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CONSTITUTIONAL LAW E-mail user has privacy expectation as to e-mail Electronic mail users have a reasonable expectation of privacy as to the content of their e-mail, the 6th U.S. Circuit Court of Appeals ruled on June 18. Warshak v. U.S., No. 06-4091. During its investigation of Steven Warshak for mail and wire fraud, the U.S. government secured a sealed court order allowing it to seize Warshak’s e-mail from NuVox Communications Inc., his Internet service provider (ISP). The order, issued under 18 U.S.C. 2703, which is part of the Stored Communications Act, prohibited NuVox from notifying Warshak of the order. Later, Warshak filed a civil suit saying that compelled disclosure of his e-mail violated his Fourth Amendment rights. An Ohio federal court granted a preliminary injunction for Warshak, finding that the same expectation of privacy attaches to e-mail as to sealed letters. Thus, law enforcement officials must obtain a warrant, based on a showing of probable cause, in order to search e-mail. The court deemed the constitutional flaws of the law “facial in nature,” and agreed preliminarily to enjoin additional seizures of e-mails from an ISP account of any resident of the Southern District of Ohio without notice to the account-holder and an opportunity for a hearing. The 6th Circuit affirmed as modified, expanding the injunction to prohibit the government from seizing personal e-mail without either providing the account-holder or subscriber prior notice and an opportunity to be heard, or making a fact-specific showing that the account-holder had no expectation of privacy with his ISP, a standard closer to probable cause. Like telephone conversations, “simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished.”   Full text of the decision CRIMINAL PRACTICE Restitution order can be imposed long after prison The federal government may use liens to enforce restitution orders imposed in criminal sentences, even years after imprisonment is over, the 5th U.S. Circuit Court of Appeals held on June 19 on an issue of first impression. Ridgeway v. U.S., No. 06-30269. In 1992, David Ridgeway pleaded guilty to 22 fraud-related counts. In 1993, he was sentenced to four years of imprisonment and three years of supervised release and ordered to pay a $50,000 fine. He also was ordered to pay $100,000 in restitution to the Louisiana Insurance Guaranty Association. At the end of supervised release, Ridgeway voluntarily executed a note with the association agreeing to pay at least $100 per month until his debt was paid. In 2004, the U.S. government filed a notice of lien against Ridgeway’s property for $150,000, the total of the fine plus the restitution. Ridgeway contested the lien, arguing that it was the association, not the government, that was authorized to collect restitution. He filed a motion to set aside the lien and block further collection. A Louisiana federal judge denied the motion. The 5th Circuit affirmed, holding that the federal government was authorized to file the lien despite the note with the association. The court rejected Ridgeway’s argument that, under 18 U.S.C. 3663, the restitution payment period is limited to five years after imprisonment, finding that the law limits when payments are due, not when they can be collected. The court rejected Ridgeway’s claim that his debt was to the association, not the government. The association could waive its rights to collect overdue restitution, but “it could not waive the Government’s authority to collect restitution, as that bears uniquely on the State’s right to administer punishment.” ENVIRONMENTAL LAW U.S. needs to prove oil spill law is pre-empted Evidence must be taken to determine whether federal law pre-empts provisions of a Massachusetts statute concerning oil spills, the 1st U.S. Circuit Court of Appeals held on June 21. U.S. v. Commonwealth of Massachusetts, No. 06-2362. After a catastrophic Buzzards Bay oil spill in 2003, Massachusetts enacted the Massachusetts Oil Spill Prevention Act, which attempts to reduce oil spills and ensure that adequate resources are available to remedy spills. The federal government filed suit to enjoin enforcement of several provisions of the statute, arguing that they are pre-empted by the federal Ports and Waterways Safety Act and related U.S. Coast Guard regulations. Without taking any evidence, a Massachusetts federal court granted judgment on the pleadings to the federal government and permanently enjoined all of the challenged provisions. The commonwealth appealed as to three provisions: an enhanced manning requirement for tank barges and tow vessels in Buzzards Bay, a tug-escort requirement for certain waters, and a requirement that certain vessels have a certificate of financial assurance. The 1st Circuit vacated and remanded on the ground that the district court had failed to adhere to the analytical structure the U.S. Supreme Court requires for resolution of federal-state conflicts. On the manning requirement, overlap analysis is necessary before a court can find pre-emption as a matter of law. On the tug-escort requirement, the parties must address whether the Coast Guard had sufficiently expressed a clear intent to pre-empt the state tug-escort provisions. As to the state’s financial assurance statute, Congress has expressly saved the states’ power to establish liability rules and related requirements. The government had not met its burden of demonstrating that the statute is not within the powers reserved to the states. FAMILY LAW Social workers’ acts in court case get immunity Social workers who reported erroneously that a mother had abused her child had absolute immunity for their statements in court petitions, the 9th U.S. Circuit Court of Appeals held on June 25. Beltran v. Santa Clara County, No. 05-16976. Coby Beltran, a minor, suffered from an undiagnosed and unsuccessfully treated bowel motility problem that caused him to have a dangerously