The D.C. Circuit ruled Friday that President Obama's Justice Department can keep secret a memo that established "the legal basis for telephone companies to hand over customers’ calling records to the government without a subpoena or court order, even when there is no emergency," The New York Times reports. The memo was deemed to be subject to the executive branch's internal deliberations privilege.
The Inspector General of the U.S. Department of Health & Human Services has issued final safe-harbor regulations for payments and business practices related to electronic health records. Some of these payments and practices would otherwise implicate the federal anti-kickback statute. EHR Intelligence reports that federal regulators have extended the safe harbor until Dec. 31, 2021, with three goals: to incentivize the adoption of EHRs, align the date on which the safe harbor will sunset along with the ending of incentives for the meaningful use of such EHRs, and to provide protection against “'foreseeable future fraud risks.'”
As health-care expands in an effort to cover all Americans, the Medicaid expansion could mean that more people over the age of 55 will face liens being placed on their assets for their care, according to a report in BenefitsPro. "Washington and many other states, including California, Florida and New York, interpret the [federal] regulations to mean that they should use liens to try to recover any money spent by Medicaid on any care for people ages 55 and older, not just for long-term care specifically," BenefitsPro also reports. But regulators in Washington issued an emergency rule to limit lien recoveries only to Medicaid funds spent on long-term care in order to reduce a disincentive for people to sign up for health-care coverage, BenefitsPro concludes
My piece for Philadelphia City Paper:
On Tuesday, the city released a notice of its intention to contract with Alva & Associates to start a for-profit law firm from scratch to represent criminal defendants and family-court defendants when the Defender Association of Philadelphia, Community Legal Services or the Support Center for Child Advocates is already representing another person in the case.
Daniel-Paul Alva, founder of the four-member Alva & Associates law firm, and Scott DiClaudio, who also has his own firm, originally submitted a $9.5 million plan to create a for-profit Office of Conflict Counsel. DiClaudio resigned from the project following social-media postings he made.
In September, Alva told City Paper that the new office will benefit clients, because its salaried attorneys would have no incentive except the client's best interest. Currently, court-appointed lawyers get paid more if they take their cases to trial — even if it would be better to settle, Alva said. Further, he argued that salaried lawyers can handle more cases by being assigned to one courtroom throughout the day. Alva could not be reached for comment on Friday.
Councilman Dennis O'Brien opposes the plan. Funding a new law firm just at $9.5 million is not enough money, O'Brien said. If the system is "underfunded, criminal cases, even death penalty and homicide cases, are going to be dismissed under the speedy trial rule," he predicted.
And "when the system crashes and burns and we can't put Humpty Dumpty back together again, all the lawyers that were doing this [legal work] will have gone elsewhere," O'Brien said.
There were four other bidders for the contract: Ahmad & Zaffarese & Smyler, AskPhillyLawyer.com, Montoya Shaffer and Sokolow & Associates, according to the city's notice.
While Alva & Associates was not the lowest bidder, the city says in its notice that Alva & Associates would provide "superior quality, efficiency and fitness" as well as "superior ability or capacity to meet particular requirements of contract and needs of City Department and those it serves."
Mark McDonald, press secretary for Mayor Michael A. Nutter, said that other bidders have seven days to object to awarding the contract. If no objections are lodged, the contract would go into effect March 1. McDonald said he did not have any other details about the contract.
Michael Resnick, Nutter's director of public safety, did not respond to a request for comment on Friday.
In November, O'Brien introduced legislation to require the appointment of a quality-control auditor to ensure the legal representation in the Office of Conflict Counsel was living up to American Bar Association standards and a detailed audit of the allocation of city taxpayers' dollars to the law firm. O'Brien also introduced a bill to ask Philadelphia voters to approve a change to the Philadelphia Home Rule Charter (once approved by City Council). If enacted, the charter amendment would require City Council approval of every contract involving the expenditure of $100,000 or more on legal representation for poor Philadelphians. Currently, contracts that are for less than one year, at any amount, don't need City Council approval.
While women have made some progress in the partner ranks at large law firms, women are lagging at the associate level, The Washington Post reported earlier this week: "Women make up 20.2 percent of partners at major law firms — up from 19.9 percent in 2012 — but the percentage of women associates dipped slightly from 45.1 to 44.8 percent over the same period, according to a report released this month by the National Association for Law Placement, the District-based group that tracks diversity and career advancement issues in the legal industry. It is the fourth year in a row that the ratio of women associates has dropped since it reached a high of 45.7 percent in 2009."
Despite the many lawsuits pending to strike at state-level bans on same-sex marriage--and success in some of those lawsuits, the Associated Press reports that the 30-plus mini-Defense of Marriage Act laws aren't going anywhere just quite yet. "'The thing that I would not do is confidently predict that now all of these ‘mini’ DOMAs are going to be declared unconstitutional. That would be a mistake,' ... Andrew M. Koppelman, a Northwestern University School of Law professor and author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,”' told the AP. '“There is wiggle room here for judges to do what comports with their sense of what’s right.'" For example, some judges could find that the U.S. Supreme Court decision striking down the federal DOMA left the decision on authorizing same-sex marriage up to individual states.
