  1. their speech was constitutionally protected,
  2. this protected speech was the cause of negative employment action taken against them by their employer, and
  3. the employee suffered a harm as a result of this negative employment action.

In this case, the last bit isn’t particularly controversial; if you lose your job, you have been harmed.  The evidence also seems to point towards Mr. Kristofek being fired over speaking to the FBI.  This means that the more complicated issue is whether his speech was protected.

It certainly seems like it should be. If police aren’t protected when they blow the whistle on the misconduct of their fellow officers, it sets a heck of a bad precedent.

Mr. Kristofek’s Case So Far

The district court has dismissed Mr. Kristofek’s case not once, but twice, ruling against him on essentially every factor from whether he was speaking pursuant to his duties to whether the speech was even of public concern. Fortunately, the 7th Circuit Appeals court has reversed the district court both times and salvaged Mr. Kristofek’s lawsuit. This most recent time, the 7th Circuit has even assigned a new district court judge to review the case.

Scully successfully argued to the district court that reporting police misconduct is part of a policeman’s duties and thus speech in this vein is not made as a private citizen. He also argued that the speech was not of public concern, the interest in efficient police duties outweighed the interest in reporting to the FBI, and that the allegations themselves were baseless.

The 7th Circuit Appeals Court was buying none of it. Not only did they point out that courts have always considered reporting corruption a matter of serious public concern, they rejected Sully’s argument that reporting corruption was part of Kristofek’s job. This argument seems particularly silly; it amounts to an argument that Kristofek was fired for doing his job. However, the court rejected it on the grounds that there was no evidence that Kristofek had a duty as an officer to report the incident. The truth of the statements was ruled to be irrelevant because Kristofek’s speech would be protected, regardless of truthfulness, unless he actually knew or was reckless in not knowing that his allegations were false.

While the court felt that the interests weighed in favor of Mr. Kristofek in this case, they made it clear that there could be some cases where the interest in reporting potential misconduct could be outweighed by the disruption it could cause. Misconduct, as a strong public concern, requires a particularly convincing reasons to outweigh the public’s interest. However, where there is little factual basis to the allegations, the court said that the public’s interest could be outweighed.

Preventing police corruption is extremely important, just like all government corruption. The people closest to that corruption are the public employees who work around it.  It’s important that we zealously protect their ability to report misconduct because these employees may be the only people who could report such conduct.  This case is far from over, but the 7th Circuit Appeals court has helped ensure that public employees are receiving the protection they need.