Volume 3 March 2010
Security and Privacy on Social Networking Sites
From the Desk of David Badertscher
U.S. Appeals Court Ruling Curbs FCC Control of Net Regulation
In a unanimous 3-0 Decision last Tuesday April 6 the United States Court of Appeals for the District of Columbia Circuit ruled that the Federal Communication Commission did not have the authority to order Comcast in 2008 to cease and desist interfering with the traffic of Bit Torrent a P2P file sharing service. At the time Comcast ostensibly accepted the order, but ended up appealing the ruling in the courts. The April 6 opinion is the result of that appeal.
As can be expected, reactions have been quick in coming and are quite varied, depending on the perspective and interests of those responding. Some have emphasized the supposedly narrow scope of the ruling attempting to play down its overall importance. Others see it has quite significant, even ground breaking in its scope. For example, will the ruling set a prescedent that allows internet providers to control broadband service as they see fit since it clearly undercuts the FCC’s claim to authority to regulate the internet? What about the FCC’s recently released National Broadband Plan supported by the Obama administration? Many of my fellow libraraians have been looking forward to both participating in and benefiting from this program which contains some provisions related to libraries.? And what about the overarching issues relating to equal treatment for all who use the internet? That not only refers to the “information poor” who often have difficulty getting access under the best of conditions; is could also impact those at the opposite end of this spectrum, eg. Google’s You Tube and Microsoft’s MSN.com?
So many questions, which indicates that this decision really is important with far reaching consequences. Some think this ruling will be appealed to the U.S. Supreme Court but we will need to wait and see. Meanwhile, the FCC has been handed some significant regulatory issues it will need to try to work around. Can they do it. It appears from a statement issued after the ruling that they are prepared to try.
Legal Treatises on the Law of Evidence 1880 – 1900
A select bibliography.
In response to a recent request I compiled a short, selected list of treatises published between the years 1880 and 1990. It is being reproduced here for the benefit of those readerw who might also be interested. This list is selective and thereroe not intended to be exhaustive. Even among the authors listed, many produced an number of additional titlies related to the law of evidence.:
Selected treatises on the law of evidence – United States published in the late 1800’s
ABA: U.S. Supreme Court Updates. March 2010.
March 2010
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust
All summaries below were prepared by staff of the ABA Criminal Justice Section..
JOHNSON v. UNITED STATES (No. 08-5274)
United States Supreme Court Opinion Decided: March 2, 2010
Petitioner Johnson pleaded guilty to possession of ammunition by a convicted felon. 18 U.S.C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, an offense that “has as an element the use . . . of physical force against the person of another,” §924(e)(2)(B)(i). Among Johnsons’ three prior felony convictions was a 2003 Florida conviction for simple battery. Under Florida law, battery is ordinarily a first-degree misdemeanor but was a felony conviction for Johnson because he had a previous battery conviction. A battery can occur under Florida law when a person “[a]ctually and intentionally touches or strikes another person against [his] will.” §784.03(1)(a). The District Court enhanced Johnson’s sentence, concluding that Johnson’s 2003 conviction was a “violent felony” under the Armed Career Criminal Act because “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). The Eleventh Circuit affirmed.
The Supreme Court held that the Florida felony offense of battery by “[a]ctually and intentionally touch[ing]” another person does not have “as an element the use . . . of physical force against the person of another,” §924(e)(2)(B)(i), and thus does not constitute a “violent felony” under §924(e)(1).
In interpreting the phrase “physical force” in §924(e)(2)(B)(i), the Court was not bound by the Florida Supreme Court’s conclusion that, under Florida’s statutory equivalent to the Armed Career Criminal Act, the offense of battery does not “involve the use . . . of physical force or violence against any individual.”
Because §924(e)(2)(B)(i) does not define “physical force,” the Court gave the phrase its ordinary meaning.
The Government suggested that “force” in §924(e)(2)(B)(i)’s definition of “violent felony” is a legal term of art describing one element of the common-law crime of battery. Here, “physical force” does not define the crime of battery, but rather the statutory category of “violent felony.” §924(e)(2)(B)(i). In that context, “physical force” means violent force capable of causing physical pain or injury to another person.
The Court interpreted the phrase “physical force” only in the context of a statutory definition of “violent felony,” and did not decide whether the same meaning applies in the context of defining the scope of misdemeanor offenses.
The Court declined to remand for consideration whether Johnson’s 2003 battery conviction qualifies as a “violent felony” under § 924(e)(2)(B)(ii).
Reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Roberts, C.J., and Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Alito, J., filed a filed dissenting opinion, in which Thomas, J., joined.
Available at: http://www.supremecourtus.gov/opinions/09pdf/08-6925.pdf.
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BLOATE v. UNITED STATES (No. 08-728)
United States Supreme Court Opinion Decided: March 8, 2010
The Speedy Trial Act of 1974, 18 U. S. C. §3161 et seq., requires that a criminal defendant’s trial commence within 70 days after he is charged or makes an initial appearance, whichever is later, 3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2). Delays in the trial, however, can negate this 70 day period (i.e.: delay resulting from other proceedings concerning the defendant).
On August 24, 2006, petitioner Bloate was indicted by a grand jury with felony possession of firearms and possession with intent to distribute cocaine, starting the Speedy Trial Act’s 70 day clock. On September 7, petitioner filed motion to extend the deadline to file pretrial motions. The deadline was extended to September 25, on which date counsel for the petitioner waived all pretrial motions. On October 4th a hearing was held, in which the magistrate judge found petitioner’s waiver voluntary and intelligent. After several other delays, counsel for petitioner moved to dismiss trial under the Speedy Trial Act, as the 70 day clock had expired. District Court denied the motion as the period from September 13 to October 4 was excluded from the 70 days under the language of the act. Petitioner Bloate stood trial for two days on March 5 and 6, 2007 and was sentenced to two 30 year concurrent terms.
