Many media pundits will reflexively view the recent Supreme Court decision to strike down the California rule mandating that nonprofit groups disclose their top donors as a victory for conservatives such as Charles Koch. While the Koch-associated group Americans for Prosperity (AFP) served as the lead plaintiff to challenge the law, this 6-3 ruling by the justices should also be viewed as a loss for Vice President Harris.

It was Harris, the former California attorney general, who first interpreted the state's regulations on charities to mandate that nonprofit 501(c)(3) organizations report all gifts greater than $5,000 via the IRS Schedule B donor list.

Ostensibly, Harris was simply guarding against nonprofit lawbreaking, self-dealing or conflicts of interest. But her rule was the equivalent of asking everyone to send her their checking account statements, just in case someone was laundering money. As a law enforcement officer, she had the right to subpoena IRS records, but hers appeared to be a fishing expedition in search of so-called dark money, the allegedly nefarious influence-machine of the right.

The Supreme Court's ruling shouldn't be associated with Harris just because she issued the original requirement on nonprofits. She also was the first to strictly enforce the law, and she persisted in defending it even after an initial court ruling against it. //

It's worth mentioning what Harris had to overlook in order to persist in defending her interpretation of California's charity law. She had to ignore a key precedent from the 1958 Supreme Court ruling that overturned Alabama's Jim Crow requirement that the NAACP disclose donor information. At the time, this was practically an invitation to lynching. Harris had to overlook the fact that the district court cited "threats, protests, boycotts, reprisals and harassment directed at those individuals publicly associated with AFP." She also had to minimize the fact that "inadvertent" disclosures of donor information already had occurred, and that information leaks often occur (see the recent disclosure of the tax returns of some of America's wealthiest businessmen).

It's hard to see Harris's interpretation of the California law as anything more than a partisan political play that was unnecessary to her role in law enforcement and potentially motivated by the Democratic hysteria about conservative dark money - even as the political left relies on complex organizations to funnel funds to its own causes. //

Let's stop judging an organization's public positions based on who their private supporters might be. That's as true for the American Civil Liberties Union, which supported the Koch position in the case, as it is for AFP. Both deserve to have their arguments judged on the merits, not based on the sources of their money.

How do we know Google knows they stole Android from Oracle-Java?

The E-Mail That Google Really Doesn’t Want A Jury To See:

“Lawyers defending Google against a patent and copyright lawsuit brought by Oracle are trying desperately to keep a particular engineer’s e-mail out of the public eye-but it looks like they’re unlikely to succeed.

“The e-mail, from Google engineer Tim Lindholm to the head of Google’s Android division, Andy Rubin, recommends that Google negotiate for a license to Java rather than pick an alternative system….

“The second paragraph of the email reads:

“‘What we’ve actually been asked to do by Larry [Page] and Sergey [Brin] (Google’s founders) is to investigate what technical alternatives exist to Java for Android and Chrome.

“We’ve been over a bunch of these and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.’”

Except Google never did negotiate for Android “a license for Java under the terms we need.”

But they released Android anyway.

That’s not legal.

The four-justice majority concluded that while Castor had not provided Cosby immunity from prosecution, the state had violated Cosby’s due process rights by charging him after the original district attorney committed not to prosecute Cosby in order to force him to testify in Constand’s civil case. The court held that “[i]n light of these circumstances, the subsequent decision by successor D.A.s to prosecute Cosby violated Cosby’s due process rights. No other conclusion comports with the principles of due process and fundamental fairness to which all aspects of our criminal justice system must adhere.” //

When the new D.A. first filed charges against Cosby, his attorneys sought to prevent the criminal case from proceeding based on Castor’s decision in 2005 not to prosecute Cosby. Yet the Pennsylvania Supreme Court rejected those attempts, even though yesterday the high court relied on that same decision to toss Cosby’s conviction. But that decision came only after Cosby faced two trials and spent nearly three years in prison. Further, the courts all refused to allow Cosby to remain free on bail pending the appeal, ensuring that he spent that time in prison even though his conviction was overturned.

And then there is the way the prosecutors obtained the conviction in the first place: Following the first mistrial, at which the jury was hung, the trial court permitted the prosecutors to present testimony from five of Cosby’s other accusers. In the first trial, only one other woman was allowed to testify, and the jury in that case was unable to reach a unanimous verdict. Nothing changed between the trials to justify allowing five women to testify, instead of just the one.

