Uber Data Breach: Where do we go from here?

Written By Shelby Mann

Uber admitted to paying hackers $100,000 for a 2016 data breach last week. This comes on the heels of several other mishaps, including an FTC order requiring the company to permit to up to 20 years of privacy auditing, prolific workplace sexual harassment, and drivers with criminal records.

Background

On November 21, 2017, Uber CEO Mr. Dara Khosrowshahi announced the company became aware of a data breach in late 2016. Khosrowshahi said while there wasn’t any indication “trip location history, credit card numbers, bank account numbers, Social Security numbers, or dates of birth were downloaded,” the two hackers did download files with information such as the names and driver’s license numbers of approximately 600,000 U.S. drivers, and personal information of 57 million Uber users. That personal information included names, email addresses, and phone numbers.

What Khosrowshahi did not include in the blog post was that the company paid the hackers $100,000 to keep the data breach secret and delete the stolen information. While the breach did not occur under Khosrowshahi’s leadership—Khosrowshahi replaced Uber co-founder Travis Kalanick as CEO in August 2017—Khosrowshahi reportedly learned of the breach in September 2017, just after he took over. Since discovering the breach, Uber’s chief security officer and a deputy were fired for the cover-up response to the hack.

Investigations

Uber announced the data breach a little over a week ago, but several parties are already launching investigations.

  1. On Monday, members of Congress asked the company several questions. Specifically, they asked why Uber didn’t inform customers sooner, whether the company spoke with law enforcement agencies about the matter, and what Uber is doing to help drivers whose sensitive data was stolen. Four Republican senators expressed concerns over Uber’s prior privacy issues, stating this is a serious incident that “merits further scrutiny.” They also asked Uber to provide a detailed timeline to Congress, including the “initial discovery of the incident, forensic investigation and subsequent security efforts, notifications to law enforcement agencies and regulators, as well as any notification to affected customers[.]”
  2. The Federal Trade Commission said it is also “closely evaluating the serious issues” surrounding Uber’s cover-up of the data breach. This comes after the FTC just penalized the company for misleading customers on privacy and security practices.
  3. Five states have separately announced plans to investigate. The attorneys general of Connecticut, Illinois, Massachusetts, Missouri, and New York, have announced they are examining the incident. The City of Chicago, in conjunction with the Cook County state’s attorney, is also suing Uber over the data breach, separately from the State of Illinois.
  4. Data privacy regulators in other countries, such as Italy, Mexico, and the UK, are also investigating. While the exact number of affected international users isn’t known, Uber did confirm the breach included international users.

Additional Lawsuits

Individuals are also suing the ride-hailing company. There are currently three lawsuits in California and Oregon, wherein the plaintiffs allege Uber was negligent in its failure to protect consumer data. The suits further claim having data compromised without a timely notice to harmed consumers. Each of these suits are suing Uber as part of a class action.

Legality of Uber’s Actions

Forty-eight states have laws requiring companies promptly notify consumers when their data is stolen. Alabama and South Dakota are the two who do not. Nevertheless, in many of those 48 states, theft of the Uber drivers’ license numbers would have required prompt public disclosure.

Further, many consumer protection laws in other countries also require disclosure of data breaches. Whether Uber expressly violated these laws will come to fruition following investigations being conducted around the world.

Uber has a couple of tools to use in the face of impending litigation and class-action suit. Arbitration clauses in contracts with drivers and passengers will be an obstacle for those seeking damages. In signing up for the app, users agree to waive their right to go to court. However, in citing the arbitration clause, state and federal regulators may be more likely to sue.

The success of class-action data breach litigation also turns on the type of information stolen. Uber claims only limited information – names, email addresses, cellphone numbers – was stolen, and outside forensic experts saw no indications of stolen sensitive personal information like credit card numbers, bank account information, or Social Security numbers. Further, there is not yet any evidence the stolen information was misused. Consequently, Uber may have a good defense in arguing that consumers cannot show the breach caused actual–or even likely–harm.

More information continues to roll out on a daily basis. It remains to be seen how this event, and other company data breaches like it, will shape the future of privacy laws and policies. For now, Uber users are encouraged to change their passwords, check their accounts for fraudulent activity, and set up credit monitoring just in case.

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Sources Cited

Letter from Sen. John Thune et al., to Dara Khosrowshahi, CEO, Uber (Nov. 27, 2017).

Letter from Sen. Mark Warner to Dara Khosrowshahi, CEO, Uber (Nov. 27, 2017).

Julia Apostle, The Uber Data Breach Has Implications for Us All, Financial Times (Nov. 27, 2017).

Chris Morris, Uber Hack: Here’s How to Find Out If You’ve Been Affected, Fortune (Nov. 22, 2017).

Andrew Blake, Uber Under Investigation in Several States Over Newly Disclosed Data Breach, The Washington Times (Nov. 23, 2017).

Jim Finkle & Heather Somerville, Regulators to Press Uber After it Admits Covering Up Data Breach, Reuters (Nov. 21, 2017, 5:37 AM).

Dara Khosrowshahi, 2016 Data Security Incident, Uber (Nov. 21, 2017).

Tom Krisher & Barbara Ortutay, Will Uber’s Data Breach Cover-up be the Final Straw for Its Most Loyal Users?, Time (Nov. 23, 2017).

Natasha Lomas, Uber Data Breach “Raises Huge Concerns,” Says UK Watchdog, TechCrunch (Nov. 22, 2017), https://techcrunch.com/2017/11/22/uber-data-breach-raises-huge-concerns-says-uk-data-watchdog/.

Natasha Lomas, Uber Agrees to 20 Years of Privacy Audits to Settle FTC Data Mishandling Probe, TechCrunch (Aug. 15, 2017).

Julia Love, Mexican Authorities Seek Information from Uber About Data Breach, Reuters (Nov. 26, 2017, 3:34 PM).

Tony Romm, Uber is Going to Have to Explain to Congress Why it Hid the 2016 Data Breach that Affected 57 Million Users, Recode (Nov. 27, 2017, 3:29 PM).

Hamza Shaban, Uber is Sued Over Massive Data Breach After Paying Hackers to Keep Quiet, The Washington Post (Nov. 24, 2017).

Diplomacy or Fake News: How Much Did Presidential Intervention Help LiAngelo Ball and His UCLA Teammates?

Written By Sam Hauser

Background

President Donald J. Trump engaged in a Twitter controversy on November 19, 2017, when he directed one of his tweets at LaVar Ball, the outspoken father of recently arrested UCLA freshman LiAngelo Ball. President Trump’s tweet read as follows:

“Now that the three basketball players are out of China and saved from years in jail, LaVar Ball, the father of LiAngelo, is unaccepting of what I did for his son and that shoplifting is no big deal. I should have left them in jail!”

