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Tribal Criminal Jurisdiction over Non-Indians in the Violence Against Women Act (VAWA) Reauthorization and the SAVE Native Women Act [May 15, 2012]
"American Indians in general experience violent crimes at a rate much higher than the general population. This trend carries over to domestic violence: American Indian women experience domestic and dating violence at more than twice the rate of non-Indian women.2 Most of this violence involves an offender of a different race. This fact creates a jurisdictional problem because tribal courts do not have criminal jurisdiction over crimes committed within the tribe's jurisdiction by non-Indians. States generally do not have jurisdiction over such crimes either. Although such crimes are subject to federal jurisdiction, frequently overburdened federal prosecutors are not able to prosecute them. Thus, it appears that American Indian women are left with a higher risk of domestic violence and less protection than non-Indian women. Proposed amendments to the Violence Against Women Act (VAWA) contained in the Violence Against Women Act Reauthorization Act (VAWA Reauthorization) and the SAVE Native Women Act (SAVE Act) are aimed at remedying this practical jurisdictional void. These amendments would expand the inherent jurisdiction of tribal courts to include non-Indian on Indian crimes of domestic and dating violence committed within the tribes' jurisdiction. Opponents of these amendments are concerned that, under current law, tribal courts are not required to provide the identical constitutional protections to criminal defendants as state and federal courts. The bills would provide that courts exercising special domestic violence criminal jurisdiction shall provide to defendants 'all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise criminal jurisdiction over the defendant.' As discussed below, it is not clear what protections the tribes must provide to exercise this power."
Library of Congress. Congressional Research Service
Smith, Jane M.; Thompson, Richard M., II
2012-05-15
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Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses [September 6, 2012]
"The prospect of drone use inside the United States raises far-reaching issues concerning the extent of government surveillance authority, the value of privacy in the digital age, and the role of Congress in reconciling these issues. Drones, or unmanned aerial vehicles (UAVs), are aircraft that can fly without an onboard human operator. An unmanned aircraft system (UAS) is the entire system, including the aircraft, digital network, and personnel on the ground. Drones can fly either by remote control or on a predetermined flight path; can be as small as an insect and as large as a traditional jet; can be produced more cheaply than traditional aircraft; and can keep operators out of harm's way. These unmanned aircraft are most commonly known for their operations overseas in tracking down and killing suspected members of Al Qaeda and related organizations. In addition to these missions abroad, drones are being considered for use in domestic surveillance operations, which might include in furtherance of homeland security, crime fighting, disaster relief, immigration control, and environmental monitoring. […] This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2012-09-06
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Integration of Drones into Domestic Airspace: Selected Legal Issues [January 30, 2013]
"Under the FAA Modernization and Reform Act of 2012, P.L. [Public Law] 112-95, Congress has tasked the Federal Aviation Administration (FAA) with integrating unmanned aircraft systems (UASs), sometimes referred to as unmanned aerial vehicles (UAVs) or drones, into the national airspace system by September 2015. Although the text of this act places safety as a predominant concern, it fails to establish how the FAA should resolve significant, and up to this point, largely unanswered legal questions. For instance, several legal interests are implicated by drone flight over or near private property. Might such a flight constitute a trespass? A nuisance? If conducted by the government, a constitutional taking? In the past, the Latin maxim 'cujus est solum ejus est usque ad coelum' (for whoever owns the soil owns to the heavens) was sufficient to resolve many of these types of questions, but the proliferation of air flight in the 20th century has made this proposition untenable. Instead, modern jurisprudence concerning air travel is significantly more nuanced, and often more confusing. Some courts have relied on the federal definition of 'navigable airspace' to determine which flights could constitute a trespass. Others employ a nuisance theory to ask whether an overhead flight causes a substantial impairment of the use and enjoyment of one's property. Additionally, courts have struggled to determine when an overhead flight constitutes a government taking under the Fifth and Fourteenth Amendments."