On appeal, Cosby’s attorneys also challenged his conviction based on the trial court’s decision to admit this evidence of other crimes, but because the court concluded his conviction must be overturned based on Castor’s decision not to prosecute Cosby, the majority opinion did not address whether the trial court also erred in admitting this evidence. //

.... while Cosby may have walked out of prison a free man yesterday, the courts saw to it that he endured two criminal trials, at which multiple women testified that he sexually assaulted him—with much of that testimony likely inappropriately admitted—and then the courts allowed Cosby to waste away in prison for nearly three years while his appeal percolated.

Given the overwhelming number of women accusing the former star of sexual assault, America’s sympathies may not favor Cosby, but the Constitution does.

They investigated the Trump organization for three years and the best they could come up with is unpaid taxes on fringe benefits? This is the kind of thing you normally handle as a civil matter. In fact, as my prior write-up noted, the Times literally could not find a previous example of a prosecutor filing criminal charges in a similar case. That’s how much of a politicized witch-hunt this entire thing is. //

This is the kind of thing that typically is handled with a bill in the mail. The fact that charges are being filed is simply a way for these partisan prosecutors to justify all the money they’ve wasted. //

What the FBI and DOJ did was obviously the pinnacle of malfeasance, but to have state prosecutors propagating a joke investigation and prosecution like this further testifies to how far our justice system has fallen.

The Biden DOJ decided that a different process should be used with regard to the class of January 6 “tourist protesters” whose actual conduct is not different in any meaningful way from the typical political protests that regularly take place in Washington DC.

That is the change in policy that reflects an abuse of the criminal justice system by the Biden DOJ based on a political point of view.

That is where the Biden DOJ is vulnerable to a legal attack.

The arrests and handling of the “Green New Deal” protesters is a problem for Biden DOJ because by employing the “post and forfeit” process for them, the Biden DOJ has now bookended its abusive treatment of the January 6 “tourists protesters” in such a fashion that the argument can be made that the Biden DOJ has not changed the procedures for how political protesters are handled — except for the January 6 “tourist protesters”. That opens them up to a legal challenge that the handling of the January 6 “tourist protesters” is based on the political point of view that was being expressed that day, not because of what they actually did. What they actually did — being in a place they weren’t allowed to be — is not different than what the “Green New Deal” protesters did yesterday.

This allows defense attorneys to legitimately argue — and I believe one or more district court judges will be receptive to — that the January 6 “tourist protesters” are actually being punished because they were present in the Capitol at the same time others were engaged in violent or destructive acts. The harsh treatment they are being subjected to by the Biden DOJ is nothing more than an improper and illegal assertion of “collective” guilt imposed on individuals based on the conduct of others when there is no conspiratorial crime alleged.

from Thomas’ own written opinion:

“If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’” Raich, 545 U. S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.”

https://www.supremecourt.gov/opinions/20pdf/20-645_9p6b.pdf

The climate change group showed up in Washington D.C. and then blocked all ten entrances to the White House, sitting in roads and taking over guard shacks. This was done as part of a demand to include a “civilian climate corps” in the recent infrastructure deal, which is a favorite pet project of Rep. Alexandria Ocasio-Cortez. //

Did you get that? If you are a left-wing activist trespassing on federal property in order to make demands of Congress, you not only don’t go to jail, you get let free the same day without so much as a ticket for your troubles (or if they were ticketed, they aren’t saying). And yes, despite a lot of the media’s framing, almost everyone arrested on January 6th only committed the grand crime of misdemeanor trespassing according to the DOJ itself. //

This kind of thing is dangerous because it means the DOJ can arbitrarily decide to come down on whomever they want based on their politics. We saw plenty of examples of that during the Trump era. But it’s also harmful to every other institution in our government. No open-minded individual can see this stuff and trust that any bureaucracy is going to operate fairly if they have the “wrong views.”

Observers have recently commented that the January 6 criminal cases are being treated differently from other cases, often, referring to criminal cases arising from Black Lives Matter (BLM) protests and/or Antifa riots. The difficulty in making that comparison is that those cases are often not similar to the January 6 cases in ways that the law considers relevant to the question of equal treatment. For example, the BLM and Antifa cases are often being pursued in state courts by state prosecutors, which operate very differently from federal prosecutors and federal courts. Or the types of charges or the specific conduct of the defendants is different from the January 6 defendants. Those differences make the claim of disparate treatment relatively easy to brush off.

