Sunday, June 26, 2016

Learning about the Stored Communications Act

Recently, I was studying on search warrants under the Stored Communications Act, 18 U.S.C. 2701, et seq. It is an interesting area of the law for many reasons.

The Act, adopted in 1986,  includes some ideas that seem pretty strange now.

In section 2703(a), there is a distinction made between emails that contents of electronic communications that have been stored more than or less than 180 days, as if that makes any sense. I get a lot of email. I keep them longer than 180 days because I can't remember what is in them. Some of them I might keep as long as I have anything, because they are as important to me as my books or photographs. Evidently Congress assumed back then that if any got an important email, they would print it out and delete it after a while to make space for other email. I don't know the theoretical limits on how much email my inboxes could hold, a lot more data than my physical mailbox down by the street that gets clogged with the books and cosmetics and clothes that keeping showing up at the house.

The Act may or may not distinguish between opened and unopened email. I have a lot of unopened emails. They are not very interesting, the ones that go unopened for any length of time. The opened ones are the only ones worth reading, the unopened ones are mostly ads selling clothes or political ideas or travel or sporting goods or whatever else I have ever bought into at least once in my life. I don't read all of my email, and a great deal of it is deleted unread.

The Act provides for subscriber notice in some circumstances and not others. The Government can get an order under section 2705(b) prohibiting the service provider for giving notice to the subscriber. Some providers like Google say they will notify the subscriber if they can. It allows the Government to access content of electronic communications sometimes with a search warrant and sometimes without. The Government never gives notice of its search warrant applications. Remarkably, there is a growing body of case law in which the magistrate judges across the county have taken it upon themselves to deny or modify search warrant applications for the content of emails stored by Google, Microsoft, and other like service providers. The Washington Post published this article about opinions written by a Magistrate Judge in the District of Columbia. There is a law review with the pretty fun title, Let the Magistrates Revolt. There is this remarkable opinion from a magistrate judge in Kansas, and at the other end of the spectrum, this remarkable opinion from a magistrate judge in New York.

There is legislation that seems to have wide support and might get passed to address some of the areas of strangeness. The House of Representatives passed the Email Privacy Act, H.R. 699, in April of this year. The EFF thinks that this act is a historic step in the right direction.

Thursday, June 02, 2016

Another judicial conference

We went to the Judicial Conference. It was great fun in a fabulous setting. We enjoyed the company of many people that I've known for years, and met some people I should have known before now, and heard the Chief Justice, and watched some judges dance up a storm. We also missed our absent friends, including the woman in this photograph I stole from elsewhere.


Tuesday, February 02, 2016

Judge Conrad's ruling on Dean Eramo's request for discovery from "Jackie"

In Eramo v. Rolling Stone LLC, Judge Conrad of the W.D. Va. granted in part and denied in part the plaintiff's request for discovery from the anonymous "Jackie," who was the subject of the withdrawn Rolling Stone article about a sexual assault that never occurred that was alleged to have been committed by people who don't exist.

Initially, Judge Conrad overruled "Jackie's" claim that Rule 412 affects what is discoverable in a case where the subject matter pertains to alleged sexual misconduct.

Monday, January 04, 2016

New sheriff does not rehire senior deputies

The Roanoke Times reports here that the new sheriff for Roanoke County chose not to rehire some of the senior deputy sheriffs who served under his predecessor. Historically, the federal courts have zigged and zagged a bit in trying to define the limits of the constitutional protections for deputies of constitutional officers against patronage dismissals. The decisions in Jones v. Dodson, Jenkins v. Medford, and Knight v. Vernon did not proceed in a straight line. Probably the higher-ranking officials in any government office have the lower level of First Amendment protection.

Wednesday, December 23, 2015

Criminal liability of teachers as affected by school board policies

In Lambert v. Com., the Virginia Court of Appeals in an opinion by Chief Judge Huff joined by Judge Humphreys and Senior Judge Bumgardner held that the Scott County Circuit Court erred in its holding that the statutory exception for physical contact incidental to the work of teachers in Va. Code 18.2-57(G) did not apply where School Board policy prohibited physical contact.

The Code section provides:


G. "Simple assault" or "assault and battery" shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

The best evidence rule in Virginia

In Jennings v. Com., the Virginia Court of Appeals in a written opinion by Judge AtLee, joined by Chief Judge Huff and Judge Decker, reversed the convictions of a man accused of shoplifting, where the only testimony regarding the value of the property was a witness who testified about what she remembered seeing on the price tags of the property, and not the tags themselves.

Tuesday, December 01, 2015

That is chutzpah

Quoted today by the Virginia Court of Appeals: “The most famous definition of 'chutzpah' is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan.” Alex Kozinski & Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale L.J. 463, 467 (1993), in King William County v. Jones, Record No. 0576-15-2, by Judge Russell