“Can Apple be forced to hack its own iPhones? … This week, the FBI obtained a court order demanding Apple’s help breaking into the iPhone used by [San Bernardino terrorist] Syed Rizwan Farook.” My Cato colleague Julian Sanchez has an introduction to the case at the New York Post. More: Nicholas Weaver/LawFare, Brad Reed/BGR, Sanchez Cato podcast.
Posts Tagged ‘Department of Justice’
Obama Department of Justice punts on web accessibility
Did our message finally get through? (See “How ADA-for-the-Web Regulations Menace Online Freedom,” 2013). Or that of other commentators like Eric Goldman, who warned (of a related court case) that “all hell will break loose” if the law defines websites as public accommodations and makes them adopt “accessibility”? At any rate, the U.S. Department of Justice, after years of declaring that it was getting ready any day now to label your website and most others you encounter every day as out of compliance with the ADA, has suddenly turned around and done this:
In an astonishing move, the Department of Justice (DOJ) announced that it will not issue any regulations for public accommodations websites until fiscal year 2018 — eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).
Yes, eight years is a very long time for a rulemaking, especially one pursuing issues that have been in play for many years (that link discusses testimony I gave in 2000). And predictably, some disabled interest-group advocates are already charging that the latest delay is “outrageous” and shows “indifference.” More likely, it shows that even an administration that has launched many audacious and super-costly initiatives in regulation has figured out that this one is so audacious and super-costly that it should be – well, not dropped, but left as a problem for a successor administration.
Besides, as so often happens, for regulated parties the issue is (to borrow a phrase) not freedom from obligation, but freedom from specification as to what that obligation might be. Court decisions, which for years ran mostly against ADA advocates’ “public accommodations” claim, now point confusingly in both directions. And in the mean time both private litigants and DoJ itself continue to sue online providers and fasten on them new settlements and decrees, as when Amazon lately agreed to caption more videos for the deaf; Harvard and MIT, meanwhile, were still being sued for the audacity of having offered uncaptioned online courses to the public. Minh Vu and Kristina Launey of Seyfarth Shaw:
…since issuing that [2010] ANPRM, DOJ’s enforcement attorneys have investigated numerous [entities claimed to be] public accommodations, pressuring them to make their websites accessible. DOJ even intervened in recent lawsuits (e.g., here, here, and here) taking the position that the obligation to have an accessible website has existed all this time in the absence of any new regulations.
The next administration – or better yet Congress – should summon the courage to give a firm and final No.
[cross-posted from Cato at Liberty]
Forfeiture roundup
- “Justice Department suspends abusive asset forfeiture program – for now” [Ilya Somin]
- Tulsa sheriff steers seizures to judge it once employed, invokes unclaimed property law which dodges burden of proof [The Frontier]
- Op-ed claims that if Maryland cops grab your stuff you must be a “drug dealer,” trial or no [Joseph Cassilly, Baltimore Sun]
- Quest for revenue-self-sufficient law enforcement can end in “independent, self-funding armed gangs” [Noah Smith, Bloomberg View]
- “Get rid of policing for profit in Michigan” [Angela Erickson, Detroit News]
- Congress has twice tried to make it easier for prevailing claimants to recover attorneys’ fees when recovering seized property, but the government finds ways to slip around [Scott Greenfield]
- Value of assets seized by law enforcement in U.S. in 2014 exceeds value taken by burglars [Armstrong Economics]
January 6 roundup
- “In fact, none of the mass shootings that have grabbed headlines in the last few years would have been prevented by the gun controls proposed in response to them, and Obama’s new list of warmed-over ideas does not break any new ground in that respect.” [Jacob Sullum] More: Dave Kopel; Ken White at Popehat on the President’s rhetoric of rights; Jonathan Adler notes that ATF’s new guidance on who’s a gun dealer either restates existing law (yawn) or violates the Administrative Procedure Act (whee!); Eugene Kontorovich wonders whether that guidance is vague on purpose; and Josh Blackman writes that while most of the President’s orders don’t go much beyond “hortatory fluff” (no more letting attorneys set up gun trusts for MS-13 gang members!) they help lay the groundwork for more intrusive measures to come;
- “Judge tosses consumer suit claiming SeaWorld falsely asserts its whales are well-treated” [ABA Journal]
- In a single press release on Missouri mosque vandalism case, the U.S. Department of Justice misleads readers in two important ways [Eugene Volokh on legal significance of burned Koran, omission of ideological content in sprayed graffiti slogans]
- New Greg Ip book “Foolproof: Why Safety Can Be Dangerous and How Danger Makes Us Safe” [Tyler Cowen and more, Arnold Kling]
- Plaintiff’s lawyers “salivating at the prospects for big paydays” from self-driving car accidents [Bloomberg]
- Do “arms trafficking” rules extend even to domestic sharing of data files containing information on three-dimensional printing of guns? [Ilya Shapiro and Randal John Meyer, Cato]
- So the Graubard Miller/Alice Lawrence mega-fee saga, often covered in this space, turns out to have a Sheldon Silver connection [Wayne Barrett]
“Timeline: Federal Erosion of Business Civil Liberties”
The Washington Legal Foundation recently published a graphics project/report called “Timeline: Federal Erosion of Business Civil Liberties” that includes sections showing concurrent changes in six areas of law: mens rea, public welfare offenses and the responsible corporate officer doctrine; EPA criminal enforcement policies; DoJ criminal prosecution policies; attorney-client privilege; deferred prosecution and non-prosecution agreements; and proliferation of criminal laws, and sentencing developments. Read more, including updates, here.
