Law Librarian Blog

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 consideration.

Highlights of H.R. 4128

• Enhances the penalty for states and localities that abuse their eminent domain power by denying them all federal economic development funds for a period of two years;

• Creates a clear connection between the federal funds that would be denied and the abuse Congress is seeking to prevent;

• Gives states and localities the clear opportunity to cure any violation before they lose federal economic development funds;

• Affords an express private right of action to make certain those suffering injuries from a violation of the bill will be allowed access to state or federal court to enforce its provisions.

Legislative Materials

HR 4128

H. Rept. 109-262
H. Rept. 109-262 Part II

Congressional Record citations

CBO Cost Estimate

Tort Reform Bill Passes House

The House of Representatives on Thursday passed H.R. 420, the Lawsuit Abuse Reduction Act (LARA). The legislation now moves to the Senate for approval.

Click here for the text of the legislation.

Ron Jones, Unv Cin Law Lib

Federal Sentencing Stiffened for Peer-To-Peer Copyright Violations

Tech Law Prof Blog has the details.

NRA Buys Litigation Shield for Gun Industry

Passing both chambers and heading to the White House for the President's signature, of which there is no doubt, the Protection of Lawful Commerce in Arms Act (S. 397) prohibits lawsuits against the firearms industry for damages resulting from the unlawful use of a firearm or ammunition. Once signed into law, aproximately 20 pending lawsuits by local governments against the industry would be dismissed. Gun makers and dealers still would be subject to product liability, negligence or breach of contract suits.

See Houses Passes Ban on Gun Industry Lawsuits: Bush Vows to Sign Bill That Contradicts D.C. Law; Opponents Call for Action, Washington Post (Oct. 21, 2005) and Congress Passes Lawsuit Shield for Gun Industry  Associated Press (Oct. 21, 2005)

Basic Legislative History of the Protection of Lawful Commerce in Arms Act, S. 397

Test of Bill 

House Roll Call
Senate Roll Call

Congressional Record

House Report 109-125 (for related bill H.R.800)

CRS Summary

A Quick and Dirty Legislative History of CAFTA

The Dominican Republic-Central American-United States Free Trade Agreement Implementation Act (CAFTA) (HR 3045) was signed by the President on August 2, 2005. The Act will establish free trade between the United States, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua through the reduction and elimination of barriers to trade in goods and services and to investment once all countries ratify the Agreement.

Text: PL 109-53, 119 STAT. 462

Voting Record:
Passed House: 217 - 215, Roll Call

Passed Senate: 55-45, Vote Record

House Report 109-182, reporting out H.R. 3045

Selected House Ways & Means Committee Information (Witness Prepared Statments,Committee background documents, etc)

Congressional Record

CRS Summary

CBO Cost Estimate (August 10, 2005); CBO Cost Estimate (June 30, 2005)

President's Signing Statement (August 2, 2005)

Bush Administration's "In Focus" Resources for CAFTA

Office of the US Trade Representative's CAFTA Briefing Book

Bankruptcy Abuse Prevention and Consumer Protection Act Effective Today

A (Very) Basic Legislative History of
the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

• P.L. 109-8, 119 STAT. 23 (pdf)
• House Report 109-031 Part 1
• Congressional Record
• Signing Statement of President Bush (with video)

See also: CRS Bill Summary and the CBO Cost Estimate

See earlier post about hurricane victims who may have to file for bankruptcy under the new rules.

Katrina and Estate Planning Opportunities

Congress enacted the Katrina Emergency Tax Relief Act of 2005 to provide tax relief to the victims of Hurricane Katrina. Will, Trusts & Estates Prof Blog reviews provisions of the Act that provide unique estate planning opportunities.

NBER Report on Medicare

What Did Medicare Do (And Was It Worth It)?
by Amy Finkelstein, Robin McKnight  -  #11609

Abstract:

We study the impact of the introduction of one of the major pillars of the social insurance system in the United States: the introduction of Medicare in 1965. Our results suggest that, in its first 10 years, the establishment of universal health insurance for the elderly had no discernible impact on their mortality. However, we find that the introduction of Medicare was associated with a substantial reduction in the elderly's exposure to out of pocket medical expenditure risk. Specifically, we estimate that Medicare's introduction is associated with a forty percent decline in out of pocket spending for the top quartile of the out of pocket spending distribution. A stylized expected utility framework suggests that the welfare gains from such reductions in risk exposure alone may be sufficient to cover between half and three-quarters of the costs of the Medicare program. These findings underscore the importance of considering the direct insurance benefits from public health insurance programs, in addition to any indirect benefits from an effect on health.

Bush Signs $138 Billion Landscaping Bill

Read all about the Preservation Of Public Lands Of America Act and how it benefits Yellowstone National Park.

Hurricane Katrina and the New Bankrupcy Rules: Status Quo, Postpone or Exempt?

The press has caught wind of the impact Hurricane Katrina may have on its victims who will be forced into bankruptcy. Two issues are presented. First, many victims may not be able to file for bankruptcy before the October 17, 2005 effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. This is important because under the new law, fewer individuals will qualify for Chapter 7 bankruptcy, which erases debt obligations. Many more will have to file under Chapter 13, which will require filers to pay back some debts. Some Members of Congress argue the case for delaying the law while others maintain that the new bankruptcy rules still allow for judicial discretion. The division falls along party lines as did the wildly partisan vote for passage of the Act.

A second issue deals with exemption. There's certainly a constitutional issue if the exemption only applies to Hurricane Katrina but there is an argument to be made that victims of catastrophic natural disasters, like victims of catastrophic illness, should be exempt from the Act's repayment requirements since they were forced into bankruptcy due to no fault of their own. There's no doubt that bankruptcy filings substantial increase in the years immediately following catastrophic natural disasters For example, research by UNLV Law Prof Robert Lawless indicates that bankruptcy filings in states hit by hurricanes and tropical storms increased 1 1/2 times those in states not affected by the same storms.

4-Person Family Median Income (2003 Census Data)

Alabama: $55,448 Louisiana: $50,529 Mississippi: $46,570

These issue revolve around the Act's conception of "needs-based bankruptcy" as reflected in the income test for determining Chapter 7 eligibility: whether the income of Hurricane Katrina victims is above or below the state median income.

Some evidence indicates that many Alabama, Mississippi and New Orleans victims may be eligible for Chapter 7. See the Center for American Progress report, Who Are Katrina’s Victims? (September 6, 2005) which compares the median income of families in affected regions with that state's median income. In each case the average median income in affected regions was lower the the state median income.

Status Quo, Postpone or Exempt?
The issue appears to be falling along party lines but one would hope that once the Republicans realize that exemption would benefit the middle class, legislative would be passed. By passage of the Act, the consumer credit industry got what it wanted for the long-term. Legislation with a human face is needed for victims of catastrophes like Hurricane Katrina.

Resources
National Association of Consumer Bankruptcy Attorneys' compilation of press and editorial coverage of the issue.
US Census Bureau Report: Median Income for 4-Person Families, by State

A (Very) Basic Legislative History of
the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

• P.L. 109-8, 119 STAT. 23 (pdf)
• House Report 109-031 Part 1
• Congressional Record
• Signing Statement of President Bush (with video)

See also: CRS Bill Summary and the CBO Cost Estimate