Monthly Archives: April 2013

Supreme Court Takes on Same-Sex Marriage Issues

Supreme Court Takes on Same-Sex Marriage Issues

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by: Christina Hamalian, Junior Editor

 

            The Supreme Court has, this past month, heard two cases relating to same-sex marriage. The first case deals with California’s passing of Proposition 8, Hollingsworth v. Perry.[1] The other case challenges the constitutionality of the Defense of Marriage Act (DOMA)[2], US v. Windsor.[3] Therefore, there is the possibility that the issue of same-sex marriage will be decided on both the state and federal level at the same time.

            Before Proposition 8 was passed in November 2008, Californian voters had approved Proposition 22, which amended California’s Family Code to define the only recognizable marriage as one between one man and one woman.[4] However, the California Supreme Court ruled that Proposition 22 violated the Californian constitution and their constitution allowed same-sex marriage.[5] It did not take long for the voters of California to amend their constitution, through Proposition 8, to take away the right to same-sex marriage. The plaintiffs in Hollingsworth are two same-sex couples wanting to get married in California, but cannot because of Proposition 8.

            In Windsor, Plaintiff Edith Winsor challenges the constitutionality of §3 of DOMA, which requires that any federal law dealing with marriage will only consider marriages between one man and one woman as valid.[6] When her wife, whom she married in Canada in 2007 after being engaged for 40 years,[7] died and her estate passed to Edith, she was required to pay $363,053 in federal estate taxes that she would have had to pay had she been married to a man.

            Both cases have procedural issues that may allow the Court to dodge the issue completely, but hopefully they will make a decision on at least one. In Hollingsworth, those defending the Proposition, citizens who helped initiate its passage, may lack standing.[8] In Windsor, there is an issue as to whether the federal government should be able to appeal a decision that it agrees with or whether U.S. House of Representatives’ Bipartisan Legal Advisory Group has standing to defend DOMA.[9]

            If the Court can get passed the procedural issues, then this can make for some interesting decisions. Past Supreme Court cases involving a state infringing on a couple’s right to marry usually entail strong language about the fundamental right to marry. In Loving v. Virginia, where the Supreme Court struck down a Virginian law prohibiting interracial marriage, the Court held that:

[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.[10]

The 9th Circuit, when finding Proposition 8 unconstitutional, uses similar language when it writes that:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.”[11]

When the 2nd Circuit found DOMA unconstitutional, the Court held that:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status—however fundamental—and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it. For that, the pair must go next door.[12]

What does all of this mean? That this is an exciting time for civil rights and for the Supreme Court. The decisions for these cases won’t be released until late June, and any guesses as to how the Supreme Court may rule would be just guesses, but I hope that they come to an actual decision instead of ignoring the issues until the issue is no longer such a hot topic.

 


[1] Hollingsworth v. Perry, No. 12-144, Dec. 2, 2012.

[2] 1 U.S.C. §7.

[3] United States v. Windsor, No. 12–307.Dec. 7, 2012.

[4] Amy Howe,“Court to tackle California’s ban on same-sex marriage: In Plain English,” http://www.scotusblog.com/?p=161661.

[5] Id.

[6] Windsor v. United States, 699 F.3d 169, 175-76 (2d Cir. 2012) cert. granted, 133 S. Ct. 786, 184 L. Ed. 2d 527 (U.S. 2012).

[7] Edith Winsor, “Edith Windsor: My late wife’s spirit was with us in court,” http://www.cnn.com/2013/03/28/opinion/windsor-doma-op-ed.

[8] “Proposition 8: California Gay Marriage Argument At High Court Tuesday,” http://www.huffingtonpost.com/2013/03/26/proposition-8_n_2952595.html.

[9] Jacob Combs, “Supreme Court Likely to Strike Down DOMA — Here’s Why,” http://www.huffingtonpost.com/jacob-combs/supreme-court-doma_b_2966569.html.

[10] Loving v. Virginia, 388 U.S. 1, 12 (1967).

[11] Perry v. Brown, 671 F.3d 1052, 1063-64 (C.A.9 (Cal.), 2012).

[12] Windsor v. U.S., 699 F.3d 169, 188 (C.A.2 (N.Y.), 2012).