However, the claim of unequal treatment is, in fact, legitimate. A comparison of the January 6 cases to other federal cases involving the same kind of conduct demonstrates that the January 6 cases are being treated significantly more harshly by DOJ and the D.C. U.S. Attorney’s Office.

This article is the first of three in a series demonstrating that that the government has been and is, in fact, treating the January 6 cases more harshly in terms of the charges brought, requests for detention of the defendants pending trial, disposition of the charges, and sentencing demands.

In a per curiam decision — meaning the outcome is 9-0 but no specific Justice was assigned to write the Opinion of the Court — the Supreme Court reversed the Ninth Circuit and sent the case back. The Court held that the “taking” of property by a governmental entity happens upon the act giving rise to a federal constitutional claim, and the Pakdels’ claim against San Francisco was not dependent on their following-through on and compliance with various procedural requirements under the ordinance in order to have that their “takings” claim heard by a federal court.

The only “finality” required for their federal claim was an expression by the governmental agency that the landowner either do “something” with the property or suffer consequences for not doing so. San Francisco told the Pakdels to either offer a lifetime lease to the renter or they would face an “enforcement action” that could have canceled the conversion or fined the Pakdels for their failure to do so.

When state and local officials decline to help enforce federal firearm rules they view as unconstitutional, The New York Times says, they are adopting “a legally shaky but politically potent strategy” with racist roots.

But when state and local officials decline to help enforce federal immigration rules they view as “unjust, self-defeating and harmful to public safety,” the Times says, they should be “proud” of “choos[ing] not to participate in deportation crackdowns.”

That blatant double standard illustrates how policy preferences and partisan allegiances color people’s views of federalism, which they tend to endorse when it serves their purposes and reject when it doesn’t. But as Missouri Gov. Mike Parson and Attorney General Eric Schmitt recently observed while defending that state’s Second Amendment Preservation Act, “you cannot have it both ways.”

…

Contrary to what the Times reported, that policy is not “legally shaky.” It relies on the well-established anti-commandeering doctrine, which says the federal government cannot compel state and local officials to enforce its criminal laws or regulatory schemes.

That doctrine is rooted in the basic design of our government, which limits Congress to a short list of specifically enumerated powers and leaves the rest to the states or the people, as the 10th Amendment makes clear. That division of powers gives states wide discretion to experiment with different policies, some of which are bound to offend the Times.

The paper suggests that defending state autonomy is disreputable, because that argument was “deployed in the past in the South to resist antislavery and civil rights laws.” But federalism does not give states a license to violate rights guaranteed by the Constitution or to flout laws authorized by it.

Hirono’s philosophy when it comes to judges is on full display. She attempts to assert that gay marriage would not have been legalized had judges followed “originalism.” Now, I’m not sure of the legal merits of that claim (as far as whether originalism was a deterrent instead of other factors) but it’s a blatant admission that she wants her judges to be partisans who legislate from the bench. In fact, it’s an admission she wants her judges to have no limiting principles whatsoever. Call it the “wise Latina” standard set by Justice Sotomayor, who is very open about the fact that she rules based on the idea of “justice” and impact instead of what the law actually says.

Hirono, in this case, gets very angry when Cruz points out her ridiculous notion, claiming that he was “mansplaining” to her. It’s one of the more cringe moments in the video, akin to your grandmother trying to sing rap lyrics. Cruz then ties her in knots by asking her to note exactly what he mischaracterized about her silly rant.

Justice Barrett’s concurring opinion — joined by Justices Kavanaugh and Breyer in a show of “solidarity” from both sides of the Court — comes down to the issue that if Smith is overturned, 30 years of federal court cases upholding laws and ordinances “incidentally burdening” religious practices will all be up for being re-litigated. Federal courts will be inundated with “religious freedom” challenges, with the Court divided on how new cases seeking to re-litigate settled issues should be resolved. She preferred to put off the question of what to do about Smith to another day.

But conservatives recognize that this is the front-line of the cultural battle being fought in the courts and at the ballot box. This is a clash between a fundamental right provided for by the Founders, and “civil rights” being extended by political processes to various groups who claim an entitlement to be treated in ways that don’t offend them.

I think we should call it what it is — the right to be free from conduct by others that makes me feel bad about myself. I don’t remember studying that in Con Law, but maybe I was sick that day. //

In the same way that the cultural battle over Roe was guaranteed to continue as a result of the “wheeling-and-dealing” with votes behind the scenes in Casey, it appears that the cultural battle over religious liberty grounds will continue through “wheeling and dealing” behind the scenes over Smith. It will only end when Kavanaugh or Barrett takes a stand and decide the question at the center of the debate.

