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Legal news from Monday, June 22, 2009

Google executives face criminal defamation trial in Italy
Christian Ehret on June 22, 2009 3:01 PM ET

[JURIST] Executives from Google, Inc. will go on trial Tuesday in Italy for criminal defamation arising out of Google Video [corporate websites] content depicting a disabled boy being teased and bullied. The defendants include [Financial Times report] product marketing manager Arvind Desikan, former CFO George Reyes, chief legal officer David Drummond, and privacy executive Peter Fleischer. The charges, which also include breach of Italy's privacy code, could result in up to three years in prison if convictions are reached. The video, which involves a boy with Down syndrome who was teased by four others, was hosted on the streaming video site for two months before being removed. Google is defending itself [PCWorld report] on the grounds that the video was removed as soon as the company was aware of its presence and that they have fully cooperated with Italian authorities. The prosecutor alleges that the boy's privacy was violated by the company failing to prevent the posting of the video. According to Italian law, Internet content providers are responsible for third-party postings. Google has previously stated [CNET report] that "seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open Internet."

Google has been involved in litigation in the US, mainly involving copyright issues. In April, US Department of Justice (DOJ) [official website] officials began looking into [JURIST report] whether a copyright infringement settlement agreement [JURIST report] involving Google Books [corporate website] violates anti-trust laws. The two lawsuits that resulted in the settlement were originally brought against Google in 2005. In September 2005, the Authors Guild alleged [JURIST report] "massive copyright infringement at the expense of the rights of individual writers." The lawsuit accused Google of engaging in unauthorized scanning and copying of books through its Google Print Library Project [Google backgrounder; advocacy copyright analysis, PDF]. The other lawsuit, brought by the Association of American Publishers (AAP) [trade website] in October 2005, alleged that Google infringed copyrights [JURIST report] held by a number of publishing companies when it scanned the entire book collections of several universities to make them searchable online.

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Iran forces arrest hundreds in post-election protests
Christian Ehret on June 22, 2009 1:40 PM ET

[JURIST] Iranian forces arrested 457 people Saturday for protesting the recent presidential election [BBC backgrounder], according to state media on Monday. According to reports, at least ten people were killed in the weekend's protests. Also Monday, Iran's Guardian Council of the Constitution [official website, in Persian] spokesman Abbas-Ali Kadkhodaei said that the number of votes in approximately 50 constituencies exceeded the number of eligible voters [Financial Times report] but maintained that such a discrepancy could arise out of voters' ability to vote anywhere in the country. Reform candidate Mir Hossein Mousavi [IranTracker profile], who lost the election to President Mahmoud Ahmadinejad [BBC profile; JURIST news archive], urged people to continue their peaceful protests without being intimidated. Mousavi claims that more votes were counted than eligible voters in 170 out of 45,713 constituencies [Turkish Weekly report].

Last week, Iran's spiritual leader and highest authority Ayatollah Ali Khamenei [official profile; BBC profile], who previously ordered an investigation [JURIST report] into alleged voter fraud, called for an end to further demonstrations [CNN report] and maintained that the election was not manipulated. World leaders and human rights groups have viewed the arrests as political repression [JURIST report], saying that Iranian forces are using the protests to "engage in what appears to be a major purge of reform-oriented individuals." Calling for authorities to respect and nurture debate, Amnesty International [advocacy website] stressed [press release] Thursday that "healthy debate on issues of fundamental importance to peoples' lives" informs, rather than threatens, policy makers." Following the Ayatollah's ordered investigation, the Guardian Council of the Constitution said Tuesday that it would conduct a partial recount [JURIST report] of the disputed election results.

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Suu Kyi supporters jailed for leading prayers for her release
Christian Ehret on June 22, 2009 12:33 PM ET

[JURIST] A Myanmar court sentenced two members of the National League of Democracy (NLD) [party website] to 18 months in prison after leading prayers for the release of pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST report]. Chit Pe and Aung Saw Wei were sentenced [AP report] in a southern Yangon court after being convicted of insulting religion. NLD spokesman Nyan Win reported that the two party members, originally arrested in April, led the prayers at a Twante pagoda for Suu Kyi and other political prisoners. Win, who also acts as Suu Kyi's lawyer, maintained that their actions were not an insult to religion but rather a practice of Buddhism.

Suu Kyi's trial was recently delayed [JURIST report] to allow a defense witness to explain why the charges against the Nobel Laureate are politically motivated. Suu Kyi faces charges of violating the terms of her house arrest for allowing an American to stay with her after he swam across a lake to visit. Her arrest was controversial and highly criticized [JURIST report] by the international community. Suu Kyi, the leader of the NLD, has spent 12 of the past 18 years in prison or under house arrest for alleged violations of an anti-subversion law [text, PDF]. News of Suu Kyi's trial has been met with criticism from numerous agencies and governments around the world. Human Rights Watch (HRW) [advocacy website] has called the charges [HRW report] against Suu Kyi, "trumped up."

