Thread of legal hubbub
Thread of legal hubbub
Georgia Court of Appeals judge is nominated to the Supreme Court of Georgia and he declines: https://twitter.com/JudgeDillard/status ... 4835918848
Neat.
Neat.
Thread of legal hubbub
Wow. That's not the sort of promotion that many would turn down.
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That letter reads like, "This seems like a lot more work than I really want to take on."
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So far as we know, the Seventh Circuit just became the first federal appellate court to include a poop emoji in a published opinion. It appeared in a quoted Facebook post:
https://abovethelaw.com/2018/08/the-fir ... nion/?rf=1
https://abovethelaw.com/2018/08/the-fir ... nion/?rf=1
Thread of legal hubbub
Motion to Continue Because of Moose Attack
https://loweringthebar.net/2018/08/moti ... ttack.html
https://loweringthebar.net/2018/08/moti ... ttack.html
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Saw this CLE, immediately thought of tif: http://rocknrolllaw.com/
An overview of basic music copyright law in this digital age, including what is a copyright, how to get one, and the exclusive rights you get with a copyright, along with the cash streams they generate. Plus, we discuss copyright infringement cases, and end with an hour of ethics regarding the ethical dilemmas in representing a band. All of this is discussed through following Bruce Springsteen's career (ethics focuses on The Beatles).
Thread of legal hubbub
Ha, I've done copyright CLE in the past. Such hoots to be had.
Thread of legal hubbub
Very important legal question accepted for review by the PA Supreme Court today. The appeal is Commonwealth v. Davis, 169 MAL 2018, and the question certified is:
This will be an interesting case to watch, as well as an important case when it comes to the privacy of electronic devices in the Commonwealth.May [Petitioner] be compelled to disclose orally the memorized password
to a computer over his invocation of privilege under the Fifth Amendment to
the Constitution of the United States, and Article I, Section 9 of the
Pennsylvania Constitution?
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That is the central issue issue of my Long Paper. My adviser doesn't think there is much teeth to the 5A question so this will certainly help. Thank you!
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When do you reckon this will actually be heard and subsequently decided/published?
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It was just granted, so I wouldn't expect briefing and argument to be finished earlier than, say, 90 to 120 days, and the decision would take probably another three or four months at least, and it could be longer. My guess is late summer to fall of 2019 for an opinion
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What are the facts surrounding the, what's the phrase, attempted compulsion to disclose the password?
Generally speaking, most of the law surrounding privacy is still stuck in a 18th century mentality. Applying that to 21st century technology is tricksy.
Generally speaking, most of the law surrounding privacy is still stuck in a 18th century mentality. Applying that to 21st century technology is tricksy.
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The big catch that I've been presented with is that you can't plead the Fifth during an investigation, only once you're criminally charged. You can be compelled to provide a password prior to being charged and then the evidence gained may be used against you later at trial. Presumably you have the right to remain silent, but investigators have gotten injunctions from courts to compel someone to divulge device passwords and that's the undecided law creating conflict in this area.
The fact that this password is being requested orally is great for the defendant. Biometric mechanisms do not enjoy the same heightened cloak of protection.
The fact that this password is being requested orally is great for the defendant. Biometric mechanisms do not enjoy the same heightened cloak of protection.
Thread of legal hubbub
The Superior Court opinion is here:
https://law.justia.com/cases/pennsylvan ... -2016.html
It looks like the trial court and Superior Court both held that the defendant could be compelled to provide the password largely on the "foregone conclusion" doctrine, which basically says that when the testimony sought to be compelled is a foregone conclusion, the Fifth Amendment privilege no longer applies.
https://law.justia.com/cases/pennsylvan ... -2016.html
It looks like the trial court and Superior Court both held that the defendant could be compelled to provide the password largely on the "foregone conclusion" doctrine, which basically says that when the testimony sought to be compelled is a foregone conclusion, the Fifth Amendment privilege no longer applies.
Thread of legal hubbub
Except that the scope is far too narrow to cover all outcomes. Everyone in the room, thanks to defendants utterances, may know that badfile.mov is on there and that's a foregone conclusion; but there may be 100s or 1000s of other bad files on the machine that the investigators do not know about at this time. Providing the password isn't a key to open a safe containing badfile.mov; it's a key to open a safe containing [nobody knows]. It's one of the foundational concepts of my research.
In reading that opinion it looks like some cognitive dissonance is in play. If it's a foregone conclusion, why compel him to open the computer at all? They seem to have relied way too heavily on that Stahl case to declare the password non-testimonial. All it does is describe what a password is but doesn't consider the implication of divulging it. Silly.
It is a pretty good test case though. A guy who doesn't use wifi and lives alone who also testified that nobody else can use the computer is about as ironclad as you can get if you want to deploy this foregone conclusion nonsense.
In reading that opinion it looks like some cognitive dissonance is in play. If it's a foregone conclusion, why compel him to open the computer at all? They seem to have relied way too heavily on that Stahl case to declare the password non-testimonial. All it does is describe what a password is but doesn't consider the implication of divulging it. Silly.
It is a pretty good test case though. A guy who doesn't use wifi and lives alone who also testified that nobody else can use the computer is about as ironclad as you can get if you want to deploy this foregone conclusion nonsense.
Thread of legal hubbub
I share your view of the foregone-conclusion doctrine. Allowing the government to basically say "we already know you're guilty" is highly problematic when the government does not know and cannot know the entire contents of the device in question. For example, let's say that not only is their child porn on that hard drive, but it also contains a video of the defendant committing some other crime, such as a video where the defendant personally had sex with a child or committed a murder. The government has no idea that the defendant committed that other crime. Once they see the video, however, they're sure as heck going to charge that additional crime. Forcing the defendant to provide the password is essentially the same as forcing the defendant to testify as to any other potential crime that the defendant might have committed, which to me runs counter to the entire point of the incrimination clause of the Fifth Amendment.
I also agree the facts of the particular case aren't great. That defendant obviously never learned to keep his mouth shut when talking to the police.
I also agree the facts of the particular case aren't great. That defendant obviously never learned to keep his mouth shut when talking to the police.
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@dodint : since you were writing paper on the related topic. Note the last sentence - only 12 years!
https://translate.google.com/translate? ... edit-text=
https://translate.google.com/translate? ... edit-text=
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Yeah, that seems...low.
Poor Jared.
Poor Jared.
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Because I am 99% sure this will forever be my one and only foray into the world of law, here is my overplayed touchdown dance:
Boooyah!
Harvard. What? Like it is hard?
https://blogs.harvard.edu/bankruptcyrou ... overnance/
Konichiwa, b&^*#s!
Boooyah!
Harvard. What? Like it is hard?
https://blogs.harvard.edu/bankruptcyrou ... overnance/
Konichiwa, b&^*#s!
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Awesome man, congrats
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That's actually pretty neat, well done.
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dude is a boss, tifThat's actually pretty neat, well done.
https://news.uark.edu/articles/41518/wa ... ng-faculty
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I'm subpoenaed to court tomorrow as a witness for Westmoreland County. Only took 3 years to get the criminal files charged...
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Al Lindsay, what a weird guy.
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Made a passing reference to Shyster in a reflective essay for school today. I said if I ever do practice law I will take the advice of a local attorney I know and enroll in a Bryan Garner seminar.
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