Library of Congress. Congressional Research Service
Dolan, Alissa M.; Thompson, Richard M., II
2013-01-30
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Smart Meter Data: Privacy and Cybersecurity [February 3, 2012]
"Fueled by stimulus funding in the American Recovery and Reinvestment Act of 2009 (ARRA), electric utilities have accelerated their deployment of smart meters to millions of homes across the United States with help from the Department of Energy's Smart Grid Investment Grant program. As the meters multiply, so do issues concerning the privacy and security of the data collected by the new technology. This Advanced Metering Infrastructure (AMI) promises to increase energy efficiency, bolster electric power grid reliability, and facilitate demand response, among other benefits. However, to fulfill these ends, smart meters must record near-real time data on consumer electricity usage and transmit the data to utilities over great distances via communications networks that serve the smart grid. Detailed electricity usage data offers a window into the lives of people inside of a home by revealing what individual appliances they are using, and the transmission of the data potentially subjects this information to interception or theft by unauthorized third parties or hackers. Unforeseen consequences under federal law may result from the installation of smart meters and the communications technologies that accompany them. This report examines federal privacy and cybersecurity laws that may apply to consumer data collected by residential smart meters. It begins with an examination of the constitutional provisions in the Fourth Amendment that may apply to the data. As we progress into the 21st century, access to personal data, including information generated from smart meters, is a new frontier for police investigations. The Fourth Amendment generally requires police to have probable cause to search an area in which a person has a reasonable expectation of privacy. However, courts have used the third-party doctrine to deny protection to information a customer gives to a business as part of their commercial relationship. This rule is used by police to access bank records, telephone records, and traditional utility records. Nevertheless, there are several core differences between smart meters and the general third-party cases that may cause concerns about its application. These include concerns expressed by the courts and Congress about the ability of technology to potentially erode individuals' privacy."
Library of Congress. Congressional Research Service
Murrill, Brandon J.; Liu, Edward C.; Thompson, Richard M., II
2012-02-03
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Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law [December 1, 2011]
"Technology has advanced considerably since the framers established the constitutional parameters for searches and seizures in the Fourth Amendment. What were ink quills and parchment are now cell phones and the Internet. It is undeniable that these advances in technology threaten to diminish privacy. Law enforcement's use of cell phones and GPS [Global Positioning System] devices to track an individual's movements brings into sharp relief the challenge of reconciling technology, privacy, and law. [...] Legislation has been introduced in the 112th Congress that proposes to update, clarify, or, in some instances, strengthen the privacy interests protected under the law and give law enforcement a clearer framework for obtaining crucial crime-fighting information. [...] Congress is not the only branch confronting this tension between technology and privacy--the Supreme Court has granted certiorari in 'United States v. Jones', 131 S. Ct. 3064 (2011), to determine whether the Fourth Amendment's protection against unreasonable searches and seizures precludes the police from placing a GPS device on a person's vehicle without a warrant. Though the Court has dealt with similar issues in 'United States v. Knotts', 460 U.S. 276 (1983), and 'United States v. Karo', 468 U.S. 705 (1984), in 'Jones', the Court has been asked to determine what effect the prolonged, warrantless use of a tracking device has on a person's privacy interest. This report will briefly survey Fourth Amendment law as it pertains to the government's tracking programs. It will then summarize federal electronic surveillance statutes and the case law surrounding cell phone location tracking. Next, the report will describe the GPS-vehicle tracking cases and review the pending Supreme Court GPS tracking case, 'United States v. Jones'. Finally, the report will summarize the geolocation and electronic surveillance legislation introduced in the 112th Congress."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2011-12-01
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United States v. Jones: GPS Monitoring, Property, and Privacy [April 30, 2012]
"In 'United States v. Jones,' 132 S. Ct. [Supreme Court] 945 (2012), all nine Supreme Court Justices agreed that Jones was 'searched' when the police attached a Global Positioning System (GPS) device to the undercarriage of his car and tracked his movements for four weeks. The Court, however, splintered on what constituted the search: the attachment of the device or the long-term monitoring. The majority held that the 'attachment' of the GPS device and an attempt to obtain information was the violation; Justice Alito, concurring, argued that the 'monitoring' was a violation of Jones's reasonable expectation of privacy; and Justice Sotomayor, also concurring, agreed with them both, but would provide further Fourth Amendment protections. This report will examine these three decisions in an effort to find their place in the body of existing Fourth Amendment law pertaining to privacy, property, and technology. […] Although all three opinions concluded that the government's action in 'Jones' was a search, none expressly required that police get a warrant in future GPS tracking cases. (The government forfeited the argument.) Further, there is no clear indication of the level of suspicion--probable cause, reasonable suspicion, or something less--that is required to attach a GPS unit and monitor the target's movements."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2012-04-30