This came after LaVar Ball refused to acknowledge President Trump’s role in the release of his son from Chinese custody, despite an earlier display of gratitude from LiAngelo himself. Aside from the fact that these players were not – in fact – in jail, but rather on house arrest in their Hangzhou hotel, numerous news outlets were quick to analyze the assertion that these players were headed for ten-year jail sentences absent President Trump’s intervention.

The Incident

On November 7, 2017, LiAngelo Ball, along with UCLA teammates Cody Riley and Jalen Hill, were accused of shoplifting Louis Vuitton sunglasses from a mall near the UCLA men’s basketball team’s hotel in Hangzhou, China. The three players were arrested, subsequently released on bail, and ordered to remain in their hotel until the conclusion of the legal process.

Presidential Intervention

President Trump, who happened to be on his way to China at the time of the incident, allegedly spoke with Chinese President Xi Jinping about the incident, asking for prompt resolution of the matter.

Resolution

On November 14, 2017, about one week after the original incident took place, the three UCLA players were on a plane back to Los Angeles. In its statement announcing the players’ return, the PAC 12 Conference thanked both President Trump and the U.S. State Department for their work in reaching a resolution.

Did President Trump Really Save These Players from Substantial Prison Time?

Given the high-profile nature of this case, many media outlets were quick to either concur or dissent with President Trump’s estimation of the magnitude of his assistance to these players. The Criminal Law of the People’s Republic of China sets the framework for analyzing the length of the potential prison sentence for these players.

Criminal Law of the People’s Republic of China: Which Article Are These Players Culpable Under?

Under Chapter V: The Crime of Encroaching on Property, Articles 263 and 264 describe situations in which property has been wrongfully taken. Article 263 describes situations in which property has been “robb[ed] . . . using force, coercion, or other methods.” Article 264 describes situations in which a person has stolen “relatively large amounts of public or private property.” In determining which of these two Articles best fits the UCLA players’ situation, it is necessary to determine the definition of the term “rob.” If this term is defined as it is traditionally defined in American criminal justice systems – “felonious taking of personal property . . . accomplished  by means of force or fear” – then it is likely that the accused players would be evaluated under Article 264, in which the term “steal” is used. Although the terms “steal” and “rob” are used interchangeably in other parts of the Criminal Law (see Articles 239 & 240), robbed is most likely meant to represent the traditional American definition here because of the qualifying statement that “force, coercion or other methods” be employed to effectuate the taking of property.  This prompts the conclusion that the actions of these players would be culpable under Article 264.

What is the Likely Sentence Under Article 264?

Under Article 264, a person’s punishment for stealing property is divided into three tiers, according to the severity of the offense, namely, the value of property taken. Those stealing relatively large amounts of property will receive sentences of fewer than three years, or criminal surveillance, and can be fined in addition to, or in lieu of, these other punishments. Those caught stealing large amounts of property receive prisons sentences of 3 to 10 years, in addition to fines. Those caught stealing extremely large amounts of property would be sentenced to 10 years or more in prison. Evidently, there are no bright-line rules as to which of these tiers a particular offense might fall into. Despite the fact that Louis Vuitton sunglasses retail for anywhere between $435 and $1990, it is unlikely that theft of such an item would constitute anything more than “large amounts or property,” at the very worst.

Administrative Punishment

Given the high degree of ambiguity in the Chinese Criminal Law pertaining to shoplifting offenses, and the relative unimportance of such an offense to the Chinese government, it is likely that this type of incident, absent Presidential intervention, would be handled through a mechanism known in China as administrative punishment. The value of goods taken determines whether the punishment can be administrative or criminal, according to a statement given by Ira Belkin, a former federal prosecutor and adjunct professor of law at NYU, to USA Today. Administrative punishment generally results in “some combination of up to 15 days in jail, fines and warnings,” according to Michael McCann, Sports Illustrated’s legal analyst.

Conclusion

The lack of clarity in the boundaries of various tiers of punishment in the Chinese system make it difficult to determine exactly how much punishment President Trump should take credit for saving these individuals. While an administrative punishment might have been the most likely recourse for such an offense, the international diplomatic consequences of such a high-profile individual being caught in the fray might have escalated this matter to the criminal punishment system. In that event, though the likely sentence would not have been 10 years, as President Trump initially indicated, his diplomatic actions may have saved these UCLA students close to 3 years of prison time, depending on the ultimate value of the items taken.

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Sources Cited

Criminal Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l People’s Cong., July 1, 1979, amended March 14, 1997), art. 263-64, 1997.

Louis Vuitton Sunglasses (last visited Nov. 20, 2017).

Marissa Payne, Des Bieler, Matt Bonesteel, & Cindy Boren, LiAngelo Ball, two other UCLA players released on bail after shoplifting arrest in China, Wash. Post, Nov. 8, 2017.

Mark Landler & Michael D. Shear, How Trump Helped Liberate U.C.L.A. ‘Knuckleheads’ From China, N.Y. Times, Nov. 14, 2017.

Matt Bonesteel & Cindy Boren, I should have left them in jail!’: Trump fires back at LaVar Ball for saying he did nothing to help UCLA players in China, Wash. Post, Nov. 19, 2017.

Matt Ellentuck, LiAngelo Ball and 2 other UCLA basketball players arrested in China, explained, SB Nation, Nov. 19, 2017.

Michael McCann, LiAngelo Ball, UCLA Teammates Could Face Chinese Jail Time, Sports Illustrated, Nov. 7, 2017.

Press Release, Pac-12 Conference, Statement from Pac-12 Commissioner Larry Scott on UCLA men’s basketball student-athletes returning home (Nov. 14, 2017) (on file with author).

Robbery, Black’s Law Dictionary (2d ed. 1910).

Suzannah Gonzales & Arshad Mohammed, UCLA basketball players arrested in China could stay for months: ESPN, Reuters, Nov. 8, 2017.

Tom Schad, LiAngelo Ball, other UCLA players unlikely to face severe punishment, Chinese law experts say, USA Today, Nov. 8, 2017.

Photo courtesy of Business Insider.

 

Forgetting the Crime: Death Penalty and Memory

Written by Cynthia Moore

On November 6, 2017, the Supreme Court decided Dunn v. Madison and held that, despite the inability to remember his crime, Vernon Madison was eligible to be executed by the State of Alabama.

Background

More than 30 years ago, Vernon Madison snuck up behind Julius Schulte, a police officer, and shot him twice at close range, killing him. Madison has been awaiting execution since 1985, when a jury convicted him of capital murder. In prison, Madison had a series of strokes, which caused him to suffer from vascular dementia, blindness, slurred speech, incontinence, and an inability to walk on his own. The strokes also caused him to forget the crime he was convicted of.

Procedural History

In 2016, nearing his execution date, Madison petitioned the trial court to suspend his death sentence, arguing that he had become incompetent for execution. The trial court denied his petition, citing two major Supreme Court cases, Ford v. Wainwright and Panetti v. Quarterman. Ford prohibited execution of the insane, and Panetti required prisoners to have a comprehension of the meaning and purpose of the punishment in order to be eligible for execution.

