Law Librarian Blog

Federal Courthouse Named After Rush Limbaugh's Grandfather

President Bush signed Pub. L. No 110-13 on March 21, 2007. The statute designates the United States courthouse located at 555 Independence Street in Cape Girardeau, Missouri, as the "Rush Hudson Limbaugh, Sr. United States Courthouse." From H. Rep. No. 110-10:

Rush Hudson Limbaugh, Sr. was born in Bollinger County, Missouri on September 27, 1891.

He began his education in a one room school a mile from his farm home. He attended the University of Missouri at Columbia and in 1914 entered the University of Missouri Law School. He skipped his third year of law school, passed the Missouri bar exam, and was admitted to practice in 1916.

Limbaugh was a leading figure in the legal profession for his accomplishments not just in Missouri and the United States, but around the world. At the time of his death, at the age of 104, he was still practicing law after nearly eight decades. He was the nation's oldest practicing attorney. He argued over 60 cases before the Missouri Supreme Court. He tried cases before the Interstate Commerce Commission, the U.S. Labor Board and the Internal Revenue Appellate Division.

Limbaugh served as City Attorney of Cape Girardeau from 1917 to 1919. In 1923, he started a law firm that still bears his name. From 1942 until 1946 he served as Missouri Counsel for the War Emergency Pipelines, through which gasoline was transported from Texas and Louisiana to the East Coast as a war measure. He was President of the Missouri Bar from 1955 to 1956. He served on the committee that drafted the 1955 Missouri Probate Code and served as Chairman of the Real Property, Probate, and Trust Law Section of the American Bar Association from 1954-1955. Limbaugh also served as Counsel to what is now Southeast Missouri State University for over four decades. In the early days of Indian independence in the 1950s, the U.S. State Department sent him to India to be an ambassador for the U.S. legal system.

He was also active in other areas of civic life. He was elected to the Missouri State Legislature from 1931 to 1932, where he pressed for the formation of the Missouri State Highway Patrol and the consolidation of school districts. He served as President of the State Historical Society of Missouri from 1956 to 1959. He was also a Sunday school teacher, and a member of many local civic organizations including the Boy Scouts of America, Centenary United Methodist Church, and the Salvation Army.

Rush H. Limbaugh Sr. died in his home on April 8, 1996.

Rush H. Limbaugh Sr. will be remembered as more than a brilliant attorney; he will also be remembered as a great American. As such, it is very appropriate that the United States Court House in Cape Girardeau, Missouri be designated the `Rush H. Limbaugh, Sr., United States Courthouse.'

Rush H. Limbaugh Sr. is the grandfather of radio pundit Rush Limbaugh. For more about the Senior Limbaugh see his wikipedia entry and Federal Judge Stephen N. Limbaugh's Rush Hudson Limbaugh and His Times: Reflections on a Life Well Lived (2003). [JH]

Professors and Librarians Win Narrow Exemptions Under Digital Millennium Copyright Act

From the Chronicle.com:

"The U.S. Copyright Office has issued exemptions to the Digital Millennium Copyright Act that may benefit media professors, archivists, and other academics. Under certain circumstances, they will be allowed to circumvent access-control technologies on various electronic media." (for subscribers)

See also:

• Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works
• Statement of the Librarian of Congress on the Anticircumvention Rulemaking
• Determination of the Librarian of Congress and Text of the Regulation
• The Recommendation of the Register of Copyrights

[RJ]

Revised Chinese Bankruptcy Law and Partnership Law Adopted

The Chinese Law Prof Blog has the details, including links to the Chinese texts. [JH]

Worst Statute in the World

Mercer Law Prof David Hricik, editor of our sister blog, Statutory Construction Blog, has nominated The Class Action Fairness Act as this week's winner of the Worst Statute in the World. Check out why. [JH]

As we approach the end of the current session of Congress

I am reminded of something Mark Twain said:

"Suppose you were an idiot. And suppose you were a member of Congress... But I repeat myself."

