Monthly Archives: May 2014

Donald Sterling’s Views on Race May Not be the Most Disturbing Thing About the Recent Clippers Scandal

Donald Sterling’s Views on Race May Not be the Most Disturbing Thing About the Recent Clippers Scandal

 By Jack O’Dowd

            In late April reports surfaced that Donald Sterling, the owner of the Los Angeles Clippers basketball team, had been taped making disparaging remarks about black people. The tape reflects a conversation had by Sterling and his girlfriend V. Stiviano. During the conversation Sterling relates to his girlfriend that he is upset that she is posting pictures of herself with black people onto her Instragram account. He says, “In your lousy f**ing Instagrams, you don’t have to have yourself with — walking with black people.”[1] The black person who was the subject of the remark was none other than NBA great Magic Johnson.

As if that weren’t bad enough, Stiviano continued to goad Sterling into making more objectionable comments about Johnson. Stiviano told Sterling that Magic Johnson was someone she admired. Sterling responded “I think the fact that you admire [Magic] — I’ve known him well, and he should be admired — and I’m just saying that it’s too bad you can’t admire him privately. And during your entire f***ing, your whole life, admire him — bring him here, feed him, f**k him, I don’t care. You can do anything. But don’t put him on an Instagram for the world to see so they have to call me. And don’t bring him to my games.”[2]  Stiviano was apparently the subject of a lawsuit filed by Sterling’s wife, and she vowed revenge.[3] Regardless of Stiviano’s motivations, it is shocking that an owner in a league comprised almost entirely of black athletes could have these views about blacks.

In the wake of the statements numerous players voiced their strong disapproval of Sterling and his comments. For instance, LeBron James, probably the most famous current player in the NBA, said he may not have played had his team’s owner made those remarks and that “There’s no room for Donald Sterling in the NBA — there is no room for him.”[4] The players on Sterling’s Clippers team staged a silent protest by wearing their warm-up uniforms inside-out so that the Clippers logo was not visible.[5] Similar acts showing disapproval were made by other teams around the league.

The league took drastic measures against Sterling, strongly condemning his remarks. The league’s commissioner, Adam Silver, empowered by a provision in the league’s constitution giving the commissioner nearly unbridled authority, handed down a harsh punishment. The specific provision reads “Where a situation arises which is not covered in the Constitution and By-Laws, the Commissioner shall have the authority to make such decision, including the imposition of a penalty, as in his judgment shall be in the best interests of the Association.” Pursuant to this, Silver banned the embattled owner from the league, stripping Sterling of any authority or management relationship with his team and barring him from going to games. Further, Silver imposed a $2,500,000 fine, the maximum authorized by the NBA constitution.

Sterling, who still owns the team despite not being able to associate with the league in any way, may also be stripped of his ownership interest in the Clippers. Silver said he would urge the other owners to force a sale of the Clippers. The league’s constitution provides for such a sale if three-fourths of the other owners vote to kick out an owner.[6] More specifically, the NBA constitution provides that an owner may be forced to sell his team for engaging in conduct such as gambling on games, fixing games, and the like. Another provision says an ouster may result should an owner “fail or refuse to fulfill its contractual obligations . . . in such a way as to affect the Association or its Members adversely.” [7] Thus, it does not appear that the NBA’s constitution directly provides for a forced sale in this situation.

Because the NBA’s constitution, a contract between owners, does not seem to provide for a forced sale in this instance, I would be troubled should Sterling be forced to sell this sizable asset. What I really find troubling is that private conversations made in confidence to his girlfriend could be the reason that he would lose his basketball team. I am not alone in this view. Another NBA great Kareem Adbul-Jabbar wrote in an op-ed in Time Magazine, “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?”[8]

Further, regardless of whether he is forced to sell, I am troubled by the “mob-rule” mentality that characterizes the opposition to Sterling ownership. As mentioned earlier, notable NBA players, cultural figures, and even President Barack Obama have condemned Sterling, and many have called for him to divest his ownership interest in the Clippers. However, public outcry should not be enough to force someone to sell his property. If people want to boycott Clippers games, so be it. But forcing a sale of a multi-million dollar basketball team based on private comments coaxed out of an old man by his spiteful young girlfriend is bad policy. Sterling should reserve the right to “go down with his ship” and hold onto his team regardless of the financial consequences. The loss should be his to bear.

Finally, I think it would be unwise for owners to force a sale here. Who knows what skeletons they may have in their own closets? Who knows what future technologies may make those skeletons known to the public? It may be a dangerous precedent for the owners to decide that private statements, no matter how hateful or moronic, should be used against an owner to force him to sell his team. Rather, the owner should be free to hang onto the team and bear the financial cost. While I don’t think any owner would actually hold onto a team that is being boycotted, I believe he should at least have the right to.

