The U.S. Department of Justice certainly wasn't eager to publicly share a 2011 opinion by the Foreign Intelligence Surveillance Court that found the government violated the Fourth Amendment in sweeping up tens of thousands of Americans' emails. The government fought a Freedom of Information Act lawsuit to keep it secret.
Last week, the Obama administration released the 85-page opinion — written by U.S. District Judge John Bates — amid efforts to convince the public that self-policing and court oversight protect personal privacy.
What does the ruling say? The court concluded the National Security Agency unlawfully scooped up wholly domestic communication not related to the foreign targets of surveillance. Top intelligence agency lawyers last week said the NSA was unable to filter out Americans' data.
"The court is troubled that the government's revelation regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program," Bates wrote. The government has since purged the communications.
The advocacy group Electronic Frontier Foundation, which sued to obtain a copy of the ruling, called the disclosure "one step in advancing a public debate on the scope and legality of the NSA's domestic surveillance programs." — Mike Scarcella
MAKE THAT TWO SONS OF JUSTICES AT GIBSON
After a year clerking for a judge on the U.S. Court of Appeals for the D.C. Circuit, Philip Alito, son of U.S. Supreme Court Justice Samuel Alito Jr., will begin as an associate at Gibson, Dunn & Crutcher this fall. The young Alito joins a firm that has one of the most active Supreme Court practices anywhere.
"Phil Alito is a smart, talented and hard-working young lawyer with impressive credentials," Thomas Dupree Jr., hiring partner at Gibson Dunn's Washington office, said. "We are delighted that he has chosen to begin his career with Gibson Dunn and look forward to welcoming him this fall."
Because of the firm's active Supreme Court practice, the hire will raise ethical issues for Justice Alito, at least when and if Philip Alito becomes a partner. Alito, who clerked for Judge Brett Kavanaugh on the D.C. Circuit, will find a kindred spirit in another son of a justice at the firm: Eugene Scalia, son of Justice Antonin Scalia and a long-time Gibson litigation partner in Washington. — Tony Mauro
EYES ON 'BIG DATA'
Federal Trade Commission Chairwoman Edith Ramirez last week put U.S. companies that house vast amounts of consumers' personal data on notice: A privacy lifeguard is on duty. Speaking at the Technology Policy Institute's annual conference in Aspen, Colo., Ramirez said the FTC is keeping a close eye on "big data" companies and is ready to take action when consumer privacy is under threat. "The FTC recognizes that the effective use of big data has the potential to unleash a new wave of productivity and growth," Ramirez said in her prepared remarks. "Like the lifeguard at the beach, though, the FTC will remain vigilant to ensure that while innovation pushes forward, consumer privacy is not engulfed by that wave." The FTC also is pushing Congress for the power to secure civil penalties against businesses that "fail to maintain reasonable security" for consumer data, Ramirez said. Additionally, the agency is urging Congress to pass "baseline privacy legislation" that would increase transparency about companies' collection of user information, among other goals, she said. — Andrew Ramonas
Nominees to the U.S. Court of Appeals for the D.C. Circuit face some nasty partisan rancor in the Senate confirmation process, but it seems tame compared to Richard Nixon's private strategy on judicial selection. The most recently released audio recordings from the White House and Camp David from 1973 — about 340 hours — contain the kind of salty, profane and anti-Semitic language that has punctuated previously released Nixon tapes, according to NBC News. Nixon discusses future judicial nominations during a July 12, 1973, conversation with chief of staff Al Haig, according to the reporters who reviewed the tapes. Nixon insisted on finding "meanest right-wing" nominees and says, "No Jews. Is that clear? We've got enough Jews. Now if you find some Jew that I think is great, put him on there." That sort of attitude might be relegated to history, but politics are still very much alive in the nomination and confirmation process — now with President Barack Obama's three picks for the D.C. Circuit. The confirmation hearing for Akin Gump Strauss Hauer & Feld partner Patricia Millett turned into a sort of open discussion of the long-running feud when it comes to judicial appointments. — Todd Ruger
After two years of hard-fought litigation, including a unanimous victory before the U.S. Supreme Court, the Federal Trade Commission last week ended its challenge to the merger of two hospitals in Georgia on a distinctly anticlimactic note.
The agency settled the case under terms that change, well, just about nothing. What the FTC wanted was to break up the consummated merger. But state regulators determined there were already too many hospital beds in the Albany, Ga., area, and weren't likely to approve any divestiture. That left the FTC with few remedies, except to require the hospital to report all future deals to the commission and promise not to oppose potential competitors.
Still, the FTC did win on principle, securing a Supreme Court ruling with implications for antitrust enforcement in general. The Supreme Court "unanimously reined in overbroad application of state action immunity and allowed federal antitrust review of this merger," said Bureau of Competition chief Deborah Feinstein. "Regrettably, that legal victory will not undo the acquisition's clear harm to competition." — Jenna Greene
The fight over public access to post-mortem images of Osama bin Laden last week headed to the U.S. Supreme Court, where the justices were asked to review an appellate court's ruling that allowed the government to keep certain depictions of the terror leader secret. The plaintiff in the Freedom of Information Act suit, Judicial Watch, lost in the U.S. Court of Appeals for the D.C. Circuit earlier this year. The panel, which included now-Chief Judge Merrick Garland, said, "The government is withholding the images not to shield wrongdoing or avoid embarrassment, but rather to prevent the killing of Americans and violence against American interests." Judicial Watch lawyer Michael Bekesha said in the high court petition that before the D.C. Circuit ruled in May, "no court had ever held that speculative, unspecific violence harms the national defense of the United States." Bekesha wrote: "It can be argued that although any attack on U.S. interests or citizens is regrettable and unfortunate, not every such event causes exceptionally grave damage to the nation's national defense of foreign relations." — Mike Scarcella
VOTING RIGHTS FIGHT
The U.S. Department of Justice announced two legal actions that will make Texas the battleground over voter rights enforcement — and the spot where Attorney General Eric Holder Jr. makes a stand for the weakened Voting Rights Act of 1965. The Justice Department filed a new lawsuit on August 22, under Section 2 of the VRA, against Texas over the state's voter photo-identification law. The suit, in the Southern District of Texas, alleges the state purposely adopted the voter ID law to deny or abridge "the right to vote on account of race, color, or membership in a language minority group." And the Justice Department is moving to intervene in a pending case concerning the state's new redistricting plans, a move that will allow the government to formally present evidence about the law's purpose and effect. That second complaint also requests that the court order that Texas be "bailed-in" under Section 3(c) of the VRA, which would require the state to secure preclearance from the Justice Department or the federal district court in Washington for such law changes. — Todd Ruger
Since the start of the year, Miles & Stockbridge has added 13 attorneys to its intellectual property practice, including seven last week. The recent laterals, who focus on life sciences, come from Baker, Donelson, Bearman, Caldwell & Berkowitz. The growth reflects a natural progression of both client demands and the demand for IP legal services. "We have never tried to force an IP group," Miles chairman John Frisch said. Susan McBee, who joins Miles as a principal, said that intellectual property practices were largely unaffected by the recession because clients still need to protect their assets. "A very important asset for [research and development] companies is their intellectual property," McBee said. "Even a single patent or a patent family can be worth millions of dollars." — Matthew Huisman