Texas lawmakers passed a law restricting use of private money for election administration almost two months after research showed that at least $36 million in grants financed by Facebook founder Mark Zuckerberg had the potential to alter the state’s political landscape dramatically.

Though prompted by the Zuckerberg grants, the new Texas law likely will prevent a flood of private money from multiple sources to pay for running future elections, the sponsor of the measure told The Daily Signal.

“Unless we get it stopped, I think we would have seen money coming in from many sources,” state Rep. Phil King, a Republican, said in a phone interview. “Uncontrolled, dark money of this nature is just very, very ripe for corruption.”

Texas Gov. Greg Abbott, a Republican, signed the bill into law June 12.

I just signed a law banning "Zuckerbucks" in Texas.

It bans private groups like the one supported by Zuckerberg from spending millions to administer elections like Zuckerberg & others did in Texas.

That is a government function not to be messed with by election influencers.
— Greg Abbott (@GregAbbott_TX) June 12, 2021

Texas became the seventh state so far to pass restrictions on private money going to election administration. The others are Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, and Tennessee, according to the Foundation for Government Accountability, a watchdog group that monitors the issue. //

Zuckerberg contributed $350 million to the nonprofit Center for Tech and Civic Life, which distributed the grants to local jurisdictions in Texas and 48 other states to run elections in 2020.

Some Texas counties flipped from red in 2016 to blue in 2020, according to the report. Tarrant County went to Trump in 2016 but flipped to Biden in 2020, with a 43% increase in Democratic votes compared with Trump’s jump of 18%.

Biden also flipped Hays County (the Austin metropolitan area) and Williamson County, with raw vote increases between 70% and 80%.

The Center for Tech and Civic Life gave between $36 million and at least $39 million from the Zuckerbergs to Texas jurisdictions, according to varying accounts.

The Supreme Court’s unanimous judgment was a clear win not only for Catholic Social Services but for First Amendment advocates looking for a strong denunciation by the court of blatant religious discrimination by the city government.

Even so, the court’s opinion was narrower than some advocates of religious freedom would have preferred.

The Catholic agency had asked the Supreme Court to overturn Employment Division v. Smith, a problematic 1990 opinion that has restricted the free exercise of religion for decades. The court instead found that this case fell outside the parameters of Smith and declined to reexamine the precedent.

The justices split 6-3 on whether the opinion in Smith should be overturned immediately.

Roberts’ 15-page opinion, which declined to overturn Smith, was joined by Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett.

Justice Samuel Alito penned a 77-page concurrence, joined by Justices Clarence Thomas and Neil Gorsuch, arguing that the court should overturn Smith.

Alito offered extensive textualist and originalist analysis of the Constitution’s free exercise clause, concluding that the “case against Smith is very convincing” because of how that decision “conflicts with the ordinary meaning of the First Amendment’s terms.”

In a separate concurrence, Gorsuch noted that the court’s failure to address the old opinion hands the Catholic agency a rather tenuous win. As Gorsuch explained, that opinion allows governments to restrict religious exercise through laws that are “neutral” and “generally applicable.”

In the Philadelphia case, the majority opinion found that the law in question contains a clause that made it not “generally applicable,” rendering the law’s restriction of religious freedom unconstitutional.

Gorsuch noted that “with a flick of a pen, municipal lawyers may rewrite the city’s contract” to remove the problematic clause and make the law generally applicable.

If this happens, Gorsuch said, the Catholic agency will find itself “right back where it started,” in danger of being shut down by the government and in a new round of litigation. For this and other reasons, Gorsuch supported Alito’s recommendation to overturn Smith.

But, as Justice Alito stressed in his dissent, there is an easy way around the court’s decision: eliminate the Section 3.21 exemption—an exemption the city never used. “If it does that, then, voilà, today’s decision will vanish—and the parties will be back where they started,” Alito explained.

And he is right. The case of Jack Phillips from Masterpiece Cakeshop proves the point. Justice Gorsuch highlighted this in his separate concurrence, which Justices Alito and Thomas also joined.

“After being forced to litigate all the way to the Supreme Court, we ruled for him on narrow grounds similar to those the majority invokes today,” Justice Gorsuch wrote. Specifically, in that case, “because certain government officials responsible for deciding Mr. Phillips’s compliance with a local public accommodations law uttered statements exhibiting hostility to his religion, the Court held, those officials failed to act ‘neutrally’ under Smith.”