[JH]

DOJ Drops Demand for Library Records

The FBI is no longer seeking library records from the Library Connection, Inc. of Windsor, thus ending this disturbing chapter of attempting to use national security letters under the USA Patriot Act to invade patron privacy. The library group had maintained that the requested records would have been released if the FBI had obtained a search warrant issued by a judge, a course of action the Justice Department argued was unnecessary under the original USA Patriot Act.

In yesterday's press release announcing this development, Ann Beeson, Associate Legal Director of the ACLU stated

First the government abandoned the gag order that would have silenced four librarians for the rest of their lives, and now they've abandoned their demand for library records entirely. While the government's real motives in this case have been questionable from the beginning, their decision to back down is a victory not just for librarians but for all Americans who value their privacy.

Library Connection has now released the NSL letter via the ACLU site. The letter shows that the FBI was seeking all records associated with one computer for a 45 minute time period during one day. In dueling press releases, the FBI explained that although its investigation was "less efficient" because Library Connection refused to comply with the NSL,"the FBI was able to investigate and over time, discount the threat that was transmitted over this computer that was part of the Library Connection’s network."

Text of National Security Letter

ACLU Press Release | FBI Press Release | New York Times article

File under "Privacy trumps inconvenience." [JH]

Michelle's Law Signed by NH Governor

Michelle's Law, which allows seriously ill college students to take leave from school but keep their health insurance was signed into law by NH Gov. John Lynch last week. The Act was named after Michelle Morse a 22-year-old Plymouth State University student who was forced to remain a full-time student, though she was undergoing chemotherapy, because her parents' health insurance company would not let her take a leave of absence from college and maintain her dependent health coverage.  Michelle died on colon cancer last November.

Michelle's mother, AnnMarie Morse, announced plans to launch a national campaign to promote Michelle's Law now. Visit the Michelle's Law website. [JH]

Mine Improvement and New Emergency Response Act of 2006

Here's the legislative history of the recently signed MINER Act of 2006.

S.2803 | CRS Summary | All Congressional Actions | CBO Cost Estimates | Presidential Statement

[RJ]

La. Governor Signs Abortion Ban

The statute, SB 33, which would apply to all abortions except when the life of the mother is threatened, will take effect only if the US Supreme Court overturns the 1973 Roe v. Wade decision or if the US Constitution is amended to allow states to prohibit abortions.

Hat tip to HealthLawProg Blog co-editor Tom May (SMU). [JH]

Glossary of Chinese Tort Liability Law, P.R.C. Civil Code

George W. Conk (Adjunct Professor, Fordham Law School) has distributed a glossary of the English translation of of Part 8, Articles 1 - 68, Tort Liability Law, of the current draft (December 17, 2002) of the Civil Code of the People's Republic of China on SSRN.

From the abstract:

The version published in China by Peking University Press in the journal SiFa [Private Law Review] contained no glossary, nor did the pinyin have phonetic tone marks.

This version is intended for use as teaching materials. The pinyin here - in both the glossary and the translation - does have phonetic tone marks.

A facsimile of the Si Fa version of the translation published in China is available on SSRN: George W. Conk, People's Republic of China Civil Code: Tort Liability Law, Private Law Review, Vol. 5, No. 2 (The 10th Issue), pp. 77-111, December 2005.

[JH]

Surprise! New Bankruptcy Law's Debt Relief Agency Provisions Should be Held Unconsititutional if Applied to Attorneys

NACBA, along with the Connecticut Bar Association, has filed suit in the Connecticut federal court to have the "debt relief agency" provisions of the new bankruptcy law held unconstitutional if they are applied to attorneys. The suit seeks a preliminary injunction prohibiting their application to attorneys, including all NACBA members.

Read the Press Release | Complaint | Plaintiff's Motion for Preliminary Injunction | Memorandum in Support

[RJ]

Legislative Resources for the Tax Increase Prevention and Reconciliation Act of 2005

President Bush has signed into law Tax Relief Extension Reconciliation Act of 2005.

Highlights Include:

• The bill extends for two years the 15 percent tax rate for dividends and capital gains.
• It extends through 2006 changes to the alternative minimum tax.
• It extends through 2009 a tax cut that gives small businesses a write off -- up to $100,000 -- for equipment and other depreciable assets.
• Among other provisions, the bill also eliminates, for 2010, the $100,000 income limitations on converting traditional IRAs to Roth IRAs.

