Friday, October 24, 2014

US Courts Seek Public Comment on Proposed Amendments to Court Rules


by Shannon Allen

The United States Courts (“USC”) announces public hearings of the Judicial Conference Advisory Committee and seeks comment on proposed amendments to the Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure.  The USC requested that these proposals be circulated to the bench, bar, and the public for comment.  The Advisory Committees on Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure have proposed  amendments to multiple rules and forms, including, but not limited to: Criminal Rules 4, 41, and 45. (See list of proposed amendments at: http://www.uscourts.gov/rulesandpolicies/rules/proposed-amendments.aspx.)

In particular, with regard to Criminal Rule 41, the proposed amendment “provides that in two specific circumstances a magistrate judge . . . has authority to issue a warrant” to utilize “remote access to search electronic storage media” and to “seize . . . electronically stored information even when that media . . . is . . . located outside of the district.” The first circumstance is where a “warrant sufficiently describes” the computer law enforcement wishes to search, but the computer is located in an unknown district; making it impossible to identify a physical location or judicial district for the computer.  (e.g. child pornography may be shared through proxy services created to conceal their true IP address.)  The second circumstance is where complex criminal activities utilize many computers in multiple districts at the same time. (e.g. a collection of compromised computers can operate as botnets to disseminate malware, invade privacy of users, and steal personal information.)  The Advisory Committee views Rule 41 in its current state as potentially hampering the investigation of serious federal crimes and proposes narrowly tailored amendments to address these two increasingly common venue circumstances. 

The proposed amendment changes the “territorial limitation that is presently imposed” by Rule 41(b) and states that a magistrate judge “with authority in any district where activities related to a crime may have occurred” may issue a warrant that meets the criteria in the proposed new paragraph.  The Committee proposes relaxing the venue requirements “when the district where the media or information is located has been concealed through technological means,” so long as investigators can satisfy the Fourth Amendment’s warrant requirements.  In addition, for restricted types of investigations, the proposed amendments would “eliminate the burden of attempting to secure multiple warrants in numerous districts.”  Finally, the proposed amendments change the notice requirements only requiring that when the “search is by remote access, reasonable efforts be made to provide notice to the person whose information was seized or whose property was searched.”

The USC seeks comment on these proposed amendments to the Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure.  Public hearings are scheduled to be held on the amendments to:

  • Appellate Rules and Forms in Phoenix, Arizona, on January 9, 2015, and in Washington, DC, on February 12, 2015; 
  • Bankruptcy Rules and Official Forms in Washington, DC, on January 23, 2015, and in Pasadena, California, on February 6, 2015; 
  • Civil Rules in Washington, DC, on October 31, 2014, and in Phoenix, Arizona, on January 9, 2015; and 
  • Criminal Rules in Washington, DC, on November 5, 2014, and in Nashville, Tennessee, on January 30, 2015.

Those wishing to testify should contact the Secretary at the address below in writing at least 30 days before the hearing.  

Jonathan C. Rose, Secretary
Committee on Rules of Practice and Procedure
Judicial Conference of the United States
Thurgood Marshall Federal Judiciary Building
One Columbus Circle NE., Suite 7-240
Washington, DC 20544
Telephone (202) 502-1820.

All written comments and suggestions with respect to the proposed amendments may be submitted on or after the opening of the period for public comment on August 15, 2014, but no later than February 17, 2015. Written comments must be submitted electronically, following the instructions provided at: http://www.uscourts.gov/rulesandpolicies/rules/proposed-amendments.aspx. In accordance with established procedures, all comments submitted are available for public inspection.

Friday, October 17, 2014

Social Media: Changing the Landscape of Rulemaking


by Lynn White

Just as we have seen in politics and other forms of policymaking, rulemakers and regulated communities are taking to social media to engage stakeholders and influence public policy.  This is a tricky strategy since rulemaking does not lend itself to boiling down policies into 140 characters or less.  Most proposed and final rules are well over 200 pages and written in (oftentimes unnecessarily) complex language by administrative lawyers. 

An excellent recent example of this phenomenon comes from the U.S. Environmental Protection Agency’s (EPA) proposal to revise the scope of waters protected under the Clean Water Act (CWA).  According to the EPA, the proposed rule “would enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected under the Act.”  The proposal was over 110,000 words or 300-plus pages of normal text. 

The American Farm Bureau Federation (AFBF) immediately pushed back on the rule because of the potentially devastating impact on farmers.  Ellen Steen, the AFBF’s General Counsel, stated that the proposal would make many farm activities subject to CWA permit requirements and there is no guarantee that EPA will issue the permits necessary to keep farms operational.  The process of getting a permit is also costly and requires lawyers.  AFBF quickly established a coordinated social media campaign called “Ditch the Rule” that gives stakeholders quick access to digestible information on the 100 page rule and directions on how to file comments. 

