Things tagged law:

Preliminary thoughts on the Apple iPhone order in the San Bernardino case: Part 3, the policy question

Orin Kerr in The Volokh Conspiracy:

In this post, the third in a series, I want to discuss what I think is the policy question at the heart of the Apple case about opening the San Bernardino iPhone. The question is, what is the optimal amount of physical box security? It’s a question we’ve never asked before because we haven’t lived in a world where a lot of physical box security was possible. Computers and cellphones change that, raising for the first time the question of how much security is ideal.



Judge to DOJ: Not All Writs

And Andrew Crocker at the EFF explains why the goverment is overreaching with the use of All Writs:

Reengineering iOS and breaking any number of Apple’s promises to its customers is the definition of an unreasonable burden. As the Ninth Circuit put it in a case interpreting technical assistance in a different context, private companies’ obligations to assist the government have “not extended to circumstances in which there is a complete disruption of a service they offer to a customer as part of their business.” What’s more, such an order would be unconstitutional. Code is speech, and forcing Apple to push backdoored updates would constitute “compelled speech” in violation of the First Amendment. It would raise Fourth and Fifth Amendment issues as well. Most important, Apple’s choice to offer device encryption controlled entirely by the user is both entirely legal and in line with the expert consensus on security best practices. It would be extremely wrong-headed for Congress to require third-party access to encrypted devices, but unless it does, Apple can’t be forced to do so under the All Writs Act.

Via darringfireball



The big sleep

Julia Medew in The Age:

The two scientists relished life. They skied, went bushwalking and climbed mountains, often taking their three young daughters with them. Their cultural and intellectual pursuits were many - classical music, opera, literature, wine, arguments over dinner with their many friends. They donated 10 per cent of their annual income to political and environmental movements. Family events were spent thoroughly debating the topics of the day.

As their capacity declined, the conversation about ending their own lives became more serious and their rejection of what Peter called “religious do-gooders” became more fierce.

“It was also a way into their favourite topics; philosophy, ethics, politics, the law …,” says their youngest daughter, Kate. “The idea that their end-of-life decisions could be interfered with by people with the superstitions of medieval inquisitors astounded them, and alarmed them.”

Via Next Draft



When does your religion legally excuse you from doing part of your job?

Eugene Volokh in The Volokh Conspiracy:

Yet besides her losing claim in the federal lawsuit, it seems to me that Davis has a much stronger claim under state law for a much more limited exemption. Davis’s objection, it appears (see pp. 40, 133, and 139 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with

Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.

Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.

And allowing all marriage licenses and certificates — for opposite-sex marriages or same-sex ones — to include a deputy clerk’s name, or just the notation “Rowan County Clerk,” wouldn’t jeopardize any compelling government interest.

If Davis sues in state court, seeking a declaration that she can issue licenses and certificates without her name — as a Kentucky RFRA-based exemption from the Kentucky statutory requirements for what must go on her license — I think she’d have a good case. The federal district court rejected her Kentucky RFRA argument on the grounds that the requirement doesn’t much burden her beliefs:

The record in this case suggests that the burden [on Davis] is more slight. As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk. The Court therefore concludes that Davis is unlikely to suffer a violation of her free exercise rights under Kentucky Constitution § 5.

But though I agree that her religious convictions can’t excuse her from issuing marriage licenses altogether, I think the judge erred in the rest of the analysis in this paragraph. If Davis believes that it’s religiously wrong for her to issue licenses with her name on them, ordering her to do that indeed burdens her religious beliefs, enough to trigger the Kentucky RFRA. And giving her the more modest exemption from the include-the-court-clerk’s-name requirement might therefore indeed be required by the Kentucky RFRA.

So if Kim Davis does indeed go through the state courts, and ask for a modest exemption under the state RFRA — simply to allow her to issue marriage licenses (opposite-sex or same-sex) without her name on them — she might indeed prevail. Rightly or wrongly, under the logic of Title VII’s religious accommodation regime and the RFRA religious accommodation regime, she probably should prevail.

There’s a lot of appeal to the “you take the job, you follow the rules — if you have a religious objection to the rules, quit the job” approach may be. But it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.

Muslim truck drivers who don’t want to transport alcohol, Jehovah’s Witnesses who don’t want to raise flags, Sabbatarians (Jewish or Christian) who don’t want to work Saturdays, and philosophical vegetarians who don’t want to hand out hamburger coupons can take advantage of this law. Conservative Christian county clerks who don’t want to have their names listed on marriage certificates and licenses likely can, too.



The Hell You Say

The new battles over free speech are fierce, but who is censoring whom?

Kelefa Sanneh in The New Yorker:

A patron stepped into the d.j. booth to ask that the song be cut short—she later explained that she wanted to “create a safe space,” and that Thicke’s lyrics evoked threats of sexual violence. The d.j. rebuffed her, and in the days that followed she and her allies took to social media to voice their dissatisfaction, suggesting that the pub was promoting “rape culture.” Before long, Fitzgerald’s conceded defeat, apologizing to the patron on Facebook and promising that “Blurred Lines” would not be played there again and that the offending d.j. would never be invited back.

Via NextDraft



Who Runs the Streets of New Orleans?