After hearing testimony from two psychologists who examined Madison’s competence, the trial court held that Madison was not entitled to relief because he failed to show that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for that crime.” Additionally, the court held that he understood three important facts: (1) he would be executed for the murder he committed; (2) the State sought retribution for this crime; and (3) he would die when executed.

Madison subsequently petitioned the District Court for the Southern District of Alabama for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, arguing that his mental condition barred him from execution. This Act entitles state prisoners to relief if they can show that the “state court’s decision was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement’” —a demanding standard.

The District Court denied his petition, reaffirming the state court’s holding. However, the Eleventh Circuit granted a certificate of appealability and reversed the District Court’s ruling. Alabama appealed and the Supreme Court unanimously reversed the Eleventh’s Circuit’s ruling, holding that Madison could be executed by the State of Alabama because he recognized that he would be executed as punishment for the murder he was convicted for. The Court also held that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.”

Constitutional Protections

The Eighth Amendment secures the right to be free from cruel and unusual punishment, which courts have interpreted to prohibit states from carrying out the death sentence on individuals who are not able to “rationally understand” why he/she is being punished (a standard applied by the Supreme Court in Panetti v. Quarterman). In Panetti, the Court held that a prisoner must have a rational understanding of the punishment, because without this understanding, it would undermine the purpose of executions. Nonetheless, the Supreme Court refused to set down a broad rule governing all competency determinations.

Concurrences

Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia Sotomayor all concurred with the majority opinion in Madison, noting that this case stands for a “substantial question not yet addressed by the Court.” They noted that the limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 prevented consideration of whether the death penalty may be imposed on a person who has no memory of the offense.

Justice Breyer wrote a separate concurrence, stating that this case represents the problems with the administration of the death penalty. He argued that rather than focusing on specific circumstances of aging prisoners, it would be better to call into question the constitutionality of the death penalty itself. This is not the first time that Justice Breyer has questioned the constitutionality of the death penalty. He is known for urging reconsideration of the death penalty, opining in 2016 that it is “unreliable, arbitrary and shot through with racism.”

The Death Penalty in the United States

While 16 states do not have the death penalty, as of 2015, there were still 2,881 individuals sentenced to death in 2015. Moreover, there were 26 executions and 82 removals from death sentences by means other than execution in 2015. The Department of Justice has noted, however, that death sentences seem to be on a downward trend, as this is the 15th consecutive year in which the number of inmates sentenced to death decreased.

Aging on Death Row

As of 2013, almost one third of the oldest offenders (age 65 or older) were serving sentences of life imprisonment or were awaiting the death penalty. Aging in prison will likely become a more prominent issue, as the population aged 65-84 in the U.S. will grow from 11.3% in 2010 to an estimated 16.4% in 2050. The percentage of individuals aged 85 and over is estimated to grow from 1.8% in 2010 to 4.5% in 2050.

Alzheimer’s disease, a degenerative brain disease, is common among older adults. It is the most common cause of dementia, which is characterized by decline in memory and other cognitive skills. The projected number of adults age 65 and older with Alzheimer’s disease is estimated to almost triple from 4.7% in 2010 to 13.8% in 2050.

Given these trends, it is likely that this issue will be heard by the Supreme Court again very soon.

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Sources Cited

Dunn v. Madison, No. 17-193, 2017 U.S. LEXIS 6630 (2017).

Panetti v. Quarterman, 551 U.S. 930 (2007).

Ford v. Wainwright, 477 U.S. 399 (1986).

Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017).

Ex Parte Madison, 718 So. 2d 104 (Ala. 1998).

Alzheimer’s Ass’n, 2016 Alzheimer’s Disease Facts and Figures, 5, 23 (2016).

Ann Carson & William J. Sabol, U.S. Dep’t of Just., Aging of the State Prison Population, 1993–2013, at 1, 5 (May 2016).

Sandra L. Colby & Jennifer M. Ortman, U.S. Dep’t of Com., The Baby Boom Cohort in the United States: 2012 to 2060, at 9 (May 2014).

Tracy Snell, U.S. Dep’t of Just., Capital Punishment, 2014–2015, at 1 (May 2017).

Alisa Johnson, SCOTUS Allows Execution of Prisoner with No Memory of Crime, Bloomberg BNA (Nov. 6, 2017).

Adam Liptak, Once Again, Justice Breyer Presses Case Against Death Penalty, N.Y. Times (Dec. 12, 2016).

Adam Liptak, Justices Allow Execution of Inmate Who Cannot Recall His Crime, N.Y. Times (Nov. 6, 2016).

Is Alcohol the New Tobacco?

Written By Jordan J. O’Connor

On October 25, 2017, New York City’s Metropolitan Transportation Authority (MTA) decided to ban all alcohol advertisements on its public transportation, set to take effect January 1, 2018. While this may only be a regional change, New York City’s MTA is the country’s largest transportation authority, and many people are wondering whether this will spark country-wide changes, similar to the ban on tobacco advertisements in the early 1990s.

How are these bans implemented?

Alcohol bans by transit authority have been enforced through three levels of policymaking: (1) contract requirement, (2) agency policy, and (3) government policy. Contract requirements are stated in the contract between the MTA and the advertiser. Agency policies are formally adopted by the administering body of the MTA, i.e., the board of directors. Finally, government policies are codified by the government body that has dominance over the MTA. This decision to ban alcohol advertisement on New York City’s public transportation came from the board of directors of the MTA.

New York City is, by no means, a trailblazer in this arena. Consequently, advocacy groups and opponents alike have been looking to other cities to make their best estimation as to how successful this ban will or will not be.

For example, stemming from a gubernatorial executive order, Maryland sought to prohibit alcohol advertisements on public transportation state-wide. Similarly, big cities such as Los Angeles, Boston, and Philadelphia imposed bans on alcohol advertising.

Though the aforementioned bans remain intact, two different large cities have overturned their bans. Washington D.C. overturned its ban on alcohol advertising in 2015, citing economic necessity as the reasoning. Chicago Transit Authority did the same; however, it chose to keep some restrictions in place, such as continuing to prohibit alcohol advertisements on buses and preventing alcohol advertisements from exceeding 9.99% of total advertising on the Chicago transit system at any one time.

So, is New York City’s ban a good thing?

Advocates of the ban have long compared it to tobacco ads, claiming that the advertisements are encouraging underage drinking. Alcohol ads, like the previous tobacco ads, portray typical users as attractive, young, and healthy people who like to have fun. Advocates have also argued that the ads target minority and lower-income communities, as was previously done by the tobacco companies.

In addition, one of the groups that was pushing for the ban, “Building Alcohol Ad-Free Transit,” found ad placements that it felt had the potential for sending harmful messaging to children who use the MTA as their means of transportation to school. Specifically, the group’s website displays examples, such as one where a poster for the kid-friendly movie “The Lorax” appears next to an ad for Michelob Ultra.

