Archive for the 'Laws' Category

Wiretapping: FBI Says Trump’s Claims are Unsubstantiated

When President Trump was elected to office, he visited with President Obama. The meeting went well enough with numerous photos of the two shaking hands, smiling and seemingly enjoying each other’s company. We can assume that cordial relationship is no longer.

President Trump tweeted an accusation against President Obama of wiretapping Trump Tower prior to the election. When pressed about his source, Trump claimed he read in a January 20th New York Times article about President Obama’s wiretapping.

Trump’s Source

Although the New York Times article Trump cites as proof of Obama’s order to wiretap Trump Tower did contain the word “wiretap,” nowhere does it mention that the Obama administration ordered wiretapping. Instead, the article discussed an FBI investigation of possible links between unnamed Russian officials and Trump associates. Ironically, Trump has time and time again taken issue with the New York Times’ reporting, calling them “failing news.”

Why We Should All Be Worried About Trump’s Accusation

Trump’s assertion is alarming for several reasons. First, why is Trump relying on new media outlets, especially ones that he claims are “failing,” for intelligence reports? The president has various intelligence agencies at his disposal with tools that are more comprehensive than any news outlet. And why is he glued to the TV when he should be running the country?

It is also worrisome because we have to question his reading comprehension. If he interpreted an article discussing possible FBI investigation of Trump aides to mean that Obama himself ordered wiretapping, there is a clear disconnect between what he read, what it really means and what he interpreted.

Trump’s interpretation calls into question his understanding of Presidential Powers. Is it possible that Trump believes the F.B.I. serves at the instruction of the President and he therefore believed Obama ordered government surveillance of him and his aides? As the acting President of the United States, one would hope he knows what he can and cannot do.

Finally, does Trump really believe Obama wiretapped Trump Tower? If so, we have to question his mental sanity. He’s acting paranoid, not at all like a President.


The Proof is in the Pudding, and there is No Pudding

The New York Times denied ever writing any article that had the effect of claiming the Obama administration wiretapped Trump Tower. Numerous news outlets and government leaders have also questioned Trump as he points to absolutely no evidence to support his claims.

On Monday, Federal Bureau of Investigation (FBI) Director James Comey revealed that neither the FBI nor the Justice Department have found any information to corroborate Trump’s outlandish claims.

The “fake news” has been coming from President Trump all along.

A Lie is a Lie, but What Happens Next?

This isn’t the first lie Trump has been caught in, and it probably won’t be the last. But will he face any consequences for his lie?

The truth of the matter is that his lie could have serious consequences for former President Obama. Trump supporters believe whatever Trump says. What if one of them tried to harm Obama as retribution? Would that make Trump’s lie criminal?

The First Amendment of the Constitution affords people the right to free speech without government censorship. Nevertheless, constitutional law has its limits. Free speech does not give one the right to incite actions that could harm others. The classic example is falsely shouting “fire” in a crowded theater. The mayhem that could ensue may harm numerous people as people stampede toward the exit.

What about falsely accusing his predecessor of wiretapping him, causing one of his supporters to stage an attack? Probably not. The only way “incitement” would be found is if the speech is substantially likely of causing some illegal activity and the speech is directed to causing it. Hypothetically if President Trump encouraged or asked his supporters to harm his predecessor, he could be prosecuted for incitement. But he didn’t.

There doesn’t seem to be any recourse for Trump’s incessant lying. Perhaps Congress may discuss impeachment, but that seems unlikely. Here’s to hoping he’s impeached on some other grounds and soon.

Net Neutrality: Is This the End?

Towards the end of last month, FCC Chairman Ajit Pai began to take steps to block elements of an order from Obama administration dealing with privacy and net neutrality–the effects of which were set to take effect at the beginning of this month.  Since then, with many already sounding the death knell for net neutrality, the FCC has softened its stance slightly but many remain concerned about the future of net neutrality as a policy as Mr. Pai continues to take steps with the potential to weaken the steps the Obama administration took.

We’ve explored the Obama administrations strides in strengthening net neutrality and an open internet in the past–from the FCC’s Open Internet Order in February of 2015 to last October’s vote limiting the amount of information, types of information and manner in which your internet service provider (ISP) can mine your personal data.  Both of these changes were opposed by Mr. Pai when they were introduced.

