Daily Archives: May 20, 2022

Using Samuel Alitos logic in proposing to strike down the right to an abortion, other rights that you take for granted could also be eliminated. The argument is that if something is not mentioned in the Constitution, that right is based only on the majority opinion of the Supreme Court. Thus, if the Roe vs. Wade decision was wrong, the current court could reverse that decision.

This opens to door to removing other presumed rights. For example, the Constitution does not give you the right to own an AR-15. The Second Amendment only gives you the right to keep and bear arms and says nothing about private ownership. The Swiss government used to require all men of a certain age to keep their military weapon at home while not on deployment or in training. The Constitutions language does not say it allows for private ownership just to keep and bear arms for a well regulated militia. The only thing that allows you to own firearms is the interpretation by the Supreme Court, which we now see can change.

How about your right to privacy? The Fourth Amendment only protects you from unreasonable searches and seizures but says nothing about privacy. A state could sue to make all medical, educational, and employment records public. If the Supreme Court agrees that the Constitution does not address these, it could rule that all records can be made public.

How about the right to travel between states? There is nothing in the Constitution that gives you that right. Thus, if a state wants to restrict entry or charge you $100 to enter the state, the Supreme Court could use the logic applied to Roe vs. Wade to allow a state to do that.

More likely the so-called conservatives who brought the lawsuit on Roe vs. Wade will go after your right to enter a mixed-race marriage or marriage for same sex couples. The right to use contraception services and products would also be subject to the whim of five justices. The Constitution does not address these rights any more than it addresses Roe vs. Wade.

Let your imagination run free to think of all the rights you think you have that are not explicitly covered by the Constitution or its amendments. Public education, libraries, and healthcare are among the things not mentioned in the Constitution and would be fair game for revocation or elimination.

The other part of the argument against abortion rights is that until 1973 there was no support for a constitutional right for access to an abortion. That logic might mean that women will again need to get a mans permission to get a credit card, which was the case before 1973. Not allowed until after 1973 was the protection for a woman not to get fired if she got pregnant or to sue for sexual harassment in the workplace. All rights that women and men have won since the founding of the country would be subject to cancelation.

Apparently, Alito thinks that anything after the 1600s does not qualify as being deeply rooted in the nations history and traditions as he quotes a British jurist who executed witches and advocated for executing children as young as 14. That same jurist considered women to be the property of either their father or husband. Women who were independent of a man (e.g., widows) were considered with suspicion and occasionally accused and prosecuted for practicing witchcraft.

The Roe vs. Wade decision is based, in part, on the fact that in the first trimester the fetus is essentially an extension of the womans body and upon which it is dependent for its existence. The Alito position makes the woman subservient to the fetus based on a religious position, not facts based on biology. If this religious position dictates judicial decisions, other religious positions could be imposed on all citizens. The Supreme Courts conservative majority seems intent on exercising its activist agenda to take the country back to a darker place.

(Dr. Norm Hoffman is a semi-retiredclinical psychologist living in Waynesville.This email address is being protected from spambots. You need JavaScript enabled to view it..)

Read more:
If Roe v. Wade goes, then what is next - Smoky Mountain News

Dear Chairman Scott and Ranking Member Foxx:

The U.S. Chamber of Commerce opposes H.R. 7701, the Wage Theft Prevention and Wage Recovery Act, which would hinder employees from receiving their due compensation and inhibit the use of arbitration procedures that have been shown to be highly efficient and cost effective.

While sounding benign and well meaning, the provisions on requiring pay disclosures and paystubs are redundant with rights covered under state law. Adding federal requirements would add complexity and confusion without actually improving worker protections.

Similarly, increasing the financial consequences for violations makes a great headline, but the actual impact on low-wage workers will not be to their advantage. Employers faced with such massive damages and penalties will most likely choose to challenge the citations and allegations and pursue a litigation approach. Payment of back wages would be delayed by years. The plaintiff's bar will collect more fees, but low-wage workers may see scant returns or nothing at all. The proposed increases also are inflexible with no room for discretion based on the size of business or the type of violation.

The ultimate goal of this bill is to promote expensive class action litigation that does little to help businesses and employees by precluding the enforcement of predispute arbitration clauses. Such litigation serves principally to benefit the attorneys who file class action lawsuits. Arbitration is a fair, effective, and less expensive means of resolving disputes compared to going to court. Empirical studies demonstrate that employees in arbitration do just as well, or in many circumstances, considerably better, than in court. For example, recent studies have found that employees in arbitration prevail three times more often, win more money, and resolve their claims must faster than in litigation.[1] Studies have also shown that class action settlements frequently provide only a pittance or many times, nothing at all to class members while millions of dollars are paid to their attorneys.[2]

Finally, the bills Grant Program would deputize advocates to help conduct investigations. This would eradicate the long tradition of employers voluntarily cooperating with agency investigations, producing documents, and welcoming investigators into their worksites. If the Department of Labor brings along unions and advocates, employers would likely stop cooperating and insist on search warrants and document subpoenas, in accordance with the Fourth Amendment. Again, more complexity, longer investigations, and more litigation will harm low-wage workers by delaying payment of wages.

The Chamber urges the Committee not to approve the Wage Theft Prevention and Wage Recovery Act.