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Army Corps of Engineers has statutory authority to regulate dumping fill: Supreme Court
Jaclyn Belczyk on June 22, 2009 11:57 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] 6-3 Monday in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council and Alaska v. Southeast Alaska Conservation Council [Cornell LII backgrounder; JURIST report] that the US Army Corps of Engineers [official website] may issue a permit for discharge of fill material otherwise subject to limitations under Sections 301 or 306 of the Clean Water Act (CWA) [text, PDF]. The US Court of Appeals for the Ninth Circuit had held [opinion, PDF] in favor of environmental organizations, finding that petitioner corporation's request should have been considered by the Environmental Protection Agency (EPA) [official website], rather than the Corps. In reversing, Justice Anthony Kennedy wrote:

These cases require us to address two questions under the Clean Water Act. The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of mining waste, called slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska, Inc., for a discharge of slurry into a lake in Southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance withlaw. We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful.

Justice Ruth Bader-Ginsburg filed a dissenting opinion, joined by Justices David Souter and John Paul Stevens.

Petitioner Coeur sought and received a permit from the Army Corps of Engineers to dam an Alaskan lake and deposit fill material, increasing the lake's surface area. The issue arose because the Corps has authority under § 304 of the CWA to regulate fill material, but the EPA has authority to regulate pollutants.

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Supreme Court to hear sex offender commitment, Miranda cases
Christian Ehret on June 22, 2009 11:19 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in three cases. In United States v. Comstock [docket; cert. petition, PDF], the Court will consider the Congressional authority to enact a law [18 USC § 4248 text] that authorizes courts to civilly commit "sexually dangerous" persons in federal prisons whose detention is coming to an end or in the custody of the Attorney General because they were found mentally incompetent to stand trial. The US Court of Appeals for the Fourth Circuit found that the law was beyond Congress' authority [opinion, PDF; JURIST report] under the Commerce Clause [Cornell LII backgrounder] or other provisions, ruling that the federal government is limited to powers enumerated in the Constitution. Although the appellate court found the law unconstitutional, they specified that the federal government could still use its spending power to encourage state action in the area. The US government argues, in part, that Congress has a broad deference when legislating in furtherance of a legitimate end. The law was enacted as part of the Adam Walsh Child Protection and Safety Act of 2006 [text], provisions of which have been challenged before [JURIST report].

In Florida v. Powell [docket; cert. petition, PDF], the Court will consider whether a suspect must be explicitly advised of his right to counsel during custodial interrogation and whether the failure to provide such advice violates Miranda v. Arizona [opinion text]. The case arose out of Miranda warnings given to a defendant that specified a "right to talk to a lawyer before answering any of our questions" and a "right to use any these rights at any time you want during this interview." The trial court overruled the defense attorney's objection, holding that the warning was sufficient. The Florida Supreme Court ruled [opinion, PDF] the warning to be a direct violation of Miranda, finding it to be misleading enough to lead a reasonable person to conclude that he or she may only consult with an attorney before questioning.

In Graham County Soil v. United States, ex Rel. Wilson [docket; cert. petition, PDF], the Court will consider the scope of the public disclosure jurisdictional bar [31 USC § 3730(e)(4)(A) text] of the False Claims Act, to determine if the Act allows federal jurisdiction in suits based on state or local government audits and investigations. The petitioners claim that the US Court of Appeals for the Fourth Circuit erred in concluding [opinion, PDF] that a state audit does not constitute an administrative report, audit or investigation under the Act. The suit arose out of public record documents that detailed a failure to obtain bids for the clean-up and reconstruction of storm-damaged portions of North Carolina as well as a potential conflict of interest and whether or not these were publicly disclosed as per the Act.

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High court upholds tuition reimbursement for disabled children in private schools
Jaclyn Belczyk on June 22, 2009 11:18 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] 6-3 Monday in Forest Grove School District v. T.A. [Cornell LII backgrounder; JURIST report] that the Individuals with Disabilities Education Act (IDEA) [text] permits a tuition reimbursement award against a school district and in favor of parents who unilaterally place their child in private school, where the child had not previously received special education and related services under the authority of a public agency. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that such reimbursement is not barred. Affirming the decision below, Justice John Paul Stevens wrote:

we conclude that IDEA authorizes reimbursement for the cost of private special-education services when a school district fails to provide a [free appropriate public education] and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.

Justice David Souter filed a dissenting opinion, joined by Justices Antonin Scalia and Clarence Thomas.

The IDEA requires states receiving federal funding to make a "free appropriate public education" (FAPE) available to all children with disabilities residing in the state. The Court has previously held that when a public school fails to provide a FAPE and a child's parents place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the parents for the cost of the private education.

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Supreme Court upholds Voting Rights Act without reaching constitutional question
Jaclyn Belczyk on June 22, 2009 10:12 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday upheld [opinion, PDF] a controversial provision of the Voting Rights Act (VRA) [text] but avoided a constitutional question. The Court ruled 8-1 in Northwest Austin Municipal Utility District Number One v. Holder [Cornell LII backgrounder; JURIST report] that the VRA permits the appellant municipality to "bail out" from the preclearance requirement of Section 5 [DOJ backgrounder] if it can establish a history of compliance with the VRA, but declined to rule on the constitutionality of Congress's 25-year extension of the section. The US District Court for the District of Columbia had found [opinion, PDF] in favor of the federal government that the municipality could not "bail out" from the preclearance requirement. In reversing that decision, Chief Justice John Roberts wrote:

More than 40 years ago, this Court concluded that "exceptional conditions" prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements.