low weight. Santa Clara County, Calif.’s Child Protective Services Department received four different referrals about the child’s condition, as well as suspicions that the child’s mother, Lori Beltran, suffered from Munchausen Syndrome by Proxy, a condition in which parents injure their children in order to gain attention. A county investigator, Melissa Suarez, concluded that the child was being abused and had him removed from his parents’ home. The Beltrans sued the county, Suarez and her supervisor under 42 U.S.C. 1983, arguing that the county had violated their privacy and other rights. A California federal court dismissed the suit, holding that Suarez and her supervisor had absolute immunity. Affirming, the 9th Circuit held that social workers were entitled to absolute immunity for their statements in court petitions. The court said, “In holding that the social workers are immune for their actions in this case, we are not granting social workers absolute immunity for ‘everything they do’ . . . .[S]ocial workers are not entitled to absolute immunity for their actions relating to the maintenance and care of children in state custody . . . .[W]e afford absolute immunity to social workers only for those actions that are closely connected to the judicial process.” GOVERNMENT FEMA should disclose aid recipients’ addresses Under the Freedom of Information Act, federal officials must make public the addresses, but not the names, of Florida residents who received financial disaster aid, the 11th U.S. Circuit Court of Appeals held on June 22. The News Press v. U.S. Dept. of Homeland Security, No. 05-16771. The Federal Emergency Management Agency (FEMA) disbursed $1.2 billion in individual disaster assistance to more than 605,500 Floridians and paid claims to 33,000 individuals whose structures were insured under FEMA’s National Flood Insurance Program. Questions arose concerning possible fraud and waste involving the payments, spurring investigations by federal authorities. Several Florida newspapers collectively asked FEMA to provide under the Freedom of Information Act (FOIA), disbursement data for all four 2004 hurricanes plus another 27 disasters going back 10 years. FEMA provided the data but redacted names and addresses, claiming that disclosure invaded the recipients’ privacy and thus was subject to disclosure exemptions under FOIA. The redactions were challenged in Florida federal courts. The 11th Circuit consolidated the cases, and ruled that the addresses are not exempt from disclosure. The court said, “In light of FEMA’s awesome statutory responsibility to prepare the nation for, and respond to, all national incidents, including natural disasters and terrorist attacks, there is a powerful public interest in learning whether, and how well, it has met this responsibility. Plainly, disclosure of the addresses will help the public answer this question by shedding light on whether FEMA has been a good steward of billions of taxpayer dollars . . . and we cannot find any privacy interests here that even begin to outweigh this public interest” However, names are exempt from disclosure because they are of “only minimal additional public interest.” IMMIGRATION LAW No need for clear proof of persecution for asylum A man can qualify for asylum on the well-founded fear that his wife would be persecuted under China’s “coercive population control policy,” the 3d U.S. Circuit Court of Appeals ruled on June 20 in a matter of first impression. Chen v. Attorney General, No. 05-4011. Sun Wen Chen and Wen Hui Gao both entered the country illegally. Before they married and had a child, their asylum petitions had been rejected. Their cases were consolidated for immigration court, before which Chen sought asylum based on his fear that his wife would be persecuted under China’s population-control policy because the couple hoped to have more children. The immigration judge granted them asylum, ruling that Chen could stand in his wife’s shoes to bring his asylum claim. The Board of Immigration Appeals (BIA) reversed, finding that Chen had not met his burden of proof, because he did not “submit any evidence specifically addressing the treatment of children born outside of China.” The 3d Circuit reversed, holding that in many cases, forced abortion or involuntary sterilization of one spouse will directly affect the reproductive opportunities of the other spouse. The BIA was wrong to require Chen to demonstrate his fear with absolute certainty. On remand, the BIA “must address the degree of uncertainty that Chen may face persecution; it is not enough to find that some uncertainty exists.” MEDIA LAW Pretrial exhibits are part of public judicial record An audiotape played at a preliminary hearing is a public judicial record to which the media have a presumptive common law right of access, the Pennsylvania Supreme Court ruled on June 20. Commonwealth v. Upshur, No. J-60-2007. Jamie Lynn Upshur was prosecuted for criminal homicide. During a preliminary hearing, the government played an audiotape of a phone call in which Upshur could be heard making threatening statements directed toward one of her alleged victims. A WPXI-TV reporter asked the judge at the preliminary hearing for a copy of the tape. The judge denied the request, and WPXI Inc. moved to intervene in a trial court, arguing the public had a right to a copy of the tape. The trial court issued an order granting the TV station access to the tape, but an intermediate appellate court reversed, ruling that the tape was not a public judicial record because it had not been entered into evidence as part of the record. The Pennsylvania Supreme Court reversed, holding that public access to preliminary hearing exhibits “serve to promote fairness from the outset of criminal proceedings.” But courts may deny access in some cases, provided they hold hearings, inspect the exhibits in camera and place specific findings in the record.

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