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Google Inc., Facebook Inc. and other technology giants scored a victory last week in their quest to reveal more information about the government’s demands for customer information.
On Jan. 27, the U.S. Department of Justice announced a deal that will allow tech companies to publicly disclose more categories of information about the requests they received. The agreement doesn’t permit the companies to reveal details about investigations and individual accounts.
James Cole, the deputy attorney general, announced the policy in a letter to the general counsels of Facebook, Google, LinkedIn Corp., Microsoft Corp. and Yahoo! Inc.
Under the old scheme, the companies could disclose only the numbers of requests they received and of customer accounts affected. They petitioned the Foreign Intelligence Surveillance Court for permission to disclose more fully the extent of those requests.
A number of big law firms went to bat for the tech companies, including Perkins Coie for Google, Covington & Burling for Microsoft, ZwillGen for Yahoo, Wilmer Cutler Pickering Hale and Dorr for Facebook and Munger, Tolles & Olson for LinkedIn.
Companies under the new guidelines can publicly report categories of information including the numbers of national security letters they receive requesting customer information; of surveillance court orders issued for content; of customer “selectors,” or search terms, targeted under court orders; and of customer accounts affected by national security letters.
The companies said the agreement was a “positive step,” but that they would continue to press Congress for additional reforms. — Zoe Tillman
OBAMA TAKES SWIPE AT JUSTICES—INDIRECTLY
It’s no secret the Obama administration wasn’t pleased when the U.S. Supreme Court last June struck a key provision of the Voting Rights Act. President Barack Obama last week took a shot — a passing one — at the justices. During his State of the Union address, Obama noted: “Last year, part of the Voting Rights Act was weakened.”
Obama didn’t mention the case name — Shelby County, Ala. v. Holder. He didn’t mention the U.S. Supreme Court, either. For the record: The opinion’s author — Chief Justice John Roberts Jr. — was one of five justices who attended the speech.
Obama’s use of passive voice was in contrast to his rebuke of the justices during the State of the Union address in 2010. Obama more directly criticized the justices for their divided ruling in Citizens United v. Federal Elections Commission. In his remarks — prefaced by “with all due deference to separation of powers” — the president said the “Supreme Court reversed a century of law that I believe will open the floodgates for special interests.” — Todd Ruger
The new year has begun with sadness at Georgetown University Law Center. Two of its best-known faculty members died in January: election law expert Roy Schotland and Barry Carter, who specialized in international law. Dean William Treanor said Schotland’s enthusiasm for tackling tough issues such as campaign finance reform “will endure as an example to us all.” Treanor said Carter “represented the very best of our faculty.” Colleague Paul Rothstein called Carter “a world figure, a superb family man and a friendly and compassionate colleague.”
Carter died on Jan. 15 at age 71. Schotland, who was 80 when he died on Jan. 26, spotlighted the flaws of electing judges and “cared deeply about the justice system and American democracy,” said Bert Brandenburg of Justice at Stake. Passionate about a wide range of interests, from law to art to chess, Schotland founded a chess center in Washington for urban youth. “Rest in peace Roy, though I cannot imagine you resting at all!” Georgetown colleague Carrie Menkel-Meadow said on an online tribute page. — Tony Mauro
The president of the American Bar Association and other prominent lawyers are urging the Senate Judiciary Committee not to penalize a top U.S. Department of Justice nominee for having once helped with the appeal of a convicted murderer.
During confirmation hearings on Jan. 8, Debo Adegbile, nominated to head the department’s Civil Rights Division, came under criticism for work he and the NAACP Legal Defense and Educational Fund did on behalf of Mumia Abu-Jamal, convicted in the murder of a Philadelphia police officer more than 30 years ago.
ABA president James Silkenat wrote, “A fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel. Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government — even to those accused or convicted of terrible crimes.”
Another letter to the committee pointed out that a wide range of lawyers who have held prominent government positions have had similar clients in the past. When he was a partner at Hogan Lovells, the letter noted, Chief Justice John Roberts Jr. helped represent Florida death row inmate John Ferguson, convicted in the murder of eight people. — Tony Mauro
COURT: INFORMANT CAN SUE
Claudia Hurtado Vargas, a former confidential informant, claims the U.S. government abandoned her after promising to provide protection. Over the U.S. Department of Justice’s objections, a judge ruled last week that Hurtado can move ahead with her case. Hurtado served as an informant in Colombia from 1997 to 2000, according to her complaint in the U.S. Court of Federal Claims. She said U.S. officials violated agreements to notify the Colombian government about her cooperation and come to her aid when she faced criminal charges.
Lawyers for the government moved to dismiss the case, arguing the officials who allegedly made promises to Hurtado lacked the authority to bind the United States to protect her. Judge Elaine Kaplan found that Hurtado presented sufficient information about the existence of a contract and the authority of officials to make certain commitments to her. The Justice Department has neither acknowledged nor denied the existence of any contracts. — Zoe Tillman
The U.S. Department of Justice can make ­progress on one of its longtime challenges — stopping mismanagement and misuse of federal grant programs — by making more information publicly available, the agency’s inspector general told Congress last week. The inspector general’s office has issued several reports that show systemic problems in department grant programs.
During a hearing before a House subcommittee, Michael Horowitz, the DOJ inspector general, said grant recipients are already required to keep information internally on the receipt of federal dollars. Congress, he said, should consider giving DOJ oversight of that data and making that information publicly available on government websites.
“It gives multiple eyes on the grants,” Horowitz told the House Judiciary subcommittee on crime, terrorism, homeland security and investigations. “We are more likely to get whistleblower conduct where there is misconduct going on.” — Todd Ruger
‘VERY BUSY’ SEC ENFORCEMENT
The U.S. Securities and Exchange Commission in 2014 is preparing for “a very busy year in enforcement” and an expansion of its arsenal against Wall Street wrongdoing, SEC chairwoman Mary Jo White said on Jan. 28.
The SEC’s agenda this year includes ­concluding all major investigations connected to the 2008 financial crisis, extracting more admissions of guilt in settlements with the agency, and developing new tools and regulations to combat financial fraud and ensure market integrity, White said in remarks prepared for the 41st Annual Securities Regulation Institute. In addition to using its new National Exam Analytics Tool to find potential insider trading and working to finalize Dodd-Frank Wall Street Reform and Consumer Protection Act rules, the SEC plans to devote more resources to rooting out financial reporting misconduct, she said.
“It is a constant, but always exciting, challenge to keep pace and indeed to accurately see around the next corner for the newest market developments or another innovative variant of, or new venue for, fraud,” White said. — Andrew Ramonas
With five appellate victories in the space of seven days in January, there was cause for celebration at Mayer Brown.
Topping the list was Dan Himmelfarb’s U.S. Supreme Court win in Ray Haluch Gravel v. Central Pension Fund, a legal fee case. In the U.S. Court of Appeals for the Ninth Circuit, Eugene Volokh, an academic affiliate of the firm, won a significant First Amendment case vindicating a blogger’s free speech rights. Partner Evan Tager upended a Title VII judgment against CSX Transportation Inc. in the Fourth Circuit and partner Charles Rothfeld won two cases in the D.C. and Second circuits, including a major ruling about the rights of lobbyists to serve on government commissions.
“We’ve got a pretty diverse practice, and that seven-day period is an example,” Tager said. — Tony Mauro