Law and Legal
Tech Crunch: “Embattled social media platform Parler is offline after Apple, Google and Amazon pulled the plug on the site after the violent riot at the U.S. Capitol last week that left five people dead. But while the site is gone (for now), millions of posts published to the site since the riot are not. A lone hacker scraped millions of posts, videos and photos published to the site after the riot but before the site went offline on Monday, preserving a huge trove of potential evidence for law enforcement investigating the attempted insurrection by many who allegedly used the platform to plan and coordinate the breach of the Capitol…”
Anyim, Wisdom O., Quintessential of Hybrid Legal Library: A Case Analysis of Miyetti Law Library (2019). Electronic Research Journal of Engineering, Computer and Applied Sciences, Volume 1 (2019) Posted: 5 Dec 2020, Available at SSRN: https://ssrn.com/abstract=3735633“The paper attempts to discuss the fast development of Information Technology and its application in the legal library services with the Miyetti Law library as a case study. Miyetti law library is a typical example of a hybrid legal library equipped with necessary resources in order to accomplish the newly Information Technology based services. Hybrid legal libraries with adequate Information Technology-enabled services facilitate the fulfillment of the information needs of the users at the right time without the barrier of distance and space. The paper discusses emerging technologies, services, and retrieval tools that make hybrid library worth implemented.”
Via LLRX – Pete Recommends – Weekly highlights on cyber security issues, January 10, 2020 – Privacy and security issues impact every aspect of our lives – home, work, travel, education, health and medical records – to name but a few. On a weekly basis Pete Weiss highlights articles and information that focus on the increasingly complex and wide ranging ways technology is used to compromise and diminish our privacy and security, often without our situational awareness. Four highlights from this week: SolarWinds Hackers Got Into More Than 3,000 DOJ Email Accounts; Sealed U.S. Court Records Exposed in SolarWinds Breach; CISA: Hackers access to federal networks without SolarWinds; and State Department Approves Creation of Cyber Bureau.
TechCrunch: “Last week and throughout the weekend, technology companies took the historic step of deplatforming the president of the United States in the wake of a riot in which the US Capitol was stormed by a collection of white nationalists, QAnon supporters, and right wing activists. The decision to remove Donald Trump, his fundraising and moneymaking apparatus, and a large portion of his supporters from their digital homes because of their incitements to violence in the nation’s Capitol on January 6th and beyond, has led a chorus of voices to call for the regulation of the giant tech platforms. They argue that private companies shouldn’t have the sole power to erase the digital footprint of a sitting president. But there’s a reason why the legislative hearings in Congress, and the pressure from the president, have not created any new regulations. And there’s also a reason why — despite all of the protestations from the president and his supporters — no lawsuits have effectively been brought against the platforms for their decisions. The law, for now, is on their side…”
CRS report via LC – The Social Security Administration’s Death Data: In Brief, Updated January 11, 2021: “The Social Security Administration (SSA) acquires and maintains death data to administer the Social Security and Supplemental Security Income (SSI) programs, including preventing the improper payment of benefits to deceased individuals and identifying individuals who are potentially eligible for survivor benefits. SSA collects death data from sources such as state vital statistics bureaus, funeral home directors, family members, and financial institutions and adds about2.9million new death reports to its records each year. These records prevent over $50 million in Social Security and SSI improper payments each month. SSA, under authority granted and limitations imposed by the Social Security Act,shares its death information with qualifying federal and state agencies for particular programmatic purposes and with certain external parties for research and statistical purposes. SSA also provides a limited extract of its death data, referred to as the Death Master File (DMF), to the Department of Commerce’s National Technical Information Service (NTIS), which in turn distributes it to authorized users. The DMF contains only those death records obtained from non-state sources. Until the enactment of the Consolidated Appropriations Act, 2021 (P.L. 116-260),on December 27, 2020, SSA did not have legal authority to share its full file of death information(which includes state-reported deaths) with the Treasury Department’s Do Not Pay (DNP) portal, a centralized hub that would permit access by numerous federal agencies. However, the Consolidated Appropriations Act, 2021, includes a requirement for SSA to share its full file of death information (including state-reported death data) with DNP for a period of three years beginning three years after enactment and also provides for recipient agencies (including DNP) to fully reimburse SSA for the cost of both obtaining and sharing death data…”
