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Can the Government Force You to Unlock Your Computer?

Via the Denver Post: An interesting case in federal court in Colorado: The feds seize a computer pursuant to a search warrant. But when they try to access the data, it's encrypted. Can the court force the computer owner who is now a criminal defendant, to unlock the data?

Ramona Fricosu and her ex-husband Scott Whatcott are indicted for bank fraud arising from an alleged mortgage scam in Colorado Springs. The feds say the incriminating evidence is on the seized computer.

The Government is asking the Court, under the authority of the All Writs Act, to force Ms. Fricosu to unlock the data. [More...]

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Will Stratfor Be Liable for the Security Breach?

Stratfor has sent out this updated message on the hacking of its subscriber data base, which included customer credit card information.

At least one person's data I saw on Pastebin had the full credit card number and 3 digit "CVV" code (I'm not linking to it.) If Stratfor didn't encrypt the card data and left the full credit card numbers and pins on its servers, I wonder whether it failed to be in full compliance with PCI Data Security Standards. See page 14: [More...]

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Lawyer Jailed for Advising Client to Assert 5th Amendment Right

Michigan attorney Scott Millard, 29, was held in contempt of court and jailed Dec. 1 for instructing his client to "take the 5th" and refuse to answer a judge's question at his arraignment and bond hearing. The judge had asked the client when was the last time he had taken drugs. Millard was released four hours later when a higher court granted a stay.

The transcript is here.

If Judge Post is found to be in violation of the law - which many attorneys and former judges who spoke with 24 Hour News 8 believe he is - he could face anything from censure to removal from the bench.


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NBAPA Disclaims, Files Antitrust Suit Against NBA

Question presented - Is a professional sports league a single entity under Section 1 of the Sherman Act?

For more on the single entity question, see American Needle v. NFL. See also this post.

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Justice Dep't Files Antitrust Suit To Block ATT/T-Mobile Merger

NYTimes DealBook:

The Justice Department filed a complaint on Wednesday to block AT&T’s proposed $39 billion acquisition of T-Mobile, a deal that would create the largest carrier in the country and reshape the industry.

The complaint, which was filed in the United States District Court for the District of Columbia, said that T-Mobile “places important competitive pressure on its three larger rivals, particularly in terms of pricing, a critically important aspect of competition.” The complaint also highlighted T-Mobile’s high speed network and its innovations in technology.

Here is the complaint. Here is Department of Justice Statement:

In order to ensure that competition remains and that everyone – including consumers, businesses and the government – continues to receive high quality, competitively priced mobile wireless products and services, the Department of Justice today filed an antitrust lawsuit in U.S. District Court in Washington, D.C. to block AT&T’s acquisition of T-Mobile.

The Department filed its lawsuit because we believe the combination of AT&T and T-Mobile would result in tens of millions of consumers all across the United States facing higher prices, fewer choices and lower quality products for their mobile wireless services.

More detailed analysis on the flip.

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DOJ/ US Trustee Seeks To File Appeal of CA Bankruptcy Court's DOMA Ruling

The United States Trustee for California has filed a Motion For Leave To Appeal the ruling by the US Bankruptcy Court for the Central District of California which declared DOMA unconstitutional. The filing, in the case In re Balas and Morales (11-bk-17831-TD Doc 53), states that:

Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.

A strange submission. the Justice Department believes that DOMA is unconstitutional, but is appealing a ruling that DOMA is unconstitutional. The filing indicates that the opportunity to brief this issue was provided to the Congress, which declined to participate, and there is no indication that Congress wants to participate in an appeal. So who exactly is seeking reversal here?

While it is true that Justice has a duty, to a point, to defend duly enacted laws, there are limits to this duty. And indeed, the United States Trustee in this case does not seem to have much inclination to provide a meritorious defense in this appeal. Not a decision I fully understand (indeed, it defies my prediction of no appeal in this case.)