Affirmative Action on the Brink

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By: Eric D. Coleman, Junior Editor

When it comes to affirmative action, the world seems to be sharply divided. You are either a proponent or an opponent, and there does not seem to be much of a middle ground. However, many on either side don’t seem satisfied with its current state.  Today, the debate has made its way back to the forefront in two cases, one of which has been decided by the Sixth Circuit, and another which is before the Supreme Court. The first is Coalition to Defend Affirmative Action v. Regents of the University of Michigan.  In Coalition to Defend Affirmative Action a coalition of interest groups and individuals, which included the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary, brought suit against a list of individuals and entities, which included the sitting Michigan governor, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University.[1]  The suit “alleged that provisions of Proposal 2 affecting public colleges and universities violated the United States Constitution and federal statutory law.”[2] Proposal 2 went into  effect in December of 2006 and brought substantial changes to the admissions procedures in place at public institutions across Michigan.  The amendment eliminated “race, sex, color, ethnicity, or national origin” as factors for consideration in an individual’s admission decision.[3]  Furthermore, this prohibition was “entrenched at the state constitutional level, thus preventing public colleges and universities or their boards from revisiting this issue – and only this issue – without repeal or modification of article I, section 26 of the Michigan Constitution.”[4]

Coalition to Defend was most recently decided on appeal to the Sixth Circuit in favor of Coalition.  However, the Court did not employ a traditional Equal Protection analysis.[5]  The Court first analyzed Proposal 2 under the political-process doctrine.[6]  This doctrine states that under the Equal Protection Clause no racial minority shall be forced to “surmount more formidable obstacles than those faced by other groups to achieve their political objectives.”[7]  Moreover, “a state may not ‘allocate [ ] governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decision-making process.’ ”[8] The Court held that Proposal 2 fails under the political-process doctrine and therefore must survive strict scrutiny; however, because Michigan identified no compelling state interests Proposal 2 was unconstitutional.[9]

The second case currently at the forefront of the affirmative action debate is Fisher v. Regents of the University of Texas. Abigail Fisher and Rachel Michalewicz, two Texas residents, brought suit against  the University of Texas (UT) after they were denied admission for the 20080-2009 school year.  Their suit charges that the UT admissions process discriminated against them on the basis of race, and that such discrimination was in violation of their right to equal protection under the Fourteenth Amendment and federal civil rights statutes.[10]  

UT’s admissions policy is complex and must be understood in order to understand the case.  The university first divides its total applicant pool into three pools: (1) Texas residents, (2) non-Texas residents, and (3) international students.[11]  Students only compete within their respective applicant pool.[12]  UT implements two administrative policies. One is the “Top Ten Percent Law.”[13]  This policy calls for UT to automatically admit any Texas high school senior who graduated in the top ten percent of their respective high school class.[14]  The policy is in place at all Texas state universities.[15]  Those Texas residents who are not automatically admitted under the Top Ten Percent Law compete for admission in the remaining “resident” slots.[16]  For these slots, the admissions committee implements a Grutter-like policy in which the committee takes into account an applicant’s (non-automatic)  Academic and Personal Achievement Indices.[17]  The Personal Achievement Index takes into account the applicants race; however, it is considered holistically with other elements to achieve “the fullest possible understanding of the student as a person and to place his or her achievements in context.”[18] 

Fisher and Michalewicz argue that the University’s race-conscious admissions program is over-extensive and unjustifiable. They argue that (1) UT has gone beyond a mere interest in diversity for education’s sake and instead pursues a racial composition that mirrors that of the state of Texas as a whole, amounting to an unconstitutional attempt to achieve “racial balancing”; (2) the University has not given adequate consideration to available “race-neutral” alternatives, particularly percentage plans like the Top Ten Percent Law; and (3) UT’s minority enrollment under the Top Ten Percent Law already surpassed critical mass, such that the additional (and allegedly “minimal”) increase in diversity achieved through UT’s Grutter-like policy does not justify its use of race-conscious measures.[19]  The Fifth Circuit upheld the university’s policy stating that “the admissions procedures that UT adopted, modeled after the plan approved by the Supreme Court in Grutter, are narrowly tailored – procedures in some respects superior to the Grutter plan because the University does not keep a running tally of underrepresented minority representation during the admissions process.”[20]  As such, the UT admissions policy is safe for now.  Yet, the Supreme Court is soon to decide the fate of UT’s admissions policies and of affirmative action as we know it.