Since the advent of the Trump Administration, and the appointment of Mr. Pai, there has been a notable pivoting towards deregulation of ISPs.  With this mind, let’s take a look at what the regulations being affected do, and what their likely future will be.

The FCC’s Approach to Net Neutrality and What it Means?

The Open Internet Order is almost certainly the single most substantial advancement towards net neutrality our government has taken in a decade–finally providing a means of actually enforcing net neutrality as a concept.  Net neutrality, for those unfamiliar with the term, is the concept that internet providers should treat all data on the internet equally—regardless of source.  All information passing through broadband networks and backbone networks should be given equal priority to the extent possible without effecting function.  For instance, text on a website can have data packets arrive in any order while video and audio must arrive in a specific order and in a timely fashion to function—net neutrality doesn’t require companies to ignore the concerns of functionality.

net neutralityWhat net neutrality does is prevent blocking of content, throttling content (intentionally slowing down some content or speeds up others), and paid prioritization where some services are stuck in a “slow lane” because they do not pay a special fee. Essentially, it keeps ISPs in the business of charging users for internet connection as opposed to charging edge providers for users while the people buying internet service from them suffer.

The Open Internet Order, a 183-page behemoth, changed the classification of ISPs to that of a public utility such as telephone services–often known as common carrier status.  It also sets forth five rules that ISPs must abide by:

  1. ISPs “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
  2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
  3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
  4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
  5. ISPs must offer transparent specifics on how they run their broadband networks.

The policy also provides for an exception for reasonable management of a broadband network. ISPs are allowed to prioritize data so as to keep things running smoothly, but cannot use this for their own commercial advantage.

Getting to this point, however, was quite an uphill battle, both in the courts and within the FCC itself. The FCC initially proposed much weaker regulations.  However, the combination of a call from then-President Obama for stronger rules, 4 million comments filed with the FCC, and protesters who went so far as to sit in the FCC Chairman’s driveway and demand a stronger policy, all came together to convince the FCC to pass the final version of the Open Internet Order.

This progress seemed to come to a standstill after a February 24th statement from the FCC declaring that Mr. Pai had taken steps to block the privacy rules mentioned above–changes which were set to go into effect at the beginning of this month.  This statement was widely taken as a first step towards rolling back the clock on net neutrality and common carrier status for ISPs–many speculated an ultimate goal of deregulating the market as much as possible.  Indeed, the language of the statement included commentary noting that Mr. Pai intended to “harmonize the FCC’s privacy rules for broadband providers with the [Federal Trade Commission]’s standards for others in the digital economy.”  This was taken as an implication that Pai aimed to remove common carrier status from ISPs–treat them the same as others in the digital economy.  This would basically neuter the Open Internet Act by undermining the legal premise on which it applies authority to ISPs in the first place.

The Future for Net Neutrality

The fears of those in support of net neutrality, an end to net neutrality as a concept, does not appear to be in the cards at this point.  Instead the likely outcome, based on the comments coming out of the FCC and those reporting on the FCC, is a substantial weakening of the Open Internet Order.

It is still unclear exactly what form this would take.  However, it has been implied that it would likely to see changes allowing ISPs to prioritize data in certain situations–basically creating carveouts to the general rule.  There’s no particular indication as to what these carveouts might include, but it is easy to imagine a situation where exceptions could swallow the rule.

A large part of why Mr. Pai is likely to take this approach is that the Open Internet Order is already final and has endured the rigors of fierce court challenges; precedent is on its side.  This means that just killing the rule would be fairly difficult for the FCC.  If the rule was to be fully stripped away, it would most likely involve an act of Congress explicitly doing so.  However, Congress and the Trump administration do not seem to be making such legislation a priority.

The argument against net neutrality and the Open Internet Order has always been that it takes away ISP’s motivation to improve the speed and capacity of their networks–although precious little evidence of this has actually been produced.  Frankly, the dangers of allowing ISPs to control access on the internet seem far greater.  The Open Internet Order doesn’t seem to be on the chopping block, but we’ll have to see if what we’re left of the Open Internet Order will actually accomplish what it set out to do.

Alford Plea: How a 19 Year-Old Teen Gets Community Service for Sexual Assault

A 19-year old Idaho teen that was accused of kicking a coat hanger up the rectum of a mentally disabled teammate plead guilty and received a mere sentence of 300 hours of community service.  Former high school football player, John R.K. Howard, was originally charged with forcible penetration by use of a foreign object, but the case was later found not to be about sexual assault and the teen was ultimately sentenced on a felony injury to a child charge.