Poynter – How did we get here?: “The world changed last week after rioters infiltrated the U.S. Capitol building and disrupted our legislative and democratic process. It was an event most people did not see coming, but others have worried about for months, if not years. Disinformation and misinformation researchers, online content verification analysts and beat reporters who monitor the darkest corners of the internet have watched the spread of conspiracy theories online and their accelerated move to the mainstream in 2020. But for the average American, it can be more difficult to make the connection between disinformation online and its tangible, direct impact on real life. There are very few examples of such a direct connection in the U.S. The most famous is the QAnon-fueled “pizzagate” incident in December 2016. Abroad, there are more examples, like journalists who are fighting disinformation in the Philippines threatened with jail time and misinformation leading to a mob killing in India. Here in the U.S., how do you explain exactly how conspiracy theories online led to events like we saw at the Capitol last week? That’s what I asked a group of preeminent disinformation and misinformation experts to explain, in the simplest terms, and to unpack why this is so important. What follows is their responses last week, in their own words, lightly edited for clarity and brevity…”
Fast Company: “….a real issue: a gap in vaccination information, and fears about what a lack of public knowledge could mean for vaccine uptake. It’s down to the states to plan vaccine distribution, and most have adopted a version of the CDC’s recommended phasing plan, to prioritize certain populations. But what’s less clear is how those states will notify residents—if at all—when it’s their turn. Some states have been more transparent, while others are purposely holding out on information so as not to create confusion or misinformation…“Because public health in this country is run locally, there’s going to be a ton of variability for how well it’s working,” says John Brownstein, chief information officer at Boston Children’s Hospitals, and a professor of biomedical informatics at Harvard. “Fifty different states, 50 different strategies.” Tara Kirk Sell, an assistant professor at Johns Hopkins Bloomberg School of Public Health, says that every state has such different distribution plans, even down to the local level. “Some states are communicating a little bit better than others,” she says…”
Fast Company: “Website market intelligence firm SimilarWeb is out with an interesting report that highlights the fastest growing websites in 2020. The list was compiled by tracking the year-over-year traffic growth of websites that had at least 100,000 visits in 2019 and at least 100,000 million in 2020…”
Lifehacker: “Aside from one Republican Senator who’s currently mulling a decision to switch her political affiliation, Wednesday’s assault on the U.S. Capitol hasn’t necessarily compelled Republican lawmakers to flee the party en masse. The Trump era, with its normalization of incendiary rhetoric, only saw a handful of lawmakers switch their affiliations out of contempt for the president; one notable example is former Michigan House Representative Justin Amash, who abandoned the Republican party to become an Independent in 2019 and then switched again to Libertarian last year. Regardless of the underlying context, switching your political party is a right afforded to any registered voter in this country, and it’s something you can do with a few simple actions…”
“Because of the January 6 attack on the Capitol, the public is highly interested in government’s wider enforcement response to acts of domestic terrorism. In fact, last year in the wake of protests surrounding the death of George Floyd at the hands of police, there has been a large jump in federal prosecutions classified as domestic terrorism. FY 2020 saw 183 domestic terrorism prosecutions filed by U.S. Attorneys’ offices around the country – the highest total since government tracking began a quarter of a century ago. This compares with 69 such prosecutions in fiscal 2017, the first year of the Trump Administration, 63 domestic terrorism prosecutions during FY 2018, and 90 such prosecutions during FY 2019. These figures are based on case-by-case government records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University after successful court litigation. The data show that cases U.S. Attorneys’ offices categorized as domestic terrorism were brought using a variety of lead charges, including 18 U.S.C. 111 for assaulting, resisting, or impeding officers or employees; 18 U.S.C. 871 for threats against the President and successors; 18 U.S.C. 1752 for knowingly entering or remaining in any restricted building or grounds; 18 U.S.C. 844 involving the importation and storage of explosives; 18 U.S.C. 231 civil disorders; 18 U.S.C. 875, interstate communications; and 18 U.S.C. 876, making threatening communications. In addition, regulatory violations were sometimes the lead charge, such as failure to comply with official signs or creating any hazard on property to persons or things. U.S. Attorneys’ offices vary greatly in their numbers of domestic terrorism prosecutions. The largest during 2020, a total of 78 prosecutions, were brought in Oregon federal courts. However, many U.S. Attorneys’ offices across the country brought no domestic terrorism suits, or just a single suit in all of FY 2020. This includes the U.S. Attorney in the Western District of Washington (Seattle) who was recorded as bringing only a single domestic terrorism suit, although protests there similar to those in nearby Portland, Oregon, had figured prominently in the news. For additional details, including information on domestic terrorism prosecutions for each federal judicial district, go to: https://trac.syr.edu/tracreports/crim/636“
