Autocracy 101: Fire those who disagree with the administration

The Lawyer

A senior Justice Department immigration lawyer was put on indefinite leave after questioning the Trump administration’s decision to deport a Maryland man to El Salvador — one day after representing the government in court, reported The New York Times.

Deputy Attorney General Todd Blanche suspended Erez Reuveni, the acting deputy director of the department’s immigration litigation division, for failing to “follow a directive from your superiors,” according to a letter sent to Mr. Reuveni and obtained by The New York Times.

Mr. Reuveni is the latest career official to be suspended, demoted, transferred or fired for refusing to comply with a directive from President Trump’s appointees to take actions they deem improper or unethical.

Under questioning by a federal judge on Friday, Mr. Reuveni conceded that the deportation last month of Kilmar Armando Abrego Garcia, who had a court order allowing him to stay in the United States, should never have taken place. Mr. Reuveni also said he had been frustrated when the case landed on his desk.

The General

As soon as word spread that President Trump had fired Gen. Timothy D. Haugh, the head of the National Security Agency and U.S. Cyber Command, current and former administration officials began floating theories about why he had been let go.

Had General Haugh opposed one of Mr. Trump’s initiatives, perhaps moved too slowly on purging officers who had worked on diversity issues? Or was he a casualty of the administration’s shifting priorities to counter narcotics?

Whether any of that was true, it had little, if anything, to do with why he was fired.

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ABA Journal's Top Words in Law for 2024

The ABA Journal's Top Words in Law for 2024 include catchy ways to describe minimal workplace attendance and expert-witness conferences, according to the list recently unveiled by Burton’s Legal Thesaurus.

Law360 has the story on the top new words, chosen by a select committee led by Margaret Wu, a professor at the University of California at Berkeley School of Law, who teaches legal writing.

According to Law360, the words include:

  • “Coffee badging,” in which a worker shows up at the office for a minimal amount of time to comply with in-person work mandates.

  • “Hot-tubbing,” in which expert witnesses for both parties in a bench trial discuss the case with a judge in an attempt to reach agreement. The procedure is also known as “concurrent expert evidence.”

  • “Word salad,” meaning nonsensical verbiage.

  • “Cybersmear,” which is online defamation, usually contained in an anonymous post.

  • “AI washing,” which is misleading advertising regarding the effectiveness of an artificial intelligence product.

Other AI-related terms include “slop” and “sea of junk,” which refers to poor-quality AI content.

Wu told Law360 that her colleagues and William C. Burton, the creator of Burton’s Legal Thesaurus, look for terms that were brand-new in the past year, that changed in meaning, or that took on different importance.

“We go through and try to find words that we think are interesting and seem to be growing in popularity and words that we think would be helpful for both practicing lawyers as well as legal scholars to be aware of,” Wu said.

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PLW: SCOTUS Narrows Statute That Could Expose ‘Millions’ to Prosecution

Matthew T. Mangino
The Legal Intelligencer
July 6, 2021

The U.S. Supreme Court recently narrowed the Computer Fraud and Abuse Act of 1986 (CFAA), 18 U. S. C. Section 1030, a federal law that makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.”

The high court decided, by a 6-3 margin, a former police officer who used his position to search a computer database for license-plate records for an illicit purpose, did not violate the CFAA.

The officer, Nathan Van Buren, from Georgia, sought a loan from a man he befriended. The man went to the FBI. As part of a sting operation the man agreed to offer Van Buren $5,000 if he would search the license-plate database for a specific vehicle owner. Van Buren’s job gave him access to the database; however, his search on that occasion violated department policy because it was not done in connection with his duties.

Van Buren was charged with violating the CFAA. The act subjects a person to criminal liability who “intentionally accesses a computer without authorization or exceeds authorized access,” and thereby obtains computer information. According to Justice Amy Coney Barrett’s majority opinion, “It defines the term ‘exceeds authorized access’ to mean ‘to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.’”

Barrett’s opinion was joined by an unusual coalition made up of the other two justices appointed by President Donald Trump— Justices Neil M. Gorsuch and Brett M. Kavanaugh—and the court’s three-member progressive wing, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The government argued that Van Buren’s violation of department policy—accessing the computer for nonpolice-related data—resulted in a violation of the CFAA. Barrett disagreed. “This provision covers those who obtain information from particular areas in the computer—such as files, folders or databases—to which their computer access does not extend,” wrote Barrett. “It does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them.”