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Tribal Criminal Jurisdiction over Non-Indians in the Violence Against Women Act (VAWA) Reauthorization and the SAVE Native Women Act [April 18, 2012]
"Domestic and dating violence in Indian country are at epidemic proportions. However, there is a practical jurisdictional issue when the violence involves a non-Indian perpetrator and an Indian victim. Indian tribes only have criminal jurisdiction over crimes involving Indian perpetrators within their jurisdictions. Most states only have jurisdiction over crimes involving a non-Indian perpetrator and a non-Indian victim within Indian country located in the state. Although the federal government has jurisdiction over non-Indian-on-Indian crimes in Indian country, offenses such as domestic and dating violence tend to be prosecuted with less frequency than other crimes. This creates a practical jurisdictional problem. Legislation introduced in the 112th Congress, the Violence Against Women Reauthorization Act (S. 1925 and H.R. 4271) and the SAVE Native Women Act (S. 1763 and H.R. 4154), would recognize and affirm participating tribes' inherent sovereign authority to exercise special domestic violence jurisdiction over domestic violence involving non-Indian perpetrators and Indian victims occurring within the tribe's jurisdiction. It is not clear whether Congress has authority to restore the tribes' inherent sovereignty over non-members, or whether such authority would have to be a delegation of federal authority."
Library of Congress. Congressional Research Service
Smith, Jane M.; Thompson, Richard M., II
2012-04-18
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Integration of Drones into Domestic Airspace: Selected Legal Issues [April 4, 2013]
"The integration of drones into U.S. skies is expected by many to yield significant commercial and societal benefits. Drones could be employed to inspect pipelines, survey crops, and monitor the weather. One newspaper has already used a drone to survey storm damage, and real estate agents have used them to survey property. In short, the extent of their potential domestic application is bound only by human ingenuity. […] Yet, the full-scale introduction of drones into U.S. skies will inevitably generate a host of legal issues. This report will explore some of those issues. To begin, this report will describe the regulatory framework for permitting the use of unmanned vehicles and the potential rulemaking that will occur over the next few years. Next, it will discuss theories of takings and property torts as they relate to drone flights over or near private property. It will then discuss the privacy interests implicated by drone surveillance conducted by private actors and the potential countervailing First Amendment rights to gather and receive news. Finally, this report will explore possible congressional responses to these privacy concerns, discuss how the FAA [Federal Aviation Administration] has approached these concerns, and identify additional potential legal issues."
Library of Congress. Congressional Research Service
Dolan, Alissa M.; Thompson, Richard M., II
2013-04-04
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Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses [April 3, 2013]
"This report assesses the use of drones under the Fourth Amendment right to be free from unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. A reviewing court's determination of the reasonableness of a drone search would likely be informed by location of the search, the sophistication of the technology used, and society's conception of privacy in an age of rapid technological advancement. While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places including areas immediately outside the home, such as in driveways or backyards. Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people's expectations of privacy evolve."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2013-04-03
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Cybersecurity: Selected Legal Issues [April 17, 2013]
"For many, the Internet has become inextricably intertwined with daily life. Many rely on it to perform their jobs, pay their bills, send messages to loved ones, track their medical care, and voice political opinions, among a host of other activities. Likewise, government and business use the Internet to maintain defense systems, protect power plants and water supplies, and keep other types of critical infrastructure running. Consequently, the federal government's role in protecting U.S. citizens and critical infrastructure from cyber attacks has been the subject of recent congressional interest. This report discusses selected legal issues that frequently arise in the context of legislation to address vulnerabilities of private critical infrastructure to cyber threats, efforts to protect government networks from cyber threats, and proposals to facilitate and encourage sharing of cyber threat information amongst private sector and government entities. This report also provides an overview of the ways in which federal laws of these types may preempt or affect the applicability of state law."
Library of Congress. Congressional Research Service
Liu, Edward C.; Stevens, Gina Marie; Ruane, Kathleen Ann . . .
