Daily Archives: June 29, 2022

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Jen Patja Howell shared an episode of the Lawfare Podcast in which Benjamin Wittes Wittes sat down on Twitter Spaces with Roger Parloff, Quinta Jurecic, and Molly Reynolds to discuss day four of the Jan. 6 committee hearings:

She alsoshared an episode of the Lawfare Podcast in which Wittes talked with Jurecic, Parloff, and Katie Benner of the New York Times about day five of the Jan. 6 select committee hearings:

Pollard shared a livestream of day four of the Jan. 6 select committee hearings. He also shared a livestream of day five of the Jan. 6 select committee hearings.

Elena Kagan shared an episode of Lawfare No Bull which features audio from the fourth public hearing held by the Jan. 6 select committee:

Bob Bauer argued that presidents seeking reelection can pose unique challenges to democratic elections in situations in which their desire to win can lead to disastrous results.

Daniel Richman discussed the role that the doctrine of willful blindness might have in proving Trumps criminal liability if a case were brought against the former president for his role in the Jan. 6 Capitol attack.

David Priess shared an episode of Chatter in which Shane Harris sat down with Tim Naftali to discuss the legacy of Watergate in light of the Jan. 6 Capitol attack:

Howell shared an episode of the Lawfare Podcast from the November 2020 archives in which Evelyn Douek and Jurecic sat down with Alex Stamos to discuss the state of election security and the difficulty of countering false election claims:

Robert Chesney and Steve Vladeck shared an episode of the National Security Law Podcast in which they discussed the latest Jan. 6 conspiracy indictment, the Navarro contempt of Congress charge, the lawsuits challenging the Texas and Florida social media content-moderation laws, and more:

Stewart Baker shared an episode of the Cyberlaw Podcast in which he sat down with Amy Gajda to discuss her book, Seek and Hide: The Tangled History of the Right to Privacy:

Baker shared another episode of the Cyberlaw Podcast in which he sat down with Matthew Heiman, Scott Shapiro, and Nick Weaver to discuss the bipartisan effort to transform the Committee on Foreign Investment in the United States, cryptocurrency firms on the verge of collapse, TikTok, and more:

Herb Lin discussed the functional trade-offs in baked-in cybersecurity in product management.

Susan Landau argued that the EU proposal on combating child sexual abuse material online could present national security problems and relies on technology that does not exist yet.

Steve Bunnell reviewed James E. Bakers The Centaurs Dilemma: National Security Law for the Coming AI Revolution (Brookings Institution, 2020).

Howell shared an episode of the Lawfare Podcast in which Wittes sat down with Asfandyar Mir and Daniel Byman to discuss the current position of al-Qaeda in the world:

Howell also shared an episode of Rational Security in which Alan Rozenshtein, Jurecic, and Scott R. Anderson sat down to discuss the extradition of Julian Assange, Chinese access to TikTok customer data, and Googles potentially sentient LaMDA artificial intelligence program:

Jordan Schneider shared an episode of ChinaTalk in which he sat down with Weijian Shan to discuss Shans personal story of exile during the Cultural Revolution and his view on Chinas economic transformation:

Anoush Baghdassarian analyzed recent cases from the International Court of Justice that Armenia and Azerbaijan each brought against one other for alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination.

Max Johnston and Bryce Klehm shared the final episode of Allies, which they discuss the uncertain long-term legal status of Mahnaz, a former member of the Afghan militarys Female Tactical Platoon, and other Afghans who are on parole after coming to the U.S. during the U.S.s withdrawal from Afghanistan:

Matthew Tokson discussed what a recent ruling from the First Circuit means for Fourth Amendment cases concerning the use of telephone pole cameras for surveillance purposes.

Kyleanne Hunter discussed the potential impacts that overturning Roe v. Wade would have on women in uniform.

And Hyemin Han and Katherine Pompilio shared an application for the fall 2022 Lawfare internship.

And that was the week that was.

Link:
The Week That Was: All of Lawfare in One Post - Lawfare - Lawfare

Digital generated image of purple circular helium balloon with bitcoin sign on it exploding against ... [+] grey background visualising stock market crash.

