August 2020 Legal Report
Public health. A U.S. state supreme court found that Wisconsin’s governor overstepped in issuing a month-long extension of stay-at-home orders in response to the coronavirus pandemic. Originally issued in March, the state’s stay-at-home order closed schools and nonessential businesses; it was extended to the end of May by Wisconsin Health Secretary Andrea Palm.
In a 4-3 ruling, the Wisconsin Supreme Court judges overruled Governor Tony Evers’ decision to keep the state closed, limit the size of gatherings, bar nonessential travel, and keep businesses—including restaurants and bars—shut down. The decision reopened the state, although it also kept the language that closed schools and allowed local governments to levy their own restrictions.
“Palm’s order confining all people to their homes, forbidding travel, and closing business exceeded the statutory authority of [Wisconsin],” according to the ruling. (Wisconsin Legislature v. Secretary-Designee Andrea Palm, et al., Supreme Court of Wisconsin, Case No. 2020AP765, 2020)
Corruption. A U.S. appeals court rejected U.S. President Donald Trump’s attempt to end a lawsuit that alleged he violated constitutional anti-corruption provisions as owner of a hotel in Washington, D.C., while also in office.
The lawsuit, filed in 2019 by the attorneys general of Maryland and the District of Columbia, claims that the U.S. Constitution’s emoluments clause prohibits a president from accepting foreign governments’ gifts or payments without the approval of Congress. The clause questions the legality of Trump’s opening the Trump International Hotel in Washington, D.C., just before being elected in 2016.
Some foreign and U.S. state officials have chosen to stay at the hotel or use it as an event space.
The case will return to a federal court in Maryland. Trump’s lawyer, Jay Sekulow, is expected to continue to appeal decision. (District of Columbia v. Donald Trump, U.S. Court of Appeals for the Fourth Circuit, No. 8:17-cv-01596-PJM, 2020)
Money laundering. Two draft laws aimed at addressing money laundering, terrorism financing, and the proliferation of weapons of mass destruction were approved by Cambodian cabinet officials.
The bill on anti-money laundering and counter-terrorist financing aims to control, prevent, suppress, and ultimately eliminate such crimes.
The other draft law proposes greater control over and in fighting against providing funds, financing, or support for the proliferation of weapons of mass destruction, including the export or transportation of materials for such weapons.
The bills will need to be approved by Cambodia’s National Assembly, then reviewed by the Senate, and finally submitted to and approved by King Norodom Sihamoni before going into effect.
Organ donors. England shifted its organ donation system from an “opt in” system to a default enrollment program, meaning that all adults in the country will automatically be registered as organ donors in the event of their death unless they record a differing decision.
Under Max and Keira’s Law (or the Organ Donation Act), effective 20 May 2020, adults who do not want to be organ donors must record their donation decision on the UK’s National Health Service Organ Donor Register.
Certain groups are excluded from the law, including persons under the age of 18; persons lacking sufficient mental capacity to understand the changes to the law; tourists or people not living in the country voluntarily; and anyone who lived in England for less than one year before his or her death.
Health privacy. U.S. legislators introduced a bill proposing stronger privacy and data and security rights around Americans’ health information.
The Public Health Emergency Privacy Act (PHEPA), spearheaded by U.S. Senators Richard Blumenthal (D-CT) and Mark Warner (D-VA), would impose temporary rules concerning the collection, use, and disclosure of emergency health data.
The act would only apply to certain data that was used to mitigate the spread of the COVID-19 pandemic. Such data—which would be used to track, screen, monitor, or contact trace in response to the coronavirus—includes geolocation data, proximity information, and demographic records. Organizations would be limited to only collecting, using, or releasing that information when necessary for health purposes.
The bill calls for the creation and use of data security policies, practices, and procedures; securing explicit consent before collecting, using, or disclosing the data; informing data subjects how the information would be used prior to collection; publishing a public report every 90 days on the number and scope of data subjects; and destroying the data 60 days after the public health emergency ends.