How will the Supreme Court rule in Fisher? 

Much has changed since the Supreme Court was last faced with a decision on affirmative action in Grutter  Most importantly Justice Sandra Day O’Conner is no longer a sitting member of the court.  Justice O’Conner’s absence from the Court may bring an end to the “critical mass” analysis employed in Grutter. In Grutter Justice O’Conner was the “swing justice,” in a 5-4 decision upholding the “plus” system in place for admission to the University of Michigan Law School.[21]  In her place, Justice Anthony Kennedy vote is likely to be the “swing” vote.[22]  He is likely to be less sympathetic to affirmative action.  For example, in Grutter Justice Kennedy dissented from the majority opining that that the majority “refused to be faithful to the settled principle of strict review designed to reflect [important] concerns.”[23]  From this standpoint, it seems as though the fate of Grutter based affirmative action programs are in the hands of Justice Kennedy.  However, despite never having voted to uphold an affirmative action program, Justice Kennedy has “consistently endorsed the notion that a university’s interest in diversity can, in some instances be compelling.”[24]  As such, it is likely that the foundation of Grutter will remain intact; but the Court will likely “cabin the compelling interest to the pursuit of student body diversity, as opposed to diversity in the classroom.” [25]   This is necessary in order to prevent universities from using race as a factor in admissions indefinitely. [26]

 


[1] Coalition to Defend Affirmative Action, 701 F.3d 466 at 472.

[2] Id.

[3] Id.

[4] Coalition to Defend Affirmative Action, supra note 157, at 472.

[5] Id. at 489.

[6] Id. at 483.

[7] Coalition to Defend Affirmative Action, 701 F.3d at 485 (citing Washington v. Seattle School District No. 1, 485 U.S. 457, 469-70).

[8] Id. at 485.

[9] Id.

[10] Fisher v. Uni. of Tex. At Austin, 631 F.3d 213 (5th Cir. 2011)(S. Ct. argued Oct. 11, 2012).

[11] Id. at 227.

[12] Id.

[13] Id. at 224.  The Top Ten Percent Law was enacted in 1997.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 235.

[20] Id. at 247.

[21] Grutter, 539 U.S. 306.

[22] Jonathan W. Rash, Affirmative action on Life Support: Fisher v. University of Texas at Austin and the End of Not-So-Strict Scrutiny, 8 Duke J. Const. L. & Pub. Pol’y Sidebar 25, 43 (2012).

[23] Grutter, 539 U.S. 306.

[24] Rash, supra note 196, at 42 n. 133. See, e.g., Grutter, 539 U.S. 306, 387 (2003) (Kennedy, J., dissenting); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 783 (2007) (Kennedy, J., concurring).

[25] Id.

[26] Id. (“To hold otherwise would permit a university to use race in admissions indefinitely – until educators [can] certif[y] that the elusive critical mass has finally been attained, not merely in the student body generally, but major-by-major and classroom-by-classroom.”).

The Battle to Patent Your Genes Continues: The Supreme Court Grants Certiorari in the Myriad Case

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By Tiffany Palmer, Junior Editor

Over the last decade, the biotechnology world has struggled to come to an agreement about whether scientists should be patenting genes.  It is unclear whether the practice is even constitutional.  The most recent discussion of the matter centers on the 2010 New York district court case in which the ACLU filed a claim to have Myriad laboratory’s gene BRCA-1 and BRCA-2 patents invalidated.  All humans carry Myriad’s BRCA-1 and BRCA2- genes.  They vary in sequence from one person to the next.[1]  Roughly 5–10% of women who develop breast cancer are likely predisposed due to a mutation in their BRCA genes.[2]  Myriad also holds a patent on a test that allows women to determine whether they possess one of the mutations.  This is very beneficial to women looking to catch cancer at its inception.  Yet, opponents of Myriad’s test argues that some women who desire testing will be denied it due to her socioeconomic status.  Myriad currently charges a little over $3000 per test[3], and does not accept all insurance carriers.[4]  The district court found that the genes were not patentable.  On appeal, the circuit court found that the genes were patentable, reversing the district court’s decision.  In December 2012, the Supreme Court granted certiorari in the case.  The industry is hopeful that the Court will resolve this debate once and for all.  Below, there is a discussion of factors and potential solutions the Court should consider.    

