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Supreme Court Preview – October 2014 Term

In less than two weeks the U.S. Supreme Court will again start holding oral arguments. One of the first cases up is a search and seizure case!

Below are cases accepted for review which may be of interest to government litigators and their clients. Each case is linked with its docket on the Scotus Blog, where you can access the briefs. If available, a link to the Legal Information Institute’s argument preview has also been provided.

Heien v. North Carolina – Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
Argument: October 6, 2014
Preview

Holt v. Hobbs – Does a prison policy that restricts beards on inmates violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
Argument: October 7, 2014
Preview

Dart Cherokee Basin Operating Company, LLC v. Owens – Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal.
Argument: October 7, 2014
Preview

T-Mobile South, LLC v. City of Roswell, GA – Must a decision denying a request to place, construct, or modify a cell tower state the reasons for the denial, for a state or local government to satisfy the Communications Act’s “in writing” requirement.
Argument: November 10, 2014

Young v. United Parcel Service – Whether, and in what circumstances does the Pregnancy Discrimination Act require an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
Argument: December 3, 2014

Reed v. Town of Gilbert, Arizona – whether a municipal sign ordinance, which differentiates between certain types of temporary noncommercial signs, is consistent with the First Amendment.
Argument: Not Yet Scheduled

Mach Mining v. Equal Employment Opportunity Commission – Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.
Argument: Not Yet Scheduled

The Challenge of Younger Employees and Technology

According to a recent Cisco survey, one in three college students and young professionals consider the Internet to be as important as air, water, food and shelter. Two out of three would choose having an Internet connection over having a car! So it’s not surprising that 70% of young professionals in the US admitted to breaking their employers’ IT policies, with 2 out of three breaking policy most or all the time!

This is dangerous for government employers for a multitude of reasons, and not just data security and claim exposure. Who wants to face their board/commission/council/tax payers the day after the front page or TV sweeps week story on the bad  web surfing habits of your employees!

Some tips on how you can address these issues (courtesy of legalloudspeaker.com):

• Your employees need to know the rules if you want them to be followed. Have a written IT use policy and post it where it will be seen.  Ask employees to sign a copy. Maybe do this every six months. Better yet, customize the windows log-in screen to be an acknowledgment that the user has read and will comply with the policy.

• You need to train your employees not only on what the rules say but also why they are important. Your young employees are just that – young. They haven’t experienced a lot of workplace trauma yet, so they don’t really understand (or fully understand) why management is so particular on sometimes very ambiguous things (I’m allowed to access LinkedIn but not Facebook – why?). Accordingly, at the same time you teach them the penalties for rule breaking: verbal warning, write-up, suspension, termination, you need to explain what happens to your entity when they break the rules. Translate that to what it means for their future. A lot of employees, not just young professionals, don’t understand how much information about their use of technology is kept by IT, and that it is just a public records request away from being made public. Explain to them how government works, why the rules are in place and why they’re not necessarily management’s preference but are nonetheless management imperatives.

• We all operate off incentives and disincentives, so you can’t expect someone to change their behavior if there’s no incentive to do so. Reward those who abide by the rules and punish those who don’t.

• Remove the opportunity and turn off the magnet that draws them to rule-breaking. Setup workplace-specific security settings that prevent garbage from ever entering your building. Don’t want Pandora, Facebook, or LimeWire? Turn them off. You have this power.

• Over 60% of young employees in the survey said it was the IT department’s responsibility to protect information and devices. This is telling – they’ll do what they can get away with. Accordingly, your IT department needs to be a proactive one that prevents the problem instead of responding to it. This isn’t just a catch phrase. It costs less money to prevent a fire than to put it out and repair the water and smoke damage. The IT department needs to understand what young employees want to get at, what they should and shouldn’t be able to get at, and how to prevent access to those things from inside your walls.

The findings of this survey impact more than IT policy. Anyone hiring or supervising young professionals should read and understand its implications for recruitment, motivation and supervision.

Note: Is your entity prepared for the risks and challenges technology presents in litigation and with public record compliance. The Edward McGlone Law Firm can help. To request more information, click on the contact link found here.

Juggling the Fourth Amendment?

That question arises from today’s opinion in United States v. Jones.  In Jones, a divided Supreme Court found that law enforcement violated the Fourth Amendment when it placed a GPS device on a suspect’s car.  While the result was not particularly surprising, how the court got there was.

