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SAN FRANCISCO (CN) A federal judge Wednesday was unmoved by accusations that hed forced Uber to fire its star engineer Anthony Levandowski for refusing to deliver evidence that could prove Levandowski and Uber stole trade secrets from its driverless car rival Waymo.

The accusation came from Levandowskis attorneys at a hearing on his motion to intervene in Waymos lawsuit, accusing him and Uber of stealing its technology to build a competing self-driving car.

Levandowski sought to interveneto request modifications to a May 15 provisional relief order from U.S. District Judge William Alsup, to clarify that Alsup had not ordered Uber to fire him if he refused to waive his Fifth Amendment rights and produce key evidence in the case.

Alsup ruled from the bench that Levandowskis May 18 motion is moot, based on assurances from Uber attorney Karen Dunn that Uber fired Levandowski on its own initiative, not based on Alsups order.

Uber told Levandowski in a May 26 letter that it had fired him from his job leading Ubers driverless car program for not cooperating with its internal investigation into Waymos allegations, and announced the firing publicly on May 30.

I issued a very fine-tuned preliminary injunction order and Im not going to take back one word on that, Alsup said Wednesday.

Fearing criminal prosecution, Levandowski invoked his Fifth Amendment rights against self-incrimination to avoid producing documents or answering questions about them at his deposition, a motion Alsup denied.

In his provisional relief order, Alsup directed Uber to make Levandowski return thousands of files he stole from Waymo before resigning to work for Uber, writing that Levandowki had likely concealed troves of self-incriminating evidence by invoking his Fifth Amendment rights.

Waymo, a Google spinoff, says Levandowski downloaded 14,000 confidential files from its server just before he resigned in January 2016 to form a competing driverless car company called Otto, which Uber quickly acquired. The files include information on Waymos secret LiDAR system, a laser-based scanning and mapping technology its driverless cars use to see their surroundings.

Waymo sued Uber and Otto in February, claiming Levandowski used its technology to set up Otto, and that Uber snapped up Otto to get its hands on Waymos technology to fast-track its floundering driverless car program. It did not name Levandowski as a defendant.

On Wednesday, Levandowskis attorney Miles Ehrlich told Alsup that his provisional relief order had forced Levandowski to choose between his job at Uber and waiving his Fifth Amendment rights, because it required Uber and Otto to exercise the full extent of their corporate, employment, contractual, and other authority to force Levandowski to produce the stolen files and tell Uber what he did with them after leaving Waymo.

Levandowski said in his motion that the judges order meant that Uber would be held in contempt had Levandowski refused to waive his Fifth Amendment rights and Uber not fired him, since it would fail to measure up to the courts command that Uber exercise every lawful power it has over Mr. Levandowski.

Ehrlich said Wednesday that Alsups order is an unconstitutional state action that requires correction. He said the state cannot force people to self-incriminate on pain of losing their jobs, but Alsup had forced Levandowski to do so by coercing, or at least providing significant encouragement to Uber to fire him if he did not cooperate.

We are required to addresses the injury that is still ongoing, Ehrlich told Alsup. The injury is not being fired; the injury is being forced by state action to this unconstitutional choice. All of us understood you to be saying that Uber fire every bullet it had against Mr. Levandowski to waive his Fifth Amendment right.

Ehrlich said that Uber had kept Levandowski on as an employee throughout the litigation, had not demanded that he waive his Fifth Amendment rights, and had not threatened to fire him if he refused to do so, until Alsup delivered his order. And that according to Alsup himself, the first of two letters Uber sent to Levandowski about his job status after Alsup issued the order blamed the judge, meaning me, and said the judge is making us do this, were going to fire you unless you cooperate with this investigation.

Responding to Alsups concern about whether Uber fired Levandowski on its own initiative, Uber attorney Dunn told the judge that Uber fired Levandowski because he had ignored an internal deadline Uber set for him to turn over evidence.

It is very hard to look at this entire situation and pretend the court order doesnt exist, Dunn said. The courts order certainly provided substantial additional heft to what we had been urging, and the letters made clear that this has to do with our urging, in addition to the courts order.

Turning to Levandowskis state action argument, Alsup said that though a government employer cannot use the Fifth Amendment to threaten to fire employees who do not cooperate with an investigation, a private employer, like Uber, can.