However, “with Smith still on the books,” Justice Gorsuch added, “all that victory assured Mr. Phillips was a new round of litigation—with officials now presumably more careful about admitting their motives.” That is precisely what Phillips faces now, being fined and again hauled into court for refusing to craft a “gender transition cake.”

The time has long since passed for the high court to overturn Smith, and Justices Gorsuch and Alito’s concurrences, which Thomas joined, lay bare that reality. So, while yesterday’s decision was a win for CSC, it was not a victory for religious liberty.

the legislature passed the Second Amendment Preservation Act (“SAPA”) — which was then signed into law by Missouri Governor Mike Parson on June 12, 2021. //

So, what exactly is SAPA? In a nutshell, it’s a law that prohibits the enforcement of federal provisions that infringe on the right to keep and bear arms. //

Sounds like this is setting up a bit of a showdown. Who’s got the winning hand here? As noted above, this legislation has been in the works for years — it wasn’t just thrown together haphazardly. //

Cam Edwards, over at our sister site, Bearing Arms, had this to say about the constitutionality of the provision:

There’s nothing unconstitutional about the new Second Amendment Preservation Act. In fact, it fits squarely within the Court’s precedent in Printz vs. U.S., which held that state and local law enforcement are under no obligation to perform the duties of federal law enforcement. Missouri’s Second Amendment Preservation Act is comparable to California’s Sanctuary State law, which forbids state and local governments from cooperating with ICE in most cases. The Supreme Court upheld California’s law last summer, and if they have the opportunity to weigh in on the Missouri law, I’m sure the justices will do the same. //

Blue State Deplorable
10 hours ago
So let me get this straight. It’s ok for California to ignore federal immigration law, but not okay for Missouri to ignore federal law that infringes on its citizens’ 2nd Amendment rights. Got it~ //

emptypockets
11 hours ago
"Consider this opinion of the Supreme Court:

The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The Constitution of the United States is the supreme law of the land, and any statue, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail.
This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.
An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed.
Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it . . .
A void act cannot be legally consistent with a valid one.
An unconstitutional law cannot operate to supersede any existing valid law.
Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
— Sixteenth American Jurisprudence, Second Edition, Section 177. (late 2nd Ed. Section 256)
Keep this in mind when your friends and family, or your elected officials tell you that “it’s the law, you have to.”

If that law is arbitrary to the constitution, if it renders you subject to illegal or unconstitutional laws and acts it is in fact, null and void.
https://ryoc.us/us-supreme-...
Which seems to have already decided that..."There’s nothing unconstitutional about the new Second Amendment Preservation Act."...is a statement of fact.

On Monday, Townhall’s Marina Medvin shared a tweet showing shoplifting in San Francisco that should be considered shocking; a young man simply rides through a pharmacy with a trash bag, steals whatever he can, and not only does security allow him to ride out of the store, it seems nobody even moves to call the cops. //

For those unfamiliar, restorative justice is the progressive philosophy regarding crime. Its basic definition is “a system of criminal justice that focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.”

In other words, the solution to crimes is not punishment, but rehab and trusting that the criminal wants to change and be better and that the person committing said crime had no other choice — society forced him/her to do so.

So, all a criminal has to do is apologize, say he’ll commit to working hard, and prosecutors like Boudin give him a pass because, as Donahue referenced, these progressives believe that society–not the individual–is to blame for their crime.

To that extent, you’d be hard-pressed to find that society has ever forced a young man to ride through a pharmacy with a trash bag and snag whatever he can.

Maybe instead of imbibing from the church of progressivism, Boudin can listen to a priest from his city’s namesake’s religion; Roman Catholicism.

The now-deceased Bishop Fulton J. Sheen once said, “The danger today is in believing there are no sick people, there is only a sick society.”

He also stated, “There is a tendency among many shallow thinkers of our day to teach that every human act is a reflex, over which we do not exercise human control. They would rate a generous deed as no more praiseworthy than a wink, a crime as no more voluntary than a sneeze. . . Such a philosophy undercuts all human dignity. . . All of us have the power of choice in action at every moment of our lives.”