In contrast, opponents of the ban state that the real party affected by the ban is the alcohol industry. “Science and research show that there is no benefit to banning this type of advertising,” Jay Hibbard, vice president of government relations for the Distilled Spirits Council, said in an interview with the New York Times. “This is not advertising on school buses….This is advertising on a public transportation system.”

Opponents also argue that, statistically, New York’s underage drinking has declined by over 20 percent in the last ten years, and binge-drinking has reached an all-time low. Opponents use these and other facts to assert that it is the parents, and not the advertisements, that have the greatest influence on underage drinking.

So, will the New York City MTA ban on alcohol advertising stand the test of time, or will it crumble? Only time will tell.

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Sources Cited

Luis Ferré-Sadurní, M.T.A. Will Ban Alcohol Advertising on Buses and Subways, N.Y. Times (Oct. 25, 2017).

Danielle Furfaro, MTA will ban all alcohol advertisements from stations, N.Y. Post (Oct. 25, 2017).

Lyndsey Layton, New FDA rules will greatly restrict tobacco advertising and sales, Wash. Post (Mar. 19, 2010).

Paul Dugan, Metro board clears way for alcohol advertising in transit system, Wash. Post (Nov. 19, 2015).

E.J. Schultz, As alcohol ads sprawl elsewhere, New York buses and trains go dry, AdAge (Oct. 26, 2017).

Alcohol Justice, These Bus Ads Don’t Stop For Children: Alcohol Advertising on Public Transit (Oct. 2013).

Nixon signs legislation banning cigarette ads on TV and radio, History: This Day In History.

Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012).

Family Smoking Prevention and Tobacco Control Act, H.R. 1256, 111th Cong. (2009).

Is There Something Arbitrary about the NFL’s Arbitration Process?

Written By Tessa J. Kajdi

Background

Philadelphia Eagles lineman, Lane Johnson (“Johnson”), served a four-game suspension in 2014 for violating the National Football League’s (“NFL”) Policy on Performance-Enhancing Substances. Subsequently, during the 2016 season, Johnson was issued a 10-game ban by the NFL, which was upheld by the appointed arbitrator. This 2016 arbitration proceeding is the source of conflict between Johnson, the NFL, and the NFL Players Association (“NFLPA”). On January 6, 2017, Johnson sued both the NFL and the NFLPA in the U.S. District Court for the Northern District of Ohio. Upon a motion of the NFLPA, Johnson’s suit was moved to the U.S. District Court for the Southern District of New York in July of 2017. He subsequently filed a memorandum of law in support of his motion to vacate the arbitration award with the Southern District of New York on October 26, 2017.

In his filings, Johnson alleges that the NFLPA “disregarded the policy’s express arbitrator provisions,” and that the NFL as well as the arbitrator failed to disclose a conflict of interest between the arbitrator’s law firm and the league. Johnson alleges this failure to follow policy was a breach of duties under the Collective Bargaining Agreement (“CBA”) of the NFL and a breach of fair representation by the NFLPA. As to the NFL’s alleged breach, Johnson claims that the league failed “to allow an independent toxicologist to review Johnson’s alleged positive ‘B’ sample,” and, among other things, failed “to provide all relevant documents related to the dispute to Johnson’s attorneys for review.”

However, according to the NFLPA, Johnson “waived his objections” to the arbitrator “when consenting to him as the arbitrator.” The union contends that Johnson’s complaint should be dismissed for two additional reasons. One, Johnson knew of the arbitrator’s affiliation with a law firm that previously worked with the NFL. Two, Johnson has not proven that the arbitrator himself “worked on any of the matters the firm has handled for the NFL.”

NFL’s Policy on Performance-Enhancing Substances

The collectively-bargained NFL Policy on Performance-Enhancing Substances sets out clear provisions for “procedures in response to positive tests or other evaluation[s].” Additionally, it discusses “discipline for violations of law and other documented evidence-based violations” and shows a step-by-step process for related disciplinary actions.

Conflicting Precedents

Recently, in the NFL, there have been two methods for players challenging arbitration rulings they find unfair. The first method, evidenced by players like Tom Brady and Ezekiel Elliott, is to sue the NFL to challenge the arbitration process with the NFLPA’s support. The second and rarer method, evidenced by Mike Pennel and Lane Johnson, is to sue both the NFL and NFLPA.

In May 2015, Tom Brady was given a four-game suspension by the NFL for violating league policy. Brady and the NFLPA appealed the suspension, and the NFL agreed to have Commissioner Roger Goodell oversee the appeal. After Goodell upheld the suspension, the NFLPA and Brady sued the NFL in federal court, alleging that Goodell’s oversight was biased and violated Brady’s right for a fair arbitration hearing. The district court overturned Brady’s suspension in September 2015. However, this ruling was overturned by the Court of Appeals, which stated that Goodell was acting within his power under the CBA and, therefore, Brady was not deprived of his right to due process. Brady and the NFLPA did not appeal the decision to the Supreme Court.

Ezekiel Elliott was suspended by the NFL in August 2017 for violating the league’s domestic violence policy. Elliott appealed his suspension, and the NFL upheld it. Elliott and the NFLPA have since sued the NFL, asking for an injunction on Elliott’s suspension until the court has determined whether the NFL properly suspended Elliott. The NFL moved to dismiss the injunction request and decide the issue of whether the NFL has the power to suspend Elliott.

Mike Pennel was suspended for four games by the NFL in February 2016 for violating the NFL’s Policy on Performance-Enhancing Substances. He subsequently appealed the suspension. On November 30, 2016, Pennel sued the NFL and the NFLPA. He alleged that the NFL did not maintain a pool of three arbitrators to hear his appeal as required by the Policy on Performance-Enhancing Substances. At the time of the appeal, the NFL only had two arbitrators on the panel. The NFL added a third arbitrator after Pennel’s complaint. Subsequently, Pennel voluntarily dismissed his complaint against the NFL and the NFLPA.

Potential Impacts of Johnson’s Lawsuit

Although the NFLPA has been sued before by a player it represents, this method of challenging the arbitration process in the NFL is still uncommon. If Johnson is able to prevail on his claims against the NFL and the NFLPA, this may spark a trend in the way players challenge arbitration decisions in the future. Furthermore, Johnson’s lawsuit and its decision may affect future collective bargaining agreements between the NFL and NFLPA, in addition to influencing whether players trust the NFLPA to support them in dispute resolution.

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Sources Cited

Zachary Zagger, Union Defends NFL Arbitration In Drug Suspension Suit, Law 360, Oct. 26, 2017.

National Football League, Policy on Performance-Enhancing Substances (2016).

Marc Edelman, Lane Johnson’s New NFL Lawsuit Is Page Out Of A-Rod Playbook, Forbes, Jan. 7, 2017.

Michael McCann, Lane Johnson’s bold move to sue his own union is rare, but not unprecedented, Sports Illustrated, Jan. 11, 2017.