The looming prospect of compliance with the reporting requirements in section 6050I has been a problem for the digital asset industry since the passage of the Infrastructure Investment and Jobs Act (P.L. 117-58) last November.

The requirements pose procedural obstacles and privacy concerns for taxpayers, but the government has an interest in ensuring compliance with the tax laws.

The revised version of section 6050I requires taxpayers engaged in a trade or business to file an information return when they receive $10,000 or more in digital assets in one transaction or two or more related transactions in the course of that trade or business. The information required is the name, address, and tax identification number of the person from whom the assets were received; the amount of the assets; and the date and nature of the transaction. The provision was originally designed for cash transactions.

The brief push for legislative repeal of the crypto-related portions of the infrastructure bill last year never stood a great chance. The new proposal by Sens. Cynthia Lummis, R-Wyo., and Kirsten E. Gillibrand, D-N.Y., includes an instruction to the IRS to write guidance implementing the changes to section 6050I.

The Responsible Financial Innovation Act is crypto- and taxpayer-friendly on the whole, suggesting that at least two senators who are interested enough in ensuring that the digital asset industry has a favorable regulatory environment in the United States to sponsor comprehensive legislation arent looking to repeal the expansion of section 6050I.

That appears to be something of a trend. The Keep Innovation in America Act (H.R. 6006), introduced in November 2021, would have only delayed implementation of the section 6050I reporting requirements until 2026.

But it would have required the IRS and Treasury to study the effects of including digital assets in the scope of the reporting regime, including the effects on the privacy and liberty rights and interests of taxpayers and other persons affected.

Such a comprehensive study of the cryptocurrency industry and possible legislative design ramifications is a good idea.

Also last November, Sen. Ted Cruz, R-Texas, introduced S. 3206, which would have repealed the information reporting requirement, along with the change to the definition of broker in section 6045.

HOUSTON, TEXAS - MAY 27: U.S. Sen. Ted Cruz (R-TX) speaks during the National Rifle Association ... [+] (NRA) annual convention at the George R. Brown Convention Center on May 27, 2022 in Houston, Texas. The annual National Rifle Association comes days after the mass shooting in Uvalde, Texas which left 19 students and 2 adults dead, with the gunman fatally shot by law enforcement officers. (Photo by Brandon Bell/Getty Images)

He explained that he wanted Congress to study the digital asset industry more carefully before legislating because when it comes to legislating in an area where most Members of this body have very little familiarity of the details, it is highly perilous.

Cruz pointed to the technical difficulty that digital asset industry participants may have in getting the information required under section 6050I, and suggested that aggressive enforcement could decimate the digital asset industry, in a Joint Economic Committee hearing on November 17.

A recent case highlights the pressing need for Congress to be more circumspect in its attempts to regulate both the digital asset industry and the digital privacy of Americans more generally.

Coin Center, along with Dan Carman, Raymond Walsh, and Quiet Industries Corp., filed a suit on June 10 to stop enforcement of the infrastructure bills expansion of section 6050Is reporting requirement for digital assets, arguing that it is facially unconstitutional under the First, Fourth, and Fifth amendments.

In Carman v. Yellen, No. 5:22-cv-00149-KKC (E.D. Ky. 2022), the plaintiffs allege that the requirement would force the disclosure of sensitive information in violation of their reasonable expectations of privacy and their property rights.

The complaint also says that it would threaten to expose the plaintiffs protected associations and thereby chill their expressive activities.

As an example of the breadth of information that the reporting requirements could reveal, the complaint notes that from one [section] 6050I report in 2024, the government could discover that a person donated to a local mosque in 2016, paid for a sons sobriety treatment in 2018, contributed to an unpopular political cause in 2020, and hired a marriage counselor in 2022.

Absent the information reporting, the government typically needs a warrant for a cryptocurrency address to make those types of connections. Extending [section] 6050I to digital assets would not meaningfully assist the IRSs administration of the income tax, the complaint argues.

