Mediaboss Marketing

Posted Fri, August 4th, 2017 1:39 pm by Orin Kerr

Orin Kerr is the Fred C. Stevenson Research Professor of Law at The George Washington University Law School.

One of the most basic ideas in Fourth Amendment law is what you might call the eyewitness rule: The government can always talk to eyewitnesses. If the police find out a bank was robbed, they can go to the bank and interview those who saw the crime occur. They can talk to the bank clerk about what he observed. They can talk to the security guard about what she experienced. They can talk to bank customers about what happened. These interviews, whether voluntary or compelled, dont trigger the Fourth Amendment. Theres just no Fourth Amendment right to prevent people from talking about what they saw you do.

If the Supreme Court sticks with the eyewitness rule, Carpenter v. United States is an easy case. Cellphone companies are eyewitnesses. Customers use their services and hire the companies to place calls for them. The companies generate records of what they did for their customers. If the police find out a phone was used in the commission of a crime, they can go to the phone company and get its records about how the phone was used. The phone company can be forced to tell the government what it did for its users. Because theres no Fourth Amendment right to prevent people from telling the police about what they saw you do, getting those records does not trigger the customers Fourth Amendment rights.

The challenge for Timothy Carpenters lawyers is to get the Supreme Court to carve out an exception to the eyewitness rule. They need to persuade the court that sometimes the law shouldnt let people talk about what they saw you do without a warrant. The strategy will be to say that the eyewitness rule shouldnt apply because Carpenter had a reasonable expectation of privacy in his location. Because he had a reasonable expectation of privacy, theyll say, the government should need a warrant to find out what the phone company knows about him.

But this framing is based on a conceptual error. Properly understood, this case has nothing to do with reasonable expectations of privacy. To see why, we need to understand the origins of the reasonable-expectation-of-privacy test.

In 1967, when Katz v. United States was decided, two kinds of cases dominated Fourth Amendment law defining what is a search. The first kind of case identified the spaces that merited Fourth Amendment protection. Homes received protection, but open fields didnt. Katz was one of these cases, because it asked whether public phone booths were protected, like homes, or unprotected, like open fields.

The second kind of case considered when disclosure from inside a protected space eliminated privacy. The Supreme Court decided a long string of those cases in the decade before Katz. And it consistently adopted a simple rule: A person who knowingly exposed private information from a private space to outside observation waived Fourth Amendment protection. Hoffa v. United States, decided the year before Katz, is a helpful example. The Supreme Court held that James Hoffa had no Fourth Amendment rights in what he told his friend Edward Partin even though the conversation occurred inside the protected space of Hoffas hotel room.

This background is necessary because it explains Justice John Marshall Harlans two-part Katz test that the Supreme Court later adopted. Harlan explained the test as his understanding of the rule that has emerged from prior decisions, so he was simply trying to summarize what the cases had held. And Harlans summary nicely (if briefly) encapsulated the two lines of cases. First, a space had to be protected, which was the case if society was willing to recognize an expectation of privacy as reasonable there. Second, the person had to exhibit an actual expectation of privacy, an intention to keep the protected space to himself, by not exposing the space to the plain view of outsiders.

In other words, the Katz two-part test just restated the two requirements of then-existing Fourth Amendment doctrine. To establish Fourth Amendment protection, a person needed to have a place that society would recognize as justifying privacy and had to take steps to shield that space from outside observation.

Why does this history matter for Carpenter? It matters because this case, like all eyewitness cases, involves the second aspect of Fourth Amendment protection: the requirement that a person must shield his information from observation to get Fourth Amendment protection. Even assuming a cellphone users location should count as a protected space, the user has revealed his location to the phone company. Whether Carpenter had a reasonable expectation of privacy should be irrelevant. Carpenter shouldnt win because he didnt shield his location from his phone provider. Carpenters relationship with the phone company is like Hoffas relationship with Partin. Carpenter cant both share his information with the phone company and demand a warrant before the phone company gives that information to the government.