Justice Clarence Thomas filed an opinion concurring in part and dissenting in part. Thomas would have decided the constitutional question and found that Section 5 was unconstitutional.

Section 5 requires prior review before changes in voting laws can be enacted in certain states. Enacted in 1965, the requirements were only supposed to be in place for five years. Section 5 has since been extended several times. In 1982, Congress extended it for 25 years. The plaintiff was a municipal utility district in Texas that wanted to be exempted from the requirement and was challenging the most recent extension.

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Release of CIA interrogation report delayed another week
Christian Ehret on June 22, 2009 8:31 AM ET

[JURIST] The US government is delaying the release of a Central Intelligence Agency (CIA) [official website] interrogation report by another week, allowing for officials to determine what information to release. The special report on counter-terrorism and interrogation practices is expected to be released pursuant to a Freedom of Information Act (FOIA) [text] lawsuit [complaint, PDF] brought by the American Civil Liberties Union (ACLU) [advocacy website]. The government told the ACLU on Friday that it will need more time [ACLU press release] to decide what additional information will be disclosed beyond that which was available in the heavily-redacted version [report, PDF] released last year. The report discusses interrogation techniques such as waterboarding [JURIST news archive], Department of Justice (DOJ) [official website] legal analysis, and other issues relating to detainment and interrogation. ACLU lawyer Amrit Singh discussed the organization's reaction to the delay:

We are disappointed by the delay in the disclosure of this report which contains critical information about the illegality and ineffectiveness of the CIA's interrogation program. We can only hope that this delay is a sign that the forces of transparency within the Obama administration are winning over the forces of secrecy and that the report will ultimately be released with minimal redactions. The CIA should not be permitted to use national security as a pretext for suppressing evidence of its own unlawful conduct. The American people have a right to know the full truth about the torture program that was authorized in their name.
US attorney Lev Dassin responded [letter, PDF] to Singh, discussing the government's plans and setting a date for release:
Given the need for inter-agency review of the re-processed document, however, we will need additional time to make a final determination as to what additional information, if any, may be disclosed from the report. We intend to complete the re-processing of the document, and to produce any additional information that may disclosed, by June 26, 2009.
The delay of the report follows the recent controversy of other documents and materials requested by the ACLU under the FOIA. Last week, the US Senate [official website] voted unanimously to approve legislation [S 1100 materials] that seeks to prohibit the release of photos of alleged detainee abuse [JURIST news report]. The bill would carve out an exception in the FOIA for certain photographs when such disclosure would endanger US personnel. The US Court of Appeals for the Second Circuit [official website] ruled that the US government can continue to withhold photos [JURIST report] of alleged detainee abuse while it awaits a response from the US Supreme Court [official website]. The appellate-level decision followed a recent Supreme Court order [JURIST report] granting the government a 30-day extension to appeal a ruling mandating the release of the controversial photos, setting the new deadline to July 9.

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Zimbabwe rights abuses nearing 'crime against humanity': report
Tere Miller-Sporrer on June 22, 2009 7:39 AM ET

[JURIST] Torture and other human rights abuses in Zimbabwe have become so commonplace that they constitute a crime against humanity, according to a study [text, PDF] for the Centre for the Study of Violence and Reconciliation (CSVR) [advocacy website] prepared by Tony Reeler of the Harare-based Research and Advocacy Unit (RAU). Reeler synthesized data collected by numerous human rights organizations and found that regardless of the methodology employed, each group reached the same result: torture and other forms of intimidation are widespread and apparently sanctioned by the state. The study notes that the abuse has declined since a power-sharing agreement was reached between the Movement for Democratic Change (MDC) [party website] and the Zimbabwe African National Union–Patriotic Front (ZANU-PF) [party website], but that the institutionalization of abuse is an impediment to reaching a lasting peace in the country.

The RAU study follows a similar report issued [JURIST report] last week by Amnesty International (AI) [advocacy website]. That report found that Zimbabwe is still experiencing serious human rights violations [press release], such as the arrest and detention of human rights activists, and needs to confront issues that led to such problems. Last month, a Zimbabwe court released 15 human rights activists on bail, including activist and journalist Jestina Mukoko [advocacy website; JURIST news archive]. Mukoko, the director of the Zimbabwe Peace Project (ZPP) [advocacy website], was indicted with others for allegedly planning a coup against Zimbabwean President Robert Mugabe [BBC profile]. After being held without charges from December through March and allegedly tortured, Mukoko was hospitalized [Zimbabwe Times report] for the treatment of injuries sustained while in custody. While detained, it was reported that Mukoko was forced to ingest poison [JURIST report], sparking a world-wide protest against Zimbabwean police tactics.

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For more legal news check the Paper Chase Archive...


Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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