At the November 2021 JEC hearing, Peter Van Valkenburgh of Coin Center explained that although the Bank Secrecy Act passed constitutional muster because the third parties who bear the reporting requirements hold private information that has been voluntarily given to them for a legitimate business purpose, theres no third party in the section 6050I context.

bitcoin wallet for online cryptocurrency trading

Accordingly, he said the third-party doctrine cannot render a warrant unnecessary for the collection of information such as Social Security numbers. That argument is reflected in the Carman complaint. One of the central stated goals of cryptocurrency is to allow transactions without the intermediary institutions that implicate the third-party doctrine, such as banks and telephone companies, the complaint says.

The Carman plaintiffs first argument is that the reporting requirement constitutes an unreasonable search in violation of the Fourth Amendment.

Digital asset users have developed and adopted a technology designed to preserve personal agency and protect enhanced privacy in transactions, which entitles them to an enhanced expectation of privacy, the complaint states.

The response to the complaint will likely address the legitimacy of the governments interest in getting the information it seeks about transactions in digital assets. There should be some mechanism to allow the government to enforce the tax and other laws.

How to do that when theres no obvious intermediary from whom to require information reporting on specific transactions is a broader debate that was exemplified last year in the expansive proposal for financial account information reporting.

The Carman complaint cites opinions concerning the privacy implications of various laws, including an opinion from Supreme Court Justice Lewis F. Powell Jr. in 1974 that explains, Financial transactions can reveal much about a persons activities, associations and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy.

The problem is that the justices and judges who wanted to recognize that line werent writing the majority opinions.

The Carman complaint highlights one of the central privacy issues of the digital age in its First Amendment claim based on freedom of association.

The plaintiffs might have difficulty succeeding with this argument in court, because their claim that the inviolability of privacy in associations means that Americans presumptively enjoy a right against reporting mandates is hard to square with the other reporting requirements in the tax code.

They might stand a better chance of finding a sympathetic ear in Congress with their other argument that truly private associations have become the last refuge of Americans fearful of the consequences of engaging in public life.

Part of the challenge here is that financial activities, even in decentralized forms, arent exclusively expressive. Sometimes financial choices are just that business transactions that have no particular First Amendment implications.

Many of them, if exposed, wouldnt reveal expressive associations so much as everyday financial decisions. That could implicate privacy concerns generally, but whether you ordered a book from a huge online retailer or a small local shop doesnt necessarily implicate freedom of association.

The argument is that by forcing disclosure of transactions that arent necessarily expressive, the government could use the information gleaned from them to uncover expressive transactions as well.

Once the government knows how to identify an individual on the public ledger from disclosure of a large transaction, it can find all the smaller transactions too. The trade or business limitation is insufficient because many contributions to advocacy groups would fall within the course of a trade or business, the complaint notes.

The ability to easily produce a full picture of the financial choices of taxpayers because of advances in technology cant be ignored when considering the impact of seemingly limited reporting regimes.

That should now be a universal consideration in the development of reporting requirements, although Congress doesnt seem to be up to speed with the relevant technology.

By highlighting critical modern privacy issues, the complaint provides an opening for their further consideration in the development of reporting regimes. Congress should do its share here, rather than leaving the questions entirely to the courts.

Still, this case will be important to watch because it could offer insight into how the courts might view a proposal like the one from the Biden administration last year to require broad financial account reporting. The contexts are different digital assets versus bank accounts but the arguments about transactional privacy have enough similarities that they could be a preview should that type of proposal be revived.

The Carman complaint notes that the third-party doctrine is restricted to the sharing of information that provides a limited view of a persons affairs, not a detailed mosaic.

In the financial account reporting regime, the $600 threshold for gross inflows and outflows, or even a slightly higher one, would likely have created a situation in which the limited collection of individual information, when aggregated across all accounts and individuals, would have offered a detailed picture.

The plaintiffs have a worthy and serious point about Congresss near-total disregard for individual privacy, but that failure isnt new, and it isnt limited to digital assets.

Protection of digital privacy in the United States is almost entirely absent, leaving those concerns to be addressed by what amounts to a privacy-exploding scheme based on a facade of consent. But the appropriate venue for this broader debate is the legislature.