2013-04-17
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Cloud Computing: Constitutional and Statutory Privacy Protections [March 22, 2013]
"As cloud computing becomes integrated into our daily lives, a host of personal information (e.g., private communications, financial data, photographs, etc.) will be stored on a server owned by a third party. This raises privacy and security issues, including when and how government may access this information as part of a criminal or other type of investigation. This report first describes cloud computing and how it differs from traditional computing. It then describes how the Fourth Amendment and federal electronic privacy statutes apply to communications in the physical world, to Internet communications generally, and specifically to the cloud. Finally, this report surveys recent legislation and other various proposals designed to update the existing statutory framework."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2013-03-22
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Fourth Amendment Third-Party Doctrine [June 5, 2014]
"In the 1970s, the Supreme Court handed down 'Smith v. Maryland' and 'United States v. Miller', two of the most important Fourth Amendment decisions of the 20th century. In these cases, the Court held that people are not entitled to an expectation of privacy in information they voluntarily provide to third parties. This legal proposition, known as the third-party doctrine, permits the government access to, as a matter of Fourth Amendment law, a vast amount of information about individuals, such as the websites they visit; who they have emailed; the phone numbers they dial; and their utility, banking, and education records, just to name a few. Questions have been raised whether this doctrine is still viable in light of the major technological and social changes over the past several decades. […] With these legal, social, and technological trends in mind, this report explores the third partydoctrine, including its historical background, its legal and practical underpinnings, and its present and potential future applications. It explores the major third-party doctrine cases and fits them within the larger Fourth Amendment framework. It surveys the various doctrinal and practical arguments for and against its continued application. Lastly, this report describes congressional efforts to supplement legal protection for access to third-party records, as well as suggesting possible future directions in the law."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2014-06-05
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Congressional Power to Create Federal Courts: A Legal Overview [October 1, 2014]
"The United States Constitution established only one federal court--the United States Supreme Court. Beyond this, Article III of the Constitution left it to the discretion of Congress to 'ordain and establish' lower federal courts to conduct the judicial business of the federal government. From the very first, Congress established a host of different federal tribunals to adjudicate a variety of legal disputes. The two central types of federal 'courts'--courts established under Article III and those tribunals that are not--differ in many respects, including with regard to their personnel, purposes, and powers. Courts established pursuant to Article III are mainly defined by the three central constitutional provisions to which they are subject: resolution of cases that only present live 'cases or controversies,' lifetime tenure, and salary protection. The primary purpose for these safeguards was to insulate the federal judiciary from potential pressures, from either the political branches or the public, which might improperly influence the judicial decision-making process. Notwithstanding Article III's seemingly literal command that the 'judicial power' shall extend to all cases 'arising under' the Constitution or federal law, Congress has assigned a host of cases arising under federal law to non-Article III bodies. Unlike Article III judges, these bodies, generally referred to as 'non-Article III courts,' 'legislative courts,' or 'Article I courts,' enjoy neither lifetime tenure nor salary protection."
Library of Congress. Congressional Research Service
Nolan, Andrew; Thompson, Richard M., II
2014-10-01
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Criminal Offenses Enacted from 2008-2013 [June 23, 2014]
This is a Memorandum to the Crime, Terrorism, Homeland Security and Investigations Subcommittee of the House Committee on the Judiciary. The statistics found in this research were used by Steven D. Benjamin, National Association of Criminal Defense Lawyers, before the House Committee on the Judiciary Over-Criminalization Task Force regarding "The Crimes on the Books and Committee Jurisdiction" on July 25, 2014. "This memorandum provides an examination of new offenses added to the United States Code from 2008 to 2013. Four hundred and thirty nine (439) offenses were added during this period. This information was compiled by searching the LexisNexis 'United States Code Service' database using the following search strategy: history (2008 or 2009 or 2010 or 2011 or 2012 or 2013) and text (prison! or imprison! or fine! or felony or misdemeanor or (knowing! or willful! w/5violat!)). Please note, our research was limited in several ways. First, while we have made an effort to make the provided information fully inclusive, there is the possibility that some relevant statutes were not identified using our search terms. For example, our search may not include statutes that might reference another statute that details the penalty for a particular crime or statutes that might not explicitly give a penalty. Second, we did not run searches in other versions of the Code to catch potential database irregularities. Third, we did not search the 'Code of Federal Regulations' to identify regulatory crimes. Finally, we did not attempt to identify crimes that may have been enacted and eliminated during the time frame searched."