Sometimes on a preliminary injunction you can order remedial relief that is something that the other side may not be strictly entitled to but is necessary in order to remedy the wrong that has been done. There is broad equitable power to carry out what is the right thing to do, Alsup said. So a federal district court surely has the authority, as part of remedial provisional relief, to order a private company to do something that it would have the authority to do on its own.

The Fifth Amendment is not a bar to the relief granted, and Im not taking back a single word of it, and its not going to be modified in any way.

Also Wednesday, Alsup heard Ubers motions seeking to staythe case while it appeals to the Federal Circuit his denial of its motion to force arbitration, and to dismissWaymos state Unfair Competition Law claim.

Ruling from the bench, Alsup denied the motion to, saying a stay would harm Waymo.

But he indicated he would grant Ubers motion to dismiss Waymos unfair competition claim based on Silvaco Data Systems v. Intel Corp. In that case, California trial and appeals courts found that using infringing software is not trade secret infringement.

Uber says Waymos unfair competition claim (UCL) and its California Uniform Trade Secrets Act (CUTSA) claim are based on the same allegations, and that the UCL claim is pre-empted by CUTSA.

I want you to know Im stuck with the Silvaco case, Alsup told Waymo attorney James Judah, though the judge said he believes Silvaco was wrongly decided. Im sympathetic to your position, but youre going to lose your motion.

I feel like youve got to go to the Legislature and get them to fix this, but I cant fix it for you.

Ehrlich is with Ramsey & Ehrlich in Berkeley; Dunn with Boies Schiller Flexner in Washington, D.C.; and Judah with Quinn Emanuel Urquhart & Sullivan in San Francisco.

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Originally posted here:
Judge Won't Budge on His Order in Waymo v. Uber Trade Secrets Case - Courthouse News Service

The law lags badly behind technology in a great many areas. One area where there is still huge uncertainty is whether the Fifth Amendment right against self-incrimination protects someone who refuses to disclose the passcode to their phone.

Weve seen conflicting rulings in the past, and a Miamireport shows that rulings may even vary between courts in the same state

TheMiami Herald reports that a child abuse suspect was jailed for six months for contempt of court after failing to reveal the correct passcode to his iPhone. Christopher Wheeler was arrested on suspicion of hitting and scratching his young daughter, with police believing that photos on the iPhone would help prove their case.

Detectives believe that his phone contains images of repeated injuries to the child, which could prove evidence in the case. A Broward judge earlier authorized a search warrant for Wheelers iPhone, but detectives had been unable to get in.

When a judge ordered him to provide the pass code, it didnt work. Rothschild held him in criminal contempt earlier this month.

Wheeler claimed he had given police the code and didnt know why it didnt work. The judge ruled that he would be released from jail if he reveals the correct code.

In a separate case in the same state, aMiami-Dade judge decided against holding a suspect in contempt of court for similarly refusing to reveal his passcode. Extortion suspectWesley Victor claimed that he didnt remember his passcode, and the judge ruled that there was no way to know given the passage of time.

[Wesley Victor was] accused of extorting a social-media celebrity over stolen sex videos. [He] and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot. Victor claimed he didnt remember the number. He prevailed.

On Tuesday, Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his pass code, more than 10 months after his initial arrest.

Back in 2014, a Virginia District Court ruledthat phone passcodes are protected by the 5th Amendment, though there is no such protection against using a suspects fingerprint to unlock a phone. Another Florida court took the opposite stance, insisting that the 5th Amendment does not apply to passcodes.

The legal position on using Touch ID to unlock a phone seems clearer, where multiple court rulings have decided that a fingerprint is the equivalent of a safe key, and police are free to use a suspects fingerprint to unlock the device. You can read a 2014 analysis of the legal position of both forms of protection here.

Via Engadget. Photo: MacWorld.

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Man jailed for refusing to disclose iPhone passcode underlines Fifth Amendment uncertainties - 9to5Mac

Individuals have a broad right to refuse to testify before Congress by invoking the Fifth Amendment right against self-incrimination, the Congressional Research Service explained last week.

Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be ensnared by ambiguous circumstances.