Sincerely,

Neil L. Bradley

Executive Vice President, Chief Policy Officer,

and Head of Strategic Advocacy

U.S. Chamber of Commerce

cc: Members of the House Committee on Education and Labor

[1] See Fairer, Faster, Better III: An Empirical Assessment of Consumer and Employment Arbitration (March 2022) available at https://instituteforlegalreform.com/research/update-an-empirical-assessment-of-consumer-employment-cases-in-arbitration-litigation/.

[2] See Do Class Actions Benefit Class Members? An Empirical Analysis of Class Actions (Dec. 11, 2013) available at https://www.mayerbrown.com/files/uploads/documents/pdfs/2013/december/doclassactionsbenefitclassmembers.pdf.

Go here to read the rest:
U.S. Chamber Letter on H.R. 7701, the Wage Theft Prevention and Wage Recovery Act - uschamber.com

from the maybe-don't-gather-all-this-data-in-the-first-place? dept

Googles market share and capacity to gather billions of data points has made it the most popular target for so-called warrants that seem to elude both particularity requirements and the Supreme Courts decision in the Carpenter case.

To be a reasonable search, law enforcement is supposed to be able to show the information it seeks can be found where they say it is and be relevant to the investigation. Reverse warrants warrants in which law enforcement seeks location data and other info from everyone in a certain area at a certain time only satisfy one of these requirements. If courts are persuaded the only thing that needs to be shown is the likelihood Google has this data, then the warrants are good.

If the warrants need to show the data sought pertains to criminal suspects, the warrants should obviously fail. Rather than showing probable cause to search for data related to suspects, reverse warrants turn everyone in the area into a potential suspect and allows law enforcement to work backwards from the data dump to identify people it feels might be involved in the crime being investigated.

Recently, a Virginia court blocked a reverse warrant served to Google in a robbery case, saying it was unconstitutionally vague. This decision remains an outlier, though, and use of reverse warrants continues to increase exponentially with each passing year.

In a legal brief filed in the case, Google said geofence requests jumped 1,500% from 2017 to 2018, and another 500% from 2018 to 2019. Google now reports that geofence warrants make up more than 25% of all the warrants Google receives in the U.S., the judge wrote in her ruling.

Some belated pushback has begun, courtesy of the state of New York. Theres more pushback on the way, this time via the companies targeted by geofence/reverse warrants and so-called keyword warrants, which demand information on internet users who have searched for certain terms. Google is the primary recipient of these warrants as well.

The Reform Government Surveillance group composed of a dozen tech companies, including Google, Apple, Twitter, and Meta has issued this statement in support of the New York bill.

Reform Government Surveillance supports the adoption of New York Assembly Bill A84A, theReverse Location Search Prohibition Act, which would prohibit the use of reverse location and reverse keyword searches.

This bill, if passed into law, would be the first of its kind to address the increasing use of law enforcement requests that, instead of relying on individual suspicion, request data pertaining to individuals who may have been in a specific vicinity or used a certain search term.

The EFF correctly points out the danger of these warrants, whose use has exploded over the last half-decade.

These reverse warrants have serious implications for civil liberties. Their increasingly common use means that anyone whose commute takes them goes by the scene of a crime might suddenly become vulnerable to suspicion, surveillance, and harassment by police. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. It also means that with one document, companies would be compelled to turn over identifying information on every phone that appeared in the vicinity of a protest,as happened in Kenosha, Wisconsin during a protest against police violence. And, as EFF has argued in amicus briefs, it violates the Fourth Amendment because it results in an overbroad fishing-expedition against unspecified targets, the majority of whom have no connection to any crime.

These are problematic. But so are the data-harvesting efforts of tech companies. Americans are generally leery of the always-on tracking and data collection these companies engage in. They become significantly more worried when they discover just how easily the government can access this massive amount of data.

Tech companies are right to oppose government surveillance overreach. But they also need to be a lot more honest with their users, informing them in plain English about whats being collected, when its being collected, how long its retained, and what the aggregate collection can reveal about their activities and social connections.

They also should do more to assure third party app developers arent abusing permissions to collect even more data government agencies can obtain without a warrant. And they should give users easy ways to opt out of collections and ensure users are well informed about potential usability downsides of opting out so they can grant truly informed consent to service providers.

Making noise about government surveillance doesnt excuse the bad habits of tech companies. While its good to see them stand up against government overreach, they should probably take this opportunity to engage in a bit of introspection to see if theyre not just making the situation worse by hoovering up every bit of data possible, putting it only a questionable piece of legal paperwork away from the governments all-seeing eyes.

Filed Under: 4th amendment, location data, privacy, reverse warrants, surveillanceCompanies: apple, google, meta, twitter

Read the original:
Tech Companies Oppose 'Reverse Warrants,' Say Surveillance Of User Location Data Should Be Limited To Tech Companies - Techdirt

This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:

1. A ruling from the U.S. District Court for the Southern District of New York compelling one of the defendants to produce earlier in time emails from email threads and addressing how email threads may be handled on the parties privilege logs.

InIn re Actos Antitrust Litigation, No. 1:13-cv-09244 (RA) (SDA), --- F.R.D. ----, 2022 WL 949798 (S.D.N.Y. March 30, 2022), U.S. Magistrate Judge Stewart D. Aaron addressed a motion to compel one of the Defendants to produce earlier in time emails that were included in threaded emails defendants already produced.

In this antitrust class action alleging that Defendants prevented competitors from timely marketing a generic drug, the parties had entered into a protocol for the production of electronically stored information (ESI) in native format that required the parties to de-duplicate the ESI produced but did not address the production of only the most inclusive email threads.Id. at *1. In making its productions, the Defendant against whom the motion to compel was brought used email threading, by which a party reviews and produces the most-inclusive email in a thread. Plaintiffs objected to this format of production and sought to compel Defendant to produce earlier-in-time emails as well as the metadata associated with those emails.