Ever since Katz v. United States, 389 U. S. 347 (1967), the court has answered Fourth Amendment questions by considering whether the government’s action invaded an expectation of privacy protected under the Constitution.  Prior to Katz, a Fourth Amendment violation arose only when the government trespassed on an individual’s person, property or papers.  In Jones, Justice Scalia reaches back 45 years and resurrects this trespass theory of Fourth Amendment jurisprudence, holding that an unconstitutional search occurred because the officers trespassed by attaching the GPS device to the suspect’s car.

The majority opinion makes clear that it is not doing away with the “privacy” branch of Fourth Amendment jurisprudence, a point Justice Sotomayor drives   home in her concurrence.  While agreeing that the Fourth Amendment protects against governmental trespass, she makes clear that the Fourth Amendment also protects against governmental intrusion on reasonable expectations of privacy, regardless of whether the government trespasses in the process.

So for now there are two balls in the air — trespass and privacy — and law enforcement must keep their eyes on both!

Update 1/25/2012

Tom Goldstein makes an important clarification in this post on the Scotus blog.  In Jones the court only decided that a search took place.  It did not address if that search required a warrant, finding that the government had failed to preserve that argument below. There are a number of exceptions to the warrant requirement and it is entirely possible that a future opinion of the court could find no warrant required for the short term use of GPS Monitoring.  Read Tom’s excellent post for more analysis.

Is Your IT Department Keeping Old Hard Drives?

Ask your IT department if they are holding onto any old tapes, hard drives or computers.  After you read this post, their answer may turn your hair grey!

Neighborhood Alliance of Spokane County v. County Of Spokane is a significant public records ruling from the Washington Supreme Court addressing the reach of the Washington Public Records Act in the digital age.  You should read it, even if you never practice in Washington.  It has been on my list to blog about ever since it was published, but it is so jam-packed with important information,  it is hard to pick what to write about.

Neighborhood Alliance was seeking the metadata for an electronic file to determine when a document was created.  Spokane County responded to the record request using metadata from a copy of the file, created when an employee was issued a new computer. Unless done properly, the mere act of copying a computer file will change that metadata.  That is what happened here, causing the County to respond with an incorrect creation date.

That mistake might not have been critical if the County had not made a second error.  After the employee was given the new computer, the old computer was simply placed in storage with the hard drive that contained the original file with the accurate metadata. When  the County responded to the record request,  it never checked that hard drive, so the correct file information was never produced.  The Washington Supreme Court found that to be a violation of the Public Record Act.

All of this may have been innocent; computer hard drives get replaced every day. So what should government bodies do to prevent this from happing?  Before a hard drive is replaced, check it for files that would be responsive to pending public record requests or relevant to pending or reasonably anticipated litigation.  If such files are found, forensically sound copies of those files must be created for production or preservation. Once that process is complete, and the content of the old drive has been copied to the new drive, the old drive should immediately be destroyed or wiped of all data in a manner reasonably calculated to prevent recovery of its contents.

You can access a summary of the case on The Local Open Government BlogThe Supreme Court of Washington Blog links to a podcast discussion of the case with Greg Overstreet of Allied Law Group, the firm that represented newspaper interests as amicus in the case.

Do You Know the Difference?

My first case involving computer discovery was in the mid 90’s. Then it was a brave new world, today it is a key component of litigation for which public bodies must prepared. This starts with understanding the language. Do you understand the difference between computer forensics, e-discovery, and data recovery? If not, Forensics Northwest provides a primer here.

The Next New Thing

Eleven years ago when I went to work for Clackamas County one of the first things I did was an evaluation of the electronic systems for discovery risk.  Once that project was done I patted myself on the back for being so forward looking and thought I was done.  Foolish me!  With each great “newest” thing, BlackBerrys, I-Phones, Android etc., new problems and issues arose both for IS and litigation preparedness.  One impact of this was a lengthy delay in revising our user policy until we finally got smart and made it more generic.

While tablet computers may never replace desktop or laptop computers in the workplace, they will at least be a strong adjunct to existing systems.  They bring with them their own complications for discovery/public records compliance and litigation preparedness.  LTN just posted a good article on this issue.  You can access it here.