The Horrid Hysterectomy

Notwithstanding the benefits, there are a number of additional burdens associated with this testing.  On the one hand, as a consequence of the alleged monopoly Myriad holds over BRCA genes, women who test positive for the mutation are unable to seek a second interpretation of her results or confirm that Myriad’s finding are accurate[5].  Ascertaining a second opinion is commonplace in healthcare and the unavailability of options is unnerving.  Although a woman could always choose to test again with Myriad, an increased peace of mind may be found in having a completely different lab conduct the testing.  For example, when doctors provide diagnoses, one often seeks a second opinion from a different doctor.  A similar framework is unavailable in this instance as Myriad is the only lab permitted to administer this type of test.   The monopoly makes a decision to undergo prophylactic surgery exceedingly more complex, as a woman could be dispensing with her ability to have children in response to a potential false-positive on the test. 

A BRCA mutation diagnosis also creates stigma issues, similar in effect to the stigma created by an HIV diagnosis.  A number of women will be less desirable to men who wish to have families or who simply do not want the burden of entering into a relationship with a woman likely to develop a disease as life-threatening as cancer.  Thus, it is essential that women undergo quality diagnostic testing to ensure that they are not faced with these challenges in vain.  Absent other tests on the market to compare to Myriad’s test, is it impossible to determine its precision.

Everyone Take a Seat at the Table:  A Limitation and a Safe Harbor

            Perhaps companies such as Myriad have been afforded too many rights at the expense of science and public health.  Scientists need to continue to discover mutations and tailor tests to other racial and ethnic groups.  Women need more meaningful options for testing.  Prophylactic surgeries are burdensome and arguably, a woman can never offer true informed consent to them if she feels she needs more information about her BRCA gene status.  These seem to be the two most compelling reasons to modify Myriad’s rights.  Accordingly, the optimal solution should be two-fold.  On the one hand it should limit restrictions on researching the BRCA genes for other mutations.  On the other hand, it should carve out an exception for those women desiring a second opinion from a lab other than Myriad. 

            Myriad should not be permitted to claim property rights over the entire gene; and Myriad’s constituents would agree. In 2001, the European Patent Office granted Myriad one patent for both of its BRCA genes.[6]  In an action brought by a number of French research and human genetics centers, Myriad’s patent was revoked.[7]  The company subsequently filed an appeal, requesting to maintain the patent with amended, limited claims.[8]  According to the EPO,  “the patent now relates to diagnostic methods for the detection of a predisposition for breast and ovarian cancer caused by a specific group of mutations of the gene, so-called shift mutations.  It does not contain claims directed to the BRCA1 gene itself or to mutated forms thereof.”[9]  This solution cures any restrictions in research efforts, while leaving Myriad some patent protection. 

However, if Myriad is still the only company who may administer the diagnostic test, women desiring second opinions would be left without remedy.  In the midst of recent reform efforts by Congress, Lamar Smith of the House introduced a “second-opinion safe harbor option.”[10]  It would create for women the option to seek testing from other companies for second-opinion purposes only.  It was adopted from the safe-harbor legislation in place under Section 287(d) of the Patent Act, for medical practitioner related activities.[11]  The ACLU responded in opposition to the amendment, arguing that the safe harbor “would fail to block all patent holder objections to [second opinion] testing, [and] fails to address the many other limitations on scientific research arising out of the issuance of [gene patents]…”[12]  This is true if this is the only modification to the rules.  If Congress would embrace a combination of limiting gene patent claims to diagnostic methods with the safe harbor option, all of the issues would have been addressed, all while leaving Myriad’s fiduciary incentives intact. 

The fact that Congress is merely proposing amendments, it may be implicitly affirming support of gene patents.  If that is a fair assessment, then a hybrid solution as this one may be the best relief they provide.  Perhaps this is the solution the ACLU should begin fighting for.   

Dispensing with the 20-year Patent Term for Gene Patents

            Congress should consider implementing an alternative patent term for the field of genetics.  Under current U.S. law, the term of patent is 20 years from the earliest claimed filing date.  For applications filed before June 8, 1995, the term is either 17 years from the issue date or 20 years from the earliest claimed domestic priority date, whichever is longer. 