December 23 roundup
- Russian man sues developer of videogame Fallout 4, saying he lost wife and job due to addiction to playing it [BGR]
- “Indiana Briefly Considered Fining Bad Anthem Singers” [Lowering the Bar] Relatedly, if you’ve been wanting to do a dance remix of “Star-Spangled Banner,” Michigan law now permits it [Lowering the Bar]
- Is administrative law unlawful? Philip Hamburger vs. Adrian Vermeule [more, William Funk/Jotwell and David Bernstein; earlier here and here]
- Will Louisiana Attorney General Buddy Caldwell runoff loss end his office’s contracts-for-pals “Buddy System”? [Chris Butler/Louisiana Watchdog, Richard Miniter, American Media Institute/Louisiana Record, Eric Boehm/Louisiana Watchdog]
- “Let’s get rid of private housing.” The Nation never gives up, does it?
- Congress’s surrender of power of purse opened door to outrages like Department of Justice’s activist slush funds [Randal John Meyer]
- Gun-rights and marijuana advocates set themselves against liberty generally when they back discrimination-law coverage of employee “off-duty conduct.” [Ohio, Jon Hyman first (firearms) and second (pot) posts]
Crime and punishment roundup
- If tempted to idealize the U.K. justice system, be aware it was in a London court that Saudi millionaire beat rape charge by arguing that he “tripped” into sexual congress [New York mag]
- Dear Reuters: it would be great if you could report the full story behind a perp walk like Martin Shkreli’s [Ken White, Popehat]
- Better for ten innocents to be imprisoned than one businessperson go free: “The New York Times has come out against the creation of a minimum mens rea element for all federal crimes.” [Scott Greenfield, Scott Shackford] More: Orin Kerr; more Greenfield; Cato podcast on mens rea with Robert Alt.
- Obama Justice Department’s incursions on mens rea dovetail with its efforts on the responsible corporate officer doctrine [Ilya Shapiro and Randal John Meyer, National Review]
- Escalating fines and fees, as well as a probation system under an incentive not to work, drag down poorer residents of Biloxi, Miss. [Radley Balko]
- How federal law came to define “sex trafficking” to include non-coerced adult prostitution [American U. law professor Janie Chuang quoted by Glenn Kessler, Washington Post “Fact Checker”, who also debunks wildly inflated figures from Attorney General Loretta Lynch]
- If only the late Gary Becker, a towering figure in law and economics, could have been persuaded to give up one of his less happy theories… [Alex Tabarrok]
Police roundup
- Today at Cato, all-day “Policing in America” conference, watch online; also check out recent Cato podcasts with Caleb Brown on the power of cop unions [Derek Cohen] and law enforcement drones [Connor Boyack];
- Despite recently enacted New Mexico law ending civil asset forfeiture, Albuquerque goes right on seizing residents’ cars [C.J. Ciaramella, BuzzFeed] Tulsa DA warns that asset forfeiture reform will bring headless bodies swinging from bridges [Radley Balko]
- Through court orders and settlements, Justice Department has seized control of the practices of police departments around the country. How has that worked? [Washington Post]
- Punishing the buyers: “The Nordic model for prostitution is not the solution — it’s the problem” [Stuart Chambers, National Post]
- “Plaintiff Wins $57,000 Settlement Over False Gravity Knife Arrest” [Jon Campbell, Village Voice] Will Republicans block reform of New York’s notorious knife law? [Glenn Reynolds, Instapundit] Second Circuit on standing to sue by knife owners;
- Union-backed bill had Republican sponsor: “Bill shielding identities of police who use force passes Pennsylvania House” [Watchdog]
- Federalist Society convention breakout session on “Ferguson, Baltimore, and Criminal Justice Reform” resulted in fireworks [YouTube; Tim Lynch, Cato]
“If you stepped on a protected beetle while jogging…”
“…should you go to jail? You might.” A lawsuit from environmentalists challenges the U.S. Department of Justice’s “McKittrick Policy,” under which individuals are criminally prosecuted for Endangered Species Act violations only if they “knew that their action would cause a [prohibited taking], and [were] aware of the identity of the affected species.” [Jonathan Wood, Pacific Legal Foundation/The Blaze on WildEarth Guardians and New Mexico Wilderness Alliance v. U.S. Department of Justice; more from PLF and its memorandum in support of a motion to intervene; WildEarth Guardians]
Federal law enforcement roundup
- Manufacturing while foreign: Holman Jenkins compares Department of Justice’s handling of General Motors case with those of Toyota and Takata [WSJ, paywall]
- “Electronic surveillance by the Drug Enforcement Administration has tripled over the past 20 years, and much of that increase has involved bypassing the federal courts.” [Brad Heath, USA Today via Balko]
- Sen. Hatch: criminal justice reform needs to include reform on issue of mens rea/criminal intent [John Malcolm, Daily Signal]
- Clinton administration tended to embed its anti-gun gestures in its then-popular carceral-state enactments [Jesse Walker on the 12-year lull in anti-gun legislation and whether it’s ending]
- New DoJ policy on corporate criminal prosecutions risks scapegoating [Thaya Knight, Cato] Despite transient surge early in Obama years, federal white-collar crime prosecutions have now fallen to 20-year low [TRAC Reports]
- A legal remedy should federal law enforcers falsely malign you in a press release? Dream on [Scott Greenfield]
- If you oppose high U.S. incarceration rate, but wish more corporate executives went to prison, check your premises [Matt Kaiser, Above the Law]