The Marshall Project – Everyone’s talking about sedition, treason and conspiracy. Here’s what these terms actually mean and how they’ve been enforced. “In the 24 hours since a mob incited by the president of the United States stormed the Capitol attempting to halt the functioning of American democracy, the news media and everyone else have been at a loss for words to describe what happened. Was it a coup, or an insurrection? Did anyone commit treason, or sedition? What exactly does it mean to incite a crime, or to riot? These aren’t just word games. Knowing how these terms are specifically defined under federal law will have consequences for the most violent of the rioters who have been or could be arrested by federal authorities—and also for Donald Trump and others who instigated the crowd’s actions. To be sure, the most likely federal charges that could be levied against Trump supporters fall under the broad—and less serious—ban on committing “unlawful activities” on Capitol grounds, from “violent entry” to property destruction to disorderly conduct. Here’s a Marshall Project roundup of some of the terms in U.S. criminal law being batted around this week…”
Tech Crunch: A review of an unprecedented and historical week for the tech industry: “After years of placid admonishments, the tech world came out in force against President Trump this past week following the violent assault of the U.S. Capitol building in Washington D.C. on Wednesday. From Twitter to PayPal, more than a dozen companies have placed unprecedented restrictions or outright banned the current occupant of the White House from using their services, and in some cases, some of his associates and supporters as well. The news was voluminous and continuous for the past few days, so here’s a recap of who took action when, and what might happen next…”
In Custodia Legis: “The following is a guest post by senior legal reference librarian Beth Osborne. Recently, one of my colleagues from the blog team asked me if I knew of any “hidden treasures” at the Law Library of Congress that I wanted to mention in her recent post. Of course, I realized she was asking about something special—but perhaps often overlooked—from our wonderfully vast physical collection. However, my first thought was, “Congress.gov Action Codes!” So even though action codes did not quite fit the hidden treasures post, I thought I would take a few moments to talk about this powerful advanced search feature from Congress.gov. First—a brief background. Thousands of pieces of legislation are introduced in a two-year Congress, though relatively few are ever enacted into law. From the introduction of a measure to its passage, failure, or death, many different legislative actions can occur. Every bill or resolution that is uploaded to Congress.gov has information about the actions taken during the legislative process (for example, see the list of “All Actions” taken on S. 24, the Government Employee Fair Treatment Act of 2019). The Congress.gov data on legislative actions is largely pulled from the Congressional Record. Congress.gov enables researchers to search within certain categories of information (fields), and “legislative actions” is one such category. A task such as identifying all bills that were “introduced in the House of Representatives” is easy because that action is available from the left-hand menu as you look at a list of search results. However, if you want to craft a search based on less common legislative actions, or based on multiple legislative actions, using action codes in the advanced search feature may work for you. Action codes are numerical codes assigned to certain types of legislative actions. One benefit that action codes have over keywords is that they efficiently encapsulate similar actions described in different ways. For example, if you wanted to know how many bills had received floor consideration in the House, you could do a keyword search for every word or phrase that conceivably qualifies as a floor action (such as taking up, amending, debate, voting, passage, amendments between the chambers, conference actions, etc.). But, this would be an unwieldy and inefficient search. Instead, you can execute your search using the action code that represents “house floor actions” (actionCode:7000) and quickly capture all variants of floor actions that have taken place in the House. To use action codes, start on the page for advanced search of legislation and jump or scroll to the menus under “Action/Status.” You will likely need to scan the list of action codes to familiarize yourself with what is available and find the code or codes suitable for your search. Additionally, you can find a list of action search scope notes, which provide explanatory notes on action codes, as well as a large set of prepared queries featuring action code search fields. When using an action code, you need to use the prefix actionCode:XXXX, where XXXX is the code. If you are using more than one action code, you can use parentheses and connect them with a search operator…”
Mashable: “…Over the past three years, Signal has also been investing in more infrastructure and features to support its users. That’s a good thing: Signal first saw an increase in users in the spring as people participating in anti-racist protests around the killing of George Floyd realized how closely law enforcement was surveilling them and asking companies to hand over user data. It’s only become more popular since then. As of this writing, Signal is at the top of the Apple App Store and Google Play Store, and its two-factor authentication onboarding system even got briefly delayed Thursday because so many people were trying to sign up. So, thinking about joining Signal? Bottom line: If you care about privacy, it’s a good idea. Here’s what you need to know…”
Sunday, January 10, 2021 (WASHINGTON, DC) – “Today, Mayor Muriel Bowser released her letter to U.S. Department of Homeland Security Acting Secretary Chad Wolf regarding inauguration preparations. The full letter is below.