Magistrate Judge Aaron began by noting that the parties dispute highlighted the importance of negotiating a comprehensive ESI protocol before data production is undertaken.Id. at *2. He explained that the parties ESI protocol did not expressly permit the use of email threading, nor do the Federal Rules of Civil Procedure or the local rules of the court contain any provisions regarding the use of email threading. Magistrate Judge Aaron also noted that the Sedona Principles encourage parties to have early discussions regarding procedural issues relating to the form of production and to enter into an agreed upon protocol governing the production of ESI and avoid downstream misunderstandings or disputes.Id. (quotingThe Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, Comment 3.c. (2018)).

Magistrate Judge Aaron stated that it is not uncommon for ESI protocols to address the use of email threading, and Plaintiff had pointed to prior litigation in which Defendant had agreed to an ESI protocol that addressed email threading.Id. at *3. But the parties did not address email threading in this case.

Magistrate Judge Aaron found that Defendants exclusion of lesser included emails from production resulted in the exclusion of the metadata associated with earlier emails in a chain and that this exclusion materially reduced Plaintiffs ability to search for all correspondence within a date range. In particular, he found that excluding lesser included emails resulted in the recipients of some such emails not being identified and that it resulted in the loss of information identifying who was blind copied on lesser included emails even though this information was among the metadata the parties agreed to produce. In this regard, Magistrate Judge Aaron noted that the parties could have included in the ESI protocol provisions for the production of metadata to resolve these issues, but Plaintiffs were not provided the opportunity to negotiate how email threading might be accomplished in an acceptable manner.

Ultimately, Magistrate Judge Aaron declined to impose email threading on Plaintiffs. Even though he recognized that production of earlier-in-time emails would cause some additional burden on Defendant, he found that any additional burden is not undue as Defendant agreed to the ESI protocol and likely already had reviewed many of the emails at issue. Accordingly, Magistrate Judge Aaron ordered Defendant to produce all responsive ESI to Plaintiffs, including earlier-in-time emails.

Magistrate Judge Aaron also provided guidance regarding a dispute between the parties regarding how email threads should be identified on privilege logs. He noted that the local rules of the court, specifically Local Civil Rule 26.2(c), provides that when asserting privilege on the same basis with respect to multiple documents, it is presumptively proper to provide the information required by this rule by group or category.Id. at *4. Magistrate Judge Aaron also quoted at length from the committee note to this local rule, including that [b]ecause the appropriate approach may differ depending on the size of the case, the volume of privileged documents, the use of electronic search techniques, and other factors, the purpose of Local Civil Rule 26.2(c) is to encourage the parties to explore methods appropriate to each case.

Based on these principles, Magistrate Judge Aaron concluded that categorical privilege logs are appropriate and that such a log is adequate if it provides information about the nature of the withheld documents sufficient to enable the receiving party to make an intelligent determination about the validity of the assertion of the privilege. He further noted that Plaintiffs proposal of permitting categorical logging of emails only where all emails involved the same participants and subject matter would not be appropriate, nor would Defendants proposal of only logging the threaded emails together.

2. An order from the U.S. District Court for the District of Kansas denying a motion to add plaintiffs outside counsel to plaintiffs list of document custodians for discovery purposes.

InOrchestrate HR, Inc. v. Blue Cross and Blue Shield of Kansas, Inc., No. 19-cv-4007-HLT-TJJ, 2022 WL 834066 (D. Kan. Mar. 21, 2022), U.S. Magistrate Judge Teresa J. James denied Defendants motion to add plaintiffs outside counsel to Plaintiffs list of document custodians for discovery purposes.

Defendants motion asked the court to revisit an earlier ruling that Plaintiffs outside counsel of record, Jose Portela, was not a proper custodian.Id. at *1. Defendant argued that documents produced by Plaintiffs and nonparties, as well as Defendants own documents, indicated that Portela was personally and significantly involved in specific elements of newly pleaded claims. Specifically, Defendant described business communications between Portela and third parties directly relating to issues falling within Defendants discovery requests. Portela asked the court to require Defendant to identify any of the communications counsel was describing that involved only Portela and not his employer because Plaintiffs would likely drop any claim based on those communications. Magistrate Judge James obliged, stating that Defendants motion would need to identify the specific communications that provide the support for Defendants request.

Laying out the legal standard, Magistrate Judge James emphasized the importance that discovery, in particular discovery of ESI, is proportional to the needs of the case. She stated that [t]he proportionality standard requires consideration of the importance of the issues at stake in the action, the amount in controversy, the parties relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Magistrate Judge James noted here that early in the litigation, the parties agreed to confer in good faith regarding the identities of ESI custodians in light of these challenges.

Magistrate Judge James then commented that relatively little legal authority existed regarding motions to compel the designation of an additional ESI custodian but thatThe Sedona Principles, Third Editionprovided four key principles that informed the analysis.Id. at *2. First, determining what is relevant and proportional under the circumstances for each matter often requires a highly fact specific inquiry. Second, absent agreement among the parties, the party who will be responding to discovery requests is entitled to select the custodians it deems most likely to possess responsive information and to search the files of those individuals. Third, unless the partys choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient, the court should not dictate the designation of ESI custodians. Fourth, the party seeking to compel the designation of a particular additional ESI custodian has the initial threshold burden of showing that the disputed custodian's ESI likely includes information relevant to the claims or defenses in the case. This is because the party responding to discovery requests is typically in the best position to know and identify those individuals within its organization likely to have information relevant to the case.