The patent term on genes need not last for 20 years. First, the current term of patents in the US is largely arbitrary and outdated.  The original patent term under the first Patent Act was decided individually for each patent, but “not exceeding fourteen years”.  It was adapted from the English Statute of Monopolies of 1623. 

The duration of patents has been determined by historical precedent and political compromise. The 14-year term of the English patents after 1624 was based on the idea that 2 sets of apprentices should, in 7 years each, be trained in the new techniques, though a prolongation by another 7 years was to be allowed in exceptional cases.[13]

The Patent Act of 1836 provided (in addition to the fourteen year term) an extension “for the term of seven years from and after the expiration of the first term” in certain circumstances. In 1861, the seven year extension was eliminated and the term changed to seventeen years. The signing of the 1994 Uruguay Round Agreements Act then changed the patent term from seventeen years from the date of issue to the current twenty years from the earliest filing date.  There is no evidence that these terms support the needs of modern society. At least with respect to gene patents, they do not. 

Drug development is pursued primarily with private funding.  So, not only do scientists in this field front most of the money, but they are also expected to pay interest on funds they have borrowed from investors.[14]  Gene discovery is funded in large part with public funding in the form of NIH grants.  In 2000, not-for-profit organizations and our federal government spent $1.8 billion of taxpayer dollars on gene research.  Myriad used 5 million dollars in NIH grants to discover the BRCA-1 gene.[15]

Also, unlike the pharmaceutical industry, newly discovered gene sequences do not require clinical trials or approval from the Food and Drug Administration.[16]  This process can take a.  Gene patent holders can take their products to market as soon as their patents are granted.[17]  So, the biologists conducting gene research do not need as many years to collect royalties and recoup their investments. 

Not All Patent Rights Created Equal: The Preservation of Life Exception

In contract law, frustration of purpose is a theory often used to declare a contract unenforceable.  It occurs when “an unforeseen event undermines a party’s principal purpose for entering into a contract, and both parties knew of this principal purpose at the time the contract was made.”  While its application to this gene patent dispute is not perfect, it provides some basis for considering new contract terms between the government and the inventor.  It may be safe to argue that technology where patents of human micro-organisms would be so useful or even in existence as major discoveries were not being made in cells, DNA, and genes until the 1900s, two centuries after the drafting of current patent law. 

One way courts could address the social implications of gene patents is by creating additional contract terms for biotechnology patents that concern public health and the preservation of human life.  In contracting, parties are free to bargain for a unique set of obligations.  Since its inception, the Patent Clause has anticipated a simple bargain where inventors would apply for patents for financial gain and the government awarded these rights for a term of years to gain an ultimate public benefit.  This transaction is illustrated below.  However, biotechnology patents present an added layer of complexity that may warrant a modification of the original rule.  Patented technologies in the biotechnology field, such as gene patents, are not only products of human ingenuity, but also are “the actual tools for research, the pathways of biological processes, and components of life.”  Put another way, biotechnology patents, as those in the Myriad case, may confer rights not only to man-made innovations but also to the raw materials from which the innovations are created.   Accordingly, unlike in other life preservation fields, such as pharmaceuticals or medical devices, biotechnology patents could completely preclude access to remedies that aid in saving human lives.  To ensure that the government realizes the benefits of its bargain in these instances, perhaps some additional terms are appropriate.  For example, patent holders could be required to license their technologies more readily to ensure quality and accuracy of testing or make a limited number of tests available to those unable to afford it otherwise.  As an illustration, Myriad offered a license to U. Penn. to carryout diagnostic testing on Ashenazi Jewish persons and provided a limited number of tests each year to those ordinarily unable to afford it.  Reforms as these keep patent protection in tact while ensuring that the government and ultimately the people receive the full benefit of its bargain.  

 

 


[1] See Georgia L. Wiesner, Clinical Implications of BRCA1 Genetic Testing for Ashkenazi Jewish Women, 7 Health Matrix 3, 15 (1997).

[2]Id.

[3] Association for Molecular Pathology v. U.S. Patent & Trademark Office, 702 F. Supp. 2d 181, 203 (S.D.N.Y. March 29, 2010) (overturned on different grounds).