The COVID-19 Consumer Data Protection Act, which was introduced by Republican backers in April, is largely similar to the PHEPA.
Privacy. German federal agencies were ordered not to use WhatsApp due to concerns that it provides data to its parent company, Facebook.
Data Privacy Commissioner Ulrich Kelber prohibited any use of the app for federal ministries and institutions, claiming that even sending messages would deliver metadata—such as IP addresses and geolocations—to WhatsApp, which in turn feeds a larger collection of personal data.
A WhatsApp spokesperson said that the company does not forward user data to Facebook, and that a default setting encrypts messages—meaning that only the sender and receiver can read them.
Cybersecurity. The Council of the European Union extended its cyber sanctions regime framework for another year, until 18 May 2021.
The framework allows the EU to maintain its ability to levy sanctions against cyber attackers who target EU nations, imposing “targeted restrictive measures” on those who threaten the EU or an EU nation. Such sanctions can include a ban on persons travelling to the EU, freezing persons’ or entities’ assets, and banning EU residents and organizations from financing those who have been sanctioned.
The cyber sanctions were originally adopted in May 2019 as part of a larger, years-long effort to increase the EU’s resilience and response to “cyber threats and malicious cyber activities in order to safeguard European security and interests,” according to a statement by the council.
Supply chain. U.S. President Donald Trump used his powers under the Defense Production Act to order slaughterhouses and meat packing plants to remain open during the COVID-19 pandemic.
Although several U.S. states had issued shelter-at-home orders at the time, Trump said in the 28 April 2020 order, “Such closures threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the national emergency.”
The administration said it would provide additional protective equipment and guidance, although whether that occurred remained unconfirmed by the time of this article’s publishing deadline. The order applied to plants that are part of the beef, chicken, pork, and egg supply chains.
The Defense Production Act grants the U.S. federal government the ability to direct industrial production during times of crisis.
Unions criticized the order, claiming that many slaughterhouse facilities or meat packing plants were not appropriately equipped to protect workers.
Elsewhere in the Courts
Tax fraud. Dr. Xiao-Jiang Li, a former professor at Emory University in Atlanta, Georgia, was sentenced to one year of probation for filing a false tax return. Along with his position at the university, Li was also a participant in the Chinese Thousand Talents Program and worked overseas at Chinese universities—information and income he did not include on his federal tax returns. Li actively worked as a researcher for the Chinese government’s talent recruitment program from 2012 to 2018, and he earned at least $500,000 from the position. Li was ordered to pay $35,089 in restitution and to file lawful income tax returns for 2012 through 2018 within the first two months of his probation. (United States v. Li, U.S. District Court for the Northern District of Georgia, No. 1:19-mj-01007-RDC, 2020)
Sexual abuse. A U.S. district judge sentenced Douglas S. Groover to 60 years in prison for producing hundreds of videos and images of himself while sexually abusing a child. The sentencing also included a lifetime term of supervised release and a restitution of $53,000. Groover pleaded guilty to two counts of production of child pornography in February 2020, and he admitted to abusing at least two other minors and keeping a collection of child pornography. (United States of America v. Douglas Stephen Groover, U.S. District Court for the Northern District of Texas, No. 6:19-cr-00039-H-BU, 2020)
Discrimination. FedEx Ground Package System, Inc., will pay $3.3 million to settle a companywide disability discrimination suit. The lawsuit, filed by the U.S. Equal Employment Opportunity Commission (EEOC) in 2014, alleges that the company denied deaf and hard-of-hearing package handlers reasonable accommodations, as well as discriminating against this class as applicants to package handler positions. As part of the settlement, FedEx Ground will also provide programmatic relief, including access to live and video remote American Sign Language interpreting, captioned videos, and scanning equipment with cues like vibrations. FedEx was also ordered to take additional measures to protect the safety of its deaf and hard-of-hearing package handlers, such as providing warning lights on motorized equipment and personal emergency notification devices. (EEOC v. FedEx Ground Package System, Inc., U.S. District Court for the Western District of Pennsylvania, No. 2:15-cv-00256, 2020)