Yesterday Apple Inc. (Apple) filed its response to the Department of Justice (DOJ)'s demand that it decrypt an accused terrorist's iPhone. For those not following the details of this case, here is a brief summary of the legal dispute:
The government's case for compelling Apple to decrypt the phone is the All Writs Act, a law that allows judges to issue writs necessary to enforce the law. This Act was interpreted by the1977 Supreme Court case US v. New York Telephone, in which the Court ruled that the All Writs Act allowed a judge to order the phone company to comply with a special kind of wiretap even though Congress had not passed a law authorizing that particular wiretap. The DOJ is invoking this argument given that the Federal government has so far declined to pursue legislation requiring companies to provide the government with backdoor access to consumer electronics.
The public now has a preview of the other side of the caset: Apple's motion lays out an argument that this case does not involve facts equivalent to those of New York Telephone and that creating new software would be unduly burdensome; more significantly, makes a case that statutory protections written telecommunications providers are the appropriate laws to apply in this case, and not the All Writs Act.
Given the rapid advancement of technology and its incorporation into everyday life, the precedent this case will set when the question of which law is appropriate is finally settled will likely have significant implications for the development of technology and popular culture in America.
Thursday, February 18, 2016
Many of our readers are probably wondering how the death of Justice Antonin Scalia will affect the Supreme Court, and what to expect of the political battle already being waged over the nomination of his successor. A new “legal sidebar” report from the Congressional Research Service (CRS) provides a brief summary of these issues. Here are a few takeaways:
- With the loss of Justice Scalia, the Court loses perhaps its greatest champion of constitutional “originalism,” the theory that the Constitution should be interpreted according to the understanding of those who ratified the document in the 18th century.
- Justice Scalia’s absence could mean a four-to-four split in a number of cases involving high-profile issues such as abortion, immigration, and affirmative action. In the event of an even split, the Court can either affirm the lower court’s judgment (such a decision creates no binding national precedent), or schedule the case to be reargued after the vacancy is filled.
- Article II, Section 2 of the Constitution provides that the President shall make appointments to the Supreme Court “by and with the Advice and Consent of the Senate.” President Obama has stated that he plans to nominate a successor, but the confirmation process in the Senate may prove difficult. The CRS paper points out that very few Justices have been both nominated and confirmed in a presidential election year, the most recent example being Frank Murphy in 1940.
Future CRS reports will cover these issues in greater detail.
Wednesday, February 17, 2016
Yesterday the CIA announced the release of approximately 750,000 pages of declassified documents in accordance with Executive Order 13526, which was issued by President Obama in 2009 and prescribes procedures for “classifying, safeguarding, and declassifying national security information.” Declassified documents are accessible through the CIA’s Records Search Tool (CREST) at the National Archives in College Park, Maryland. With the release of this latest batch, the total collection available on CREST comes to nearly 13 million pages.
While some of these documents have been published online, most of them can be accessed only through one of four computers at the National Archives building, presenting a formidable obstacle to researchers and journalists. But a Pennsylvania man named Michael Best is determined to change all that. He recently launched a Kickstarter campaign to make the complete contents of the CREST database available online. Because users are not allowed to save documents from CREST, the only way for Best to achieve his goal is to print out and scan every page. As the documents are digitized, he will upload them to the Internet Archive and donate the paper copies to a university, archive, or library. He also plans to provide copies to news and research organizations, including the New York Times and WikiLeaks.
As Best notes on his Kickstarter page, the CREST database contains a tremendous amount of historical information on the Cold War and the early years of the CIA, including “significant collections of finished intelligence from the Directorate of Intelligence; Directorate of Operations (now National Clandestine Service) information reports from the late 1940s and 1950s; Directorate of Science and Technology research and development files; Director, Central Intelligence Agency policy files and memos; and Directorate of Support logistics and other records.”
Equipment costs for the project have already been met. Keep an eye on the Kickstarter page for updates.
Tuesday, February 9, 2016
Today LexisNexis announced that it will end access to Lexis.com (classic LexisNexis) for law school users December 31, 2016. In 2017 law school users (students, faculty, and staff) will have access only to LexisAdvance, initially launched by LexisNexis in 2012.
The letter announcing this change from Paul Speca, Vice President for Law Schools, notes that all content from Lexis.com will have migrated to the LexisAdvance platform before this end date.