[6] Myriad Wins BRCA1 Patent Appeal in Europe; Scope Limited, GenomeWeb Daily News (Nov. 21, 2008), http://www.genomeweb.com/myriad-wins-brca1-patent-appeal-europe-scope-limited.

[7] Id.

[8] Id.

[9] Id.

[10] Dan Vorhaus, Update: Proposed Second Opinion Safe Harbor, Gemome Law Report (June 16, 2011), http://www.genomicslawreport.com/index.php/2011/06/16/update-proposed-second-opinion-safe-harbor-for-genetic-diagnostic-testing-withdrawn/.

[11] Id.

[12] Id.

[14] Lori B. Andrews & Jordan Paradise, Gene Patents: The Need for Bioethics Scrutiny and Legal Change, 5 Yale J. Health Pol’y L. & Ethics 403, 406 (2005).

[15] Id.

[16] Id.

[17] Id.

National Security Letters Struck Down in California District Court:

 
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By: Bonnie Sowell, Junior Editor

 

            Benjamin Franklin once said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”[1]On March 14th, a California District Court Judge in San Francisco found unconstitutional a federal statute that would do exactly that.[2]

            The statute in questiongives the Federal Bureau of Investigation the power to issue National Security Letters (NSLs) to banks and telecommunications companies, including Internet providers,[3] requesting information about clients suspected ofterrorism or other clandestine intelligence activities. Compliance with these requests is mandatory. [4]Although the use of NSLs can be traced back to the 1980’s, they were strengthened under the passage of the Patriot Act in 2001.[5]The District Court took issue with two provisions of the NSL statute, the nondisclosure requirements applied to NSL recipients and the restricted judicial review process.

            Under the statute,if the FBI Director certifies disclosure of the issuance of a request by the telecommunications company will cause “interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person,”[6]the company who received the NSL is prohibited from disclosing the contents of the NSL or the fact that one was received to anyone other than an attorney or someone who must be told in order to comply with the request.[7]

            The NSLs and the nondisclosure provisions of the statute are also subject to a very restricted judicial review and set-aside process.[8]  This is difficult to do, though because NSLs may only be modified or set aside “if compliance would be unreasonable, oppressive, or unlawful.”[9] Further, if certification that disclosure will jeopardize national security is made by the Attorney General, Deputy or Assistant Attorney Generals, the Director of the FBI, or other agency heads, it is treated as conclusive unless made in bad faith,[10] and the nondisclosure order will not be set aside.An order denying set aside precludes the petitioner from re-filing for another modification or set aside for one year.[11]  The FBI’s ability to prevent disclosure under its certification power gives the FBI and its director seemingly unlimited discretion to employ prior restraint[12] to prohibit content-based speech about NSLs[13].

            District Court Judge Susan Illston held that while the nondisclosure provisions coupled with the restricted judicial review were neither classic prior restraint nor a typical content-based speech restriction, the statute does give the executive branch unilateral authority to determine whether NSL recipients can speaks about NSLs.[14]  She also stated that use of this power to restrict speech may curtail public debate on the subject by preventing NSL recipients from disclosing their experiences with the FBI, and that for these reasons, the heightened justification standards of prior restraint cases[15] and the heightened scrutiny of content-based speech cases should be applied.[16]  Because the statute did not mandate the procedural safeguards required under the prior restraint cases,[17] and because the statute was overbroad in its nondisclosure provisions,[18] the court held it unconstitutional on its face. The court also held the restricted judicial review provisions constitutionally invalid for separation of powers infirmities.[19]Because these provisions are so integral to the whole statute, the court found that they were not severable and so struck down the entire statute.[20]

            The nondisclosure provision struck down in this case is particularly troublesome to many civil liberties advocates like Cindy Cohn, the Legal Director of the Electronic Frontier Foundation who brought the suit.  She said, “The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power.”[21]Because of this, this case, while not binding on other federal courts, is likely to be the first of many.  The District Court stated that the FBI issues tens of thousands of NSLs a year and that nondisclosure orders are issued in 97% of these cases.[22]  However, only a handful of constitutional challenges have been brought against the NSL provisions.[23]  Hopefully, the success that the EFF achieved on Friday will give hope to recipients of NSLs and free speech advocates to bring challenges to the constitutionality of this overbroad statute, eventually causing the Supreme Court to take notice.


[1]The Papers of Benjamin Franklin 242 (Leonard W. Labaree ed., 1963).