 

[1] Kevin Conlon, NBA Team Owner in Hot Water Over Racist Comments Attributed to Him, CNN (April 27, 2014), http://edition.cnn.com/2014/04/26/us/nba-team-owner-alleged-racist-remarks/

[2] Id.

[3] V. Stiviano, Rochelle Sterling legal battle at heart of scandal, LA Times (April 29, 2014), http://www.latimes.com/local/lanow/la-me-ln-v-stiviano-rochelle-sterling-donald-lawsuit-20140429-story.html

[4] Shaundel Richardson, LeBron on Donald Sterling: “There’s no room for him” Sun Sentinel (April 27, 2014), http://articles.sun-sentinel.com/2014-04-27/sports/fl-charlotte-bobcats-news-0427-20140426_1_lebron-james-donald-sterling-los-angeles-clippers.

[5] Bruce Golding, Clippers stage silent protest over Donald Sterling’s racist rant, New York Post (April 28, 2014)http://nypost.com/2014/04/28/clippers-stage-silent-protest-over-donald-sterlings-racist-rant/.

[6] Jeff Zilgitt, Can Donald Sterling best thorough NBA constitution?USA Today (May 2, 2014) http://www.usatoday.com/story/sports/nba/2014/05/02/donald-sterling-lifetime-ban-constitution-bylaws-owners-los-angeles-clippers-forced-sale/8626843/.

[7] Id.

[8] Melissa Rohlin, Kareem Abdul-Jabbar offers a different perspective on Donald Sterling, LA Times (May 1, 2014), http://www.latimes.com/sports/sportsnow/la-sp-sn-kareem-abdul-jabbar-donald-sterling-20140501-story.html.

Warrantless Cellphone Searches: Ripe for Review

Warrantless Cellphone Searches: Ripe for Review

 By Robert Peel

I. Introduction          

The Fourth Amendment to the United States Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[i] While courts have generally held that the Fourth Amendment protects privacy rights when an individual is in a situation that he would legitimately have an expectation of privacy,[ii] recent events such as the terrorist attacks of September 11, 2001, technological advances, and the failure of the United States’ laws and the judicial system have contributed to the erosion of the Fourth Amendment right to privacy.[iii]

Before 9/11, a legitimate expectation of privacy was defined when a person genuinely believed a place to be private and if a reasonable person would expect the same location under the same circumstances to be private as well.[iv] However, a person in a public space would have a reduced expectation of privacy, even when visiting a person in a jail, if the purpose of the monitoring of the conversation was reasonably related to prison security.[v] Although the same privacy rules still nominally apply today, The USA PATRIOT Act and several United States Supreme Court decisions such as Clapper v. Amnesty International have dramatically reduced the expectation of privacy of individual citizens in the United States.[vi] More recently, the revelations by Edward Snowden, the National Security Agency whistleblower, have cast doubts on the realistic expectation of privacy in today’s world. [vii]

II. An Overview of the History of Electronic Surveillance

Two main types of electronic surveillance exist, wiretapping and electronic surveillance.[viii] The first type of electronic surveillance is the traditional wiretap, where a wire line of communication such as a phone line or cable is “tapped” and a voice transmission is captured.[ix] The second type, the broader electronic surveillance, is when data, information, or sounds are transferred electronically from one device to another and are intercepted, including communications such as emails.[x] Law enforcement is required to obtain a warrant under the Fourth Amendment because of the similarity of electronic surveillance and wiretaps to search and seizures.[xi] Congress has attempted to keep pace with the electronic surveillance by passing several laws that grant law enforcement authorities the power to enter homes to “bug” them while also trying to protect the right of individuals.[xii] One such law is the Electronic Communications Privacy Act (ECPA), which was later updated with an addition called The Communications Assistance for Law Enforcement Act of 2006.[xiii]

In June 2013, NSA whistleblower Edward Snowden revealed that the NSA had been collecting phone records and Internet records of American citizens as well as allied foreign leaders, most notably German Chancellor Angela Merkel.[xiv],[xv] Also alarming for privacy advocates was the fact that major Internet and telecommunications companies including Apple, Microsoft, Facebook, Twitter, Verizon, and AT&T were complicit in collecting this information for the NSA.[xvi] As recently as January 17, 2014, President Obama sought to alleviate the fears of the American people with a speech outlining new restrictions on the use and collection of phone and Internet records by the NSA, but generally defended the practice.[xvii] Both critics and proponents of the NSA program like to point out that only a few arrests have been made as result of the surveillance with proponents of the surveillance claiming that this shows that the information is not being abused, with critics of the program saying that since the surveillance is not even very useful it should be discontinued.[xviii]