Ben Volin, Tom Brady officially files suit against the NFL, Boston Globe, July 29, 2015.

Zachary Zagger, NFL, Union Add Arbitrator In Drug Row, But Battles Remain, Law 360, Dec. 2, 2016.

Zachary Zagger, Packers Player Drops NFL Drug Suspension Dispute, Law 360, Dec. 19, 2016.

John Breech, Roger Goodell Will Hear Tom Brady’s Appeal; No Neutral Arbitrator, CBS Sports, May 15, 2015.

Photo courtesy of CBS Sports.

Presidential Tweeting Stirs Up Freedom of Information Act Controversy

Written By Hannah Redmond

Last week, a lawsuit was filed against the Central Intelligence Agency (CIA). The suit stems from a tweet made by President Donald J. Trump. On October 19, 2017, an investigative reporter for BuzzFeed, Jason Leopold, together with BuzzFeed, Inc., filed suit against the CIA. Their issue? The CIA failed to produce documents Leopold requested under the Freedom of Information Act (FOIA).

Background

On September 12, 2017, Plaintiffs submitted a FOIA request to the CIA generally seeking all documents, emails, Congressional correspondence, and records “mentioning or referring to CIA payments to Syrian rebels fighting Assad.” Plaintiffs received confirmation from the CIA that their request was received. However, Plaintiffs never received the information they requested.

Plaintiffs’ request was prompted by a tweet sent by President Trump on July 24, 2017. The tweet read, in full: “The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad[.]”

In July of 2017, it was widely reported that the Trump Administration ended a government program to fund “vetted Syrian rebels in the war against the regime of Bashar al-Assad.” This funding was the subject of much conversation and was generally known to the public. However, before President Trump’s tweet, it was never publically acknowledged by a government official. The program, which started under President Obama’s Administration, helped train, arm, and compensate “insurgents” to fight extremist forces such as the Assad regime. Ending the funding is akin to cutting off “non-extremist opposition to Assad in northern Syria.” Even before President Trump ended it, the covert program was not a massive operation, but a “narrow” one aimed at “apply[ing] just enough pressure to convince [Assad] to accept a political solution.”

Taking issue with the Washington Post’s representation of his involvement in ending the alleged funding, President Trump took to Twitter to accuse the newspaper of disseminating false information. Unlike some of President Trump’s other tweets, Leopold says the issue with this specific tweet is that President Trump seems to acknowledge both the existence of a United States program to make payments to Syrian rebels and his decision to end it. Plaintiffs argue that the tweet “constitutes official acknowledge[ment] that the United States had been making payments to Syrian rebels fighting Assad.” They assert this official acknowledgement waives any protection of information and documents relating to its funding, thereby requiring FOIA disclosure.

The Freedom of Information Act

Under FOIA, an agency has 20 days from the receipt of a request to determine whether or not to comply by producing the requested information. If an agency fails to comply with FOIA’s time limit provisions, the requesting party will be deemed to have exhausted their administrative remedies. They can subsequently commence an action in federal court. Because the CIA did not timely reply to Plaintiffs’ request, Plaintiffs were able to commence this present action.

Disclosure Exemptions Under FOIA

FOIA provides for several exemptions, wherein agencies are not required to release the requested information. Specifically, information that is confidential, privileged, classified to protect national security, or would invade another’s personal privacy, are among the nine codified exemptions. Here, Plaintiffs only asked for information that is not subject to an exemption. Per Plaintiffs’ interpretation, President Trump’s tweet constitutes a waiver of the exemption pertaining to matters of national security. Because President Trump publically referred to, and impliedly confirmed the existence of, a United States program aiding Syrian rebels to fight Assad, Plaintiffs argue that President Trump essentially declassified the relevant documents.

Application of FOIA to this Case

It is true that federal courts have held that “voluntary disclosure in one situation can preclude later claims that records are exempt from release to someone else.” In Nat. Res. Defense Council v. U.S. Dep’t of Defense, for instance, the court held that the Department of Defense must disclose two documents being withheld under a FOIA exemption. Because the two documents at issue were “provided to a non-government lobbying entity,” they were not exempt under FOIA. For their rationale, the court cited the oft repeated rule that voluntary disclosure waives later claims of exemption. That these documents were allegedly leaked was of no moment to the court’s decision.

Because cases like Nat. Res. Defense Council v. U.S. Dep’t of Defense tend to involve disclosure of specific information to one party, whilst denying the same information to another party, the present case may be distinguishable. The tweet in this case did not involve disclosure of any specific information to one party versus another. President Trump’s tweet may have officially acknowledged a covert government program, but the program was already widely known to exist, and the tweet offered no substantive information about the program. Furthermore, because it was a public statement, there was no selective disclosure; all the world gleaned the same information (or lack thereof) from the tweet.

Of course, this is not the first time the President has taken to Twitter to address matters of national security. However, if the CIA is compelled to disclose the requested information, the result could stir up quite the controversy.

On a related note, this is not Leopold’s first time challenging an agency’s failure to comply with his requests under FOIA. Leopold has been called a “FOIA terrorist” by media sources such as Poynter because of his reputation for compelling disclosures under FOIA. In fact, it was Leopold who sued for the release of thousands of Hillary Clinton’s emails.

Conclusion

At this point, it is unclear what the outcome of this suit will be. FOIA emphasizes making the “fullest responsible disclosure,” meaning that FOIA wants to provide parties with the information they seek whenever doing so is possible. That being said, it seems unlikely that Plaintiffs’ full request will be granted, as the requested documents are likely classified as matters of national security. When full disclosures cannot be made, FOIA requires partial disclosure of requested information—that which is not subject to one of the exemptions. With that important mandate, perhaps the court will decide the Plaintiffs are entitled to a partial victory. Only time will tell.

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Sources Cited

5 U.S.C §§ 552 (a)(3)(A), (a)(6)(A), (a)(6)(C)(i), and (b).

Complaint, Leopold et al. v. Central Intelligence Agency, (No. 1:17-cv-02176) (D.C. Oct. 19, 2017).

Chuck Stanley, BuzzFeed Says Trump Tweet Opens CIA’s Syria Docs to FOIA, LAW360 (Oct. 20, 2017, 4:35 PM).

Benjamin Mullin, BuzzFeed News hires ‘FOIA terrorist’ Jason Leopold from Vice News, Poynter (Jan. 3, 2017).

Faysal Itani, The End of American Support for Syria Rebels Was Inevitable, The Atlantic (Jul. 21, 2017).

Lieber v. Bd. of Trs. Of S. Ill. Univ., 680 N.E.2d 374, 379 (Ill. 1997) (citing Cooper v. Dep’t of Navy of U.S., 594 F.2d 484, 485­–46).

Cooper v. Dep’t of Navy of U.S., 594 F.2d 484, 485–46.