Library of Congress. Congressional Research Service
Smith, Alison M., 1962-; Thompson, Richard M., II
2014-06-23
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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate [March 21, 2014]
"Recent controversies over the nature of the government's foreign surveillance activity have prompted some to argue that the judiciary's review of government surveillance requests under the Foreign Intelligence Surveillance Act of 1978 (FISA) should be far more exacting. Accordingly, some have proposed transforming proceedings before the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review, courts created pursuant to Article III of the Constitution, into a far more adversarial process where a designated attorney or 'public advocate' actively argues in opposition of some or all of the government's foreign surveillance requests. The concept of incorporating a public advocate into FISA proceedings is a novel one, as '[p]ublic [a]dvocates do not have any identical comparators in the American legal system.' The few analogues to the FISA public advocate proposals that do exist in American law appear in contexts far removed from the typical FISA proceedings, such as an administrative agency hearing or in a state court. While the novelty of such FISA reforms does not evidence that the law is constitutionally infirm, proposals recommending that a public advocate participate in the FISA court raise several difficult constitutional questions, the resolution of which will ultimately depend on the specific language of a particular law. This report will explore the novel legal concept that is the public advocate and discuss several major constitutional issues surrounding the FISA advocate idea, highlighting relevant issues to consider, including what is the legal role of a public advocate; how a FISA advocate can be constitutionally appointed; and whether employing a public advocate before a federal court adheres to the demands of the United States Constitution."
Library of Congress. Congressional Research Service
Nolan, Andrew; Thompson, Richard M., II; Chu, Vivian S.
2014-03-21
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Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments [April 1, 2014]
"Beginning in the summer of 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each. A handful of federal courts have addressed the Fourth Amendment issues raised by the NSA telephony metadata program. FISC opinions declassified in the wake of the public's awareness of the NSA telephony metadata program have found that the program does not violate the Fourth Amendment. Similarly, in 'ACLU v. Clapper', the federal District Court for the Southern District of New York held that a constitutional challenge to the telephony metadata program was not likely to be successful on the merits. However, in 'Klayman v. Obama', the federal District Court for the District of the District of Columbia disagreed and held that there is a significant likelihood that a challenge to the constitutionality of the NSA telephony metadata program would be successful."
Library of Congress. Congressional Research Service
Liu, Edward C.; Nolan, Andrew; Thompson, Richard M., II
2014-04-01
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Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments [May 21, 2015]
"Beginning in summer 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each."
Library of Congress. Congressional Research Service
Liu, Edward C.; Nolan, Andrew; Thompson, Richard M., II
2015-05-21
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Stored Communications Act: Reform of the Electronic Communications Privacy Act (ECPA) [May 19, 2015]
"In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to both protect the privacy of an individual's electronic communications and provide the government with a means for accessing these communications and related records. Although passed at the infancy of the Internet, the Stored Communications Act (SCA), which is part of ECPA, has been interpreted over the years to cover the content of emails, private Facebook messages, YouTube videos, and so-called metadata, or non-content information, connected to our Internet transactions (e.g., websites visited, to/from and time/date stamps on emails). The scope of the SCA is determined largely by the entities to which it applies, 'electronic communication service' (ECS) providers and 'remote computing service' (RCS) providers, as defined in the statute. It does not apply to government access to records held by a party to the communication. The SCA has two core components. First, it creates a broad bar against service providers voluntarily disclosing a customer's communications to the government or others, subject to various exceptions, and second, it establishes procedures under which the government can require a provider to disclose customers' communications or records. As to government access, ECPA utilizes a tiered system with different levels of evidence required depending on whether the provider is an ECS or RCS; whether the data sought is content or non-content; whether the email has been opened; and whether advance notice has been given to the customer."
Library of Congress. Congressional Research Service
Thompson, Richard M., II; Cole, Jared P.
2015-05-19
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Police Use of Force: Rules, Remedies, and Reforms [October 30, 2015]
"Several high-profile police shootings and other law enforcement-related deaths in the United States have sparked intense protests throughout the country and a fierce debate in Congress concerning the appropriate level of force police officers should wield in a society that equally values public safety and the lives of each of its citizens under law. These incidents have been the subject of several congressional hearings, have prompted the introduction of various legislative measures, and have catalyzed a new civil rights movement in the United States aimed at reforming the criminal justice system. Reformers claim that police work too closely with local prosecutors resulting in insufficient oversight and have called for greater involvement by the federal government. The law enforcement community and its supporters have countered that these recent deaths are anomalous in otherwise exemplary police conduct, and that placing the federal government in direct regulation of state and local police would present an unwarranted intrusion into state and local affairs. To provide legal context for this debate, this report will address three overarching questions: (1) what are the constitutional rules governing an officer's use of force; (2) what role has Congress played in providing a remedy for a violation of these rules; and (3) what are the potential reforms to these rules and remedies?"