The AFBF’s efforts yielded great results.  There have been over 210,000 comments filed on the rule.  The EPA was forced to extend the comment period twice because of the strong public opposition.  The extended comment period allowed many farmers who were in the rush of planting season when the proposal was released to comment on the rule. 

The EPA engaged in its own social media outreach.  The proposed rule has a cutting edge webpage entitled “Ditch the Myths,” (a not-too subtle parody of AFBF’s site) which you generally don’t see on dry government websites.  William Rodger, the Director of Policy Communications at the AFBF, stated “we’ve never seen an agency produce its own mini site to counter opposing viewpoints.”

In September, the EPA coordinated a “Thunderclap,” or a single message to be mass-shared at a scheduled time, on the CWA rule entitled “I Choose Clean Water.”  The messaging on the rule simply stated that the agency, along with the U.S. Army Corps of Engineers, “has proposed to strengthen protection for the clean water that is vital to all Americans.”  The message purportedly reached over 1,800,000 people.  Ditch the Rule launched a corresponding social media campaign encouraging supports to give its own message, “I support clean water, but @EPA’s water rule is a problem for everyone. #ReadtheFinePrint here: http://bit.ly/1mlKUDA #DitchtheRule.”

We expect to see more rulemaking battles like this as the Administration continues to use some of the social media tools and strategies that made its political campaigns so successful in agency rulemaking.  With hundreds of thousands of comments for the EPA to process, it will be interesting to see how the agency weighs public feedback. 

Friday, October 3, 2014

FTC Seeks Comment on Proposed Children's Online Privacy Protection Rule



by Elisabeth Ulmer

The Federal Trade Commission seeks comment on the parental consent method that AgeCheq Inc. (“AgeCheq”) has suggested in accordance with the FTC’s Children's Online Privacy Protection Rule.

Congress enacted the Children's Online Privacy Protection Act (“COPPA”), which became effective in 2000.  It applies to any person or entity that collects personal information (defined as “individually identifiable information”) from children under the age of 13, online.  COPPA covers “what a Web site operator must include in a privacy policy, when and how to seek verifiable consent from a parent and what responsibilities an operator has to protect children's privacy and safety online.”

Pursuant to COPPA, the FTC issued the Children's Online Privacy Protection Rule (“Rule”) in 1999 and amended it in 2012.  Under this Rule, certain website operators must provide privacy policies and obtain verifiable parental consent before they collect, use, or disclose personal information from children under 13.  Interested parties may offer for the FTC’s review any parental consent method not listed in the Rule, and the FTC now seeks comment on the parental consent method that AgeCheq has proposed.

AgeCheq’s single identity verification process calls for parents to register themselves and their children's device(s) with a third party common consent administrator (“CCA”).  The CCA would then verify the parental identity and link it to the children’s mobile devices.  Codes within applications would automatically check the CCA‘s database for the required parental consent.  If the parent has not yet consented to an application’s access, h/she “must use the CCA service to review the developer's app-specific privacy disclosures and affirmatively grant consent.”  According to AgeCheq, this method “achieves the Commission's vision of a reliable, manageable, parent-curated online experience for children who use smartphones, tablets, or PCs to interact with mobile applications or other online services.”

Commenters may address any topic relating to AgeCheq’s parental consent method, but the FTC specifically encourages comments that address any of the following three questions:

  1. Is this method, both with respect to the process for obtaining consent for an initial operator and any subsequent operators, already covered by existing methods enumerated in § 312.5(b)(1) of the Rule? 
  2. If this is a new method, provide comments on whether the proposed parental consent method, both with respect to an initial operator and any subsequent operators, meets the requirements for parental consent laid out in 16 CFR 312.5(b)(1). Specifically, the Commission is looking for comments on whether the proposed parental consent method is reasonably calculated, in light of available technology, to ensure that the person providing consent is the child's parent. 
  3. Does this proposed method pose a risk to consumers' personal information? If so, is that risk outweighed by the benefit to consumers and businesses of using this method?
If a comment addresses any of these questions, it should cite the number of the question. 

Comments are due on September 30, 2014.  Interested parties are invited to submit comments by any of the following methods:

  • Online Filing: https://ftcpublic.commentworks.com/ftc/coppaagecheqapp 
  • Mail: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex K), Washington, DC 20580 
  • Hand Delivery: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex K), Washington, DC 20024

All comments should include: “AgeCheq Application for Parental Consent Method, Project No. P-145410.”  If choosing the hard copy option, add this identifier to the envelope as well.