Nat. Res. Defense Council v. U.S. Dep’t of Defense, 442 F.Supp.2d 857, 866 (C.D. Cal. 2006).

The Travel Ban: Where does it stand now?

Written By Maria C. Zumpano

 

On October 10, 2017, the United States Supreme Court vacated the Fourth Circuit Court of Appeals’ judgment in Trump v. International Refugee Assistance Project and remanded it to them to dismiss as moot. So, where does the travel ban stand now?

Background

On January 27, 2017, President Donald J. Trump issued Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” commonly known as the “Travel Ban.” After the Ninth Circuit blocked that Executive Order on March 6, 2017, President Trump issued Executive Order 13780, replacing the first travel ban.

The new travel ban placed a 90-day freeze on travel to the United States from six “Muslim-majority” countries and placed a 120-day suspension for admission of refugees into the United States, effective March 16, 2017. On May 25, 2017, the Fourth Circuit upheld the Maryland District Court’s decision to block the ban.

On June 1, 2017, the Department of Justice filed separate petitions with the Supreme Court of the United States to review the Fourth Circuit’s decision and to seek stay of both the Fourth Circuit’s and Ninth Circuit’s injunctions.

On June 14, 2017, to clarify confusion on when the 90-day freeze and 120-day suspension would expire, President Trump issued a memorandum declaring “the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision[,]” thus extending the freeze and suspension to September 24, 2017.

On June 26, 2017, the Supreme Court granted certiorari and granted the stay applications in part. The Supreme Court combined the Fourth Circuit and Ninth Circuit cases for oral argument, which was scheduled to take place October 10, 2017.

Update

On September 24, 2017, President Trump issued a proclamation that continued to restrict travel to the United States. President Trump stated that he “must act to protect the security and interests of the United States” and he was committed to the “ongoing efforts to engage those countries willing to cooperate, improve information-sharing and identity-management protocols and procedures, and address both terrorism-related and public-safety risks.” President Trump commended the countries that “have made strides to improve their protocols and procedures” but noted that some countries still had inadequacies that posed significant challenges. As a result, Sudan was removed from the travel ban, but Chad, North Korea, and Venezuela were added.

Consequently, the Supreme Court cancelled the arguments scheduled for October 10, 2017, because President Trump had, in essence, created another travel ban upon the expiration of the 90-day freeze.

What does the Supreme Court’s October 10 ruling mean?

The only decision provided by the Supreme Court is its grant in part of the stay requested by the Department of Justice. By the time oral arguments were set, the provisions of the travel ban had already expired, and on September 24, 2017, a new travel ban was issued. As there was no longer a “live case or controversy,” the Supreme Court deemed the challenge to the travel ban as moot. The Supreme Court has not expressed a view on the merits one way or the other about the travel ban.

What does this mean going forward?

The Supreme Court’s order did not apply to the Ninth Circuit’s case, as the 120-day suspension of the refugee program is still in effect; however, that suspension will expire on October 24, 2017, at which time it appears that it will become moot as well.

Aside from lawsuits, there are alternatives in the works to consider what limits should be placed on new persons arriving from countries that are believed to be a threat to the United States’ security.

For example, Congress is considering the following bills:

• R. 495: Protection of Children Act of 2017;

• R. 391: Asylum Reform and Border Protection Act of 2017;

• R. 2431: Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act;

• R. 3711: Legal Workforce Act; and

• 1720: Reforming American Immigration for a Strong Economy (RAISE) Act.

Considering the foregoing, however, the new travel ban is likely to be challenged until the travel ban is finally heard by the Supreme Court and decided on the merits. It is expected that challenges to President Trump’s September 24 proclamation will soon be underway. We will have to wait and see how potential lawsuits and other alternatives will play out.

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Sources Cited

Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017).

Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017).

Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017).

Int’l Refugee Assistance Project v. Trump (Int’l Refugee I), 857 F.3d 554 (4th Cir. 2017).

Int’l Refugee Assistance Project v. Trump (Int’l Refugee II), 241 F. Supp. 3d 539 (D. Md. 2017).

Presidential Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence, WhiteHouse.gov, (June 14, 2017).

Trump v. Int’l Refugee Assistance Project (Trump I), 137 S. Ct. 2080 (2017).

Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 24, 2017).

Trump v. Int’l Refugee Assistance Project (Trump II), No. 16-1436, 583 U.S. __ (Oct. 10, 2017) (Vacating judgment in Trump I and remanding to the Fourth Circuit to dismiss as moot).

Trump v. Int’l Refugee Assistance Project (Trump III), No. 16-1436, 582 U.S. __ (Sept. 25, 2017) (Directing the parties to file briefs addressing the September 24, 2017 Proclamation and cancelling arguments, pending further order of the Court).

Amy Howe, Justices end 4th Circuit travel-ban challenge, SCOTUSblog (Oct. 10, 2017).

Andy J. Semotiuk, America Braces For Trump’s New Expanded Immigration Travel Ban, Forbes (Sept. 24, 2017).

Madness Comes Early for NCAA Division I Men’s Basketball

Written By Christina Graziadei

 

The National Collegiate Athletic Association (NCAA) men’s basketball world got an early dose of madness this year. On Tuesday, September 26, 2017, the FBI made ten arrests, including four NCAA Division I men’s basketball coaches.

  • Chuck Person – associate coach at Auburn University
  • Lamont Evans – associate head coach at Oklahoma State University
  • Emanuel “Book” Richardson – assistant coach at University of Arizona
  • Anthony “Tony” Bland – associate coach at University of Southern California

These four coaches were arrested in connection with two related fraud and corruption schemes, and they have been charged with wire fraud, bribery, travel act, and conspiracy offenses. These charges prime each coach with up to eighty years imprisonment. In addition to these individuals’ criminal charges, the schemes open each coach’s respective university up to serious potential NCAA consequences, including fines, penalties, and the loss of eligibility to compete in NCAA events.

Background

The FBI and the United States Attorney’s Office for the Southern District of New York have been investigating the criminal influence of money on student-athletes and coaches in NCAA men’s basketball for two years. During this investigation, two related schemes were uncovered: the “Coach Bribery Scheme” and the “Company-1” scheme.

The “Coach Bribery Scheme” involves advisors of athletes, who allegedly bribed assistant and associate head basketball coaches. Sometimes, with the facilitation of the coaches, the bribes were paid directly to the student-athlete. As part of the scheme, the coaches agreed to convince student-athletes to retain the services of the bribe-payors once the athletes began their professional careers in the National Basketball Association (NBA).

The “Company-1 Scheme” involved advisors of athletes working with high-level “Company-1” employees, who allegedly bribed current and prospective student-athletes and their families, in exchange for a commitment by the athletes to attend a specific university sponsored by “Company-1.” There was also a further promise to sign agreements to be represented by the bribe-payors once the student-athletes began their professional careers in the NBA.

