Friday, August 24, 2007

Rape suspects can be forced to undergo HIV tests under New York law

The New York Times /AP (8/24) reports, "Rape suspects can be forced to undergo HIV testing under a law signed yesterday by Gov. Eliot Spitzer (D)." Under the law, rape victims are given "the option of forcing an indicted suspect to be tested under a court order, with the results provided to the victim and the suspect. Supporters say it will let victims know quickly if they need treatment." But, New York's Press & Sun Bulletin (8/23, Wiessner) added, "Opponents of the bill...said that testing a suspect is a presumption of guilt, which is unconstitutional. They also said that if a suspect's test came up negative, it would discourage rape victims from taking drugs that can prevent the development of HIV."

Monday, August 6, 2007

Bush Signs Law to Widen Reach for Wiretapping

President Bush signed into law on Sunday legislation that broadly expanded the government’s authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.

The bill (S. 1927) signed into law is known as the "Protect America Act of 2007," which amends the Foreign Intelligence Surveillance Act (FISA) of 1978 (50 U.S.C. 1801 et seq.) "to provide additional procedures for authorizing certain acquisitions of foreign intelligence information and for other purposes." establishes guidelines on how the United States can conduct surveillance against foreign nationals "reasonably believed to be outside the United States," and requires the director of national intelligence and the attorney general's authorization before surveillance against a specific target can begin.

See here for more information.

Background on the Foreign Intelligence Surveillance Court
Congress in 1978 established the Foreign Intelligence Surveillance Court as a special court and authorized the Chief Justice of the United States to designate seven federal district court judges to review applications for warrants related to national security investigations. Judges serve for staggered, non-renewable terms of no more than seven years, and must be from different judicial circuits. The provisions for the court were part of the Foreign Intelligence Surveillance Act (92 Stat. 1783), which required the government, before it commenced certain kinds of intelligence gathering operations within the United States, to obtain a judicial warrant similar to that required in criminal investigations. The legislation was a response to a report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the “Church Committee”), which detailed allegations of executive branch abuses of its authority to conduct domestic electronic surveillance in the interest of national security. Congress also was responding to the Supreme Court’s suggestion in a 1972 case that under the Fourth Amendment some kind of judicial warrant might be required to conduct national security related investigations.

Warrant applications under the Foreign Intelligence Surveillance Act are drafted by attorneys in the General Counsel’s Office at the National Security Agency at the request of an officer of one of the federal intelligence agencies. Each application must contain the Attorney General’s certification that the target of the proposed surveillance is either a “foreign power” or “the agent of a foreign power” and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime.

The judges of the Foreign Intelligence Surveillance Court travel to Washington, D.C., to hear warrant applications on a rotating basis. To ensure that the court can convene on short notice, at least one of the judges is required to be a member of the U.S. District Court for the District of Columbia. The act of 1978 also established a Foreign Intelligence Surveillance Court of Review, presided over by three district or appeals court judges designated by the Chief Justice, to review, at the government’s request, the decisions the Foreign Intelligence Surveillance Court. Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court had no occasion to meet until 2002. The USA Patriot Act of 2001 (115 Stat. 272) expanded the time periods for which the Foreign Intelligence Surveillance Court can authorize surveillance and increased the number of judges serving the court from seven to eleven.

Saturday, August 4, 2007

"Rule-making" under the Administrative Procedure Act

[Source: Warren, Kenneth E., Administrative Law in the Political System, 3rd ed., 1997]

According to the Administrative Procedure Act, "rule-making" means an "agency process for formulating, amending, or repealing a rule," and the act defines a "rule" to mean "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency" (Sec. 551). When an administrative agency engages in rule-making, it is legislating policy.

Section 553 of the APA in essence requires administrative agencies to follow fair and reasonable procedures when they make rules. Although liberal exceptions exist for particular agencies and under certain conditions, the APA requires administrators to follow several important procedural steps when making rules.

  1. Administrators are required to give public notice of proposed rule-making by publishing the proposal in the Federal Register (an official daily government publication). To be proper, the notice should include: (1) the "time, place, and nature" of the proposed rule-making proceedings; (2) the legal basis on which the rules are proposed; and (3) a general description of the proposed rule along with an explanation of the issues involved.
  2. Agencies are compelled to provide opportunities for "interested persons" to take an active part in the rulemaking process by allowing them to submit "written data, views, or arguments with or without opportunity for oral presentation."
  3. The act specifies that a "substantive rule" should not be allowed to take effect until at least thirty days after its public notice.
  4. Administrators are legally obligated to grant concerned parties "the right to petition for the issuance, amendment, or repeal of a rule."

Only three kinds of rule-making are acknowledged by the Administrative Procedure Act: informal (notice and comment rule-making), formal (trial-like hearing rule-making) and Negotiated Rule-Making, codified into sections 561-583 of the APA in 1990 (Negotiated Rule-Making is an experimental approach with limited application). Informal notice and comment rule-making, which simply provides notice and an opportunity for interested parties to make comments on the proposed rule, is by far the more common procedure. However, the APA provides for formal rule-making to be employed "when rules are required by statute to be made on the record after opportunity for an agency hearing" (Sec. 554). The most-known statute requiring formal rule-making procedures is the Food, Drug, and Cosmetic Act of 1938, 21 U.S.C. Section 371(e)(3).

Wednesday, August 1, 2007

KSR v. Teleflex: The Supreme Court’s Big Patent Ruling

[Source: Law Blog - WSJ]

[May 1, 2007]
The ruling in KSR v. Teleflex will make it harder to get new patents and to defend existing ones. The decision involves an arcane but vital area of patent law dealing with how to determine whether an invention is “obvious” and hence not patentable.

Click here for the opinion; here are stories from the Legal Times, NYT, WSJ and the WaPo.

Today, Peter Lattman comments on how KSR is already starting to have an effect, as in Friskit v. RealNetworks. Last week, a federal judge in San Francisco who previously had allowed a patent-infringement lawsuit to proceed against RealNetworks changed course and granted summary judgment, citing the KSR decision. The judge ruled that Friskit’s patent claims were nothing more than obvious combinations of elements publicly available, including RealNetworks’ own Internet products. Judge William Schwarzer concluded that “the idea of integrating these different components was not novel.”

Click here for the judge’s ruling in Friskit v. RealNetworks, and here for a copy of the transcript of a court hearing on the issue.

Read the WSJ article here.