According to the victim’s account of what happened, one of his friends motioned him over for a hug whereupon another teammate shoved a coat hanger into his body, after which Howard kicked the hanger pushing it further into his body.  Howard admitted he kicked the victim, but denied that he intentionally kicked the hanger itself; in fact, his attorney argued Howard may not have even known about the hanger.

The case caused quite an uproar in the small town of Dietrich, Idaho.  The victim’s family argued the victim had been continually bullied, while those in support of Howard and the other students charged urged the victim had fabricated the whole incident at the request of his parents for the sake of the financial gain that would come out of a lawsuit.  Despite the murky facts the case presents, Howard chose to plead guilty under an Alford Plea.

alford plea“I’m Guilty, But Not Really”

When a defendant enters a guilty plea, they’re admitting their guilt to the crime, usually as a trade-off for a reduced charge and a lesser sentence.  An Alford Plea gives the defendant the benefit of the lesser sentence without admitting guilt—the defendant gets to maintain his or her innocence for the crime.

Judges do have discretion to either accept or reject a plea, so maintaining innocence isn’t normally something that you would see when entering a guilty plea.  The Alford plea originated from a U.S. Supreme Court decision that held a judge can accept a guilty plea from a defendant that doesn’t really want to admit guilt; this allows the defendant to get the benefit of the bargained-for sentence even though they’re wavering on actual guilt.  When entering this kind of plea, Judges will ensure:

  • Whether the defendant is making a smart decision. Does the defendant understand what the plea means?  Does the defendant understand the rights they’re giving up?  Does the defendant understand that, even though they’re maintaining their innocence, they’ll still be considered (and treated as) guilty?  It will still be a criminal record just the same.
  • Is there enough evidence against the defendant for a guilty verdict at trial? You can’t plead guilty under an Alford Plea if there isn’t enough proof you’ve committed the crime.

Alford Plea Benefits Both Sides

Under an Alford Plea, a defendant admits that the evidence against them would likely persuade a judge or jury to find a verdict of guilty beyond a reasonable doubt, but maintains his or her innocence.  That doesn’t exactly sound like a real guilty plea then, so why are they even allowed?

In the case that went to the U.S. Supreme Court that led to the development of the Alford Plea, at the defendant’s guilty plea hearing he testified that he didn’t commit the crime he was charged with, but was pleading guilty to avoid getting a death penalty sentence.  That’s the plus side to any guilty plea—pleading guilty to a lesser crime to avoid a heavier sentence.  For the state, it’s about judicial efficiency, but for a defendant it’s about not gambling the odds.

Not every state allows Alford Pleas and in those states a defendant would have to plead “not guilty” to maintain their innocence.  For all intents and purposes, this costs time and money because it leads to a lengthy trial.  Plea deals keep cases off the docket, ensure time served, and give defendants the benefit of a lesser sentence.

Teen Could Get Conviction Dismissed

The evidence against Howard must have been damning for him to take the plea, but it paid off for him because he won’t have to serve any jail time.  The sentenced Howard to 300 hours of community service, but granted a withheld judgment.  Under Idaho law, judgments can be withheld to get them off the docket.  The benefit of this kind of judgment is that it gives the defendant a chance to have his record cleared later.

Here’s how it typically works—a defendant pleads guilty, is granted a withheld judgment, the case is closed, and, if the defendant abides by the term of their guilty plea, the conviction gets dismissed.  Think of it like putting your case on hold—a probationary period if you will.  If you behave, don’t get in any more trouble, and follow the terms of your guilty plea agreement with the state, then your case gets dismissed at the end of the probationary period.

CA Supreme Court Declares Government Emails to be Official Records

Private emails used for public business have been more than a little bit of a sticking point for several high profile politicians.  It would hardly be an exaggeration to say that private emails characterized our most recent election.  In a streak of extreme irony, it even came to light a few weeks back that Vice President Mike Pence had used his private email account to conduct official government business while he was Governor of Indiana.  The difference between the two incidents–Clinton and Pence–being that while Clinton sent emails through a server set up for the private use of her family; Pence sent emails from a plain Jane AOL account.

government emails

Frankly, both of these incidents are far from a new concept and neither deserved anywhere near the scrutiny they received.  It’s remarkably common for government agents to use private email accounts–so much so that a recent California Supreme Court case pitting the City of San Jose against one Ted Smith has ruled that the California Public Records Act (CPRA) and the California Constitution demand that the public be allowed access to the private emails and personal devices of government officials where the officials use these tools to conduct public business.