On the other hand, the scope of the Fifth Amendment privilege applies more narrowly when it comes to a congressional demand that a witness produce documents. The Supreme Court has made clear that the mere fact that the contentsof a document may be incriminating does not mean that the document is protected from disclosure under the Fifth Amendment.

See The Fifth Amendment in Congressional Investigations, CRS Legal Sidebar, May 26, 2017.

Other new and updated products from the Congressional Research Service include the following.

Presidents FY2018 Budget Proposes Cuts in Public Health Service (PHS) Agency Funding, CRS Insight, May 24, 2017

President John F. Kennedy Assassination Records Collection: Toward Final Disclosure of Withheld Records in October 2017, CRS Insight, May 26, 2017

Read more:
The Fifth Amendment in Congressional Investigations - Secrecy News (blog)

Pleading the Fifth wont end Russia questions

Re Michael Flynn cites public frenzy, takes the 5th on Senate subpoena (May 22):

Anyone who is surprised that former National Security Advisor Michael Flynn, who was fired by President Trump, plans to invoke his Fifth Amendment rights doesnt know history.

Since the days of the House Un-American Activities committee hearings in 1948, to the Iran-Contra scandal in 1986, or from Enrons bankruptcy scandal in 2002 to the Major League Baseball doping hearings in 2005, key witnesses have refused to testify before Congress.

What makes Flynns decision more interesting than most is its not-so-subtle connection to what candidate Donald Trump said during a campaign rally last September. Referring to Hillary Clintons key advisors and not Flynn, Trump told the crowd, If you are not guilty of a crime, what do you need immunity for? At another rally, Trump added, The mob takes the Fifth Amendment. If youre innocent, why are you taking the Fifth?

I dont have a clue how all this will turn out for the former presidential advisor, but I do know this: We are long way from closing the book on this chapter in our history.

Denny Freidenrich, Laguna Beach

They cant get enough of Grobatys columns

Many who read the Long Beach Press-Telegram have developed a pattern as to what is highest on their priority list: Is it the funnies first or the sports page, or maybe the weather?

For many of us, its page 3, below the fold, where we know we will find our friend Tim Grobaty and his clever arrangement of words that amuses and informs.

Sometimes he writes about things that I dont care about. I forgive him for that because he is so entertaining the rest of the time. The days that I am not happy are the days when his words are not published: Hes on assignment or has the day off is or on vacation.

Then there is a vacuum in my mornings that lasts until at least my coffee is gone. It doesnt feel good. Please figure out a way to publish something clever from Tims archives on those days; dont leave me in a vacuum.

It would be fun to read some of his thoughts from the dark ages of yesteryear. And no nobody elses clever ideas are good enough. I know you try, but we need Tim Grobaty.

Marjorie Rivera, Long Beach

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Pleading the Fifth won't end Russia questions: Letters - Long Beach Press Telegram

Former national security adviser Michael Flynn seemingly wont comply with congressional subpoenas to produce records related to a Senate investigation. Whats the constitutional basis for this controversy and can the Senate hold Flynn in contempt?

On Monday, Flynns lawyers said he wouldnt act on a subpoena from the Senate Intelligence Committee, which asked the retired Lieutenant General to supply a list of contacts he had with any Russian officials between June 16, 2015, and Jan. 20, 2017. Flynn was one of four people involved with President Donald Trumps campaign compelled to produce records by the committee.

Then on Tuesday, the Senate issued two new subpoenas to Flynn related to consulting businesses run by Flynn before he became national security adviser. Committee chairman Richard Burr of North Carolina said the committee sought "very specific"information in Flynns business records.The Senate wants Flynns testimony and documents related to its investigation of possible Russian interference in the 2016 general election.

Flynns legal team believes the act of producing the records will have the same effect as live testimony by Flynn about events that could potentially incriminate him. "Producing documents that fall within the subpoena's broad scope would be a testimonial act, insofar as it would confirm or deny the existence of such documents, they said on Monday. The attorneys also claimed that Robert Muellers appointment to lead a Justice Department investigation on similar grounds was another reason for Flynn to consider his constitutional right not to testify.

At the heart of the controversy are 13 words that make up part of the Fifth Amendment, which state that no person shall be compelled in any criminal case to be a witness against himself.