Friday, September 26, 2014

Recapping the Homeland Security Institute - Part 2


by Nina Hart

On August 21–22, 2014, the American Bar Association hosted the Ninth Annual Homeland Security Institute in Washington, D.C.  The previous post focused on several major themes of the Institute.  This week’s post will focus on issues in immigration law, which was the topic of several panels.  These reflections come from the following presentations: America’s Immigration Agenda and Executive Power in Immigration Law.  A copy of the full agenda is here.

Part Two

One topic of interest at the Homeland Security Institute was improving immigration law and practice to enhance national security.  Panelists discussed the politics and policy behind previous and pending immigration reforms and the authority vested with both the legislative and executive branches that may enable such reforms.

Congressional Action

Congress has been active—at least in terms of debate—in the area of immigration law for decades, if not centuries.  Much of the modern immigration system, however, is based on the Immigration & Naturalization Act of 1952 (INA).  The INA has been amended several times as Congress has revisited certain policy questions in an attempt to modernize and improve the system.  For instance, in 1986, Congress shifted its attention to illegal aliens, and passed the Immigration Reform & Control Act (IRCA), which focused on paths to legalization and, for the first time, imposed sanctions on employers who knowingly hired illegal aliens.  In 1990, Congress returned its attention to immigrants who arrived legally, and passed amendments to the INA to address visa petition backlogs and how to better adjudicate family reunification cases. 

Since the 1990s, the two political parties have continued debating these issues, particularly with respect to increased border security measures and how to address the issue of illegal aliens.  Despite the high level and volume of debate, no major legislation has been passed since 1996.  Much of this inaction has less to do with policy divergences, but results from political incentives to take or not take action.  As one panelist pointed out, in 2006, the Senate introduced but did not pass a bill addressing border security and the e-verify system.  At the time, the parties could not reach a consensus on the substantive policies in the bill.  Ten years later, however, the parties have both moved to the center.  They largely agree that the path to legalization should be longer and more resources should be spent on border security.  However, the emotional undertones and political forces at work have prevented congressional action.  In particular, the demographic makeup of individual congressional districts has had a powerful effect on the political incentives of members of Congress with respect to their stances on immigration reform.  For example, there are 24 districts with an Hispanic population of over 25%.  Republicans Poe and Denham represent two of those districts, which, at first, may indicate that they have similar incentives with respect to supporting immigration reform.  However, President Obama won one of those two districts in the last election, which means that these two Republican members of Congress actually have divergent political incentives.  This complicated political backdrop, the panelists concluded, is largely the cause of the ongoing political impasse on immigration reform.

This political impasse is currently playing out with respect to Senate Bill 744 (“SB 744”), which has passed the Senate and is awaiting action in the House.  However, because of the ever-present electoral concerns, which are magnified by the fact that this is an election year, it seems unlikely that any action will be taken before the end of this congressional session.

Executive Action

In view of the active role that Congress has historically played in the immigration arena and the current political situation, one key question arises with respect to the Executive Branch.  How much discretion and “space” do the executive agencies have to shape policy?

At a general level, there is a consensus that the Executive Branch has broad authority to act in the area of immigration law.  However, numerous factors influence agency discretion and these factors may lead to more or less discretion in particular cases.  First, agencies are always limited by what Congress has expressly mandated.  Second, individual actors also influence agency powers in the sense that the people interpreting the statutes may reach conclusions about the mandates that vary over time and possibly with what Congress may have intended.  For example, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Pursuant to this Act, agencies had greater freedom to make rules increasing the grounds for deportation.  The ALJs also interpreted this Act to reduce their ability to grant clemency in deportation cases.  Congress disagreed with this interpretation and subsequently wrote a letter to the agencies to remind them of the many tools, especially prosecutorial discretion, at their disposal to address deportation.  Despite this letter, the agencies continued to believe that their discretion had been reduced and concluded that this was the result of Congress’ action, not the agencies’ inability to properly identify tools giving them discretion.

Third, where agencies believe they possess broad authority, the extent to which they shape policy depends on how they actually deploy the tools at their disposal.  For example, prosecutorial discretion is often the most critical tool in the context of immigration cases.  Rather than deport a particular individual, an agency may grant a temporary reprieve, choose not to bring a particular proceeding or choose not to bring certain charges.  Other statutes have granted similarly broad powers to the Executive to make individual admissions decisions on humanitarian reasons or economic reasons.  For example, under the Deferred Action for Childhood Arrivals Act, the Executive Branch may promise not to deport certain children for specified periods of time.  Additionally, Section 235 of the INA permits the Executive Branch to make asylum determinations and insulates those decisions from judicial review.

In sum, the Executive Branch is empowered to “reform” the immigration system by shaping enforcement priorities and determining how to expend its resources.  As noted, however, executive authority is cabined by legislative mandates.  Thus, if a broader overhaul is to be accomplished, such action must ultimately come from Congress.