Speaking for me only

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ACA Without A Mandate?

This report on the oral argument before a panel of the Eleventh Circuit on the constitutionality of the Affordable Care Act might indicate that the panel is prepared to strike down the individual mandate portion of the law. But what about the rest of it?

Judge Frank Hull, the third member of the panel, repeatedly asked the lawyers about the possible effect of the court striking down the mandate, while upholding the rest of the law. She said the government had exaggerated the importance of the mandate. It will affect about 10 million persons at most, not the roughly 50 million who are uninsured now. She said the other parts of the law will extend insurance to tens of millions of persons.

Things that make you go hmmm. Personally, I'll believe that an appellate panel will strike the mandate down when I see it, but I've been wrong before.

Speaking for me only

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Judge Rejects DOMA As Bar To Joint Bankruptcy Filing By Gay Couple

In In re Sommers and Caggano, Bankruptcy Judge (in the Southern District of New York) Cecilia Morris denied the United States Trustee's motion to dismiss the joint bankruptcy petition of a gay couple, who were married in Vermont, on DOMA grounds. The judge wrote:

[T]he constitutionality of DOMA has been questioned by two cases filed in the district courts of this Circuit. [cites omitted] The Department of Justice also concluded that DOMA would not withstand constitutional analysis under heightened scrutiny. See Letter from Tony West to Judge Barbara S. Jones (Feb. 24, 2011) [. . .] (containing as an attachment Letter from Eric H. Holder, Jr. to John A. Boehner (Feb. 23, 2011)). In Windsor v. United States, which is currently pending in the Southern District of New York, the Assistant Attorney General filed a letter stating that "heightened scrutiny is the appropriate standard of review for classifications of sexual orientation" and that "[s]ection 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law; and that the Department will cease its defense of Section 3 in such cases." See Letter from Tony West to Judge Barbara S. Jones (Feb. 24, 2011) (Docket No. 10), Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.).

[MORE . . .]

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Federal Courts, the Budget and Immigration Cases

The Federal judiciary can run for about two weeks if there's a shutdown. After that, things will get dicey.

The federal court budget request for 2012 contains only a modest increase. By contrast, the Department of Justice and Homeland Security budgets contain big increases, which will mean more federal criminal cases. The courts don't have the luxury of declining cases. If the feds bring them, they have to hear them.

A big part of the cost is the slew of immigration cases: From Judge Julia Gibbons testimony to a House Appropriations subcommittee released today:

Criminal case filings nationally grew 25 percent between 2000 and 2010 with immigration prosecutions in the five judicial districts along the Southwest Border fueling that growth. Immigration caseload now accounts for 36 percent of all criminal prosecutions nationwide and has surpassed drug and fraud prosecutions combined. These immigration prosecutions are separate from the immigration actions handled administratively by the Department of Homeland Security and Department of Justice.


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Antitrust Law And The NFL

Disclosure: I represent and have represented clients involved in antitrust matters, both as plaintiffs and defendants.

The National Football League and the NFL Players Association failed to reach agreement on a new collective bargaining agreement last week. This failure has led to a number of actions. First, prior to the expiration of the then existing collective bargaining agreement, the NFLPA decertified as a union. Second, the NFL has locked out the players (meaning that they are refusing to hire or continue the employment of the players.) Third, NFL stars Peyton Manning, Tom Brady and Drew Brees, among others, have filed an antitrust suit (PDF) against the NFL. Lester Munson provides a good (though NFLPA friendly) recap. To understand how all of this happened, it is important to revisit how they got here. On the flip, I'll review some of the issues, and give my view of where this might go.

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FL Supreme Court Rules Against HSR Proponents

Here's the ruling (PDF):

Based on the limited record before the Court and a review of the federal and state law relied on by the parties, the Court has determined that the petitioners have not clearly demonstrated entitlement to quo warranto, mandamus, or any other relief. Accordingly, the emergency petition is hereby denied.