Legislative History

H.R. 4297

House Report 109-304 | Conference Report 109-455

CRS Summary | CBO Cost Estimates

Major Congressional Actions

Presidential Signing Statement | Presidential Fact Sheet | Video of Bill Signing

[RJ]

Crazy Animal Laws

• Bear wrestling matches are prohibited in Alabama

• It is considered an offense in Alaska to push a live moose out of a moving airplane.

• Donkeys cannot sleep in bathtubs in Arizona

• Alligators may not be kept in bathtub in Arkansas

• In Hollywood California, it is illegal to drive more than two thousand sheep down Hollywood Boulevard at one time.

• In Sterling, Colorado, cats may not run loose without having been fit with a taillight.

• In Connecticut, any dogs with tattoos must be reported to the police.

• If an elephant is left tied to a parking meter in Florida, the parking fee has to be paid just as it would for a vehicle.

• In Quitman Georgia, it is illegal for a chicken to cross the road.

• In Boise Idaho, residents may not fish from a giraffe's back.

• It is against the law for a monster to enter the corporate limits of Urbana, Illinois.

• And one law that isn't animal related but is too good to pass up. In Indiana, the value of Pi is 4, and not 3.1415.

Source: Crazy Laws 

DOJ Goes Fishing ... Subpoenas 34 Internet Companies in Hope of Resurrecting COPA

Subpoenaed Companies

711Net (Mayberry USA), American Family Online, AOL, AT&T, Authentium, BellSouth, Cablevision, Charter Communications, Comcast Cable Company, Computer Associates, ContentWatch, Cox Communications, EarthLink, Google, Internet4Families, LookSmart, McAfee, MSN, Qwest, RuleSpace, S4F (Advance Internet Management), SafeBrowse, SBC Communications, Secure Computing Corp., Security Software Systems, SoftForYou, Solid Oak Software, SurfControl, Symantec, Time Warner, Tucows (Mayberry USA), United Online, Verizon, and Yahoo.

Information Week is reporting that the Department of Justice is leaving no stone unturned in its effort to "uphold the Child Online Protection Act." According to Information Week, which received its data through FOIA requests, DOJ has demanded information from at least 34 Internet service providers, search companies, and security software firms.

The bulk of the subpoenas were directed at Internet service providers and makers of content filtering software. The effectiveness of filtering technology is a critical issue in the COPA case. If the Department of Justice can prove that filters fail to shield minors from explicit material online, COPA may well be reinstated.

And if COPA is reinstated, ISPs will become content police for the DOJ.

File under fishing expedition.

Sarbanes-Oxley Resources by PwC

PricewaterhouseCooper is making its collection of SOX content accessible online. You will find the text of the law and the supporting SEC regulations; the firm's comments on both; PwC white papers and webcasts; as well as timely analysis and commentary.

Check it out. See also The Securities Lawyer's Deskbook published by the University of Cincinnati Marx Law Library

Ron Jones, University of Cincinnati Law Library

Text of Signed Deficit Reduction Bill Includes Clerical Error ... Is It Law?

The Washington Times is reporting that S.1932, Deficit Reduction Act of 2005, as signed by President Bush last Wednesday did not pass both the House and Senate in identical form, and House Democrats now say that means it is not legitimately a law (read the Democrats would like to revisit the Medicare provisions). According to the report, here is the sequence of events:

After the Senate voted on the bill, aides said, a Senate clerk inadvertently changed the length of time Medicare would reimburse for certain medical equipment to be rented from 13 months to 36 months. 

Congressional Quarterly reported that staffers discovered the error before the House passed the bill, but did not disclose the mistake until this week.

After the House vote, a Senate clerk changed the length of time back to 13 months and sent the bill to Mr. Bush.

The Senate passed a resolution stating they meant to say 13 months in the bill.

This could become every legislative history instructors' dream come true!