Dear Acting Secretary Wolf: Following the unprecedented terrorist attack on the United States Capitol on Wednesday, January 6, 2021, and the continued threat of related violence in the District of Columbia, we are extremely concerned about the upcoming National Special Security Event (NSSE) led by the United States Secret Service. We believe strongly that the 59th Presidential Inauguration on January 20 will require a very different approach than previous inaugurations given the chaos, injury, and death experienced at the United States Capitol during the insurrection. While I will be reaching out to a broad range of local, regional, and federal partners to enhance cooperation among our bodies, I strongly urge the United States Department of Homeland Security to adjust its approach to the Inauguration in several specific ways…”
Wired – Wednesday’s insurrection could have exposed congressional data and devices in ways that have yet to be appreciated. “…the mob Wednesday had ample opportunities to steal information or gain device access if they wanted to. And while the Senate and House each build off of their own shared IT framework, ultimately each of the 435 representatives and 100 senators runs their own office with their own systems. This is a boon to security in the sense that it creates segmentation and decentralization; getting access to Nancy Pelosi’s emails doesn’t help you access the communications of other representatives. But this also means that there aren’t necessarily standardized authentication and monitoring schemes in place. Larkin emphasizes that there is a baseline of monitoring that IT staffers will be able to use to audit and assess whether there was suspicious activity on congressional devices. But he concedes that representatives and senators have varying levels of cybersecurity competence and hygiene. It’s also true that potentially exposed data at the Capitol on Wednesday would not have been classified, given that the mob had access only to unclassified networks. But congressional staffers are not subject to Freedom of Information Act obligations and are often much more candid in their communications than other government officials. Security and intelligence experts also emphasize that troves of unclassified information can still reveal sensitive or even classified information when combined…”
Adediran, Atinuke O., Racial Allies (December 24, 2020). Available at SSRN: https://ssrn.com/abstract=3755013 – “Public interest law has played a critical role in American social and legal change both historically and in modern times. From abolitionist lawyers, to lawyers involved in civil rights and civil liberties, to lawyers challenging economic inequality, the eviction crisis and immigration, public interest law has been at the forefront of American democracy. However, there is often an assumption that public interest institutions and lawyers are anti-racist allies and are deeply concerned about racial justice. This assumption has led to scholarly and practitioner neglect of racial inequality in public interest law. In this Article, I conduct the first systemic investigation of racial and ethnic diversity with possibly the largest dataset of racial demographic data of the public interest law sector in the United States. The novel dataset contains 550 public interest legal organizations (PILOs) with their 550 CEOs and over 9000 boards of directors, and 140 pro bono partners and counsels in law firms. I also interviewed a subset of 62 CEOs and board members in some of these PILOs. With these two types of data, this Article does three things. First, it shows the contemporary lack of racial and ethnic diversity among the CEOs of PILOs, PILO boards of directors, and pro bono partners and counsels who make decisions that impact a mostly racial and ethnic minority client base and impact communities of color. Second, although there may be other reasons for the problem, the article provides five distinct and possible explanations for the lack of racial and ethnic diversity in the sector. Third, it suggests potential policy responses to each of the identified explanations.” [h/t Mary Whisner]