This point is hard to see because the Supreme Court veered off-course in the 1970s and 1980s with cases involving what it has called the third party doctrine. Those cases are normatively correct. But theyre in the wrong doctrinal box. As I detailed in a recent article, the court mistakenly moved the content of the subjective-expectation-of-privacy test over to the reasonable-expectation-of-privacy test and relabeled it the third-party doctrine. Students of the Fourth Amendment have been confused ever since. Isnt it sometimes reasonable, they ask, to expect privacy in information that a person knowingly disclosed? But thats not the right question. The right question is, should you have a right to stop others from telling the government about what they saw you do?

This understanding explains the maddening difficulty Carpenters side has articulating the limits of its argument. The Fourth Amendment calls for clear rules. The government needs to know what is a search and what isnt. But Carpenters side always struggles to explain when the Fourth Amendment should offer protection against government access to business records. If cell-site records are protected, how about credit-card records? Telephone records? Bank records? Should the amount of time covered by the governments request matter, and if so, how? Advocates for Fourth Amendment protection in cases like Carpenter generally decline to say where the lines should be.

The reason for this reluctance, I think, is that there is no obvious line to draw for when you should have a right to stop others from telling the government what they know about you. Carving out an exception to the eyewitness rule creates a puzzle: There are no pre-existing principles that explain which eyewitnesses can be forced to talk to the government and which ones cant. Legislatures can just draw arbitrary lines. But courts have no traditional tools to use to decide when a warrant is needed to make an eyewitness speak.

Posted in Carpenter v. U.S., Summer symposium on Carpenter v. United States, Featured, Merits Cases

Recommended Citation: Orin Kerr, Symposium: Carpenter and the eyewitness rule, SCOTUSblog (Aug. 4, 2017, 1:39 PM), http://www.scotusblog.com/2017/08/symposium-carpenter-eyewitness-rule/

Here is the original post:
Symposium: Carpenter and the eyewitness rule - SCOTUSblog (blog)

On August 3, The American Conservative ran a lengthy piece of mine dealing with the whistleblower protection nightmare that is the Department of Defense. One of the subjects of that piece is now former NSA IG George Ellard, and because I had even more on his case than I could fit into the TAC piece, I wanted to share the rest of what I knowand dont knowabout the allegations against Ellard, the final disposition of the case, why the Obama administrations whistleblower retaliation fix is itself broken, and what might be done to actually provide meaningful protections for would-be national security whistleblowers in the Pentagon and elsewhere in the national security establishment.

Regarding what little we know about the specifics of Ellards case, I had this to say in the TAC piece:

As the Project on Government Oversight firstreportedin December 2016, a three-member interagency Inspector General External Review Panel concluded in May 2016 that the then-Inspector General of the National Security Agency (NSA), George Ellard, had, according to POGO, himself had previously retaliated against an NSA whistleblower[.] This apparently occurred during the very same period that Ellard hadclaimedthatSnowden could have come to me. The panel that reviewed Ellards case recommended he be fired, a decision affirmed by NSA Director Mike Rogers.

But there was a catch: the Secretary of Defense had the final word on Ellards fate. Outgoing Obama administration Defense Secretary Ash Carter, apparently indifferent to the magnitude of the Ellard case, left office without making a decision.

In the months after Donald Trump became president, rumors swirled inside Washington that Ellard had, in fact, escaped termination. One source, who requested anonymity, reported that Ellard had been seen recently on the NSA campus at Ft. Meade, Maryland. That report, it turns out, was accurate.

On July 21, in response to the authors inquiry, the Pentagon public affairs office provided the following statement:

NSA followed the appropriate procedures following a whistleblower retaliation claim against former NSA Inspector General George Ellard. Following thorough adjudication procedures, Mr. Ellard continues to be employed by NSA.

After Id finished the TAC piece, Ellards attorney, Terrence ODonnell of the Washington mega law firm of Williams & Connolly, sent me the following statement about his client, George Ellard:

The Office of the Assistant Secretary of Defense (ASD) examined and rejected an allegation that former NSA Inspector General, George Ellard, had retaliated against an NSA employee by not selecting that employee to fill a vacancy in the OIGs Office of Investigations.

In a lengthy, detailed, and well-reasoned memorandum, the ASD concluded that Dr. Ellard had not played a role in that personnel decision or, in the terms of the applicable laws and regulations the ASD cited, Dr. Ellard did not take, fail to take, or threaten to take or fail to take any action associated with the personnel decision.