Magistrate Judge James noted that Defendants motion was based not on an exception to attorney client privilege but that Portela had access to, or was actively involved in, hundreds of relevant communications related to new claims in Plaintiffs complaint.Id. at *3. Magistrate Judge James rejected Defendants suggestion that the circumstances had significantly changed since its previous attempt to make Portela a custodian. Magistrate Judge James observed that Defendant failed to enumerate any such communication that involved solely Portela and Defendant and misquoted a paragraph in Plaintiffs complaint in its argument that there were hundreds of pertinent communications. She further observed that Plaintiffs added no new causes of action to the complaint and relied on no new exhibits or documents other than four documents produced by Defendant. Magistrate Judge James therefore concluded that the circumstances had not changed since the courts last ruling that Portela would not be a custodian.

Magistrate Judge James then examined Portelas alleged personal and significant involvement in the underlying subject matter of the case. She found Defendants assertion that there were more than 150 communications between Portela with no other Plaintiff representative as sender or recipient unmeaningful, given the length of time Portela had represented Plaintiffs.Id. at *3-*4. Additionally, none of the referenced 150 communications indicated significant involvement in the facts; many did not predate the litigation itself, and over half involved the scheduling of conference calls.

Magistrate Judge James also rejected Defendants argument that because Portela was not a named custodian, no searches between Portela and relevant entities had been conducted. To the contrary, Plaintiffs had produced over 600 documents with Portela as the custodian. Further, Defendant had made a number of exaggerated claims to support its argument; in one example, Defendant claimed that over the course of a year, Portela was in constant communication with Defendant regarding the submission of insurance claims, but the underlying emails Defendant referenced were all written over a two-week period. Magistrate Judge James also rejected Defendants argument that Portela was Plaintiffs primary representative, noting that the attachment to one of Plaintiffs exhibits indicated that the Kansas Department of Insurance had refused to disclose any information to Portela.Id. at *5. Magistrate Judge James then concluded that adding Portela to the list of record custodians would not be proportional to the needs of the case and that Defendant had not shown why Plaintiffs productions were deficient due to Portelas not having been a records custodian.

Magistrate Judge James noted that while the finding of lack of proportionality was sufficient reason to deny Defendants motion, the other factors supported denial as well. The second factor posits that the responding party is entitled to select its own custodians absent an agreement between the parties to the contrary. Because Plaintiffs must supplement or correct any of their initial disclosures if additional or corrective information arises that had not been disclosed during discovery, they would be obligated to conduct a search of Portelas emails if necessary, but otherwise were not under an obligation to do so. Under the third factor, a court should not dictate the designation of ESI custodians unless the partys choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient. Magistrate Judge James pointed to her prior analysis that Defendant had not done so. The fourth factor states that the party seeking to compel the designation of a particular ESI custodian has the initial threshold of showing that the disputed custodians ESI likely includes information relevant to claims or defenses in the case. Magistrate Judge similarly pointed to her prior analysis to dismiss this factor.

Magistrate Judge James then held that Defendant had not met its burden to demonstrate that Portela should be added to the Plaintiffs custodian list absent agreement of the parties and denied Defendants motion.Id. at *6.

3. A decision from the U.S. District Court for the Eastern District of New York denying a motion to compel a forensic examination of plaintiffs cell phone based on alleged alteration of metadata for certain video files from the cell phone that were produced by plaintiff during discovery.

InAminov v. Berkshire Hathaway Guard Insurance Companies, 21-CV-479-DG-SJB, 2022 WL 818944 (E.D.N.Y. Mar. 3, 2022), U.S. Magistrate Judge Sanket J. Bulsara denied a motion to compel Plaintiff to produce his cell phone for forensic examination based on alleged alteration of metadata for certain video files Plaintiff produced during discovery.

Magistrate Judge Bulsara began his analysis by noting that [f]orensic examinations of computers and cell phones are generally considered a drastic discovery measure because of their intrusive nature.Id. at *1. In this regard, Magistrate Judge Bulsara cited the Advisory Committees note to Rule 34(a) to the effect that [i]nspection or testing of certain types of electronically stored information or of a responding partys electronic information system may raise issues of confidentiality or privacy and that [c]ourts should guard against undue intrusiveness resulting from inspecting or testing such systems. He further noted that compelled forensic imaging is not appropriate in all cases and that courts must consider the significant interests implicated by forensic imaging before ordering such procedures.Id. (citingJohn B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008)).

Magistrate Judge Bulsara stated that in situations where a party can show improper conduct on the part of the responding party, a forensic examination may be appropriate. For example, discrepancies or inconsistencies in the responding partys discovery responses may justify a partys request to allow an expert to create and examine a mirror image of a hard drive. Magistrate Judge Bulsara further noted that courts have ordered computer imaging when there is reason to believe that a litigant has tampered with the computer or hidden relevant materials that are the subject of court orders. However, he stated that there must be good cause to order computer imaging or similar forensic examinations when a party has already produced the electronic information sought in a native format.

