evidence law

The Washington Post reported last week on how some federal magistrate judges are "balking at sweeping requests by law enforcement officials for cellphone and other sensitive personal data, declaring the demands overly broad and at odds with basic constitutional rights." For example, D.C. Magistrate Judge John M. Facciola, "deemed a law enforcement request for the entire contents of an e-mail account 'repugnant' to the U.S. Constitution," the Post also reports. He is an outlier but "part of a small but growing faction, including judges in Texas, Kansas, New York and Pennsylvanai, who have penned decisions seeking to check the reach of federal law enforcement power in the digital world."

Law professor Geoffrey R. Stone, writing in the Daily Beast, said having an evidentiary privilege for journalists' sources is key to democracy. The point of the privilege is that confidential sources will be incentivized to reveal information to reporters without fear of retaliation and exposure, Stone says. It's good for democracy "to gain access to information that otherwise might never see the light of day" because wrongdoing will be exposed more, he says. Congress should enact a federal shield law even if it means that lines are drawn on who qualifies as a journalist and what information is protected by the privilege, he concludes.

Hearings are being held in Philadelphia federal court this week on the admissibility of the testimony of plaintiffs' expert witnesses in litigation over whether Zoloft caused birth defects. The Legal Intelligencer's Sara Spencer (my former colleague) reports that drugmaker Pfizer is seeking to winnow out some of those experts. Both sides focused on a general causation expert, Dr. Anick Berard, The Legal reports. One defense lawyer said her position puts her "against the world."

Clay Clavert, a communications professor at the University of Florida in Gainsville, argues in a Huffington Post piece that the U.S. Supreme Court should take up a Pennsylvania case in which rap  lyrics were used as evidence in a criminal conviction. Anthony Elonis was convicted in federal court in Philadelphia for posting rap lyrics containing threats of violence on Facebook.

True threats are not protected by the First Amendment, just like obscenity, child porn and fighting words, Clavert writes. At issue in those Pennsylvania cases is how social media affects the analysis of what constitutes true threats, Calvert further writes: "Will people discount or treat less seriously speech posted on Facebook or a video uploaded to YouTube than they would in-person or in a traditional medium such as newspapers or television? The Court never has considered how the nature of online media affects a true threats analysis."

The Foreign Intelligence Surveillance Court has reversed course on allowing the National Security Agency to retain phone call metadata for longer than five years in order to preserve evidence in civil lawsuits over governmental surveillance, The Hill reports. A "federal judge in San Francisco said the government could not destroy phone records after the five-year retention period expired," setting up a conflict with a prior ruling by F.I.S.C., The Hill further reports. Judge Reggie Walton said he was reversing course because the conflicting directions from the federal courts "'put the government in an untenable position and are likely to lead to uncertainty and confusion,'" according to The Hill.

U.S. District Judge Jeffrey White of the Northern District of California blocked the federal government from destroying the telephone metadata collected by the National Security Agency, The Recorder's Julia Love reports. The move is just a temporary one until the court decides if the data must be preserved after full briefing and argument.

The emergency motion was brought by the Electronic Frontier Foundation. The Justice Department said it was going to begin clearing records today that were more than five-years-old, The Recorder said.

The Foreign Intelligence Surveillance Act previously ruled that governmental lawyers were under no obligation to hold telephone metadata beyond the current five-year limit. The FISA court reasoned: "The government can be sanctioned for destruction of evidence only if it is established that it had an obligation to preserve it at the time it was destroyed, that the records were destroyed 'with a culpable state of mind,' and the destroyed evidence was relevant to the party's claim or defense," according to a report in Computer World.

The Foreign Intelligence Surveillance Court rejected the request of governmental lawyers to hold telephone metadata beyond the current five-year limit, Computer World reports. The Department of Justice had reasoned the evidence would need to be preserved for privacy civil lawsuits challenging the constitutionality of the surveillance of phone calls. The court reasoned: "The government can be sanctioned for destruction of evidence only if it is established that it had an obligation to preserve it at the time it was destroyed, that the records were destroyed 'with a culpable state of mind,' and the destroyed evidence was relevant to the party's claim or defense," Computer World also reports.

Todd Willingham was executed a decade ago after he was convicted of setting a house fire that killed his three daughters, the Texas Tribune reports. Lawyers from the Innocence Project have already cited faulty science regarding the cause of the fire being arson. Now they say a note shows that the presiding prosecutor made a deal with a jailhouse informant even though the informant testified he received nothing in exchange for his testimony, The Tribune further reports.

The National Security Agency needs to keep phone-call metadata longer than the five-year limit in order to preserve evidence for the civil lawsuits challenging the legality of surveillance, the Justice Department said in a court filing Wednesday, The Hill reports. "'The United States must ensure that all potentially relevant evidence is retained,'" government lawyers said, according to The Hill. The government does say the records would be kept for "non-analytical purposes."

The Massachusetts Supreme Judicial Court, 5-2, ruled this week that law enforcement may not a track a suspect's movements from cellphone data without getting a warrant, The Wall Street Journal reports. The court held, "'“even though restricted to telephone calls sent and received (answered or unanswered), the tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy,'" WSJ reported from the opinion. The court was applying the state constitution, not the federal constitution.