There are many who would salivate at the opportunity were such a ruling on the federal level.  However, the Freedom of Information Act (FOIA)–the federal predecessor of the CPRA–has a number of differences from California’s Public Records Act which make a ruling of this sort highly unlikely on a federal level.  To fully understand why, let’s look at the California Supreme Court case itself, as well as the differences between FOIA and the CPRA.

Figuring Out Where Private Meets Public

The case the California Supreme Court just decided started all the way back in June of 2009 when Ted Smith used the CPRA to request the disclosure of 32 categories of public records from the City of San Jose, its agency handling redevelopment, and a number of other named government officials and employees.  Some of the documents Mr. Smith asked for included text messages and emails sent or received on private electronic devices used by the mayor and a number of government officials and their staffers.  San Jose responded to the request with all the communications made with official city accounts, but refused to produce anything from a personal account.

Mr. Smith was unsatisfied with this result, and sued to get the information from the personal accounts as well.  At first, Mr. Smith won access easily with the district court giving him access to the documents through summary judgment.  However, the Court of Appeals basically issued an order telling the city not to disclose.  Now, nearly 8 years later, the California Supreme Court has finally decided that the CPRA guarantees Mr. Smith the right to access these personal accounts.


As mentioned above, FOIA is one of the most substantial leaps in government transparency of the last century.  Made law in 1966, the Act allows for the full or partial disclosure of otherwise unreleased information held by the U.S. government upon a request from the member of the public following certain procedures.  The Act requires every agency to, upon any request for records which reasonably describes those records, to promptly make the records available to the person who asked.  The law also gives courts the power to order production where an agency refuses to produce documents which are properly requested.

FOIA itself has been subject to quite a bit of limitations over the years.  While the Privacy Act of 1974 expanded the power to request documents under FOIA, the Act has a number of specifically enumerated exceptions that are quite broad.  These exceptions include the following:

  • Information related to information where disclosure would constitute a breach of privacy (especially relevant in the context of comparing FOIA to the CPRA ruling)
  • Information relating to national defense,
  • Foreign policy documents
  • Information related solely to internal personnel rules and practices,
  • Information related to accusing a person of a crime,
  • Information related to investigatory records where the information would harm the proceedings,
  • Information which would lead to financial speculation or endanger the stability of any financial institution
  • Information related to the agency’s participation in legal proceedings.
  • Information exempted by a specific statute.
  • Information related to financial agency operations
  • Law enforcement records
  • Federal agency internal memorandum, and
  • Oil well data.

As you can see, the exemptions are quite broad and quite numerous.  The first exemption, ruling out info that would breach the privacy of individuals would obviously put a serious cramp in any ruling such as the California Supreme Court’s recent decision.  However, it serves to highlight the distinction between FOIA and the CPRA.

Many states have their own versions of FOIA which mirror it to some degree or another, the CPRA is California’s.  So similar are they that case law dealing with FOIA is often accepted in reaching decisions under the CPRA.  However there is a substantial distinction between the two laws, and that distinction is a doozy.

The CPRA states that  “access to information concerning the conduct of the people‟s business is a fundamental and necessary right of every person in this state.” In fact, since 2004, it has been a right guaranteed by the California Constitution.  This means that, although the CPRA is subject to several exceptions, its provisions have much more legal punch than FOIA could ever hope to have.

At the same time, the California Constitution also guarantees something else no other constitution in the U.S. offers–state or otherwise.  A constitutional right of privacy.  These two guarantees came into play in the CPRA decision.

Understanding the CPRA Decision

These two constitutional guarantees–access to public records and privacy–were the central conflict of the California Supreme Court’s decision.  The court felt that, while public access must yield to personal privacy on some occasions, the importance of government accountability is an even stronger interest–at least most of the time.

The constitutional right of public access in California explicitly does not supersede of modify existing privacy rights.  However, the Court felt that the ability to essentially hide information from the public by exploiting a loophole for public business sent via a nongovernment account.  They recognized that an agency is not a monolith, but rather a sum of its employees.  For those reasons, the public business sent by those individuals should be accessible to the public.