Additionally, Congress passed the Foreign Intelligence Surveillance Act (FISA), which lowered the evidentiary threshold needed for surveillance for foreign intelligence gathering, as well as Americans accused of spying.[xix] After the terrorist attacks of 9/11, Congress passed the USA PATRIOT Act, which greatly broadened the authority of law enforcement agencies to fight terrorism, but also limited the privacy rights of individuals in the United States.[xx] In 2005, news organizations reported that the National Security Agency began intercepting phone calls and Internet communications of American citizens without warrants in 2001 following the terrorist attacks of 9/11.[xxi]

III. Circuit Court Decisions on Privacy of Electronic Surveillance

While federal courts have continually expanded the tools available to law enforcement agencies for catching criminals (including some that are arguably illegal),[xxii] there have been some noticeable victories for privacy advocates.[xxiii] In U.S. v. Wurie, the defendant was accused and convicted of trying to sell cocaine, in part from electronic data seized from his cell phone after he was lawfully arrested.[xxiv] After he was arrested, the defendant’s phone kept ringing with the same contact showing on the screen.[xxv] After going through the call log, the police officers found the address associated with the phone number, went to the address, and found a large amount of cocaine, large enough for distribution which allowed the defendant to be convicted for a higher crime.[xxvi] Though the First Circuit Court of Appeals ruled that the police officers had the right to seize the cell phone, the court in a split decision held that the police did not have the right to search the cell phone without a warrant.[xxvii] The First Circuit’s analysis stems largely from the fact that a modern cell phone is essentially like a computer today because of the large storage capacity and multifunctional uses.[xxviii]

While First Circuit agreed that “search-incident-to-arrest” is a valid doctrine for specific limited searches, because of the breadth of data on a cell phone, the Fourth Amendment precludes such a search because the it would be a general search.[xxix] Additionally, any exception, such as the need to preserve evidence that the defendant could destroy is irrelevant in a case where the police seize a cell phone, because the police would have time to obtain a warrant to search the item before the defendant could access the seized item and destroy the evidence.[xxx] The court also did not fear the “remote wipe” technology as they had mentioned technology that could easily prevent, or at least alleviate the problems caused by “remote wipe” apps including solutions as easy as turning off the phone until the warrant could be obtained and the memory copied.[xxxi]

While the government only used the cell phone to search the call logs, the government admitted in their case that they would be able to commit a more general search, and further that they could search any seized mobile device including tablets, iPads®, and laptops.[xxxii] This overly broad general search requires search warrant pursuant to the Fourth Amendment because cell phones contain so much information, including personal information, “photographs, videos, written and audio (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records.”[xxxiii] Furthermore, the court reasoned, a phone search could even conceivably become a house search with the various phone applications and programs that allow a person to view home security cameras through their mobile phone screen.[xxxiv]

The First Circuit seemed to fear in its ruling that even cracking the door for even minor infractions of privacy would lead to a deluge of information which would infringe upon the rights of individuals.[xxxv] The First Circuit was prepared to err on the side of individual liberty at the expense of law enforcement.[xxxvi] Additionally, the court believed that the amount of data obtainable from a phone is far greater than the amount of data that one could store in a wallet, briefcase, or address book, which are the traditional containers that the government has been able to invoke in the search-incident-to arrest doctrine.[xxxvii]

Despite the apparent gains for privacy advocates for electronic surveillance with the First Circuit’s ruling, the First Circuit’s ruling appears to be the minority position with the Fourth, Fifth, Seventh, and Tenth Circuits, all allowing warrantless cellphone searches in several unanimous opinions.[xxxviii] In Judge Posner’s opinion for the Seventh Circuit in U.S. v. Flores-Lopez, he analogized the looking through a seized cell phone to the opening of a diary to verify its owner’s name and address which has been shown to be a valid use of the warrantless search-incident-to-arrest doctrine.[xxxix] In Flores-Lopez, the defendant was convicted for large-scale crimes involving methamphetamine, and part of the evidence that was used for the conviction came from when the police officer searched a cell phone from the defendant to discover the defendant’s cell phone number so that law enforcement could subpoena telephone records to find more evidence from the crime.[xl]