Barrett wrote, “If the ‘exceeds authorized access’ clause criminalizes every violation of a computer-use policy, then millions of otherwise law-abiding citizens are criminals.”

Barrett continued, “So on the government’s reading of the statute, an employee who sends a personal e-mail or reads the news using her work computer has violated the CFAA.” Barrett goes on to site amici briefs that expound on the potential to “criminalize everything from embellishing an online-dating profile to using a pseudonym on Facebook.”

Barrett summed up her opinion in this way, “The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could. Van Buren accordingly did not ‘exceed authorized access’ to the database, as the CFAA defines that phrase, even though he obtained information from the database for an improper purpose.”

Interestingly, in this case Van Buren has the mens rea to commit an illicit act. However, his conduct was a violation of the police department policy and not federal law.  Barrett’s concern that an overly broad interpretation of the CFAA could mean “millions of otherwise law-abiding citizens are criminals.” Her position is laudable. Yet, the federal crimes code is loaded with crimes that don’t require ill intent.

In fact, the government argues in Van Buren’s case that the “mens rea requirement ‘might” preclude liability in some cases.”

That is an interesting argument in light of the tireless effort by Congress to expand the number of federal criminal laws that do not require mens rea.  Mens rea is the intent to commit a crime or more simply a guilty mind.

People who do their best to remain law-abiding members of society can no longer be confident that they are safe from prosecution.

This is not the sentiment of some bleeding heart criminal defense attorneys. The Heritage Foundation, a conservative think tank, issued a report suggesting, “Honest mistakes should not result in prison time. Every criminal conviction should require proof beyond a reasonable doubt that the person acted with criminal intent.”

Even the conservative Koch brothers are alarmed. A report by The Charles Koch Institute reported that when the federal criminal code was enacted in 1790, there were just 30 crimes. By the 1980s, the number had exploded to more than 3,000. Today, the number of federal crimes and regulations is unknown. Some studies estimate that there are as many as 5,000 statutes and 300,000 regulations that carry federal criminal penalties.

With too many criminal statutes and too little needed to get a conviction everyone is at risk.

Here are a couple examples, cited by The Charles Koch Institute, of the ridiculousness of crime without intent. A river guide was charged with “obstructing government operations” when he dove into the water to save a child instead of waiting for a search and rescue team to arrive. A Christian outreach group offered food to homeless people in a Fort Lauderdale park and its members were arrested because a local regulation disallowed such food sharing.

Even Justice Clarence Thomas acknowledged in his dissent in Van Buren that, “It is understandable to be uncomfortable with so much conduct being criminalized.”

Throughout history, criminal statutes have required some form of criminal intent such as negligence, recklessness, knowledge, intent or willfulness. In 2015, the U.S. Supreme Court acknowledged the need for an adequate mens rea requirement in criminal cases.

In Elonis v. United States, 575 U.S. ___ (2015) the court declined to identify exactly what the appropriate mens rea standard is under that statute used to prosecute Anthony Elonis. The court recognized that a defendant’s mental state is critical when he faces criminal liability and, as The Federalist Society—another bastion of conservative thought—suggested, when a federal criminal statute is “silent on the required mental state,” a court should read the statute as incorporating “that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”

There is more work to be done. Courts should demand clear standards for mens rea in criminal statutes; Congress should begin to review statutes that lack mens rea; and closely scrutinize future legislation when it comes to criminal intent.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. He is the author of “The Executioner’s Toll,” 2010. Contact him at matthewmangino@aol.com, www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Hickton: Governments turning to artificial intelligence to make decisions

David Hickton, the founding director of The University of Pittsburgh Institute for Cyber Law, Policy, and Security wrote in The Hill:

Tomorrow’s government workers aren’t your neighbors. They’re algorithms. 

Federal and local governments increasingly are turning to data-trained models and artificial intelligence to help make decisions — big decisions, such as the length of a prison sentence, and smaller decisions, such as when to deploy health inspectors to restaurants. But these algorithms need oversight and it is nowhere to be found.

Congress should act on this critical issue, but so, too, should local governments, where some of the most consequential uses of government by algorithm can be found.