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2015-10-30
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Court-Ordered Access to Smart Phones: In Brief [February 23, 2016]
"The tension between the benefits and challenges of encryption has been an issue for law enforcement and policymakers since the 1990s, and was reinvigorated in 2014 when companies like Apple and Google implemented automatic enhanced encryption on mobile devices and certain communications systems. Companies using such strong encryption do not maintain 'back door' keys and, therefore, now cannot easily unlock, or decrypt, the devices--not even when presented with a valid legal order. Law enforcement concerns about the lack of back door keys were highlighted by the November and December 2015 terrorist attacks in Paris, France, and San Bernardino, CA. Questions arose as to whether the attackers used strong encryption and, more importantly, if they did, whether and how this might have hindered investigations. Following the December 2, 2015, terrorist attack in San Bernardino, CA,, U.S. investigators recovered a cell phone reportedly used by one of the shooters. Federal Bureau of Investigation (FBI) Director James B. Comey testified before Congress two months later, indicating that the Bureau was still unable to access the information on that device. On February 16, 2016, the U.S. District Court for the Central District of California ordered Apple to provide 'reasonable technical assistance to assist law enforcement agents in obtaining access to the data' on the cell phone."
Library of Congress. Congressional Research Service
Finklea, Kristin M.; Thompson, Richard M., II; Jaikaran, Chris
2016-02-23
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'Mens Rea' Reform: A Brief Overview [April 14, 2016]
"Criminal justice reform has played a major role in the congressional agenda over the past several Congresses, with sentencing reform bills making up the majority of the legislative action on this issue. However, some reformers have also highlighted the need to strengthen the 'mens rea' requirements in federal law. 'Mens rea', Latin for 'guilty mind,' is the mental state the government must prove to secure a conviction. For instance, some laws require that the prosecution demonstrate that the defendant 'intentionally' have committed the act in question--that is, committing the act with the conscious desire for the harmful conduct to occur--while others require that the act be done 'knowingly' or with 'reckless disregard' of the harm it may pose. Some modern statutes require no 'mens rea' at all; these are commonly referred to as strict liability offenses. Unlike the Model Penal Code, which includes four categories of 'culpability' or moral blameworthiness, the Federal Criminal Code, found largely in Title 18, does not create uniform mens rea standards. Instead, each statute may or may not contain a mens rea element depending on the statute. Supplementing the statutory text, the Supreme Court has developed a set of presumptions to apply when a mens rea term is omitted. However, the Court has applied these rules in a somewhat ad hoc fashion depending on a variety of factors, including the origin of the offense in question (e.g., common law or statutory); the severity of the penalty imposed; and the purpose behind the law (e.g., penal or regulatory)."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2016-04-14
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41 of the Rules of Criminal Procedure [September 8, 2016]
"With the Rules Enabling Act, Congress granted to the Supreme Court the authority to write federal rules of procedure, including the rules of criminal procedure. After several years of evaluation by the Judicial Conference, the policy-making arm of the federal judiciary, on April 28, 2016, the Supreme Court transmitted to Congress proposed changes to Rule 41 of the Federal Rules of Criminal Procedure. These proposed changes would amend the federal search and seizure rules in two ways. First, they would permit the government to remotely access electronic devices although the location of the device may be unknown. This issue has become more pressing in recent years with an increasing number of users anonymizing their communications, hindering the government's ability to pinpoint the location of the target, and thus making it difficult to discern the appropriate federal court to apply for a search warrant. Second, they would permit DOJ [Department of Justice] to search multiple computers in numerous districts as part of a large-scale investigation of computer crimes. In recent years, a tension has arisen between Rule 41 as currently drafted and the Department of Justice's (DOJ's) desired use of the rule for digital searches. [...] This report provides a brief overview of the proposed amendment to Rule 41. First, it provides background on the origin of, and rationale underlying, the proposed amendment and a description of the rule as currently written. Second, it reviews the potential changes made by the proposed amendment and surveys various concerns commenters have raised with the proposal."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2016-09-08
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41 of the Rules of Criminal Procedure [June 29, 2016]
"With the Rules Enabling Act, Congress granted to the Supreme Court the authority to write federal rules of procedure, including the rules of criminal procedure. After several years of evaluation by the Judicial Conference, the policy-making arm of the federal judiciary, on April 28, 2016, the Supreme Court transmitted to Congress proposed changes to Rule 41 of the Federal Rules of Criminal Procedure. These proposed changes would amend the federal search and seizure rules to permit the government to remotely access electronic devices although the location of the device may be unknown. This issue has become more pressing in recent years with an increasing number of users anonymizing their communications, hindering the government's ability to pinpoint the location of the target, and thus making it difficult to discern the appropriate federal court to apply for a search warrant. […] This report provides a brief overview of the proposed amendment to Rule 41. First, it provides a background on the origin of, and rationale underlying, the proposed amendment and a description of the rule as currently written. Second, it reviews the potential changes made by the proposed amendment and will survey various concerns commenters have raised with the proposal. Lastly, this report addresses efforts being made in Congress to alter, delay, or stop this rule change."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2016-06-29