Magistrate Judge Bulsara found that there was no such justification to order forensic imaging in this case.Id. at *2. First, he noted that the Defendants motion was based on misplaced and unsupported speculation that the metadata for the video at issue was altered. Defendants counsel had used a free online metadata tool to analyze the video file, but Defendant provided no information about the reliability of the online tool. Moreover, Defendants conclusions regarding the metadata were based on the less-than-unequivocal statement produced by the online tool that Metadata could have been changed or deleted in the past. Magistrate Judge Bulsara noted that this is hardly the kind of analysis or support that provides a reasonable basis either to conclude that there was alteration of metadata or to warrant forensic examinations.

Magistrate Judge Bulsara also found that the online tool used by the Defendant was not designed to show alteration of metadata but instead to determine whether metadata exists. He noted that the tools website described the tool as one that allows you to access the hidden ... meta data of your files. In other words, the online tool reveals metadata, and therefore at best it may have revealed that videos were produced without metadata. Magistrate Judge Bulsara further noted that the message that the metadata could have been changed or deleted appears automatically for every file that is analyzed by the tool, as a means of liability protection for the company operating the website, and that it was not specific to Plaintiffs video. According to Magistrate Judge Bulsara, [t]his is hardly the thing on which one should base a motion to compel.

Finally, Magistrate Judge Bulsara found that although Defendants counsel had spoken to a forensic consultant about the relevant video files, Defendants motion did not offer the consultants opinion about the website but referred to it only to support the idea that the original phone is necessary for metadata examination. Nor did the consultant opine that Plaintiffs files had missing or altered metadata. Ultimately, [s]ince there is no evidence of spoilation or alteration, there is no cause to require forensic examination of the cell phone on the speculation that additional metadata may exist or that the original metadata was altered.

4. An opinion from the U.S. District Court for the District of Connecticut denying a motion to suppress evidence from a cell phone where the warrant pursuant to which the cell phone had been seized broadly covered the entire contents of the cell phone and the government did not conclude the search of the cell phone until 47 days after the seizure.

InUnited States v. Harry, U.S. v. Harry, No. 3:21cr98 (JBA), 2022 WL 343963 (D. Conn, Feb 4, 2022), U.S. District Judge Janet Bond Arterton denied one of the Defendants motion to suppress evidence derived from a search of his cell phone executed by a warrant (as well as evidence gathered from a pole camera positioned by law enforcement outside of his place of business).

The Drug Enforcement Agency (DEA) intercepted communications between Defendant and the target of an investigation in 2020 and found that Defendant and the target communicated on numerous occasions in furtherance of the alleged drug trafficking conspiracy using a cell phone.Id. at *1. The government obtained a search warrant the day before Defendants arrest to seize and search the cell phone Defendant used to speak with the DEAs target.Id. at *2. The warrant attached a description of the cell phone, the times it might be seized, and the specific records and information on the cell phone to be searched. Upon Defendants arrest on June 9, 2021, the police confirmed that his cell phone was the one that was used to communicate with the target. The cell phone was put in airplane mode, and the DEA began its forensic search two days later. On or about July 19, an agent conducted a manual search of the data.

Defendant argued that the evidence obtained from his cell phone should be suppressed because the warrant lacked particularity in violation of the Fourth Amendment. According to the Defendant, the lack of particularity allowed law enforcement to search broad categories of information without temporal limitation, and law enforcement delayed the search for 47 days after the seizure before concluding its search. The government responded that the warrant was sufficiently particular because it specified the offenses for which there was probable cause, the warrant defined the place to be searched as Defendants cell phone , and it defined the types of information in connection with the suspected offenses sought from the cell phone. As for the lack of temporal restrictions, the government argued that this did not render a warrant invalid per se and the government was justified due to the scope of conduct under investigation. Finally, the government stated that the delay was not unreasonable as it was executed within the time constraints of Federal Rule of Criminal Procedure 41.

After explaining the general rule for particularity of warrants under the Fourth Amendment, Judge Arterton applied the rule in the context of electronic devices. She stated that courts must be attuned to the technological features unique to digital media as a whole and to those relevant in a particular case.Id. at *3 (quotingUnited States v. Ganias, 824 F.3d 199, 213 (2d Cir. 2016)). She further stated that a warrant may therefore be broad in that it authorizes the government to search an identified location or object for a wide range of potentially relevant material, without violating the particularity requirement.Id. (quotingUnited States v. Ulbricht, 858 F.3d 71, 102-03 (2d Cir. 2017)).

Judge Arterton concluded that the warrant, while broad, did not lack particularity in terms of the data to be searched, pointing to the attachments to the warrant as support. She stated that the first attachment clearly specified the property to be seized as well as the appropriate time and place such seizure may occur. The second attachment limited the warrant to searching data that might reveal evidence that Defendant violated the drug trafficking offenses for which he was a suspect and listed the categories of data that might have revealed this evidence. This included photographs and videos, encrypted communications, contact lists, and notes, records, ledgers, and any documents indicative of drug trafficking.

Defendant argued that the warrant was still defective because it used the phrase any and all data throughout as to his specific criminal offenses and thus impermissibly authorized agents to access locations within his cell phone beyond the scope [of] their stated probable cause. As an example, Defendant contested the search of photographs, digital notes, and ledgers on his cell phone because no information from the investigation suggested that Defendant had any such documents indicative of drug activity on his phone. CitingUnited States v. Zemlyansky, Defendant argued that the juxtaposition of a few specific locations in the same warrant authorizing a widespread general search for any and all data risked confusing the searching agent.