The Atlantic has this piece arguing that continuing to rely upon the U.S. Supreme Court precedent in Smith v. Maryland to justify the NSA's mass surveillance of phone calls in the USA no longer makes sense. The case involved the use of a pen register to investigate a burglar-stalker who allegedly made obscene phone calls to a crime victim, and the U.S. Supreme Court ruled that "a search only occurs when a citizen has a reasonable expectation of privacy" (which in Smith was not the case for phone calls made by a burglar from his home phone), The Atlantic further reports. Smith, cited by the Southern District New York decision upholding the NSA's surveillance of telephone metadata, is out-of-date for where technology now stands: "At the time Smith v. Maryland was decided, the courts did not anticipate this seemingly absurd result [of massive surveillance], in part because the case was decided prior to the era of cheap data storage, modern computing power, and sophisticated network analysis," The Atlantic concludes.
Last month, I wrote a piece for the Connecticut Law Tribune about the lack of legal doctrine to govern cyber warfare--and what a UConn professor and law student are doing about it:
Forget Terminator-style cyborgs sent back in time on an assassination mission.
Cyber warfare is here, but the form it takes doesn't involve lethal robots. It's things like Stuxnet, a computer "worm" that is believed to have been created in 2010 to attack Iran's nuclear facilities. Or unmanned planes – navigated by software and "pilots" on the ground – dropping bombs.
But while cyber warfare is here, the law of war and the rules of engagement are largely undeveloped regarding cyberwar, according to David Thaw, a University of Connecticut visiting assistant professor of law whose scholarship focuses on cybersecurity regulation and cybercrime.
There is not even clarity in international law about when cyber warfare can be started. For example, Thaw asks, when would an attack on Google constitute an act of war instead of just criminal activity? What level of cyberwarfare is proportionate as a matter of law?
There is a "wide space that the law needs to catch up" on quickly, Thaw said.
The open legal questions have led Thaw and Joel Henry, a cyberspace operations officer of the 103rd Airlift Wing, Connecticut Air National Guard, and a UConn law student in his last semester, to research the law of armed conflict and cyberwarfare. They have presented their research at places like the Pentagon and NATO conferences.
Talking to experts in those forums made them realize that they needed to address not only what happens during a cyber warfare conflict, but about what leads up to the conflict.
Their collaboration started after Henry wrote a paper on cyber warfare for one of Henry's classes, and because Henry has served as a cyberoperations officer with the Connecticut National Guard and the U.S. Air Force for five years. Prior to that, Henry was an Air Force captain and a weapons loader for A-10 fighter jets from 2002 to 2008. Until this semester, Henry was an evening law student working full time as an engineer.
The aim of professor and student is to develop "a set of legal guidelines to help the international community and the individual nation-states" as they draft their own laws and policies about cyber warfare, Thaw said.
Due to the interconnectivity of many systems with the Internet — for example, power grids, water and fuel pipelines and emergency services — cyberwarfare could have unintended consequences. For example, Country A deploys a cyberweapon against Country B, but the weapon affects systems in Country C due to the interconnective nature of technology, Thaw said.
If the military is using a cyberweapon to target an electronic system or a computer system of an adversary, it must be sure that use of that weapon is not going to have unintended consequences for a civilian population, Henry said.
One issue with cyber warfare is the risk of collateral damage if excessive force is used in more densely populated areas, Thaw said. The same is true of conventional warfare, he said. "You don't drop an imprecise high-yield warhead in a major urban center … to take down one building," Thaw said. "You use a precision-guided ordinance" from an aircraft.
The law needs to require that in cyberspace as well, he said.
Henry said his contribution to the paper is in terms of drafting new cyberlaw of armed conflict and how that applies to military operations. The focus has been on judge advocates assigned to military units, Henry said.
Henry said his research has been informed by his personal experience of working with JAGs assigned to one of the Air Force's Air and Space Operations Centers. Their research has shown that, as the law stands currently, "JAGS probably wouldn't be equipped "to lawfully authorize cyber warfare attacks, Henry said. "What would that individual need to know from a legal standpoint to authorize the use of a particular weapon?" Henry asked.
Thaw added: "One of the reasons we have judge advocates in uniform advising commanders who have to make decisions about deploying military assets" is to ensure that military action is lawful and that unlawful harm is not done to civilians, Thaw said.
Another issue with cyber warfare is what happens if remote-controlled aircraft are taken over by unauthorized people. "New questions arise when controlling things remotely," Thaw said.
Another issue with cyber warfare is what happens if remote-controlled aircraft are taken over by unauthorized people. "New questions arise when controlling things remotely," Thaw said.
Thaw and Henry hope to publish their research sometime in the future. For now, they are revising on the basis of their meetings with experts.
The Washington Post reports that 2.1 million people have signed up for health-insurance policies, about half through the federal exchange and about half through the state exchanges. Federal officials are also confident the 2.1 million figure means more Americans, rather than fewer, now have health-care coverage starting Wednesday since it 'certainly outpaces anyone who may have lost a plan' this year," The Post further reports.
The Legal Intelligencer's Max Mitchell reports that the murky role of Penn State's general counsel during grand jury proceedings could affect the efforts of prosecutors to hold three university administrators accountable for their actions regarding convicted child molester Jerry Sandusky. "If three ex-Penn State administrators facing charges stemming from failing to properly deal with reports of child sexual abuse by Jerry Sandusky are found to have appeared before a grand jury without proper advice of counsel, their testimony could be incurably affected and even tossed, several white-collar defense attorneys have said," Mitchell writes. Minutes of the grand jury proceedings show that Cynthia Baldwin said she was attending the grand jury proceedings on behalf of Penn State, but the defendants, former university President Graham Spanier, Vice President Gary Schultz and former athletic director Tim Curley, argue they thought Baldwin was their counsel.
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