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Encryption: Selected Legal Issues [March 3, 2016]
"This report first provides background to the ongoing encryption debate, including a primer on encryption basics and an overview of Apple, Google, and Facebook's new encryption policies. Next, it will provide an overview of the Fifth Amendment right to be free from self-incrimination; survey the limited case law concerning the compelled disclosure of encrypted data; and apply this case law to help determine if and when the government may require such disclosures. The next section of the report will provide background on the All Writs Act; explore both Supreme Court and lower court case law, including a discussion of 'United States v. New York Tel. Co.'; and apply this case law to the San Bernardino case and potential future requests by the government to access a locked device."
Library of Congress. Congressional Research Service
Thompson, Richard M., II; Jaikaran, Chris
2016-03-03
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Domestic Drones and Privacy: A Primer [March 30, 2015]
"It has been three years since Congress enacted the FAA Modernization and Reform Act of 2012 (FMRA), calling for the integration of unmanned aircraft systems (UAS), or 'drones,' into the national airspace by September 2015. During that time, the substantive legal privacy framework relating to UAS on the federal level has remained relatively static: Congress has enacted no law explicitly regulating the potential privacy impacts of drone flights, the courts have had no occasion to rule on the constitutionality of drone surveillance, and the Federal Aviation Administration (FAA) did not include privacy provisions in its proposed rule on small UAS. […] There are two overarching privacy issues implicated by domestic drone use. The first is defining what 'privacy' means in the context of aerial surveillance. Privacy is an ambiguous term that can mean different things in different contexts. This becomes readily apparent when attempting to apply traditional privacy concepts such as personal control and secrecy to drone surveillance. Other, more nuanced privacy theories such as personal autonomy and anonymity must be explored to get a fuller understanding of the privacy risks posed by drone surveillance. […] The second predominant issue is which entity should be responsible for regulating drones and privacy. As the final arbiter of the Constitution, the courts are naturally looked upon to provide at least the floor of privacy protection from UAS surveillance, but as will be discussed in this report, under current law, this protection may be minimal. In addition to the courts, the executive branch likely has a role to play in regulating privacy and drones. While the FAA has taken on a relatively passive role in such regulation, the President's new privacy directive for government drone use and multi-stakeholder process for private use could create an initial framework for privacy regulations."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2015-03-30
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Asset Forfeiture: Selected Legal Issues and Reforms [February 2, 2015]
"From its beginning in the First Congress, Congress has viewed asset forfeiture as an integral part of federal crime fighting: It takes contraband off the streets, ensures that 'crime doesn't pay,' and deprives criminals of their 'tools of the trade.' In short, asset forfeiture is the process of confiscating money or property from a person because it is illegal to possess, it constitutes proceeds of a crime, or it was used to facilitate a crime. Asset forfeiture became a major tool in combating organized crime, drug trafficking, and other serious federal offenses throughout the mid-to-late 20th century and continues to play a major role in federal prosecutions. In recent years, however, there has been growing opposition to the expanding scope of asset forfeiture, both civil and criminal, with objections primarily coming in two forms: procedural and structural. The procedural objections are based on the idea that the current rules pertaining to asset forfeiture heavily favor the government. […] With these proposals in mind, this report will provide an overview of selected legal issues and reforms surrounding asset forfeiture, including the burden-of-proof standard and innocent-owner defense in civil asset forfeiture cases, access to counsel in both civil and criminal forfeiture cases (including a discussion of the 2014 Supreme Court asset forfeiture decision 'Kaley v. United States'), allocation of profits from confiscated assets, and DOJ's [Department of Justice] equitable sharing program."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2015-02-02
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Can the President Pardon Contempt of Court? Probably Yes. [August 10, 2018]
"Few provisions in the U.S. Constitution grant the President an authority as free from legislative constraint as the Pardon Clause. It vests the President 'plenary' power to grant 'Reprieves and Pardons' for 'offences against the United States.' Plainly put, the President can 'forgive' those facing criminal liability under federal law. While the pardon power has been wielded in numerous instances throughout American history, there is limited case law interpreting it. This lack of judicial guidance, coupled with relatively limited discussion of the pardon power at the Constitutional Convention in Philadelphia, has beget various unsettled legal questions concerning the pardon power's scope and breadth. For instance, whether the President may issue a self-pardon has been the subject of conflicting views and debate."