Judge Arterton was unpersuaded, distinguishing the instant search warrant from the one inZemlyansky.Id. at *4;see U.S. v. Zemlyansky, 945 F. Supp. 2d 438, 460 (S.D.N.Y. 2013). First, the warrant inZemlyanskydid not direct the search officers to seize evidence related to or concerning any particular crime or type of crime and allowed officers to seize any cell phone found at a certain place of business that the officers believed could have been associated with unspecified criminal suspects.Id. (citingZemlyansky, 945 F. Supp. 2d at 456-459). TheZemlyanskywarrant also authorized officers to conduct boundless, discretionary searches of any electronic device found at that location.Id. (citingZemlyansky, 945 F. Supp. 2d at 458-459). Judge Arterton stated that the warrant at issue had a narrower scope, limiting the search to specific criminal offenses stored on a single device.

Judge Arterton continued that the phrase any and all data did not confer unlimited discretion for officers to search for irrelevant data. She stated that law enforcement had probable cause that Defendant used his cell phone to engage in a drug conspiracy and therefore a reasonable basis to expect the cell phone to have incriminating evidence in many different forms. Judge Arterton further stated that it will often be impossible to identify in advance the words or phrases that will separate relevant files or documents before the search takes place, because officers cannot readily anticipate how a suspect will store information related to the charged crimes.Id. (citingUlbricht, 858 F.3d at 102). The warrant limited officers to searching only the records and information in the cell phone that constitute evidence and instrumentalities of violations of [distribution of controlled substances, use of a communication faculty, and money laundering]. In areas where a specific criminal statute was not referenced, the warrant still referred to particular criminal conduct, showing that the whole search was based on suspicion of criminal activity and the searches were only pertaining to that activity.

Judge Arterton found that the lack of a time period restricting the relevant data to be searched did not invalidate the warrant because [w]hile the lack of temporal limitations in a warrant is considered in evaluating a warrants particularity, it is not the sole factor.Id. (citingUnited States v. Wey, 256 F. Supp. 3d 355, 388 (S.D.N.Y. 2017)). She added that the complexity and duration of the alleged criminal activities may diminish the significance of temporal restrictions. Therefore, while a specific timeframe would have been beneficial, its absence did not invalidate the warrant.

Judge Arterton next rejected Defendants argument that the search was unreasonably delayed. Defendant cited to authority from the Second Circuit suggesting that a monthlong delay to apply for a warrant exceeded what was ordinarily reasonable.Id. at *5. While Defendant argued that the issue in that case was the delay in searching a cell phone that had been seized, Judge Arterton disagreed, pointing out that the issue was seizing property pending the issuance of a search warrant.Id. (citingU.S. v. Smith, 967 F.3d 198, 205 (2d Cir. 2020)). She stated that Defendants reading of authority was incorrect and did not contemplate delays in searching a cell phone seized pursuant to a valid warrant.

Judge Arterton instead cited the requirements under Federal Rule of Criminal Procedure 41 that law enforcement must execute a warrant within 14 days. Regarding ESI, that time period referred to the seizure or on-site copying of the media or information and not to any later off-site copying or review.Id. (citing Fed. R. Crim. P. 41(e)(2)(B)). Further citing the 2009 Advisory Committee Notes, Judge Arterton explained that the rules acknowledged the need for officers to seize or copy the entire storage medium and review it later to determine what electronically storied information falls within the scope of the warrant.Id. (citing Fed. R. Crim. P. 42(e)(2)(B) advisory committees notes to the 2009 amendment). She pointed out that the Advisory Committee also noted that practical reality meant that a substantial amount of time could be involved in the forensic imaging and review of information. Judge Arterton stated that the Governments Rule 41 violation should not be remedied by suppressing evidence unless (1) there was prejudice in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.

Judge Arterton stated that the affidavit supporting the search warrant included information about the amount of time the search would take and noted that the initial search of the cell phone took place the same day it was seized.Id. at *5. The government conducted a more thorough search when it deemed it technically practicable. On this basis, Judge Arterton found the delay reasonable, but even if it was not reasonable, the Defendant had not demonstrated prejudice or that it was the result of intentional and deliberate disregard of a provision in the rule. Therefore, suppression was not appropriate.

Excerpt from:
May's Notable Cases and Events in E-Discovery - Lexology

By PTI

NEW DELHI: A total of 175 mineral blocks have been auctioned across nine states in the country since 2015-16.

During last month, 20 mineral blocks were auctioned, which included three iron ore, three limestone, three bauxite and 10 manganese mines, according to mines ministry.

"Since the amendment to MMDR Act, 1957, a total of 175 mineral blocks have been auctioned so far across 9 states," the ministry said in its major highlights for the month of April.

While 10 mines were auctioned in Madhya Pradesh, eight blocks were auctioned in Andhra Pradesh and two in Andhra Pradesh.

Twenty-three notices inviting tenders were issued in Chhattisgarh, Karnataka, Rajasthan and Maharashtra.

The government had earlier said that amendment in mineral auction rules will encourage competition that will ensure more participation in the sale of blocks.

The ministry of mines had earlier notified the Minerals (Evidence of Mineral Contents) Second Amendment Rules, 2021 and the Mineral (Auction) Fourth Amendment Rules, 2021 to amend the Minerals (Evidence of Mineral Contents) Rules, 2015 (MEMC Rules) and the Mineral (Auction) Rules, 2015 (Auction Rules), respectively.