Though it is a great disappointment to see a wonderful research system begin its retirement so soon, this transition was likely inevitable due to the substantial costs of supporting two separate online research systems. Former Nota Bene blogger Dan Baker forecasted this event in a 2012 post, noting passionately that:
“once Lexis Advance has been shoved down everyone's throats, with its predatory pricing structure, its confusing search syntax, and its "but I thought you wanted millions of documents to sift through when you asked for information on eminent domain laws in Illinois," lexis.com will cease to exist.
Ahead of this retirement announcement LexisNexis did announce some changes to LexisAdvance that will appeal to longtime fans of Lexis.com. Users have long complained that LexisAdvance lacked a functional directory that would allow users to easily select the source they needed rather than explore “everything” as directed in the LexisAdvance search bar. Though it does not provide the level of source detail familiar to Lexis.com users, it operates (and looks) almost exactly like its Westlaw counterpart. Predictive suggestion of source names in the main LexisAdvance search bar has also improved dramatically over the last year, making it easier for novice users to find discrete sources.
Monday, February 8, 2016
One of the key benefits state bar associations provide their members is complimentary access to online research services. Fastcase and Casemaker are the leading service providers in the field, each with a nearly equal share of the state bar association membership market. You can see the breakdown as of 2014 at this blog post from the Duke Law Library. Texas is unique (of course!) offering its members complimentary access to both Casemaker and Fastcase. Both the Casemaker and Fastcase products are solid legal research platforms, providing excellent coverage of primary law (and some secondary sources) with good search functionality.
Over the last few years, some state bar associations have chosen to move to one service after years with another. The Pennsylvania bar now offers Casemaker instead of InSite, and the Georgia bar partnered with Fastcase in 2011, choosing to no longer offer Casemaker as a member benefit.
Last week, Fastcase sued Lawriter (Casemaker’s parent company), seeking a declaratory judgment that Lawriter cannot prohibit Fastcase from publishing the Georgia Regulations in its subscription legal research service. Lawriter, the designated publisher of Georgia Regulations, claims sole rights to its distribution. Lawriter demanded via letter that Fastcase remove the Georgia regulations from its service. Despite not knowing the contractual agreement between the State of Georgia and Lawriter, it seems difficult to imagine that Lawriter’s publication of public domain materials online involved a substantial original contribution that would allow for its protection under copyright law.
The issues in this case bring to mind the litigation between West Publishing and Mead Data Systems in the 1980s. For more background, and an excellent discussion of the availability of copyright in legal publishing, see the Law Center’s own Professor Craig Joyce’s article (with L. Ray Patterson), Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719 (1989). Professor Joyce’s article was also cited in Fastcase’s Complaint for Declaratory Judgment, which may be read here.
(h/t to Robert Ambrogi’s Law Sites blog for bringing this suit to our attention)
Sunday, February 7, 2016
This week, the Government Publishing Office launched the beta version of a new website that will replace its current Federal Digital System (FDsys) website. Govinfo will be the new interface where the public can access information from all three branches of the federal government. According to the press release, GPO describes the new website as “a user friendly, modernized site that provides an easy to use navigation system accessible on smartphones, tablets, laptops and personal computers.”
Govinfo will be in beta for a year, with the permanent website scheduled to launch in 2017. During the transition, FDsys will still be available to users, but eventually it will be sunset. Currently, much of the content available on the FDsys system is also available on the new site. For more information regarding the content that is currently available and how to access it, see the website’s What’s Available section. The website also provides useful information about how to search and browse for information. The developers are also seeking feedback on the site during the testing period.
Wednesday, February 3, 2016
Yesterday, the Sunlight Foundation announced the launch of the Hall of Justice, a new inventory of publicly available criminal justice datasets. Currently, it contains information about and links to almost 10,000 datasets and research documents about every state and the federal government. The inventory includes information from both government and academic sources. It covers a number of categories including Corrections, Courts, Crime, Financial, Juvenile Justice, Law Enforcement, Victims, and Miscellaneous (covering Data Accessibility, Guns, Indian Country Justice System, Military Justice System, and State-Specific Topics).
You can search for data in a few different ways. You can browse by jurisdiction or by category and subcategory. You can also do a keyword search for relevant datasets. Once you have your results, the list can be filtered in other ways including by author group, by sector (such as government, nonprofit, or private), and by how the information can be accessed. The information in the inventory was collected between September 2014 and October 2015.