In Annual State Law Survey, DOL Reports that Minimum Wage Was "Hot Button" Issue

The minimum wage was the "hot button" issue in 2005. More than 140 minimum-wage bills were introduced in at least 42 States and the District of Columbia. In Connecticut, Florida, Hawaii, Minnesota, New Jersey, Oregon, Vermont, Wisconsin, and the District of Columbia, State minimum-wage rates increased either because of new legislation that was enacted, because of laws that were previously enacted and that contained scheduled increases. In the January 2006 issue of Monthly Labor Review, BLS reports on additional state law developements included child labor, drug and alcohol testing, equal employment opportunity, human trafficking, prevailing wages, time off, wage payment, and worker privacy.

Patriot Act Extended 5 Weeks

The Associated Press is reporting that Congress sent President Bush a second five-week extension of the Patriot Act as Senate negotiators worked to close a deal with the White House on renewing the antiterrorism law with some new civil liberties protections.

The Return of the Broadcast Flag

There is a draft bill circulating on Capital Hill that would change the way we think about the future of digital TV while freezing in time the way we use broadcast content. Called, the Digital Content Protection Act of 2006, the current draft of the legislation would authorize the Federal Communications Commission to limit the unauthorized copying and indiscriminate redistribution of digital audio and video broadcast content over digital networks. How? By use of a Broadcast Flag, that is to say, by embedding digital code in broadcast content to signal digital TV reception equipment to limit the redistribution of digital broadcast content.

Remember broadcast flags? In ALA v. FCC, No. 04-1037 (May 6, 2005) the DC Circuit Court of Appeals ruled that the FCC lacked authority to implement broadcast flag regulations. Writing for the DC Circuit, Judge Edwards made this crystal clear.

We can find nothing in the statute, its legislative history, the applicable case law, or agency practice indicating that Congress meant to provide the sweeping authority the FCC now claims over receiver apparatus. And the agency’s strained and implausible interpretations of the definitional provisions of the Communications Act of 1934 do not lend credence to its position.

And again:

[A]ll relevant materials concerning the FCC’s jurisdiction – including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and Commission practice – confirm that the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.

Obviously, the Digital Content Protection bill would "fix" that problem. And look what else it would do! From the draft:

(2) CRITERIA FOR CONTENT OF REGULATIONS -- In achieving the goal of preventing the indiscriminate unauthorized copying and redistribution of certain digital audio content over digital networks, any proposed regulations to govern digital audio broadcast transmissions and digital audio receiving devices shall –

...

(b) permit customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law.

"Customary historic use?" As in no change?  As in no new storage technologies, no convergance of PCs and digital TVs, nothing after the iPod?

For more, see

• Boing Boing
• Public Knowledge
• Electronic Frontier Foundation 

Countdown to February 3

With the Patriot Act set to expire on February 3, 2006, Liz Halloran, writing for US News, makes this observation:

Time is not on the Patriot Act's side. The House is not back in session until January 31; the Senate is preoccupied with Judge Samuel Alito's confirmation, and Senate Judiciary Committee hearings are planned for February on the administration's domestic-spying program. So it seems almost certain the dispute will linger beyond the February deadline. That means the Patriot Act may have to do the limbo more than a little while longer.

Read the entire article: One More Act for The Patriot Act

President Signs H.R. 972, Trafficking Victims Protection Reauthorization Act

From the White House:

"President Bush on Tuesday said, "America is a compassionate and decent nation, and we will not tolerate an industry that preys on the young and the vulnerable. The trade in human beings continues in our time and we are called by conscience and compassion to bring this cruel practice to an end."

Hightlights of H.R. 972

• Amends the Violent Crime Control and Law Enforcement Act of 1994 to extend the sexually violent offender registration program to foreign offenses.
• Amends the Homeland Security Act of 2002 to authorize the Director of the Office of Refugee Resettlement to appoint a guardian ad litem for an unaccompanied alien child if the Director believes such child to be a victim of a severe form of trafficking in persons.
• Amends the Trafficking Victims Protection Act of 2000 to: (1) provide victims of severe forms of trafficking with access to counsel; and (2) enhance specified U.S. efforts to combat trafficking in persons, including prevention of such activities by international peacekeepers.
• Amends the Uniform Code of Military Justice (UCMJ) to establish crimes of: (1) sex trafficking; and (2) trafficking for labor or services.