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175 mineral blocks auctioned since 2015-16: Government - The New Indian Express

Members of the House of Keys can now be absent from prayers at the beginning of sittings if they dont wish to take part.

The change came last week when members voted through new recommendations to Daphne Caines motion on chaplaincy and prayers.

Following a debate in Keys in February on whether members should have to pray or not, Mrs Caine moved a report containing five recommendations on behalf of the House of Keys Management and Members Standards Committee that responded to the debate.

These recommendations were passed but with some concern.

Mrs Caine said in the sitting: Those proposals to modernise proceedings in this House by removing prayers were a step too far for some.

Previously, no nominations for chaplain were made, but nominations subsequently were received. The first recommendation sought approval to the appointment of the Reverend Irene Cowell for a term ending six months beyond the next general election in 2027.

The next recommendation enabled the length of appointment to be determined by the committee in future as appropriate to the circumstances of the chaplains appointment, and the third recommendation removed consideration of an honorarium, which has not been paid to the House of Keys chaplain for some years.

The fourth amendment would let the Speaker lead prayers in the chaplains absence and have the power to delegate to another member, which means an atheist could potentially be asked to lead prayers.

In response to members responding that absence from prayers should be permitted, recommendation five clarified that the service shall not be interpreted as including prayers.

Douglas East MHK Joney Faragher said she believed the outcome was a great shame and a missed opportunity to modernise the House.

Tradition is no excuse, she said. Traditions adapt with society. This, as a solution, is exclusionary and divisive.

MHK for Ramsey Lawrie Hooper agreed and added: I am quite nervous about the suggestions being made here.

I am quite happy to support them as they are, because in principle they make sense, but I think the problem is going to be in the implementation.

Mrs Caine said: We have tried to find a compromise to support the majority and to be as inclusive as possible. I would support a fundamental rewrite of Standing Orders, and I think that is something that would be on the cards.

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No longer have to take part in prayers | iomtoday.co.im - Isle of Man Today

Do Americans have a right to privacy? Should the government allow individuals to use their own bodies as they wish? While there is no such right granted by the Constitution, it has been traditionally assumed that such a right exists, even if only implicitly. But the upcoming Supreme Court ruling, in the draft released byPoliticoin aleaked opinionby Justice Samuel Alito, would erase the right of privacy. According to Alito himself, if such a right to a private life does indeed exist, it includes the right to consume drugs.

These attempts to justify abortion through appeals to a broader right to autonomy and to define ones concepts of existence prove too much, Justice Alito wrote in the document that aims to kill abortion and privacy rights in the U.S. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.

Perhaps by accident, Justice Alito madean interestingpoint. If a right to privacy exists, it stands to reason to assume it includes the right to consume marijuana. Other drugs, too, but this column concerns itself with marijuana, which is by far the favorite illicit drug of Americans and, despite the fact it is non-addictive and entirely harmless, accounts for more arrests every year thanall violent crime.

Neither the Constitution nor the Bill of Rights include a right to privacy. The assumption that such a right exists relies on two elements: Such a right is assumed to be derived from other rights which are explicitly granted in the Constitution, and the Supreme Court repeatedly ruled in favor of the existence of such a right.

The 14th Amendment guarantees that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law. The First Amendment gives a right to free assembly, and the Fourth Amendment protects individuals and their property from unreasonable searches and seizures.

Adding these pieces together, some have concluded that a right to privacy ought to exist. Especially since the Ninth Amendment explicitly says that there are rights not mentioned in the document but that exist nonetheless: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

But in truth, the real nature of the American right to privacy emanated from the Supreme Court itself, as it ruled on cases that implied its existence. In 1965, theGriswold v. Connecticutruling made federally legal the use of contraceptives, and it first established that there is a right to privacy in regard to sexual practicesand only sexual practices. This ruling was the basis ofRoe v. Wade(1973), which granted the right to end pregnancies, but alsoLawrence v. Texas(2003), which ended anti-sodomy laws and thus decriminalized homosexuality, as well asObergefell v. Hodges(2015), which gave same-sex couples the right to get married.

The right to use contraceptives, the right for gay people to be married or even the right to exist as a gay person; all of those are unenumerated rights, like the right to privacy, and they all only exist insofar as a right to privacy is assumed to exist. Indeed, Justice Alito mentions all of these cases by name in his leaked opinion, indicating that they all exist on shaky foundations and could, like the right to abortion, be overturned by a simple ruling of the Supreme Court.

Overturning precedent, in itself, is a very slippery slope when it causes the loss of well-established human rights. Once this dam breaks, the damage cannot be undone, as it will prove that whoever owns partisan Supreme Court Justices can do away with any number of unenumerated rights regardless of precedent. A staggering number of rights that Americans enjoy are not spelled out in the Constitution but are assumed to exist under the provisions of the Ninth Amendment.

What matters is that the Supreme Court consistently found that a right to privacy exists, and it protects the private lives of Americans from government interference. That is to say, the court ruled that way consistently until it was packed by three Trump appointees, who have an incontrovertible majority alongside thetwoBush43appointees. No matter what the current partisan court decides, in the words of Justice William Douglas (a Roosevelt appointee) in theGriswold v. Connecticutruling about the government violating the privacy of American bedrooms, the very idea is repulsive.

What is liberty? Liberty as in no State shall deprive any person of life, liberty, or property, the very vague right that is granted to Americans by the 14th Amendment. Its never explained, and therefore left to interpretation. It has often been understood as a right to bodily autonomy, the freedom to use your body in any way you wish. This is the unenumerated right that every cannabis activist believes should grant them the right to consume marijuana.