This judgment echoes the conclusion reached by the Department of Defenses Office of the Inspector General. An External Review Panel (ERP) later came to the opposite conclusion, leading to the ASD review. The ASD concluded that the evidence cited in the ERP report as reflective of [Dr. Ellards] alleged retaliatory animus toward Complainant is of a character so circumstantial and speculative that it lacks probity.

In assessing Dr. Ellards credibility and in rendering its decision, the ASD also considered Dr. Ellards distinguished career of public service, spanning more than 21 years of service across the executive, legislative, and judicial branches, culminating in almost 10 years of service as the NSA IG. Dr. Ellard, the ASD noted, has been entrusted to address some of our nations most challenging national security issues; successive NSA Directors have consistently rated Dr. Ellards performance as Exceptional Results and Outstanding; and he has been commended by well-respected senior officials with whom [he has] worked closely over the years for [his] ability and integrity.

Dr. Ellard is serving as the NSA Chair on the faculty of the National War College, a position he held prior to the ERP review.

Quite a bit to unpack in that statement. Lets start with the ASDs decision to overrule the External Review Panel (ERP), a key component of the Obama-era PPD-19, the directive designed to prevent in all government departments or agencies the very kind of thing Ellard allegedly did. Here are the key paragraphs of PPD-19 with respect to ERP recommendations:

If the External Review Panel determines that the individual was the subject of a Personnel Action prohibited by Section A while an employee of a Covered Agency or an action affecting his or her Eligibility for Access to Classified Information prohibited by Section B, the panel may recommend that the agency head take corrective action to return the employee, as nearly aspracticable and reasonable, to the position such employee would have held had the reprisal not occurred and that the agency head reconsider the employees Eligibility for Access to Classified Information consistent with the national security and with Executive Order 12968. (emphasis added)

An agency head shall carefully consider the recommendation of the External Review Panel pursuant to the above paragraph and within 90 days, inform the panel and the DNI of what action he or she has taken. If the head of any agency fails to so inform the DNI, the DNI shall notify the President. (emphasis added)

Taking the ERPs recommendations is strictly optional.

Whats so significant about the ERP recommendation in Ellards case was that the ERP not only apparently believed that the whistleblower in question should be given a fair chance at getting the position he or she originally applied for within the IG itself, but that Ellards actions werein the view of three non-DoD IGs who examined the caseso severe that they recommended he be terminated.

ODonnell quoted from a Pentagon memo clearing Ellard that is not public. The ERPs findings, along with their record of investigation, are not public. Nor do we know how thoroughor cursorythe ASDs review of the Ellard case was prior to the decision to clear Ellard. Given all of that, who are we to believe?

There are some key facts we do know that lead me to believe that the ERPs recommendations were not only likely soundly based, but that the whistleblower retaliation problem inside the Pentagon is deeply entrenched.

ODonnells statement also claimed that the ASDs decision to reverse the ERP and clear Ellard of wrongdoing echoes the conclusion reached by the Department of Defenses Office of the Inspector General. But its the DoD IG itself, as an institution, that is also under a major cloud because of other whistleblower retaliation claims coming from former NSA or DoD IG employeesspecifically former NSA senior executive service member Thomas Drake and for DoD Assistant Inspector General John Crane. As Ive noted previously, the independent Office of Special Counsel found adequate evidence of whistleblower retaliation and document destruction to refer the matter to the Justice Departments own IG; Cranes case is getting a look from the Government Accountability Office (GAO), Congresss own executive branch watchdog.

The DoD and NSA IGs have clear conflicts of interest when employees from within their own ranks are implicated in potential criminal wrongdoing. PPD-19 was supposed to be the answer to such conflicts of interest, but its lack of teeth from an enforcement standpoint renders it a badly flawed remedy for an extremely serious integrity problem.

And what about Congress? PPD-19 speaks to that as well:

On an annual basis, the Inspector General of the Intelligence Community shall report the determinations and recommendations and department and agency head responses to the DNI and, as appropriate, to the relevant congressional committees.