Legislative Materials

H.R. 972

H. Rept. 109-317 & H. Rept. 109-317 Part II

Congressional Record Citations

CRS Summary

CBO Cost Estimate

Ron Jones, University of Cincinnati Law Library

Get 2 Years Prison Time for Anonymously Annoying Someone Via the Internet

Upon reflection, this isn't as funny as it sounds. For one thing, "annoying" is not defined. Plus, think about the potential chilling effect this might have on whistleblowers?

Mark Giangrande at our sister blog, Tech Law Prof Blog, has the story.

Foreign Intelligence Surveillance Act Background Resources

If executive authority becomes as important a topic in the Alito confirmation hearings as many pundits believe, the follow resources on the Foreign Intelligence Surveillance Act of 1978, ("ISA") Pub. L. No. 95- 511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1811, 1821-1829, 1841-1846, 1861-62), may provide some useful background information. In light of the domestic spying scandal, Alito's views on ISA, which establishes a legal regime for "foreign intelligence" surveillance separate from ordinary law enforcement surveillance, may be the issue that garners Republican votes against his confirmation.

• CR'S Report on The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions (Updated  April 21, 2005) (pdf)
• Intelligence-related Law Articles Bibliography (FISA, EO 12,333, assassination, FOIA, etc) by Mike Yared (Sept. 25, 2001)
• EFF's FAQ on the Foreign Intelligence Surveillance Act

See also Samuel Alito v. James Madison by John Nichols, The Nation On line Beat. I usually avoid citing to The Nation because the articles can be too inflammatory in their myopic "we're right, you are the village idiot" rants but not this time...

Grab some scratch paper to tally the number of times Alito is asked about the legality of domestic spying under ISA.

Manassas Using Zoning Ordinance As Anti-Immigrant Tool

The city of Manassas, VA, has come up with one outrageous, probably unconstitutional, and clearly bigoted zoning ordinance. It outlaws households consisting of a family's cousins, uncles, aunts, nieces and nephews. Why? Because Manassas is changing as Hispanic immigrants, legal and undocumented, move into what were once relatively homogeneous neighborhoods. Just like one would expect of people who are pursuing the American Dream, some of the immigrants share housing with their relatives to help out with the rent or mortgage. This form of home life would be banned under the new zoning ordinance.

See Moore v. City of East Cleveland, Ohio (1977) where Justice Lewis F. Powell Jr., wrote:

"Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. Over the years millions of our citizens have grown up in just such an environment, and most, surely, have profited from it."

Read the Washington Post story, Manassas Defends New Rule On Who Can Live Together, and the Post's editorial, Manassas's War on Immigrants.

What Do Librarians and Crystal Meth Users Have in Common?

The Patriot Act, of course.

In the Hanover Eagle, voices of reason, public librarians, speak about requiring a subpoena before releasing patron information. Sensible but out of step with the times.

Meanwhile, one opportunistic law enforcer, the Saline County (Arkansas) Sheriff Phil Mask, favors making the Patriot Act permanent because it's a useful tool to bust meth. If not, Sheriff Mask is quoted as saying "I think its gonna hinder us from doing the things we need to do…not only from terrorism, but for fighting this war on methamphetamine." Overreaching but in step with the times.

Before Monitoring Everyone Using Data-Mining Technology File Report with Congress

In The Curious Section 126 of the Patriot Act, William Arkin, blogging for the Washington Post, calls attention to the data mining notice requirements of Section 126 of the USA PATRIOT Improvement and Reauthorization Act Of 2005. Section 126 requires the DOJ to report to Congress "on any initiative of the Department of Justice that uses or is intended to develop pattern-based data-mining technology."

Love Those Pilgrims: 17th Century Christmas Laws Culminated in Criminalization of Christmas!