The ruling did provide some limits to this access, any information sought must relate in some substantive way to the conduct of the public’s business.  This determination would look to the context of the communication, the content, the audience, etc.  Where a determination finds that the content is primarily public business, the ruling could allow access to Twitter messages, Facebook messages, private emails, physical smart phones, and more.  State employees can file affidavits with factual support of the personal nature of a communication in order to avoid a requirement of disclosure.

Government Emails are Public, But Only in California (For Now)

This ruling represents a huge step in public access.  Unfortunately, the ruling is almost certainly unique to California–neither FOIA or any other state analog is similarly situated for a ruling to allow such access.  That being said, such changes are not totally out of the question.  For example, Washington courts have situationally allowed access to private communications addressing public matters via court rulings on FOIA.  There will continue to be a tension between the access of the public and the privacy of government employees as this area of law develops–and rightly so.  However, it is hard to argue that increasing government transparency is not in the public’s best interest.

Trumpcare: Who Will Suffer Under the New Plan?

For the past several years, the GOP has vocalized their opposition to Obamacare. Now that they have control of Congress and the Executive branches, they’re finally doing something about it.

The American Health Care Act, coined “Trumpcare,” is the Republicans’ response to the “failed” Obamacare.

Why Repeal Obamacare?

According to the GOP, Obamacare is collapsing, and it must be repealed in order to protect Americans. They point to health insurance premiums that were created by the law that increased markedly this year. Why? Insurers didn’t anticipate so many medical claims would be filed by their consumers. If you believe the GOP’s argument, Obamacare is unsustainable and will eventually leave millions without health care. According to the Speaker of the House of Representatives Paul Ryan, it is an “act of mercy” introducing a new health care bill.

But the proposed Trumpcare would actually leave millions more uninsured. Under Obamacare, most people are still able to get health plans for less than $100 due to subsidies provided under the plan, which taxes the wealthy in order to provide health insurance plans to the masses. Trumpcare no longer will tax the wealthy to help subsidize health care for those who struggle to pay for health insurance.

Who Will Suffer Under Trumpcare?Trumpcare

Trumpcare will leave millions of people without health insurance. It will potentially leave 14 million Americans uninsured under the new health care bill than under Obamacare in 2018, rising to 24 million by 2026.

There are also specific groups of people who will be most negatively impacted by Trumpcare.

Low-income Elderly

According to an analysis by the Congressional Budget Office (“CBO”), the American Health Care Act would be devastating to older Americans who obtain their insurance from the individual market. While the proposed bill will lower overall premiums in the individual market by 10 percent by 2026 as compared to Obamacare, the premium amounts depend on age and income. Specifically, a younger and presumably healthy person could pay less in premiums than an elderly person with many ailments.

The CBO gave this example: a person with an annual income of $26,500 that is 21 years would pay on average $1,700 in premiums for insurance on Obamacare, but on Trumpcare, that same person would pay $1,450. Sounds great, right?

But if that person is 64 years old with the same annual income of $26,500, he would still pay $1,700 in premiums under Obamacare, but pay a whopping $14,600 in premiums under Trumpcare. That’s more than half of his income toward medical premiums. For most, that is prohibitively expensive.

Women on Medicaid

The amount of women on Medicaid who seeks contraceptive care will lose that care in enormous numbers. The Trumpcare proposal plans to defund Planned Parenthood for one year. It will prohibit patients from using their Medicaid coverage at Planned Parenthood. Medicaid is a government program that helps low-income people obtain medical coverage.

Defunding Planned Parenthood will affect services that help women avert pregnancies. Moreover, there are few health care clinics or medical practitioners that are willing to serve the low-income population. Restricting access to contraceptive care can lead to several thousand more births to children that will eventually be on Medicaid themselves. Ultimately, this could cost as much as $21 million in 2017.

Trump Supporters

Ironically, Trumpcare will severely hurt many of those that voted for him. Research shows that the Trump voter does better under Obamacare than Trumpcare. How can this be? Most of the people who voted for Trump were older, lower-income citizens. It appears that despite all his promises regarding health care to his voters, Obama did more for them than Trump. When confronted with this reality in an interview, President Trump responded, “Oh, I know.” Go figure.