The broad powers of the Constitutions Article I have long been seen as allowing a body like the Senate to conduct such investigations. The specific congressional power to issue subpoenas was defined in the 1920s in the wake of the Teapot Dome scandal. In McGrain v. Daugherty (1927), the Supreme Court said that, Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain that which is needed. The Supreme Court in 1927 also cited examples where contempt powers for people who didnt honor subpoenas dated back to the British parliament and colonial legislatures that existed before the Constitution was ratified.

Over the years, the Supreme Court has ruled that the Fifth Amendment privilege against self-incrimination applies to people testifying before Congress as part of an investigation, and in some cases, requests for records could fall into that protected category. These precedents would allow a person in appearing before Congress to take the Fifth in front of investigators and committee members, as well as to claim that producing documents isprotected by the Fifth Amendment.

In general terms, Constitution Daily Supreme Court correspondent Lyle Denniston explained these limitations in an article we published in 2014 about a Fifth Amendment claim in the New Jersey Bridgegate cases.

What is most complicated about pleading the Fifth is claiming that protection to head off a demand for records.It is by no means clear that, if records are not really the personal papers of a specific individual, that the individual can claim the privilege for those papers, even if their revelation would be incriminating. Again, the privilege is a personal one, not one that goes with ones position, Denniston explained.

If prosecutors or investigators identify on their own a specific set of papers, or a kind of document, and they can show that it is not personal to the individual who possesses it, the likelihood is that the Fifth Amendment protection would not apply.But prosecutors or investigators cannot go on what is called a fishing expedition, by requiring an individual who is targeted by their investigation to identify the papers that would respond to what the investigations goal is, Denniston added. The Supreme Court has ruled explicitly that an individual can claim the Fifth against a demand that he or she find the responsive papers, identify them, and then hand them over.That is called, technically, the act of production and it is protected from compulsion.

A recent Congressional Research Service report, just issued two weeks ago, cites several examples where the Supreme Court has considered the issue of producing documents under subpoena. The privilege protects a witness against being compelled to testify but generally not against a subpoena for existing documentary evidence. However, where compliance with a subpoena duces tecum would constitute implicit testimonial authentication of the documents produced, the privilege may apply, the CRS says. (A subpoena duces tecum is a request for a witness to produce documents in court or at a hearing.)

The CRS cites several cases where the production of business records was at issue, and Flynns attorneys named a more-recent Supreme Court decision in their letter to Senate investigators, United States v. Hubbell. In an 8-1 decision, Justice John Paul Stevens in his majority decision tackled one of two questions related to Webster Hubbells involvement in the Whitewater controversy: Whether the Fifth Amendment privilege protects a witness from being compelled to disclose the existence of incriminating documents that the government is unable to describe with reasonable particularity.

It was unquestionably necessary for respondent to make extensive use of the contents of his own mind in identifying the hundreds of documents responsive to the requests in the subpoena, Stevens said back in 2000. The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.

In sum, we have no doubt that the constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. That constitutional privilege has the same application to the testimonial aspect of a response to a subpoena seeking discovery of those sources, Stevens concluded.

For now, the Senate is awaiting comment from Flynns attorneys. But in past cases where the Senate has sought contempt charges, the process has been slow and not always successful.

In one scenario, Flynn also could be charged under a criminal contempt statute, which would send the matter to the executive branch for criminal prosecution. That would put the ball in the court of Attorney General Jeff Sessions to consider contempt of Congress charges. The Senate also can rely on the judicial branch to enforce a congressional subpoena under a civil judgment from a federal court. If Flynn didnt comply, he could face contempt of court charges and not contempt of Congress charges.

As for Flynn or anyone facing jail time if found in contempt of Congress, the last person to receive a prison sentence in a related case was Rita Lavelle in 1983. The former EPA official won her contempt case in court, but she was found guilty on a perjury charge and served a short sentence.

According to CRS, at least six people have faced contempt charges made by the Senate in civil court since 1979, but the Senate hasn't used that power in the case of an executive branch official who refused to comply with a subpoena.

Scott Bomboy is the editor in chief of the National Constitution Center.

Filed Under: Fifth Amendment

See more here:
Understanding Michael Flynn's Fifth Amendment case - Constitution Daily (blog)