In 1645, Cromwell's Parliament abolished the observance of Christmas thus banning all civil festivities associated with the celebration of Christmas, including the sending of Christmas cards. The Puritans in Massachusetts bested Parliament by criminalizing Christmas 14 years later. In 1659, the General Court of Massachusetts enacted a law making any observance of December 25 (other than a church service) a penal offense. The "Five-Shilling Anti-Christmas Law" stated:

Whosoever shall be found observing any such day as Christmas, or the like, either by forbearing labor, feasting, or any other way upon such account as aforesaid, every such person so offending shall pay for each offense five shillings as a fine to the country.

The Five-Shilling Anti-Christmas Law were repealed in 1681. Was the Act of Parliament repealed? To the best of my knowledge, no!

Merry Christmas!

Senate Agrees to a Six-Month Extension of the Patriot Act

The bill's future now rests with the House of Representatives, which comes back into session today. Sampling of media coverage of the Senate's action:

New York Times

Chicago Tribune

ABC News

BBC

See also our earlier post identifying the 16 major provisions of the Act that were to expire on Dec. 31.

Superfund's 25th Anniversary

On December 11, 1980, President Jimmy Carter signed the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund), creating the Federal government's program to clean up the nation's uncontrolled hazardous waste sites. Read more about it.

BTW, did you know that 1 in 4 Americans live within 3 miles of a Superfund site?

USA Patriot Act Provisions: Countdown to Expiration

Here are the 16 provisions of the USA Patriot Act which are set to expire Dec. 31 if not renewed by Congress:

Section 201: Gives federal officials the authority to intercept wire, spoken and electronic communications relating to terrorism.

Section 202: Gives federal officials the authority to intercept wire, spoken and electronic communications relating to computer fraud and abuse offenses.

Subsection 203(b): Permits the sharing of grand jury information that involves foreign intelligence or counterintelligence with federal law enforcement, intelligence, protective, immigration, national defense or national security officials

Subsection 203(d): Gives foreign intelligence or counterintelligence officers the ability to share foreign intelligence information obtained as part of a criminal investigation with law enforcement.

Section 204: Makes clear that nothing in the law regarding pen registers _ an electronic device which records all numbers dialed from a particular phone line _ stops the government's ability to obtain foreign intelligence information.

Section 206: Allows federal officials to issue roving "John Doe" wiretaps for spy and anti-terrorism investigations.

Section 207: Increases the amount of time that federal officials may watch people they suspect are spies or terrorists.

Section 209: Permits the seizure of voicemail messages under a warrant.

Section 212: Permits Internet service providers and other electronic communication and remote computing service providers to hand over records and e-mails to federal officials in emergency situations.

Section 214: Allows use of a pen register or trap and trace devices _ a device that records the originating phone numbers of all incoming calls on a particular phone line _ in international terrorism or spy investigations.

Section 215: Authorizes federal officials to obtain "tangible items" like business records, including those from libraries and bookstores, for foreign intelligence and international terrorism investigations.

Section 217: Makes it lawful to intercept the wire or electronic communication of a computer hacker or intruder in certain circumstances.

Section 218: Allows federal officials to wiretap or watch suspects if foreign intelligence gathering is a "significant purpose" for seeking a Federal Intelligence Surveillance Act order. The pre-Patriot Act standard said officials could ask for the surveillance only if it was "the" sole or main purpose.

Section 220: Provides for nationwide service of search warrants for electronic evidence.

Section 223: Amends the federal criminal code to provide for administrative discipline of federal officers or employees who violate prohibitions against unauthorized disclosures of information gathered under this act.

Section 225: Amends FISA to prohibit lawsuits against people or companies that provide information to federal officials for a terrorism investigation.

Source: AP

Lederman on the McCain Amendment

Marty Lederman has posted a summary of the McCain Amendment and a three-part analysis, the Good, the (Potentially) Bad, and the Ugly. Check it out.

Bush Administration Issues EO on FOIA Administration

The Bush administration's new executive order requires the designation of a senior official at each federal agency to serve as the Chief FOIA Officer of that agency. The Chief FOIA Officer will be responsible for compliance and performance. Each officer will develop a plan that includes "specific activities that the agency will implement to eliminate or reduce the agency's FOIA backlog, including (as applicable) changes that will make the processing of FOIA requests more streamlined and effective, as well as increased reliance on the dissemination of records that can be made available to the public through a website or other means that do not require the public to make a request for the records under the FOIA."