In Pittsburgh, for example, the city and county governments are using algorithms to perform a variety of functions. Like many localities across the country, algorithms are helping judges determine who gets bail and who does not. They are guiding police about where and when to send patrols. They are helping child welfare hotline screeners determine when to send in a case worker. And they’re only becoming more common.

Each of these applications has a worthy goal: public safety, preventing crime, and saving children from neglect, abuse or worse. It is possible that some of these algorithms are “better” at doing so than the humans who might be making decisions in their place. Algorithms can be programmed to take more evidence into account; they can do more, faster. The promise of big data and predictive analytics for improving our lives and society should not be ignored.

However, it is also possible that these algorithms could perpetuate — or even accelerate — existing discrimination patterns. Ask Amazon, whose now-discarded interview system trained itself to avoid selecting resumes that indicated the applicants were women. If the data that helped train policing patrol models is using years of notoriously biased data — such as information about historical arrests — how have we ensured that the algorithm doesn’t churn out biased outcomes? 

Yet too many of these algorithms operate like black boxes, with little to no means for the public and researchers to scrutinize how decisions are made. As algorithms increasingly are used for determining government services and benefits, or even whether or not someone goes to prison, what remedies do individuals have if the algorithm is biased?

We cannot rely just on good intentions, or even impressive processes and evaluations within agencies. Instead, we should want public oversight to ensure accountability and fairness. No jurisdiction in the United States has successfully grappled with the complexities of how to adapt to this new administrative state by algorithm, though some are trying, including New York City and Washington State. 

To be sure, this is no easy task. This is why the University of Pittsburgh Institute for Cyber Law, Policy and Security — Pitt Cyber — has formed the Pittsburgh Task Force on Public Algorithms to study oversight of local public algorithms. With support from The Heinz Endowments, we have gathered experts and community leaders to develop best practices and issue practical guidance for local policymakers wishing to take full advantage of the promise of data, while still ensuring accountability and equity for all residents. This task force will not work in isolation; we also will be working throughout the western Pennsylvania region to ensure that we learn from residents across communities. 

In a country where techno-optimism long has ruled, it is time we also ensure accountability and fairness. 

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Local police struggle with social media

In monitoring social media, most local police forces lag U.S. intelligence agencies, which despite their vast surveillance networks still struggle to prevent attacks such as the 2013 Boston Marathon bombing, reported Reuters.
The National Security Agency had raw intercepts pointing to a person matching the 2009 "underwear bomber's" description, but failed to stop him from boarding a plane.
The Department of Homeland Security monitors about 100 social media sites, but there are restrictions that keep their agents from sharing all the information that they collect directly with local law enforcement.
Social media monitoring by police tends to be reactive: analysts hit the Internet when someone phones in a tip. Investigators use social networking sites to identify victims, look for witnesses and perpetrators, generate leads or search for evidence in the aftermath of a crime.
"Most of the stuff, honestly, we get is when people send it to us," said Los Angeles Police Department spokesman, Commander Andrew Smith.
That's not to say there have not been some successes. The LAPD, which employs around 40 people to monitor social media manually, uses software from a startup called PredPol Inc, which stands for predictive policing. The software analyzes LAPD and other internal police databases to identify crime-ridden areas and determine the best times to patrol.
PredPol marketing manager Benjamin Hoehn said crime dropped around 20 percent within 10 months of deploying the system in Modesto, California, in January.
The LAPD is also exploring the use of Geofeedia Inc, which incorporates user-location data as it crawls through sites from Twitter and Facebook to Google Inc's (GOOGL.O) YouTube and Yahoo Inc's (YHOO.O) Flickr.
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Public-Private collaboration needed to combat cyberthreats

There is a growing need for effective public-private cyber-security collaborations, according to a new paper released by the New York University Center on Law and Security, reported The Crime Report.
The paper outlines challenges and potential opportunities for partnerships between private companies and public agencies working to fend off hackers and data thieves.
There are barriers to effective cooperation, according to the paper. They include a reticence among many companies to work with government agencies, unless they’re in crisis mode.
According to the report, major categories of obstacles include, issues surrounding trust and control of incident response; questions about obligations regarding disclosure and expo-sure; the evolving liability and regulatory landscape; challenges faced in the cross-border investigation of cybercrime; and cross-border data transfer restrictions that impede the ability of companies to respond nimbly to cyberthreats and incidents.
Visit The Crime Report HERE