There is no explicit right to bodily autonomy in the United States. Most Americans might assume they do have the right to govern their own bodies, but in truth, only unenumerated rights protect the average person from being forced by the government to utilize their bodies without the individuals consent.

What comes closest to a ruling on bodily autonomy is the 1891Union Pacific Railway Co. v. Botsfordcase, which granted the right for a plaintiff to refuse a medical examination ahead of a trial. The ruling itself is narrow, but the Justices opinion includes the claim that no right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law. This is not in accordance with future rulings, but it provides a strong argument to claim the existence of a right to bodily autonomy that is fundamental despite going unmentioned in the founding documents of the United States. TheBotsfordruling was used as a basis forRoe v. Wade, and that implicit right has been recognized time and time again by the court since.

Supreme Court-backed unenumerated rights tend to be related to sex, procreation and healthcare. The Court has had a tendency to avoid having to speak on cases where they might need to rule that criminalizing drug use is unconstitutional. As such, the right to privacy as codified by the Supreme Court explicitly exists only within the boundaries of sexual and reproductive acts. Therefore, it could be argued this right does not automatically extend to drug use because the court simply didn't talk about it.

One notable drug-related right emanating from the Supreme Court is the 1962Robinson v. Californiaruling, which established that it is legal for an individual to be a drug addict, but it does not protect anyone for the act of possessing drugs if that act is criminalizedwhich it is, at the federal level, under the Controlled Substances Act of 1970.

So, there is not much help to be found regarding drug usage in precedents. But one more Supreme Court ruling comments on the nature of the unenumerated right to privacy as applied to drug use: the 2022 opinion by Justice Samuel Alito overturningRoe v. Wade.

These attempts to justify abortion through appeals to a broader right to autonomy and to define ones concepts of existence prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.

The phrase concepts of existence refers toCasey v. Planned Parenthood, a Supreme Court ruling that upheldRoe v. Wadein 1992 and that will also be overturned by the upcoming ruling. InCasey, the court had found that the government should not be empowered to make intimate choices for American citizens: At the heart of liberty is the right to define ones own concept of existence, it reads. Justice Alito strongly rebuked this belief, saying instead, While individuals are certainly free to think and to say what they wish about existence, [...], they are not always free to act in accordance with those thoughts. An odd liberty, one that allows thoughts and words but forbids acts.

The phrase a broader right to autonomy refers to the concept of bodily autonomy that has been found by the Supreme Court to exist implicitly. And at a high level of generality is a convoluted way for Alito to say if we take this constitutional right to its logical conclusion.

So, seemingly without meaning to, Justice Alito has brought up the best defense of constitutionally protected drug use from a Supreme Court ruling yet. He doesnt understand what he said, because his point is that a right to autonomy does not exist, but that if it did exist it would include drug consumption. As evidenced by all the previous Supreme Court rulings, Alito is only wrong on one point: The right to bodily autonomy does exist.

Alito is not alone in thinking that bodily autonomy necessarily includes drug usage, although his stance that bodily autonomy does not exist is more unique. According to ananalysisby Tim Weber, who represented the State of Indiana in the medical field asDeputy Attorney General, the case allowing the consumption of alcohol and tobacco under the unenumerated right to privacy directly applies to marijuana as well.

Marijuanas history in the United States, and in human history in a broader sense, parallels the history of tobacco and alcohol. For instance, both tobacco and hemp were cash crops in the early United States, and both alcohol and marijuana have been the object of a government prohibition that has given criminal entities revenue through the black-market sale of the substances during the prohibition. These similarities suggest that the law should treat alcohol, tobacco, and marijuana similarly, he wrote. Furthermore, as alcohol and tobaccowhich are proven to be generally more harmful to health and more addictive than marijuana when consumedare legal for individuals to choose to consume, it is reasonable to think that a bodily autonomy right would protect marijuana consumption in the same way. He concludes that, In all likelihood, the current federal prohibition of marijuana would fail both requirements for constitutionality under a strict scrutiny analysis.

One final point in Alitos opinion reinforces the pro-marijuana message of it: He claims that only unenumerated rights deeply rooted in the nation's history in tradition are real, and more modern interpretations are not constitutionally protected. It is a bogus argument in more ways than one, but it becomes particularly ridiculous as it applies to marijuana. The criminalization of marijuana is barely older than 50 years. It is less than three years older thanRoe v. Wade. IfRoeis too young to be rooted in history, so is the criminalization of marijuana.

On the other hand, it is easy to make a case for the fact that marijuana itself is deeply rooted in American history and traditions. Cannabis was a major crop of the early United States, and it was legal tender for a portion of history. Cannabis was perfectly acceptable, even as a psychoactive drug, up until a wave of Mexican immigration in the 1900s led to its criminalization by association with Mexicans.Hear Harry Anslinger, architect of marijuana prohibition, educate the great American public on the reasons why they should support the criminalization of cannabis:

There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others Reefer makes darkies think they're as good as white men.

Given that marijuana is deeply rooted in history but its prohibition is not, and given that the criminalization of marijuana goes against the well-established right to bodily autonomy according to Justice Alito himself, one can only conclude that, if a fair Supreme Court examined it, the right to consume drugs would have to be granted. All that we are missing now is a fair Supreme Court.

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While Overturning Abortion Rights, the Supreme Court Accidentally Recognizes a Right to Use Drugs - Shepherd Express