Privacy in the Age of the Internet: Canadians concerned about US PATRIOT ACT

The debate over the renewal of the PATRIOT Act is generating headlines in the U.S., but this legislation is also being closely watched in Canada.

In response to a privacy complaint against the Canadian Imperial Bank of Commerce (CIBC) due to its outsourcing of data to the United States, the Privacy Commissioner of Canada wrote:

The possibility of U.S. authorities accessing Canadians' personal information has been raised frequently since the passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, 2001 (USA PATRIOT Act). Prior to the passage of this Act, U.S. authorities were able to access records held by U.S.-based firms relating to foreign intelligence gathering in a number of ways.

What has changed with the passage of USA PATRIOT Act is that certain U.S. intelligence and police surveillance and information collection tools have been expanded, and procedural hurdles for U.S. law enforcement agencies have been minimized. Under section 215 of the USA PATRIOT Act, the Federal Bureau of Investigation (FBI) can access records held in the United States by applying for an order of the Foreign Intelligence Surveillance Act Court. A company subject to a section 215 order cannot reveal that the FBI has sought or obtained information from it.

The risk of personal information being disclosed to government authorities is not a risk unique to U.S. organizations. In the national security and anti-terrorism context, Canadian organizations are subject to similar types of orders to disclose personal information held in Canada to Canadian authorities. Despite the objections of the Office of the Privacy Commissioner, the Personal Information Protection and Electronic Documents Act has been amended since the events of September 11th, 2001, so as to permit organizations to collect and use personal information without consent for the purpose of disclosing this information to government institutions, if the information relates to national security, the defence of Canada or the conduct of international affairs.

In addition to these measures, there are longstanding formal bilateral agreements between the U.S. and Canadian government agencies that provide for mutual cooperation and for the exchange of relevant information. These mechanisms are still available.|PIPEDA Summary 313|

To address the issues raised by outsourcing data to the U.S., Jim Bronskill recently reported that the Canadian government has drafted guidelines to regulate or even prohibit cross-border data flows of personally identifiable information to the U.S.

The [Canadian] federal Treasury Board led a working group to develop special clauses for inclusion in future business requests and contracts to lessen the risk [of disclosure].

The draft guidance document suggests, in the interest of upholding Canadian privacy laws, that [Canadian] federal databases of sensitive personal information created by contractors be located in Canada and be accessible only within the country.

However, it recognizes international trade obligations may make this impossible. In such cases, the government suggests contractors must agree to respect Canadian privacy laws as a condition of contract.

The guidelines say that if the privacy risk is considered high, a federal department might go so far as to cut off the flow of personal information to a foreign firm should it be "presented with an order" - such as an FBI notice - compelling release of data about Canadians. |CNEWS| |Yahoo Canada||LFP|

In October, 2004 the Privacy Commissioner of British Columbia essentially banned the export of personally identifiable information about Canadian citizens to U.S. contractors or subsidiaries due to concerns that this information could be divulged to the U.S. Government under a F.I.S.A. warrant. You can find the report and an executive summary here.

The Privacy Commissioner of Canada issued a report in August, 2004 discussing the implications of the PATRIOT Act for Canadian privacy. |PDF|

Neal R. Axton, William Mitchell College of Law Library

ACLU Summary of the Patriot Reauthorization Act Conference Report

In its Summary of the Patriot Reauthorization Act Conference Report, the ACLU finds numerous faults in the current version of the bill, including:

• The government can obtain your private records, like medical, library, school, and other records—without showing any connection between your activities and and a suspected foreign terrorist.
• Some 30,000 National Security Letters ("NSLs") are issued each year to obtain private records,3 and the recipients of those NSLs are under a gag order that is almost impossible to overturn. But the Patriot Act does nothing to address these abusive powers.
• The government is allowed to get "sneak and peek" search warrants to search a home or business and doesn't have to tell the owner of the premises for a month. This power can be used in cases that don't have anything to do with terrorism.

See our earlier post on the legislative history of the Patriot Reauthorization Act. That post includes a link to the Conference Report.

