Targets of fake subpoenas can sue Louisiana D.A., underlings is a post from Overlawyered - Chronicling the high cost of our legal system

Louisiana: a remedy for fake subpoenas? is a post from Overlawyered - Chronicling the high cost of our legal system

Prosecution roundup is a post from Overlawyered - Chronicling the high cost of our legal system

April 10 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Our inside tips vs. your inside tips is a post from Overlawyered - Chronicling the high cost of our legal system

Orange County voters boot District Attorney Tony Rackauckas is a post from Overlawyered - Chronicling the high cost of our legal system

Federal prosecutors have admitted that they wrongly accused Maria Butina, a Russian citizen now in custody on charges of illegally acting as a foreign agent, of offering to trade sex for a job as part of a covert effort by Russian government officials to infiltrate Republican circles in the United States.

In a court filing late Friday, prosecutors in the United States attorney’s office in Washington acknowledged that they had been “mistaken” in interpreting what were apparently joking text messages between Ms. Butina and a friend who had helped her renew her car insurance.

USG: whoops, that Mata Hari stuff was just banter over car insurance is a post from Overlawyered - Chronicling the high cost of our legal system

Last month two separate federal appeals courts issued rulings offering, when combined, some consolation for Daugherty and his now-shuttered company. True, a panel of the D.C. Circuit Court of Appeals, finding qualified immunity, disallowed the company’s claims that FTC staffers had violated its constitutional rights by acting in conscious retaliation for its criticism of the agency. On the other hand, an Eleventh Circuit panel sided with the company and (quoting TechFreedom) “decisively rejected the FTC’s use of broad, vague consent decrees, ruling that the Commission may only bar specific practices, and cannot require a company ‘to overhaul and replace its data-security program to meet an indeterminable standard of reasonableness.’” [More on the ruling here and here]

As usual, John Kenneth Ross’s coverage at the Institute for Justice’s Short Circuit newsletter is worth reading, both descriptions appearing in the same roundup since they were decided in such quick succession:

Allegation: Days after LabMD, a cancer-screening lab, publicly criticized the FTC’s yearslong investigation into a 2008 data breach at the lab, FTC staff recommend prosecuting the lab. Two staffers falsely represent to their superiors that sensitive patient data spread across the internet. (It hadn’t.) The FTC prosecutes; the lab lays off all workers and ceases operations. District court: Could be the staffers were unconstitutionally retaliating for the criticism. D.C. Circuit: Reversed. Qualified immunity. (Click here for some long-form journalism on the case.)…

Contrary to company policy, a billing manager at LabMD—a cancer-screening lab—installs music-sharing application on her work computer; a file containing patient data gets included in the music-sharing folder. In 2008 a cybersecurity firm finds it and tells LabMD the file has spread across the internet. (Which is false.) When LabMD declines to hire the cybersecurity firm, the firm reports the breach to the FTC, which prosecutes the case before its own FTC judge. LabMD does not settle; the expense of fighting forces the company to shutter. The FTC orders LabMD to adopt “reasonably designed” cybersecurity measures. Eleventh Circuit: The FTC’s vague order is unenforceable because it doesn’t tell LabMD how to improve its cybersecurity.

Our friend Berin Szóka of TechFreedom sums it up: “The court could hardly have been more clear: the FTC has been acting unlawfully for well over a decade.” He continues by calling this “a true David and Goliath story”:

Well over sixty companies, many of them America’s biggest corporations, have simply rolled over when the FTC threatened to sue them [over data security practices]. … Only Mike Daugherty, the entrepreneur who started and ran LabMD, had the temerity to see this case through all the way to a federal court. …After losing his business and a decade of his life, Daugherty is a hero to anyone who’s ever gotten the short end of the regulatory stick.

[cross-posted from Cato at Liberty]

For LabMD, the consolation of a big win in court is a post from Overlawyered - Chronicling the high cost of our legal system

[Th]hree hard drives in particular contained nearly 500,000 unique emails (from Yahoo and Gmail accounts, for example) and other documents (email attachments, for example) totaling millions of pages. The hard drives included transcripts of Google Chat logs between several individuals, most of which were purely personal (and sometimes very private) conversations. GAB [a state agency involved in the investigations] placed a large portion of these emails into several folders entitled, ‘Opposition Research’ or ‘Senate Opposition Research.’

For example,

investigators obtained, categorized, and maintained over 150 personal emails between [state] Senator Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information. [WIDoJ] was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child, or why investigators placed those emails in a folder named ‘Opposition Research.’

Earlier here.

Now unsealed: official report on Wisconsin John Doe probes is a post from Overlawyered - Chronicling the high cost of our legal system

Prosecutors and other government lawyers who enforce our nation’s laws wield vast power and exercise tremendous discretion with little oversight or accountability. For example, more than 95 percent of criminal convictions are now obtained through plea bargaining instead of jury trials. As a result, citizen participation in our criminal justice system has effectively been eliminated and with it much of the oversight that the Constitution’s framers intended. Even when cases do go to trial, it is possible — and, some have argued, disturbingly common — for prosecutors to further tilt the playing field in their favor by failing to disclose potentially exculpatory evidence, influencing witnesses with threats or inducements, and manipulating juries with improper arguments. Unfortunately, when government lawyers do commit misconduct, it is extremely rare for them to be punished or indeed even publicly identified. Finally, the U.S. Supreme Court has held that prosecutors are absolutely immune from civil lawsuits, even for willful violations of people’s rights, such as deliberately prosecuting someone they know to be innocent and suborning perjury to obtain an unjust conviction.

As a result, two important questions arise: (1) Are the existing checks on prosecutorial misconduct strong enough to ensure fairness in criminal and regulatory proceedings; and (2) are Americans well-served by our current system of near-zero accountability for prosecutors and other government lawyers? Our panelists have written powerful and often deeply shocking books about their firsthand experiences with that system and the damage it does to the cause of justice.

Watch today: when prosecutors go wrong is a post from Overlawyered - Chronicling the high cost of our legal system