But Congress doesnt need to wait for the IC IG to tell it what is already publicly known about the Ellard, Drake, and Crane cases. It has ample cause to not only investigate these cases, but to take action to replace PPD-19 with a whistleblower protection system that actually protects those reporting waste, fraud, abuse, or criminal conduct and punishes those who attempt to block such reporting. Two options that deserve consideration are 1) empowering OSC to examine these kinds of cases and issue unreviewable summary judgments itself or 2) revive the expired Independent Counsel statute, rewritten with a focus on whistleblower reprisal case investigations.

One thing is beyond dispute. The PPD-19 process is not the answer for protecting whistleblower and punishing those who retaliate against them. We need a credible system that will do both. The only question now is whether anybody in the House or Senate will step up to the task of building a new one.

More:
The Curious Case Of Ex-NSA Inspector General George Ellard - Cato Institute (blog)

A federal judge has sided with prosecutors in the case against former Fort Gordon contractor Reality Winner, finding that her defense team should be muzzled from speaking about any information deemed classified by the government, even if it has been widely reported in local, national and international media publications.

Winner has pleaded not guilty to a single count of violating a provision of the espionage act. She is accused of leaking a classified document to online media news publication, The Intercept.

That document was extensively reported on by The Intercept and numerous other news media organizations in stories on Winner, who is accused of leaking a national security document she allegedly obtained through her job with a NSA contractor on Fort Gordon.

The document is an analysis of the extent of Russias efforts to hack into state election boards. Russian meddling is the subject of U.S. Senate and House intelligence committees investigations and a special prosecutor who is looking into possible collusion between Trump supporters and the Russians during last years presidential campaign.

In his order released Thursday, Magistrate Judge Brian K. Epps wrote that determining what is classified information is a function of the executive branch of government, not the judicial branch.

Just because the defense team has expressed concern of accidentally mishandling classified information is no reason to relax the strict procedures required, Epps wrote. The defense is not prohibited in using classified information in Winners defense, but it must follow the strict procedures, he wrote.

Both sides have until Aug. 16 to weigh in on Epps proposed protective order that describes the closely guarded handling of materials in the case. A classified information security officer is in charge of ensuring such information is handled only by those on the defense team who have obtained security clearance, and only in a secured location.

The defense is to have free access to that location during regular business hours, although other times may be allotted with proper notice and consultation with the U.S. Marshals Service, according to the order.

Any notes or other papers the defense may create using classified information is not allowed outside of the security location. Any document filed with the court that contains or might contain classified information must be filed under seal. Only those portions deemed not classified by the classified information security officer will be unsealed for public review.

At the end of the case any such defense-prepared material will be destroyed by the classified information security officer. The confines of the protective order are a lifetime commitment and any violation is punishable not only by a finding of contempt but criminal prosecution.

The publication of any classified information does not change the classified status unless a member of the executive branch of government with the proper authorization declares the information to be declassified.

Winners trial is tentatively set to begin in October.

Reach Sandy Hodson at sandy.hodson@augustachronicle.com or (706) 823-3226

Continued here:
Judge sides with prosecution in Reality Winner NSA leak case | The ... - The Augusta Chronicle

The clich goes: Imitation is the best form of flattery. In real life situations, the one who gets flattered may be happy about it, but may not harm the interest of the individual doing the copying. However, to lift someone elses work online and publish as ones own can prove to be detrimental to the person committing Plagiarism. And there are effective tools to instantly check if the content has been copied from elsewhere. The latest to join this fight against plagiarism is the Plagramme Plagiarism Checker.

There are indeed some refreshing features in the new software and should prove to be very useful for genuine content writers in any field of activity.

Some of the salient features of Plagramme Plagiarism Checker are enumerated below.

1) Multilingual

This must be considered as a unique feature and probably the first ever attempt by the developers of plagiarism checking tools to come up with it. This is in response to the widespread practice of people exploiting the weakness in the existing tools to check content if it has been translated into a language different from the original one. The Plagramme plagiarism checker comes with the capability to identify and flag such translated content.