Go here to see the original:
Tax Information Reporting On Digital Assets Steps Into The Spotlight - Forbes

An image of Eastman appears onscreen during theUnited States House Select Committee on the January 6 Attack public hearings. Photo via Getty Images.

Trump-allied attorney John Eastmans ears are probably burning, considering that the House Jan. 6 Select Committee has recently discussed him at length; specifically, theyve questioned witnesses about an allegation that he came up with a completely bonkers and entirely illegal plan to pressure Mike Pence into overturning the election. (Trump White House lawyer Eric Herschmann testified that he told Eastman his plan was crazy and would lead to violent protests, which he said Eastman essentially shrugged off.)

On Monday, Eastman filed suit in a New Mexico federal court, demanding that the FBI return his cellphone, which he said was seized from him on June 22 in the parking lot of a restaurant in Santa Fe, where he now lives, and where I am from. The resounding response from everyone in northern New Mexico has been twofold: He lives here? and also, more importantly, Which restaurant, though? Through a deranged, time-consuming and Twitter-heavy use of my day, with the aid of family members, Google street view, and, crucially, several friends from high school, I believe I have answered the second question.

Food is a big preoccupation in northern New Mexico, because its the best on earth, and because the choice of where to eat is deeply a deeply political and culturally-specific decision that reveals a lot about the individual. Was Eastman dining at a fancy country club-esque establishment like Quail Run or Las Campanas? Was he out living large at the steakhouse that everyone still calls Steaksmith but is apparently called Bourbon Grill now? Was he eating at the fucking Chick-Fil-A, which only landed in town a few years back? What kind of taste does John Eastman have? Does he even know where the good food is?

Before he was haunting local eateries, Eastman advanced a totally false and obviously bullshit theory of mass voter fraud in a now-infamous memo, where he laid out a step-by-step plan to keep Trump in power, like some kind of hamfisted Scooby Doo villain. In his limited free time, when he has not apparently been trying to subvert democracy and the basic rule of law, he regrettably appears to have moved to Santa Fe. This is not an uncommon problem: weird creeps of national infamy move to New Mexico all the time to be relatively unobserved, like Donald Rumsfeld, who bought a house in Taos, and former Nixon White House Counsel John Ehrlichman, who moved to Santa Fe and grew a beard after serving prison time for his role in Watergate. (His extremely nice daughter taught me piano.)

Public records show that Eastman owns a two-bedroom, two-bath in a relatively nice part of town. Those records indicate that he bought the house in 2003 for a little more than $400,000, and owns another property in Long Beach, CA; Texans and Californians who buy second homes in New Mexico are considered a scourge by locals, and a new legislative proposal would tax their properties at a higher rate. Back in 2008, Eastman also appears to have briefly rented an apartment in a fairly charmless complex on Santa Fes south side, which is very funny, but probably only if youre from here. (Eastman, his attorney, and the Claremont Institute, the conservative think tank where Eastman is a senior fellow, all did not immediately respond to requests for comment.)

In a motion filed in New Mexico U.S. District Court on June 27, Eastman claimed that FBI agents approached him on the evening of June 22 while he was leaving a restaurant. Eastman said that he demanded to see a warrant from them, which he claims they only showed it to him after he was frisked and his phone was seized. The motion also appears to be spinning some other kind of conspiracy theory, reading, The federal agents identified themselves as FBI agents, but they appeared to be executing a warrant issued at the behest of the Department of Justices Office of the Inspector General (OIG). It respectfully demands the return of his phonean iPhone Pro 12and that the court order the OIG to destroy all copies of any information that has already been retrieved or copied from the device. It adds, Movant further requests that any access to the cell phone and its information be stayed until he has a full and fair opportunity to assert and protect his Constitutional rights and the privileged communications of his numerous clients.

A video of the phone seizure also aired Monday night on Tucker Carlsons program on Fox News. Tucker, broadcasting from Brazil for some reason, scowled in constipated anguish as Eastman claimed that his Fourth Amendment rights were being trampled upon. This warrant is invalid on its face, Eastman told him, and likened it to a general warrant that the British king issued to just go rummage through somebodys belongings to see if they could find evidence of some crime.