Allegations Against Coaches

Specifically, it is alleged that Person (Auburn University) solicited over $90,000 in bribe payments from a financial advisor and business manager for professional athletes, whom he did not know was providing information to law enforcement. Person facilitated several meetings between this advisor and players and/or their families, but he did not disclose to the players that he was being bribed to recommend the advisor. It is further alleged that Person gave over $18,000 of the bribe money that he received to the families of two student-athletes that he encouraged to retain the advisor.

Similarly, Evans (Oklahoma State University) solicited at least $22,000 from the same advisor/informant, in addition to another advisor, in exchange for his agreement to steer some of his players at two NCAA Division I universities toward retaining the advisors when their professional careers began.

The complaint further alleges that Richardson (University of Arizona), received about $20,000 in bribes from the same advisor/informant, as wells as two undercover law enforcement agents posing as the advisor’s financial backers, for his promise to convince his players to retain the services of certain advisors. It is also believed that Richardson provided some bribery money to at least one high school basketball player in exchange for his commitment to attend and play for his university.

With respect to Bland (University of Southern California), it is alleged that he paid or arranged the payment of at least $13,000 in bribes, in exchange for his agreement to steer some of his student-athletes to retain certain business managers once they began their professional career. It is further alleged that Bland paid or facilitated the payment of $9,000 to the families of two student-athletes in return for setting up a meeting between the family member of the player and certain business managers to convince the player to retain their services.

What Comes Next

According to the criminal complaints filed by the U.S. Attorney for the Southern District of New York, the four coaches were charged under six sections of Title 18 of the United States Code, namely, section 371 (Conspiracy to Commit Offense or to Defraud the United States), section 666 (Theft or Bribery Concerning Programs Receiving Federal Funds), section 1343 (Fraud by Wire, Radio, or Television), section 1346 (Definition of “Scheme or Article to Defraud”), section 1349 (Attempt and Conspiracy), and section 2 (Principals).

In more recent news, the government has brought these sorts of charges and allegations against politicians who abuse their position for personal gain. However, 18 U.S.C. § 666, the federal program bribery statute, effectively turns persons working at private universities into public employees. Consequently, it is a crime for officials of any organization or agency that receives benefits in excess of $10,000 under a Federal program to accept anything of value “intending to be influenced or rewarded in connection with any business, transaction or series of transactions” of the organization employing them. Additionally, under the honest services fraud statute (18 U.S.C. § 1346), schemes to defraud include those which deprive “another of the intangible right of honest services.” It is alleged that these coaches violated this statute by profiting off of NCAA violations at the expense of their respective universities.

This complex investigation has the potential to become even more involved, with more schools being watched, and the FBI setting up a special telephone number to receive tips on other violations. While the start of the season right around the corner and future of some programs uncertain, one thing is for sure: NCAA Division I men’s basketball is in for a little extra madness this year.

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Sources Cited

Complaint, United States v. Evans, Richardson, and Bland, Sep. 25, 2017.

Complaint, United States v. Person and Michel, Sep. 25, 2017.

Peter J. Henning, Taking a New Strategy to Court in N.C.A.A. Case, N.Y. Times, Oct. 4, 2017.

Press Release, U.S. Att’y Office S.D.N.Y., U.S. Attorney Announces the Arrest of 10 Individuals Including Four Division I Coaches, For College Basketball Fraud and Corruption Schemes (Sep. 26, 2017).

Photo courtesy of NCAA.

 

 

Syngenta Settles U.S. Corn Litigation

Written By Erika Hooker

 

On Tuesday, September 26, 2017, Syngenta agreed to settle one of the largest legal battles in the company’s 17-year history.

Background

Syngenta is a Swiss-based agribusiness, with customers across the globe. In 2010, Syngenta began selling “a strain of insect-resistant GMO corn called Agrisure Viptera” in the United States, as well Agrisure Duracade, another string of GMO corn.

In the United States, the process of commercialization for seeds with GMO traits requires several approvals from different federal agencies, where representations about the new GMO trait must be made. In its petition for deregulation, Syngenta stated that the two new GMO traits would not affect the U.S. corn export markets. It also stated in its petition that applications for approval with export market countries were underway and that Syngenta would educate its growers in order to keep the seed away from markets where it was not yet approved.

In 2010 and 2013, the traits were deregulated in the United States, and the varieties containing the genes were commercialized for the growing seasons. During the 2012 and 2013 growing seasons in the U.S., Syngenta sold even more Viptera than the first year and did not require growers to implement any practices to reduce cross-pollination and contamination. Through cross-pollination, the GMO traits in Viptera contaminated corn grown by farmers who had not purchased Syngenta’s seeds. Additionally, both Viptera and Duracade corn was commingled at grain elevators and storage facilities.

Syngenta originally applied for import approval from China in 2010, but it was not granted approval until December of 2014, three years after the commercialization of Viptera. Consequently, in November of 2013, China began rejecting all corn from the U.S. containing the GMO trait, saying it was contaminated. Due to cross pollination and contamination, banned corn included even that from farmers who had not purchased Syngenta seed.

Consequently, farmers sued Syngenta, stating through their lawyers that “Syngenta negligently commercialized the seeds before obtaining import approval from China, then a major buyer of U.S. corn.”

Discussion

This major settlement, approximated to pay out close to $1.5 billion, came amid a trial in Minnesota state court in which “around 22,000 farmers were seeking $400 million.” It was also on the heels of a $218 million-dollar award to farmers in Kansas from a federal jury trial, in addition to numerous other pending lawsuits where farmers were suing Syngenta.

The affected farmers claimed that the loss of the Chinese market caused corn prices to decrease significantly in the U.S., creating significant economic harm to them. Additionally, the farmers involved in the lawsuit argued that (a) Syngenta misrepresented how it would control Viptera from contaminating other crops, (b) Syngenta commercialized Viptera, knowing China would not approve the GMO traits until sometime after the trait had entered export markets, and (c) Syngenta actively misled both farmers and grain storage companies about the importance of the Chinese market and the imminence of its approval. The farmers also claimed that Syngenta knew China was a large and growing export market for U.S. corn.

Syngenta responded by pointing to biotechnology industry lists from the years 2007 and 2009 – the years just prior to the deregulation of the GMO traits – which did not list China as a key import country for corn. Additionally, Syngenta argued that two droughts in the years leading up to the release of Viptera had increased corn prices, while a good year the same time Viptera was released set off a surplus season, dropping prices.

Ultimately, a settlement was reached. According to Syngenta spokesman Paul Minehart, the $1.5 billion dollar sum is a settlement with more than 100,000 farmers, and resolves all U.S. farmers’ litigation.

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Sources Cited

Geoff Colvin, Inside China’s $43 Billion Bid for Food Security, Fortune Finance (April 21, 2017).

In re Syngenta Litig., No. 27-CV-15-3785, 2016 Minn. Dist. LEXIS 6 (Minn. Dist. Ct. April 7, 2016).