Library of Congress. Congressional Research Service
Thompson, Richard M., II
2018-08-10
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Introducing a Public Advocate into the Foreign Intelligence Surveillance Act's Courts: Select Legal Issues [October 25, 2013]
"Recent revelations about the size and scope of government foreign surveillance efforts have prompted some to criticize the level of scrutiny that the courts - established under the Foreign Intelligence Surveillance Act of 1978 (FISA) - currently provide with respect to the government's applications to engage in such surveillance. In response to concerns that the 'ex parte' nature of legal positions, some have proposed establishing an office led by an attorney or 'public advocate' who would represent the civil liberties interests of the general public and oppose the government's applications for foreign surveillance. The concept of a public advocate is a novel one for the American legal system, and, consequently the proposal raises several difficult questions of constitutional law. […] Other constitutional questions are prompted by FISA public advocate proposals. For example, separation of powers concerns that no branch should aggrandize itself at the expense of a co-equal branch may also prevent a public advocate from being housed within the judicial branch. Likewise, Article III of the Constitution may present an obstacle to efforts that would make appeals of FISA court decisions more frequent. This report will explore all of these difficult constitutional issues prompted by the idea of including a new adversary in FISA court proceedings."
Library of Congress. Congressional Research Service
Chu, Vivian S.; Thompson, Richard M., II; Nolan, Andrew
2013-10-25
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Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes [August 26, 2014]
"Recent disclosures concerning the size and scope of the National Security Agency's (NSA) surveillance activities both in the United States and abroad have prompted a flurry of congressional activity aimed at reforming the foreign intelligence gathering process. While some measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court that hears applications and grants orders approving of certain foreign intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a court that reviews rulings of the FISC. This report will explore a selection of these proposals and address potential legal questions such proposals may raise. […] This report begins with an overview of both the FISC and the FISA Court of Review, including the jurisdiction of these courts, how the judges are appointed, and the FISC's practices and procedures for reviewing and issuing surveillance orders. The report then discusses the scope and underlying legal principles behind congressional regulation of the procedures of the federal courts, and applies those principles with respect to the various proposals to reform the FISA judicial review process."
Library of Congress. Congressional Research Service
Thompson, Richard M., II; Nolan, Andrew
2014-08-26
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Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes [January 16, 2014]
"Recent disclosures concerning the size and scope of the National Security Agency's (NSA's) surveillance activities both in the United States and abroad have prompted a flurry of congressional activity aimed at reforming the foreign intelligence gathering process. While some measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court that hears applications and grants orders approving of certain foreign intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a court that reviews rulings of the FISC. This report will explore a selection of these proposals and address potential legal questions such proposals may raise. […] While Congress has significant constitutional power to govern the practice and procedure of the federal courts, including the two foreign intelligence courts, it is unclear whether setting these voting rules falls within that power or, conversely, whether it may intrude upon the core judicial function of these federal tribunals. Some could argue that creating a higher voting threshold could pose a risk of interfering with the independence of these courts. However, changing the voting rules could also be seen as not mandating that a court reach certain conclusions and could appear to leave the ultimate decision-making authority with the FISA judges."
Library of Congress. Congressional Research Service
Nolan, Andrew; Thompson, Richard M., II
2014-01-16