Thats all certainly a lot of words, if not very good ones. But the restaurant thing immediately seized the interest of New Mexicans; Twitter and a Facebook group called Santa Fe Bulletin Board both immediately filled with heated speculation about where Eastman could have been dining.

I texted several family members to ask their thoughts, one of whom was convinced it was probably Quail Run or somewhere else fancy and secluded.

We witnessed a patron carry on endlessly about water the wait staff spilled on her there, the family member offered. It was quite a performance. We decided they were Republicans by virtue of their demonstration of outrage and personal offense.

This was compelling evidence, but it wasnt quite right. I had no choice but to tweet about this. As soon as I did so, I was joined in a Twitter thread by like seven people I know from high school (more specifically, we all used to go to punk shows together at a teen space called Warehouse 21).

Immediately, using the blurry background of the video that aired on Fox News, we began to speculate. Eastman was clearly in a large parking lot, which suggested one of the major artery roads on Santa Fes south side. Chick-Fil-A seemed like a likely contender, because Eastman seems like exactly the kind of guy who would eat there, and, according to Google Street View, the strip mall where its located is one of the only places that seems to have the kind of large parking lot lights on a high pole seen in the background of the video.

I bet it was Chick-Fil-A, my old friend Dave, who I have not seen in like 20 years, tweeted. Other people in the thread disagreed: wouldnt he be eating somewhere nicer, like The Compound, one of Santa Fes nicest restaurants, or at least The Shed, which has a very long wait and appropriately hot chile and incredibly good frozen mocha cake?

Imagine him being perp walked out of that tiny door, my friend Warren tweeted. (The Shed has a very low entryway). In other words, while that was a super funny visual, it couldnt be right; the Shed is also located near the plaza and faces a very narrow street, not a parking lot.

The sticking point for all of us, busily avoiding our jobs and clicking around Google Maps, were the number of trees in the background of the video, along with those big, high, parking lot lights. The density of the trees suggested somewhere near water, I thought, and the size of the parking lot meant it had to be somewhere on the outskirts of town.

What about something over where Annapurna was? suggested Dave, naming a restaurant thats been closed for years at that location, because all of our references are 15 years old, and we too are old. Whats over there now?

This was a good theory; Annapurna was in another strip mall on the other end of town, near the veterans cemetery. But to me, it didnt ring true; that strip mall is home to a natural foods store (Eastman definitely wasnt there), a sushi place (no), and a pho joint (come on).

Nonetheless, we all checked Google Street View again and realized Dave had to be right. I think Dave actually cracked the case, my other old friend Liz tweeted; she attached a side-by-side comparison of the parking lot and a still from the video. The shape of the lights, the angle of the trees, the power line overhead; it was unmistakable.

The only thing that made sense is that Eastman was there. The question remained was where, exactly, in the strip mall he could be eating. Dave suggested Valentinas, a New Mexican restaurant thats open for dinner, and thats significantly less upscale than anywhere wed had in mind, but perhaps an apt choice for someone trying to portray himself a man of the people. Everyone agreed that the tortas are good and that they have fried ice cream. (My friend Liz pointed out that he was parked closer to Kellys Liquors, and perhaps couldve been there instead; but he said he was having dinner, and we have to take him at his word.)

Warren, whod been about to feed his infant child or something less important, raced to the scene. Im here, he tweeted. He checked with Valentinas staff and the sushi restaurant, neither of whom recognized an image of a flustered white man being frisked by the feds. (The pho place was closed.) Warren also reported that a journalist from Outside magazine, clearly snooping on our important Twitter thread, showed up while he was looking.

Eastman did not immediately respond to a request for comment about whether hed gone to Valentinas and whether he ordered the fried ice cream. Nonetheless, in the impossibly sketchy Trump universe, filled with so many petty, disturbing little mysteries, this one, at least, seems partially solved.

Additional reporting by Warren Langford.

See original here:
Which Santa Fe Restaurant Was Trump Lackey John Eastman Eating At When the FBI Seized His Phone? An Investigation - VICE