[2] A PDF of the court’s order is available on the Electronic Frontier Foundation’s website at https://www.eff.org/document/nsl-ruling-march-14-2013

[3] Charlie Savage, California: Judge Strikes Down Law on National Security Letters (March 15, 2013), available at http://www.nytimes.com/2013/03/16/us/california-judge-strikes-down-law-on-national-security-letters.html?_r=0

[4]18 U.S.C. 2709(a) (2006).

[5] Jennifer Valentino-Devries, Judge Strikes Down Secretive Surveillance Law (March 15, 2013), available at http://online.wsj.com/article/SB10001424127887324532004578362710014676902.html?mod=WSJ_hpp_LEFTTopStories.

[6]18 U.S.C. § 2709 (2006).

[7] 18 U.S.C. § 2709 (c)(1) (2006).

[8]18 U.S.C. § 3511 (2006).

[9]18 U.S.C. § 3511 (a) (2006).

[10] 18 U.S.C. § 3511 (b)(2) (2006).

[11] 18 U.S.C. § 3511 (b)(3) (2006).

[12] As WalterSobchak loudly pointed out, “The Supreme Court has roundly rejected prior restraint!”The Big Lebowski (Working Title Films 1998).See also South Eastern Promotions Ltd. v. Conrad, 420 U.S. 546, 558 (1975) (explaining that prior restraint is not unconstitutional per se, but rather comes to the Courtbearing a heavy presumption against its constitutional validity).

[13] Content-based speech restrictions are traditionally subjected to rigorous strict scrutiny and come to the Court with a presumption of invalidity. R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992).

[14]Supra, note 2, at 9.

[15] In Freedman v. Maryland, 380 U.S. 51 (1965), the Court held that prior restraint cases are only saved by the use of three procedural safeguards: restraint prior to judicial review may be imposed only for a specified brief period of time during which the status quo must be maintained, expeditious judicial review of that decision must be available, and the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.See also Thomas v. Chicago Park District, 534 U.S. 316 (2002).

[16]Supra, note 2, at 9-10.

[17]Id. at 15.

[18] The court found that the nondisclosure provisions were not narrowly tailored because it made no distinction between disclosure of the contents of the NSLs and the mere fact that one had been received. The court found that the government had not shown that it was necessary to prohibit disclosure of the latter for national security reasons. Id.

[19]Id. at 24.

[20]Id. at 23.

[21]National Security Letters are Unconstitutional Federal Judge Rules (March 15, 2013), available at https://www.eff.org/press/releases/national-security-letters-are-unconstitutional-federal-judge-rules

[22]Supra, note 2, at 13.

[23]Id.

Has the Sherriff of Nottingham Won? And is that a Bad Thing?

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 By David Anthony, Junior Editor

We all know the story of Robin Hood, right?  Third crusade, Englishman, bow and arrow, Maid Marian, Little John, all that good stuff.  And whether you picture him as Kevin Costner, Russell Crowe, or even Carry Elwes, [1] we all know the general premise of the story: Steal from the rich, give to the needy, good guys win, bad guys lose. 

We have all also, at some point in our life, recognized the fact that what our hero of Loxley did was downright illegal.  Let’s face it, you can’t steal from the wealthy and just give the “proceeds” to the less fortunate.  “Aha!” You say, “what about the evil Sheriff of Nottingham who overtaxed the needy and was generally a really bad guy?  That made it equitable for Sir Robin to do what he did.”  Perhaps so, but what if Robin lived today?  Don’t shrug off the suggestion so quickly. 

In fact, for over a decade, hundreds of organizations and thousands of individuals have committed themselves to the exact same objectives that steered our hero all those centuries ago.  Granted, today they are neither called heroes nor even Merry Men.  No, modern vernacular tends to refer to these individuals with an equally colorful title: pirates.  After all, what do today’s pirates do?  Take intellectual property from its rightful owners and distribute on a basically free basis.  It sounds like they all deserve a green cap with a feather in it, if history is any indicator.  Realistically what they will probably get, however, is a prison sentence and millions of dollars in fines. 