Stronger Make My Day Law in Oklahoma

Several of ABA/AALS inspectors touring the library during their recent visit thought it was strange that we had “no firearms allowed” stickers posed on the entrances to the law library.  They would really be surprised if they learned about Oklahoma House Representative Kevin Calvey.  He plans to introduce legislation that would allow citizens to use deadly force anywhere they perceive danger.  Oklahoma already has a “Make My Day” law on the books that gives citizens the right to use deadly force inside their homes. 

What got me thinking about these strange laws was Jim Milles’ re-post on Out of the Jungle about Icelandic butter available at Whole Foods.  You see in Oklahoma we may be able to carry guns and shoot people everywhere but we can’t buy wine or strong beer in grocery stores, hence no Whole Foods or Trader Joe’s for us.   So my out of town friends who live in more “progressive” cities think I am a freak because when I visit I usually demand a stop at one of these fine establishments at some point.  File this one under musings at the water cooler.

Oklahoma’s current “Make My Day” law

News article about the proposed legislation

Lee Peoples, Oklahoma City University Law Library

Editor's Note: I think you can tell what Lee would like for Christmas. You can send spirits to his office: OCU School of Law Library, 2501 N. Blackwelder, Oklahoma City, Oklahoma 73106.

Here in "extreme" southwestern Ohio (Cincinnati), where only wusses obtain concealed carry permits, we don't care too much for wine, but we do like to mix our beer with ammo.

FEC Rules That a Blog is "the press"

Bob Ambrogi is reporting that the Federal Election Commission has unanimously approved Advisory Opinion 2005-16 finding that the Fired Up! network of blogs qualifies for the so-called press exception to federal campaign finance law.

How Long Should the Patriot Act's Extension Be?

The Patriot Act will expire December 31, 2005 if Congress does not agree on the Act's sunset provision. The House wants to extend the Act for another 10 years; the Senate for only four. The split-the-difference compromise, seven years, is unacceptable to more that a dozen senators and House members from both parties. The group, according to the Washington Post, announced that it will oppose the House-Senate compromise, employing a Senate filibuster if necessary.

Filibuster for filibuster's sake? Sometimes, I think the Senate just needs to do one to get it out of its "system." So will the compromise of the compromise be 5, 5.5 or 6 years?

Rep. John Conyers Launches Patriot Act Resource Site

Rep. John Conyer's Patriot Act Action Center includes links to Patriot Act resources from government and advocacy sources, a chronology of Congressional action on the legislation, recent news articles, and "What the Blogs are Saying."

Thanks to beSpecific for the tip.

Ron Jones, University of Cincinnati Law Library

Draft Intellectual Property Protection Act of 2005

At last Thursday's U.S. Chamber of Commerce's Anti-Counterfeiting and Piracy Summit, Attorney General Alberto Gonzales unveiled the "Intellectual Property Protection Act of 2005". The Act is designed to strengthen penalties for repeat copyright criminals, expand criminal intellectual property protection, and add investigative tools to boost enforcement.

The Act includes provisions to:

• Force forfeiture of property, including illicit proceeds, derived from or used in the commission of criminal intellectual property offenses;
• Criminalize intellectual property theft motivated by any type of commercial advantage or private financial gain; and
• Strengthen restitution provisions for victim companies and rights holders in order to maximize protection for those who suffer most from these crimes.

DOJ Draft (pdf)

Senate Approves Plan to Limit Detainee Access to Courts; Expand Congressional Oversight

The Washingtonn Post is reporting that in an amendment to the 2006 Defense Appropriations Bill, the Senate endorsed (49-42) a measure that would nullify Rasul v. Bush, a June 2004 Supreme Court opinion that detainees at Guantánamo Bay had a right to challenge their detentions in court. At the same time, the proposal would give Congress some oversight of the military process set up to review whether Guantanamo Bay detainees are terrorists and should continue to be held.

Undoing Kelo, HR 4128 Sent to the Senate

By a bipartisan vote of 376 to 38, the House passed H.R. 4128, the Private Property Rights Protection Act, last week. The Bill, perhaps the most far-reaching congressional response to Kelo, was sent to the Senate for considerati