MIT Technology Review: “As a violent mob incited by President Donald Trump stormed the US Capitol on January 6, halting the procedure in Congress to formally certify Joe Biden as president-elect, a Redditor with the username Adam Lynch began a thread on the subreddit r/DataHoarder—a forum dedicated to saving data that might be erased or deleted. “Archiving videos before potential removal from various websites …” it began. The thread included a link to upload files to Mega, a New Zealand–based cloud storage service. Within minutes, the thread was so inundated with Twitter links, Snapchat uploads, and other videos that Mega briefly shut the link down. Since it was reopened, the Reddit thread has received over 2,000 comments with detailed data from the incident. Lynch (who asked to be identified only by username, citing death threats) is Canadian and was shocked to see the images from Washington. Having seen videos, posts, and livestreams get quickly taken down by both platforms and users afraid of repercussions in the aftermath of the Black Lives Matter protests last summer, Lynch felt an urgency to archive this new data as soon as possible: “I knew I had to start immediately.” Livestreams were turned off by platforms and broadcast news networks during the attack on the Capitol, and companies like Facebook, YouTube, Twitch, and Twitter have since systematically removed posts that violated policies against violent or incendiary content. As Redditors send in content, Lynch has spent hours each day uploading it to Mega, as well as to offline hard drives for backup. “If it weren’t for the [Reddit] thread, I am very confident a substantial part of this would not be kept,” Lynch says. But many others are also working to protect information before it disappears…The journalism site Bellingcat, which specializes in investigations based on publicly available online material, invited the public to contribute to a publicly editable Google spreadsheet of links, and the Woke collective is protecting livestreams from being erased by publishing them on its own YouTube and Twitch accounts. Other firms, like European search engine Intelligence X, are also collecting and storing data. We have archived the Capitol Hill riots media here: https://t.co/93zFekGutf. Use the “Tree View” tab to see all pictures and videos! It is important evidence for law enforcement & the public. So far 253 files (6 GB)…”
Researcher Ernie Lazar: “Despite the current attempt to portray some of our major cities in the grip of lawlessness and disorder which is incited or conducted by ANTIFA or Black Lives Matter or other “radical left” individuals and organizations, it should be noted that, historically, most of the politically-inspired violence in the United States during the past 50 years has been a consequence of malign beliefs and behavior by right-wing fanatics. A new section has been added below to report details concerning the January 2021 seditionists who attacked our Capitol. Future editions of this Report will be available online at: https://sites.google.com/site/aboutxr/right-wing-violence.”
TIME – But Those Involved in the Riot at the Capitol May Still Be Prosecuted Under These Laws – “The FBI defines domestic terrorism as “Violent, criminal acts committed by individuals and/or groups to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature.” Its leadership concedes that most of the concern centers on white supremacist groups. We saw that Wednesday as rioters charged the Capitol building with Confederate flags and Nazi paraphernalia on full display. Still, even though the FBI tracks domestic terrorism, there isn’t one law that makes it a crime. But there are plenty of statutes federal prosecutors can use in the fight against it. In the absence of specific statutes, like the ones written to combat foreign terrorism, the entire criminal code becomes part of the prosecutor’s playbook. So what laws might we expect to see prosecutors use after Wednesday? As federal law enforcement assesses the intelligence failures that left Congress unprotected and tries to sort out the myriad crimes captured on videotape, the challenge will be developing a prosecution strategy that serves to uncover the truth about what happened and that holds those responsible accountable. There will likely be simultaneous investigation into different groupings of criminal conduct.
First, there should be a much-needed hard look at whether there are people who should be held responsible–in the criminal sense, not the political sense, for the need for the latter seems quite obvious–for Wednesday’s events as organizers and leaders of the insurrection. There will also be people who committed serious standalone offense that involved violence and risks to public safety. And there will be a group, likely the largest number of people, who overran the Capitol and need to be held accountable, albeit at a lower level, for their acts. Each federal statute has a series of elements that the government must be able to prove beyond a reasonable doubt before anyone can be adjudged guilty of a crime, and it’s important that we hew to the principle of innocence until proven guilty, even and perhaps especially in the face of this week’s events. Here are some of the statutes federal prosecutors will undoubtedly use in their consideration of whom to prosecute…”