The 8th Circuit Court of Appeals denied petitioners appeal reasoning “pretrial motion preparation time” is automatically excludable under [Speedy Trial Act] subsection (h)(1)-which covers “delay resulting from other proceedings concerning the defendant”-as long as “the [district] court specifically grants time for that purpose.” 534 F. 3d, at 897. The Eighth Circuit joined 6 other Courts of Appeals in adopting this ruling, however, two Courts of Appeals disagree, holding that pretrial motions are outside of subsection (h)(1)’s scope. The Supreme Court sought to resolve this issue.
The Supreme Court held that “the time the District Court grants petitioner to prepare pretrial motions may be excluded [from the 70 days] only when a district court enters appropriate findings [justifying the exclusion]. The 28-day period from September 7 through October 4…is not automatically excludable under subsection (h)(1). We therefore do not consider whether any other exclusion would apply to all or part of the 28-day period” 559 U.S. (2010). Although the Supreme Court decision was in favor of Bloate, the 8th Circuit Court may decide on remand, whether the indictment and conviction remain effective.
Reversed and Remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Sotomayor, JJ., joined. Ginsburg, J., filed a concurring opinion. Alito, J., filed a dissenting opinion, in which Breyer, J., joined
Available at: http://www.law.cornell.edu/supct/html/08-728.ZS.html
Judge Finds Plaintiffs Grossly Neglignet for Lapses in Preservation and Collection of Electronic Documents
The Pension Committee of the University of Montreal Pension Plan et. al. v. Banc of America Securities et. al. 05 Civ 9016 (SAS)
Judge Shira A. Scheindlin of the U.S. District Court SD New York has found the plaintiffs in the University of Montreal pension fund case to be grossly negligent for lapses in the preservation and collection of responsive electronic documents. The Judge went on to order the plaintiffs, who had attempted to cite the burden argument, to collect data from backup tapes. Her opinion provides useful guidance to attorneys and electronic discovery professionals in their efforts to make sure their clients preserve relevant evidence for use in litigation and avoid sanctions.
CRS Report: The Copyright Registration Requirement and Federal Court Jurisdiction
A Legal Analysis of Reed Elsevier, Inc. v, Muchnick
March 18, 2010
CRS Report No. R40944; 3/18/2010; Posted 4/5/2010 Author(s): Brian T. Yeh, Legislative Attorney Subject(s): Intellectual Property
How to Link to a Google Scholar Case
In a post on the Social Media Student Blog Josh Cameron writes:
It’s no secret that Google Scholar now includes court opinions and legal journals. The legal journal articles are just search results that will redirect you to the hosting site. However, a large number of the court opinions are hosted right in Google Scholar. The only problem is that linking to these opinions is not the clearest thing in the world.
When you do visit this blog don’t forget the comments, they are interesting as well.
Findlaw Case Law Summaries: Criminal Law and Procedure. March 29, 2010 – April 2, 2010.
To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw
March 29, 2010 – April 2, 2010.
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U.S. Supreme Court, March 30, 2010 Berghuis v. Smith, No. 08–1402 In habeas proceedings brought by an individual convicted of second degree murder by an all-white jury, the Sixth Circuit’s reversal of the denial of petitioner’s habeas petition is reversed where Duren v. Missouri, 439 U. S. 357 (1979), hardly established — much less “clearly” so — that petitioner was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community, because petitioner’s evidence gave the Michigan Supreme Court little reason to conclude that the county’s juror assignment order had any significant effect on the representation of African-Americans in the venire.
U.S. Supreme Court, March 31, 2010 Padilla v. Kentucky, No. 08–651 In postconviction proceedings arising from a drug distribution prosecution, after which petitioner faced deportation based on his guilty plea and claimed that his counsel failed to advise him of the consequences of the plea, denial of postconviction relief is reversed and remanded where, because counsel must inform a client whether his plea carries a risk of deportation, petitioner sufficiently alleged that his counsel was constitutionally deficient. ..
U.S. 1st Circuit Court of Appeals, April 01, 2010 US v. Charlton, No. 08-1797 Defendant’s conviction for being a felon in possession of a firearm and an enhanced sentence under the Armed Career Criminal Act are affirmed where: 1) defendant failed to establish that the government purposely discriminated against African-Americans in exercising its peremptory challenge against a juror and thus the district court committed no error – clear or plain – in permitting the government’s peremptory challenge against that prospective juror; and 2) the district court did not err in sentencing defendant as an armed career criminal. ..
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New York Internet Symposium; Dot NYC – How Are We Doing?
The Internet Society’s New York Chapter (ISOC-NY) has for some years been following the .nyc and ICANN process on behalf of the NYC community and will, on Saturday April 10 2010, host a symposium “dot nyc – How are we doing?” at NYU. Vendors Eric Brunner-Williams of CORE Internet Council of Registrars and Antony Van Couvering of Minds +
Machines will reveal details of their proposals to the City, after which there will be a discussion “What’s it for?” about possible applications – civic, community, commercial, and “outside the box” –
for a local top level domain.
Disaster Plannning for Law Libraries
This morning I was one of many who received the following e-mail from Jessica Van Buren of the Utah State Law Library. :
A few weeks ago I asked if any of you had disaster plans to share. I offered to compile responses for a new Toolkit page on the SCCLL [ State Court and County Law Libries Special Interest Section of the American Association of Law Libraries (AALL) ] website if there was interest.
There was plenty of interest! Only two had plans to share, but it’s a start. The information I gathered is now on the new Disaster Planning page on the SCCLL website at http://www.aallnet.org/sis/sccll/toolkit/disaster-planning.htm.