The reasoning is not explained, but my view is that the Petitioners' failure to explain and argue what Scott needed to do NOW (i.e. - the ministerial act of signing the agreement with the federal DOT as required by Florida law), as opposed to what he might need to do later, was fatal to their Petition. Perhaps a better argument would have yielded the same result, but now we will never know.

Speaking for me only

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Oral Argument Before FL Supreme Court On Gov. Scott's Refusal To Accept Federal HSR Money

You can watch it here.

My personal view is that the main argument that the HSR proponents should have forwarded - that the Governor's acceptance of the federal funds for the HSR project was ministerial in nature(the signing of the agreement with the federal DOT) and that Governor Scott had no discretion to refuse to sign the agreement as Florida law required him to do so - was lost in the mire.

Instead the argument was bogged down on the question of whether subsequent Florida legislative appropriation were subject to the Governor's approval (it is of course, by veto or line time veto, subject to being overridden by the legislature.)

The question the HSR proponents should have focused on was what Governor Scott needs to NOW to accept the federal funding, as opposed to what Governor Scott may choose to do in the future (veto appropriations for the HSR project.)

Not the best oral argument I've seen. As I count the votes for the actual relief the HSR proponents seek, I do not think the votes are there. Chief Justice Cannady and Justice Lewis are votes for denying relief. Perry and Quince are likely to vote for some form of relief. Justice Pariente probably wants to vote for some form of relief, but is struggling to see how she can do it. Justices Polston and LaBarga did not appear to indicate any particular view on the issue.

Speaking for me only

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FL Supreme Court To Hear Arguments Today On Compelling Rick Scott To Take The Money

On March 1, 2011, two Florida legislators filed the promised suit challenging Florida Governor Rick Scott's purported rejection of $2.4 billion of federal high speed rail funds. The petition is here (PDF).

The principal arguments are that (1) the Legislature has already appropriated the funds through legislation passed prior to Scott's ascension to the governorship and thus Scott has nothing to say on the matter except in a routine ministerial capacity and (2) Scott's failure to carry out laws duly enacted by the Legislature violate his duty to take care that the laws of the state are faithfully executed.

The Supreme Court immediately order Scott to respond and he has done so. Scott's response is here (PDF). The Petitioners replied to Scott's response. The reply is here (PDF) Argument before the Supreme Court is scheduled for today at 3:00 pm. The hearing may be viewable here (specifically here.) An analysis of the filings is provided below the fold.

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Citizens United And Political Solidarity Strikes

Jay Ackroyd writes:

I think some people need to be reminded that many tactics in support of the public workers unions in Wisconsin are illegal under the Taft-Hartley Act:

The Taft–Hartley Act prohibited jurisdictional strikes, wildcat strikes, solidarity or political strikes, secondary boycotts, secondary or "common situs" picketing, closed shops, and monetary donations by unions to federal political campaigns.

In Citizens United, the Supreme Court implicitly struck down the Taft-Hartley Act's prohibitions against certain political expenditures. Would the logic of Citizens United extend to Taft-Hartley's prohibition against political solidarity strikes? The Citizens United court wrote:

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Can Rick Scott Be Compelled To Greenlight Florida's HSR Project?

Orlando Sentinel:

The high-speed train between Orlando and Tampa got an unexpected one-week reprieve Friday, just hours after Gov. Rick Scott again rejected $2.4 billion in federal money for the project. The sudden shift may have been triggered by a possible lawsuit against Scott contending he has overstepped his authority by killing the train. The suit, which could be filed as soon as Monday, is expected to argue that a law passed by the Legislature during a special session in 2009 compels Scott to pursue the train. Two sources close to the situation said the suit likely would be filed with the state Supreme Court in Tallahassee. It was unclear who would sign on to it.

(Emphasis supplied.) Can the Florida Supreme Court compel Rick Scott to greenlight Florida's HSR project? Let's explore this issue on the flip.

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