David Amsden in The New York Times:

On the morning of Sunday, March 29, Sidney Torres was sipping an espresso in the kitchen of his mansion on the edge of the French Quarter when a jarring notification lit up his iPad and two iPhones. Pimps fighting with drug dealers and johns. Man has gun. Hurry. The message came from a neighbor 10 blocks away, on St. Louis Street, and was sent through a venture Torres started four days earlier: a private police patrol that could be summoned via mobile app.



The Man Who Shot Michael Brown

Jake Halpern in The New Yorker:

Wilson said that, despite what he’d said about experiencing “culture shock,” race hadn’t affected the way he did police work: “I never looked at it like ‘I’m the only white guy here.’ I just looked at it as ‘This isn’t where I grew up.’ ” He said, “When a cop shows up, it’s, like, ‘The cops are here!’ There’s no ‘Oh, shit, the white cops are here!’ ” He added, “If you live in a high-crime area, with a lot of poverty, there’s going to be a large police presence. You’re going to piss people off. If police show up, it’s because it’s something bad, and whoever’s involved can’t figure out the problem for themselves.”

He continued, “Everyone is so quick to jump on race. It’s not a race issue.” There were two opposing views about policing, he said: “There are people who feel that police have too much power, and they don’t like it. There are people who feel police don’t have enough power, and they don’t like it.”



Training Officers to Shoot First, and He Will Answer Questions Later

Matt Apuzzo in The New York Times:

A string of deadly police encounters in Ferguson, Mo.; North Charleston, S.C.; and most recently in Cincinnati, has prompted a national reconsideration of how officers use force and provoked calls for them to slow down and defuse conflicts. But the debate has also left many police officers feeling unfairly maligned and suspicious of new policies that they say could put them at risk. Dr. Lewinski says his research clearly shows that officers often cannot wait to act.



How America Overdosed on Drug Courts

Maia Szalavitz in Pacific Standard:

Hailed as the most compassionate way for the criminal justice system to deal with addicts, drug courts were designed to balance punishment with rehabilitation. But after 25 years, the verdict is in: Drug courts embolden judges to practice medicine without a license—and they put lives in danger.



The Milwaukee Experiment

Jeffrey Toobin in The New Yorker:

Like many people in the criminal-justice system, John Chisholm, the District Attorney in Milwaukee County, has been concerned for a long time about the racial imbalance in American prisons. The issue is especially salient in Wisconsin, where African-Americans constitute only six per cent of the population but thirty-seven per cent of those in state prison. According to a study from the University of Wisconsin-Milwaukee, as of 2010 thirteen per cent of the state’s African-American men of working age were behind bars—nearly double the national average, of 6.7 per cent. The figures were especially stark for Milwaukee County, where more than half of African-American men in their thirties had served time in state prison. How, Chisholm wondered, did the work of his own office contribute to these numbers? Could a D.A. do anything to change them?

The recent spate of deaths of unarmed African-Americans at the hands of police officers has brought renewed attention to racial inequality in criminal justice, but in the U.S. legal system prosecutors may wield even more power than cops. Prosecutors decide whether to bring a case or drop charges against a defendant; charge a misdemeanor or a felony; demand a prison sentence or accept probation. Most cases are resolved through plea bargains, where prosecutors, not judges, negotiate whether and for how long a defendant goes to prison. And prosecutors make these judgments almost entirely outside public scrutiny.

Chisholm decided to let independent researchers examine how he used his prosecutorial discretion. In 2007, when he took office, the Vera Institute of Justice, a research and policy group based in New York City, had just begun studying the racial implications of the work of the Milwaukee County District Attorney’s office. Over several years, Chisholm allowed the researchers to question his staff members and look at their files. The conclusions were disturbing.



Algorithms and Speech

Stuart Minor Benjamin in the University of Pennsylvania Law Review:

More and more of our activity involves not merely the transmission of bits, but the transmission of bits according to algorithms and protocols created by humans and implemented by machines. Messages travel over the Internet because of transmission protocols, coding decisions determine the look and feel of websites, and algorithms determine which links, messages, or stories rise to the top of search engine results and web aggregators’ webpages. Most webpages have automated components, as do most online articles and all video games. Are these algorithm-based outputs “speech” for purposes of the First Amendment? That is, does the Free Speech Clause of the First Amendment apply to government regulation of these or other algorithm based changes to bits?



Under the Veil

Posted by Eugene Volokh to Volokh.

I have a piece on the subject in National Review Online this morning. Here’s the introduction:

Recent years have seen a set of requests by Muslims for exemptions from generally applicable laws and work rules. A Muslim policewoman in Philadelphia, for instance, asked for an exemption from police-uniform rules so that she could wear a Muslim headdress. A few years ago, a Muslim woman in Florida asked that she be allowed to wear a veil in a driver’s license photo. Last year, a Muslim woman in Michigan asked that she be allowed to testify veiled in a small-claims case that she brought.

All these claims were rejected by courts, and likely correctly, though the arguments for the rejection are not open-and-shut. But some of the public reaction I’ve seen to the claims suggests that people are seeing such claims as some sort of special demands by Muslims for special treatment beyond what is given Christians, Jews, and others. And that turns out not to be quite so: While the claims are for religious exemptions for Muslims, they are brought under general religious-exemption statutes that were designed for all religions and that have historically benefited mostly Christians (since there are so many Christians in America).

The Muslim exemption claims are plausible attempts to invoke established American religious-exemption law, and they deserve to be treated as such – even if there are good reasons for rejecting them, as American religious-exemption law recognizes. Let us briefly review this law, so that this becomes clearer….