Jef Feeley and Margaret Cronin Fisk, Syngenta Agrees to Pay More than $1.4 Billion in Corn Accord, Bloomberg Markets (Sept. 26, 2017).

Todd Neeley, Syngenta’s Viptera Corn: Trial Dates Set in 7 of 22 Class-Action Lawsuits-DTN, Ag Fax (July 10, 2017).

Photo courtesy of Farm Journal.

Illinois District Court Judge Rules Against Conditioning Grants for Sanctuary Cities

Written By Alex Grzebyk

Background

Pursuant to 34 U.S.C. 10151, the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”) supports state and local law enforcement, by providing federal funds for “personnel, equipment, training, and other criminal justice needs.” The City of Chicago has been receiving these funds since 2005, using them for things such as police vehicles and support for not-for-profits operating in high-crime areas.

In 2016, the Department of Justice notified all Byrne JAG applicants about a new condition on granting funds: all Byrne JAG applicants had to “certify compliance with all applicable federal laws[.]” One of the federal statutes in question – 8 U.S.C. § 1373 – prohibits local law enforcement and local government from “restricting the sharing of information with the Immigration and Naturalization Service (“INS”) regarding the citizenship status of any individual.” Upon a request for clarification, the Office of Justice Programs determined that 8 U.S.C. § 1373 was an “applicable federal law under the Byrne/JAG authorizing legislation.”

In July of 2017, Attorney General Jefferson Sessions placed two new conditions on grants provided by the program, often referred to as the “notice and access conditions.” The first condition involved the requirement that law enforcement provide federal immigration and customs enforcement (“ICE”) agents with “advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations.” The second condition involved the requirement that local authorities provide ICE agents with “access to City detention facilities and [the] individuals detained therein.”

On August 8, 2017, the City filed a complaint against Attorney General Sessions, seeking both injunctive and declaratory relief. Even though the City admits that it “acquiesced to the compliance condition when accepting the 2016 Byrne JAG funds,” it is still asserting that all three conditions are unconstitutional and unlawful. In the complaint, the City argued, “These conditions are inconsistent with the Byrne JAG statute itself, with the limitations imposed by the Constitution’s Spending Clause and the Fourth Amendment, and with basic separation of powers principles. Compliance with the conditions would require Chicago to violate Illinois law. And it would undermine public safety and effective policing in the City and upend Chicago’s Welcoming City policy.”

Court Case

To warrant the entry of a preliminary injunction, there are four things the City has to establish: “that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in its favor, and that an injunction is in the public interest.”

The Court granted the City’s injunction as to the two conditions imposed by Attorney General Sessions in 2017. However, the Court denied the City’s motion as to the third condition regarding compliance with federal laws.

With regard to the notice and access conditions, the Court identified three issues. “Did Congress authorize the Attorney General to impose substantive conditions on the Byrne JAG grant? If so, did Congress have the power to authorize those conditions under the Spending Clause? And finally, does Section 1373 violate the Tenth Amendment?”

The Court opined that “[t]he contours of the Executive Branch’s authority are circumscribed by statute[.]” In that vein, the City focused its argument on the statutory language of Byrne JAG to argue that “Congress did not authorize the Attorney General to place substantive conditions on the Byrne JAG grant.” Attorney General Sessions responded, using 34 U.S.C. § 10102(a)(6) to assert that Congress had granted him express authority to “‘place special conditions on all grants’ and to ‘determine priority purposes for formula grants.’”

Ultimately, the Court sided with the City’s argument, stating that “[t]he notice and access conditions…exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.” The Court refused to determine whether the notice and access conditions violated the Spending Clause, since Congress never authorized Attorney General Sessions to impose them.

Moving on to the compliance condition, Attorney General Sessions argued that 34 U.S.C. § 10153 “furnishes [him with the] authority to require a Byrne JAG applicant’s compliance with federal law, including Section 1373.” In relevant part, that statute reads that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” In response, the City argued that the word “applicable” therein should be read narrowly, only referring “to compliance with the narrow body of law governing federal grant-making.”

The Court opined that Congress intended for the grant to be included within the “applicable laws” referenced under Section 1373, refusing to apply the City’s argument that the word “applicable” should “have a narrowing effect.” Thus, any entity receiving funds is expected to certify compliance with federal law. Since the City failed to argue that it was unconstitutional under the Spending Clause, the Court did not address the issue. Instead, it turned to a Tenth Amendment analysis, finding that the condition was proper under the Tenth Amendment.

With regard to the notice and access conditions, the Court asserted that there was “no reason to think that the legal issues present in this case are restricted to Chicago.” The Department of Justice has the option to file an appeal to the 7th U.S. Circuit of Appeals with regard to this holding.

Societal Context

This case is just one spoke in the wheel of immigration policy and reform. In essence, the City of Chicago is taking a stance in the heated debate between the Trump Administration and the many sanctuary cities.

The term “sanctuary city” is used to describe cities or counties where local law enforcement agencies limit, in some fashion, their cooperation with federal immigration agencies. Generally, the purpose of these limits is to provide protection from deportation for illegal immigrants.

For example, Devin O’Malley, Media Affairs Coordinator for the Department of Justice, has stated, “By protecting criminals from immigration enforcement, cities and states with ‘so-called’ sanctuary policies make their communities less safe and undermine the rule of law.”

In contrast, the City of Chicago stated in their complaint that establishing themselves as a sanctuary city “promotes public safety by ensuring that no city resident or visitor, regardless of immigration status, is afraid to cooperate with law enforcement, report criminal activity to the police, testify as a witness in court, or seek help as a victim of crime[.]”

This is why the Byrne JAG grant has come into play. The Trump Administration has argued that the conditions imposed on the Byrne JAG grant “seek to protect communities and law enforcement[,]” thereby rebuking sanctuary cities. However, the district court’s ruling can be viewed as a stance against the Trump Administration’s attempts at undermining sanctuary cities. In the granting of the injunction, the court signaled to other sanctuary cities that its Chicago-based ruling should apply nationwide.

Nevertheless, the injunction is temporary, only blocking the Trump Administration from requiring notice and access to federal ICE agents for a short while. We have yet to see what immigration reform will come next from Congress and the Trump Administration. It is likely that this case will be appealed to the Circuit Court.

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Sources Cited

City of Chicago v. Sessions, No. 17-c-5729 (N.D. Ill. Sept. 15, 2017).

U.S. Const. art. I, § 8, cl. 1.

8 U.S.C. § 1373 (2012).

34 U.S.C. § 10151 (2012).

Edward Byrne Memorial Justice Assistance Grant Program, (last visited Sept. 25, 2017).

Matt Zapotosky, Judge Rules Justice Department Can’t Keep Grant Money From Uncooperative Sanctuary Cities, Wash. Post (Sept. 15, 2017).

Memorandum from Michael E. Horowitz, Inspector General, to Karol V. Mason, Assistant Att’y Gen. for the Office of Just. Programs (May 31, 2016).

Office of Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, (October 6, 2016).