Legal Report May 2017
Free Speech. U.S. police officers have the right to complain about their jobs on social media, a U.S. federal appeals court recently ruled, striking down a police department’s social media policy as unconstitutional.
Under the Petersburg (Virginia) Police Department’s social media policy, police officers were prohibited from sharing any information that “would tend to discredit or reflect unfavorably upon the [department] or any other city of Petersburg department or its employees,” according to court documents.
“Negative comments on the internal operations of the bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law,” the policy said.
It also specified that officers may comment on issues of general or public concern as long as those comments “do not disrupt the workforce, interfere with important working relationships or efficient workflow, or undermine public confidence in the officer.”
The policy also discouraged officers from posting about their off-duty activities, and said that any violations of the policy would be forwarded to Police Chief John Dixon for disciplinary action.
While off duty in June 2013, Petersburg Police Officer Herbert Liverman posted on Facebook about the practice of promoting rookie cops to leadership positions.
“Sitting here reading posts referencing rookie cops becoming instructors,” Liverman wrote. “Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers.”
More than 30 people “liked” or commented on the post, including fellow Petersburg Police Officer Vance Richards, who said he agreed with Liverman.
“Not to mention you are seeing more and more younger officers being promoted in a supervisor role,” Richards wrote. “It’s disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience…and what comes with experience are ‘experiences’ that ‘they’ can pass around to the Rookies and younger less experienced officers.”
The two officers continued to engage in a back and forth on the post, with further comments by other current or former police officers. Supervisors for Liverman and Richards learned about the posts and notified Dixon, who determined that the statements violated the department’s social networking policy and instructed the supervisors to discipline them.
The officers received an oral reprimand and six months’ probation, but were told the incident would not affect their eligibility for promotion. Several weeks later, however, Dixon changed the qualifications for promotion to exclude officers on probation—making Liverman and Richards ineligible for promotion.
The two sent a letter to the city informing it that they intended to challenge the disciplinary actions for their social media posts. They were then subject to several complaints and internal investigations within the police department, and Liverman resigned after receiving notice of his termination.
Liverman and Richards then filed suit against Dixon and the city in March 2014 for violating the First Amendment of the U.S. Constitution. They claimed that the department’s social networking policy infringed on their free speech rights, challenged the disciplinary actions the department took based on the policy, and alleged that they were retaliated against after proceeding with their lawsuit.
A district court ruled that Dixon had qualified immunity because “the contours of protected speech in this area were not clearly established,” shielding him from the suit, according to court documents. Liverman and Richards appealed the decision, which ultimately reached the U.S. Fourth Circuit Court of Appeal.
The appeals court ruled that the department’s social media policy was unconstitutionally overbroad because it acts as a “virtual blanket prohibition on all speech critical of the government employer,” the court wrote.
“We do not deny that officers’ social media use might present some potential for division within the ranks, particularly given the broad audience on Facebook,” the court added. “But the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern.” (Liverman v. City of Petersburg, U.S. Court of Appeals for the Fourth Circuit, No. 15-2207, 2017)
Warrants. A U.S. judge ordered Google to comply with an FBI search warrant to provide customer emails stored outside the United States. The judge’s order is in direct conflict with a previous court ruling, which said Microsoft did not have to provide data to the FBI that was stored in Ireland.
Instead, U.S. Magistrate Judge Thomas Rueter said Google should transfer the emails from a foreign server to allow FBI agents to review them in the United States as part of a fraud probe. The crimes the individuals are suspected of committing occurred in the United States, and the emails were exchanged between people in the United States.
“Though the retrieval of the electronic data by Google from its multiple data centers abroad has the potential for an invasion of privacy, the actual infringement of privacy occurs at the time of disclosure in the United States,” Rueter wrote in his decision.
Google had partially complied with the search warrant prior to the judge’s order by providing data to the FBI that was stored in the United States. In a statement, Google said it plans to appeal the ruling. (In re: Search Warrant No. 16-960-M-01 to Google and In re: Search Warrant No. 16-1061-M to Google, U.S. District Court for the Eastern District of Pennsylvania, No. 16-mj-00960 and 16-mj-01061, 2017)
CYBERSECURITY. The U.S. Department of the Treasury eased sanctions on Russia to allow cybersecurity transactions with the Russian Federal Security Service (FSB) to resume.
The move, detailed in the Cyber-Related General License released by the department in February, allows transactions between the United States and the FSB “that are necessary and ordinarily incident to requesting certain licenses and authorizations for the importation, distribution, or use of certain information technology products in the Russian Federation,” along with transactions involving the FSB.
Former U.S. President Barack Obama had previously banned these transactions through an executive order in April 2015 in response to “malicious cyber-enabled activities” by the FSB in the U.S. electoral process.
Screening. U.S. Secretary of State Rex Tillerson instructed all consular officials at U.S. embassies to increase scrutiny of individuals they issue tourist and business travel visas to.
The instructions in the memo, “Implementing Immediate Heightened Screening and Vetting of Visa Applicants,” that was obtained by Reuters, stem from an executive order and instruct officials to ask applicants detailed questions about their backgrounds.