I will be the first to admit that, as a 12 year old with a 56k modem and a brand new Gateway computer with the Windows Me operating system, the draw of Napster (the original one) and Bear Share may or may not have been too much to resist.  I am not alone in these shoes, either.  A 2011 study showed that 46% of all adults (ages 18+) had at some point in time downloaded or illegally copied a song or video.[2]The world and internet today, however, is far different from the internet of the late 90s/early 2000s; we know better now. 

And well we should.  Over the past decade or so, the entertainment industry has fought tooth and nail to curb the spread of illegal internet sharing of media.  Everything from ad campaigns[3] to large scale lawsuit campaigns against everyone in the spectrum, including digital pirates and everyday suburbanites.[4]

Not to mention that a trip to the local record store (Walmart) is no longer required to buy a $14.99 cd.  We can all now lazily sit at home and buy our music online from our preferred retailer (be it Amazon or that other one).  Even better, if you only want that one good song from the radio and not the other tripe from the soon-to-be-one-hit-wonder, you can pay less than a buck and be done with it.  Further, there are a multitude of online resources from which we can listen to our favorite music as much as our audiophile hearts desire, for absolutely no cost. 

All this is to say that we have become quite comfortable, maybe even spoiled, in the current digital music age.Even while I type this blog post I am listening on Spotify to some band I have never heard of and am not paying a dime for it.  But someone is.  Sticking with my current example (and shameless plug for), Spotify, the entirety of the service’s money comes from advertisements and subscriptions to the premium service.  While a nice share of this is profit is for the service, about 70% is used to pay royalty fees for the content.  According to an FAQ on the service’s website:

“Spotify pays out the majority (approaching 70%) of ALL of our revenue (advertising and subscription fees) to rights holders: artists, labels, publishers, and performing rights societies (e.g. ASCAP, BMI, etc.). In just three years since launching, Spotify has paid out over 500M USD in royalties.

Spotify has direct agreements with record labels, digital distributors, aggregators and publisher collecting societies, to whom we regularly pay royalties, and who then pay recording artists and songwriters according to their specific contractual agreements.

. . .

In general, however, Spotify pays royalties in relation to an artist’s popularity on the service. For example, we will pay out approximately 2% of our gross royalties for an artist whose music represents approximately 2% of what our users stream. A popular song or album can generate far more revenue for an artist over time than it historically would have from upfront unit sales.”[5]

The site goes on to say that since June 2011, over $500M has been in royalties.  Granted, the amount of that money which actually reaches the artists is a completely different matter.[6]

                It certainly seems like we have everything figured out.  But what happened to the battle being waged just a few years ago?  Returning to Loxley, few times in history has there been an organization more deserving of the ‘Sheriff of Nottingham’ title than the Recording Industry Association of America (RIAA).  In typical Nottingham fashion, the RIAA set the high prices for music, gave little to the artists, and was ruthless against any who challenged its dominance.[7]Overall, a justifiably vilified organization. 

                Today, in contrast, we hear much less of the RIAA.  This is likely because the RIAA was able to do what the Sheriff of Nottingham could never do: win the hearts of the people (whether the people know it or not).  Imagine if Nottingham had stopped overtaxing the people, started to showing some sympathy, and worked as mediator between King John and the people to come to more equitable agreements.  Suddenly the acts of Sir Robin become much less heroic.  This is what the RIAA has likely realized.  Instead of fighting the technological evolution of the industry, the organization has worked with services like Pandora, Spotify, as well as the online retailers to make it easier for consumers to have access to music while simultaneously finding ways to keep the royalty revenues heading in the proper direction. 

                Illegally downloading music today has a much more negative stigma attached to it for this exact reason.  Why would you do that considering how easy and affordable it I to access music?Instead of being obsessed with sticking it to the man, these days we are more focused with making sure we support our artists.  In a sense, the RIAA, or Sheriff, or the Man, or whatever you want to call it, has won.  That fact, while sobering, doesn’t necessarily have to be a bad thing, however.  Such cooperation between artists/labels, consumers, and services which bring the two together should continue to be encouraged in order to continue the trend.  While it is possible that Robin Hood might one day again be required, for now it seems that the Sheriff has things under control in a good state of affairs.


[1] I personally prefer an animated fox

[6]See Chart on The Barn Presents Article, supra note 2. 

[7] For a rather biting critique of the RIAA during its lawsuit heyday, see https://www.eff.org/wp/riaa-v-people-five-years-later

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