2) An Advanced Scoring Method

The Plagramme plagiarism checker has brought in several enhancements in the manner in which the content is checked and presented. Most such tools would just mark the percentage of genuine content and nothing much else. But when you use Plagramme, it lets you know the number of similarities found in your content as any such tool would do. Also, it can suggest the risk of plagiarism; it can point out if the content you created has too much paraphrasing and also bring out the anomalies in terms of bad citations. Of late, this has been an issue among the academic circles, and excessive use of citations has led to difficult situations for those evaluating the dissertations. Plagramme is capable of highlighting the wrong or indiscriminate use of citations.

3) Detecting Unusual Methods to Escape Detection

There is a dictum among the police officers that in order to solve a crime, you might have to think like a criminal and then trace the solution. The job of a plagiarism checker has also reached such proportions. One of the strange ways adopted by those who deliberately engage in copying content is to camouflage it by introducing extra alphabets or letters and coloring them white. This would not show up while reading with bare eyes in the white background. But the plagiarism checker will pick them up and pass them off as being different than the original and therefore genuine. Luckily, Plagramme has worked around this trick also by employing appropriate algorithms, and it can detent such white color characters as well. This must prove quite handy in the hands of users of the tool to check the originality of content in submissions made by their clients or students or in any other setting.

4) Ease of Use, and its Free

The developers of the Plagramme plagiarism checking tool have made it very convenient for the users to experience and use this online application on their systems. The interface is quite uncomplicated, and navigation made simple so that even those who may use it rarely and are not so tech-savvy can also employ the tool. Once the content gets checked and confirmed through Plagramme, the content creator can be sure that it will pass any test.

5) Other Features

There are many other facilities like online editing and the use of cloud storage to park your document for checking for plagiarism. Besides, Plagramme does the checking for the originality of content against a much larger basket of online content than any previous tool would do. About 14 trillion websites and other resources on the web would be scanned to compare the contents and certify as being original.

Bottom Line

From the perspective of the professionals who use the tool to check on content they are about to upload to the sites of their clients, it gives that additional comfort that Plagramme Plagiarism Checker acts the way Googles algorithms would function. They wont be presented with surprises later where their contents are removed as being copied from elsewhere. Many independent analysts and experts have tested the Plagramme plagiarism checker and feel it is one of the best things to happen to the content writing business in recent times.

You can use this online tool from Plagramme.com.

Read more from the original source:
Plagramme Plagiarism Checker offers innovative features to Check Content - TWCN Tech News (blog)

Digital Literacy

Faculty, staff and students at the University of Miami now can utilize the full suite of Adobe Creative Cloud software at no cost. The institution is the first in Florida to be designated an Adobe Creative Campus, signaling its commitment to connecting learners to digital tools and expanding digital media literacy across disciplines.

"The university aims to always provide its community with the most cutting-edge tools and technology, at little to no cost, to align with its mission to transform lives through teaching, research and service," according to a news release. The Adobe Creative Cloud, which includes Photoshop, Illustrator, Premiere, InDesign, Acrobat Pro and other tools for graphic design, video and photo editing and web development, will join a portfolio of other applications available for free to the University of Miami community, such as the Microsoft Office Suite, McAfee VirusScan and Box.

"Adobe is so useful for all students, whether it is to learn for personal use or a career skill. It helps students branch out and learn more useful tools," said University of Miami senior Aaron Gluck, who also serves as IT student government liaison and a software licensing employee in the university IT department. "UM Student Government and UMIT have worked really hard to make this happen, and we hope that a lot of students will download the software and take advantage of the incredible opportunity we've been given."

"Adobe and the University of Miami are each committed to supporting students with technologies that will enhance their academic experience and help differentiate them in their careers," commented Jonathan Hammond, Adobe vice president for North American education, in a statement. "Adobe Creative Cloud empowers students to communicate in digitally and visually compelling ways, resulting in students that are more engaged in their classwork. Learning outcomes are improved and critical thinking and creative problem-solving skills are fostered all skills necessary to succeed in this digital economy."

About the Author

About the author: Rhea Kelly is executive editor for Campus Technology. She can be reached at rkelly@1105media.com.

Go here to read the rest:
University of Miami Provides Free Access to Adobe Creative Cloud Software - Campus Technology