They should collect the applicants’ travel history over the last 15 years; previous passport numbers; prior occupations and employers over the past 15 years; and all email addresses and social media handles used in the past five years, among other information.
The new vetting process also includes mandatory checks of applicants’ social media history if the applicant has ever been in a territory controlled by ISIS.
The rules do not apply to citizens from 38 countries—most of Europe, Australia, New Zealand, Japan, and South Korea—who are generally admitted to the United States under the visa waiver program.
CYBERSECURITY. China enacted a ban of virtual private networks (VPNs) to close holes in its firewall, further blocking citizens’ ability to circumvent its stringent Internet restrictions.
VPNs are private networks that exist on a public network—like the Internet—and allow users to share data privately. Many companies use VPNs to allow employees to remotely connect to internal networks, such as intranets, while away from the office.
China’s Ministry of Industry and Information Technology is carrying out the ban on VPNs through March 2018, requiring all Internet service providers and telecommunication providers to seek approval before creating or renting out VPN lines.
“The international private line leased by the basic telecommunication enterprise to the user shall focus on the establishment of the user file, and shall be used exclusively for internal use only by the user, and shall not be used to connect the data center or business platform inside and outside China to carry out telecommunication business activities,” the ministry said in a notice on its website.
In an interview with China’s Global Times, Shanghai-based IT expert Li Yi said the “rules are extremely important” because they will prevent cross-border crime.
“Some multinational companies in China, such as Microsoft Corp, have a reasonable need to communicate with their headquarters overseas via VPNs, but some corporations or individuals browse overseas Internet pages out of illegal motivations,” Li explained.
Prior to the ban, millions of people in China used VPNs to access sites restricted by the country’s firewall, including Facebook, Twitter, and The New York Times.
Domestic Violence. Russian President Vladimir Putin signed legislation into law that decriminalizes domestic violence in certain cases with minimal damage.
The law, dubbed the “Slapping Law,” decriminalizes domestic violence in cases where it does not cause “substantial bodily harm,” meaning no bones are broken, and occurs only once per year. It also makes these offenses punishable by a fine of approximately $500, a 15-day arrest, or community service of up to 120 hours.
The law stems from a Russian Supreme Court ruling to decriminalize battery that doesn’t inflict bodily harm, according to the Associated Press. It was approved by more than 85 percent of Russian legislators.
Disclosure. U.S. President Donald Trump signed legislation into law that nullifies a payments disclosure requirement instituted as part of financial reform after the 2008 recession.
The resolution (H.J. Res. 41) eliminates the “Disclosure of Payments by Resource Extraction Issuers” rule that the U.S. Securities and Exchange Commission finalized in July 2016. The rule, mandated under the Dodd-Frank Wall Street Reform and Consumer Protection Act, required resource extraction issuers to disclose payments made to governments for the commercial development of oil, natural gas, or minerals.
U.S. House of Representatives Majority Leader Kevin McCarthy (R-CA) voted to pass the resolution, saying in a statement that the rule “adds an unreasonable compliance burden on American energy companies that isn’t applied to their foreign competitors.”
Representative Bill Huizenga (R-MI) introduced the resolution, which had 33 Republican cosponsors.
ELSEWHERE IN THE COURTS
Las Vegas Sands Corp. agreed to pay $6.96 million in criminal penalties to resolve a U.S. federal investigation into violations of the Foreign Corrupt Practices Act (FCPA) in connection with business transactions in China and Macao. Sands admitted that executives “knowingly and willfully failed to implement a system of internal accounting controls to adequately ensure the legitimacy of payments to a business consultant who assisted Sands in promoting its brand in Macao and China, and to prevent the false recording of those payments in its books and records,” according to the U.S. Department of Justice (DOJ). Sands also terminated a finance department employee who raised concerns about the payments. Sands entered a nonprosecution agreement and has agreed to cooperate with the DOJ on any ongoing investigations into its conduct. (Re: Las Vegas Sands Corp, U.S. Department of Justice Criminal Division, 2017)
In a split decision, the U.S. Second Circuit Court of Appeals declined to reconsider a case that limits the ability of U.S. law enforcement to request data stored on foreign servers. The court’s decision leaves in place a lower court ruling, which found that Microsoft did not have to provide emails stored at its Ireland data center in response to a domestic warrant. “It is for just this sort of reason that the government has entered into [mutual legal assistance treaties] with other sovereigns: to address mutual needs for law enforcement while respecting sovereign borders,” wrote Judge Susan L. Carney in her opinion. (Microsoft v. United States, U.S. Court of Appeals for the Second Circuit, No. 14-2985, 2017)
U.S. police can justifiably frisk individuals with concealed firearms, regardless of whether that individual has a permit to carry concealed weapons, a federal appeals court ruled. In the written opinion of the case, the court explained that “an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.” Whether the individual is legally carrying a concealed firearm is “inconsequential.” The decision is at odds with a previous federal court ruling, which means it may be reviewed by the U.S. Supreme Court. (U.S. v. Robinson, U.S. Court of Appeals for the Fourth Circuit, No. 14-4902, 2017)