IV. The Supreme Court is currently deliberating on the issue

            Given the circuit split and the uproar over warrantless surveillance in general, the Supreme Court has wisely decided that the issue is ripe for review.[xli] Many have argued that the founding fathers would have never considered such an expansive view of the Fourth Amendment.[xlii] Several of the conservative Justices, including Chief Justice John Roberts, seemed to wonder what the value of the obtaining a warrant would be since the warrant would likely be granted. Despite the need for a fast response for law officials, it is scary to think that the Chief Justice may not believe that a warrant is needed to search such an expansive item. However, the liberal justices, including Sonia Sotamayor, seemed to be more willing to protect the public from such unreasonable searches.[xliii] Interestingly, Antonin Scalia, usually a bastion of the right, seemed to be willing to at least search for a moderate ground in the cell phone searches.[xliv]  He may be the one who actually casts the deciding vote, instead of the usual Anthony Kennedy, and the Supreme Court will likely make its decision some time in early June.  However, despite the oral arguments, it is often wise not to read too much into what the Justices ask during the oral portion of the case, as that does not necessarily predict how they will vote. Hopefully, when the Supreme Court decides the outcome, the Justices will choose to protect the right of American citizens from unreasonable searches of potentially intimate property as was guaranteed by the Bill of Rights.

 

 

[i] U.S. Const. amend. IV

[ii] Electronic Surveillance, Legal Information Institute (Oct. 21, 2013, 3:30 PM), http://www.law.cornell.edu/wex/electronic_surveillance

[iii]Hina Hamshi, Alex Abdo, Privacy and Surveillance Post-9/11, American Bar Association (Oct. 21, 2013, 4:00 PM), http://www.americanbar.org/publications/human_rights_magazine_home/human_rights_vol38_2011/human_rights_winter2011/privacy_and_surveillance_post_9-11.html

[iv]Electronic Surveillance, supra note 2

[v]Id.

[vi]Hamshi, supra note 3

[vii]Doyle Murphy, Edward Snowden says NSA spying worse than Orwell’s ‘1984’ in his ‘Alternative Christmas Message’, New York Daily News, Dec. 25, 2013, available at http://www.nydailynews.com/news/world/edward-snowden-nsa-spying-worse-orwell-nineteen-eighty-four-article-1.1558183

[viii]Electronic Surveillance, supra note 2

[ix]Id.

[x]Id.

[xi]Id.

[xii]Id.

[xiii]Id.

[xiv]The NSA Files, The Guardian (Dec. 20, 2013, 1:00 PM), http://www.theguardian.com/world/the-nsa-files

[xv]Paul Owen, NSA files – Edward Snowden’s letter to Angela Merkel, The Guardian, Nov. 1, 2013, available at http://www.theguardian.com/world/2013/nov/01/nsa-files-edward-snowdens-letter-to-angela-merkel-live-coverage

[xvi]Kevin Bankston, Bad Connection, Slate, Nov. 21, 2013, available at http://www.slate.com/articles/technology/future_tense/2013/11/telcos_like_verizon_and_at_t_are_silent_on_nsa_surveillance.html

[xvii]Transcript of President Obama’s Jan. 17 speech on NSA reforms, The Washington Post, Jan. 17, 2014, available at http://www.washingtonpost.com/politics/full-text-of-president-obamas-jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556-4a4bf7bcbd84_story.html

[xviii]Ed Pilkington, Nicholas Watt, NSA surveillance played little role in foiling terror plots, experts say, The Guardian, Jun. 12, 2013, available at http://www.theguardian.com/world/2013/jun/12/nsa-surveillance-data-terror-attack

[xix] Electronic Surveillance, supra note 2

[xx] Id.; Hamshi, supra note 3

[xxi] NSA Spying on Americans, Electronic Frontier Foundation (Dec. 20, 2013, 1:30 PM), https://www.eff.org/nsa-spying

[xxii]See Hamshi, supra note 3

[xxiii]United States v. Wurie, 728 F.3d 1, 1-2 (1st. Cir. 2013)

[xxiv] Id.

[xxv]Id.

[xxvi]Id.

[xxvii]Id. at 14.

[xxviii]Id. at 7-8.

[xxix]Id. at 8-9, 13.

[xxx]Id. at 11-12

[xxxi]Id.

[xxxii]Id. at 8-9, 13.

[xxxiii]Id.

[xxxiv]Id.

[xxxv]Id.

[xxxvi] See generally id.

[xxxvii]Id. at 9.

[xxxviii]Id. at 16.

[xxxix]United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012)

[xl]Id. at 803-804

[xli] See Nina Totenberg, Supreme Court Considers Limits on Warrantless Cellphone Searches, NPR (Apr. 29, 2014, 4:03 PM), http://www.npr.org/2014/04/29/308068253/supreme-court-considers-where-lines-drawn-in-cell-phone-searches

[xlii] Id.

[xliii] Id.

[xliv] Id.

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