Indeed, perhaps progressives need to stop viewing society as the problem, start giving these criminals their rightful dignity, and recognize that they choose to commit crimes such as shoplifting which should rightfully be punished. Otherwise, San Francisco will continue to descend into anarchy. //

mjc227
an hour ago
Look for all the leftist losers running the city whining that SF is a food desert, hardware desert, drug store desert, dollar store desert and every other business desert and then blaming "society" after they ran every business out. It will be Trump's fault somehow or Republicans or the Tooth Fairy. Lefties create the problem, blame everyone else but who caused the problem and then come riding in with a crackpot solution to a problem they created that could not possibly solve the problem but the taxpayers wind up paying for the solution that has a zero chance of ever working. Wash, rinse and repeat.

The FBI wants to keep $86 million in cash and millions more in jewelry and other valuables seized in a raid on a Beverly Hills, California, safe deposit box business, even though a judge specifically said the contents of the boxes weren’t up for grabs.

Prosecutors claim it’s fair to make the renters of the 369 safe deposit boxes forfeit their valuables, because they were engaged in criminal activity, the Los Angeles Times reported. But there’s no evidence to support the allegation.

The box holders and their lawyers say the FBI is trampling on the rights of people who were unaware the business, U.S. Private Vaults, was charged in a sealed indictment with conspiring to sell drugs and launder money.

The warrant that US Magistrate Steve Kim signed on March 17 giving permission for the FBI to raid the business even said, “This warrant does not authorize a criminal search or seizure of the contents of the safety deposit boxes.” //

If the FBI wanted to search the boxes, it needed to meet the standard for a warrant of probable cause that evidence of a crime would be found. But agents rifled through about 800 boxes anyway, filming their searches and bagging the property as evidence even when the holders were unknown and not suspected of crimes.

Now, the government is trying to keep the cash, gold and silver bars, pricey watches and even $1.3 million in poker chips from a Las Vegas casino.

In a 6-3 ruling, the Supreme Court just narrowed the scope of the Computer Fraud and Abuse Act:

In a ruling delivered today, the court sided with Van Buren and overturned his 18-month conviction.

In a 37-page opinion written and delivered by Justice Amy Coney Barrett, the court explained that the “exceeds authorized access” language was, indeed, too broad.

Justice Barrett said the clause was effectively making criminals of most US citizens who ever used a work resource to perform unauthorized actions, such as updating a dating profile, checking sports scores, or paying bills at work.

What today’s ruling means is that the CFAA cannot be used to prosecute rogue employees who have legitimate access to work-related resources, which will need to be prosecuted under different charges.

The ruling does not apply to former employees accessing their old work systems because their access has been revoked and they’re not “authorized” to access those systems anymore. //.

Clive Robinson • June 7, 2021 9:43 AM

I’ve already commented on why the law was technically very bad.

But a saliant legal point was that it confused contracts and legislation.

That is it alowed a non legalistive organidation such as a corporation to write a document that had criminal penalties.

That is wrong by any measure.

In the US you get taught that,

A tort arises from a breach of a private duty and a crime arises from a breach of a public duty.

The two should never ever be confused getting on for atleast two millennia of jurisprudence has repeatedly shown that any cross over leads to an escalation of undesirable outcomes and other unintended consequences that easily cascade into what becomes a runaway set of consequences.

But then US legislators have a history going right back to the constirution of at the best antipathy towards democracy right through to ensuring that the citizens have no rights in any form.

The CFAA was an insidious form of the age old game of “Rights Striping” by ensuring a “non equity of arms” which favours those that see themselves as entitled through the holding of property and directly or indirectly other humans as chattels or endentured servitude.

A billion-dollar judgment in a piracy lawsuit involving a major Internet service provider could force ISPs to terminate more customer accounts and "punish the innocent and guilty alike," advocacy groups have warned. Urging an appeals court to overturn the ruling, the groups wrote that "upholding this verdict would result in innocent and vulnerable users losing essential Internet access." //

"In going after Internet service providers for the actions of just a few of their users, Sony Music, other major record labels, and music publishing companies have found a way to cut people off of the Internet based on mere accusations of copyright infringement," the EFF wrote in a blog post announcing the filing. "When these music companies sued Cox Communications, an ISP, the court got the law wrong. It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business's account after a small number of accusations—perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered. If not overturned, this decision will lead to an untold number of people losing vital Internet access as ISPs start to cut off more and more customers to avoid massive damages."

A jury ruled in December 2019 that Cox must pay $1 billion in damages to the major record labels. Sony, Universal, and Warner had sued the cable ISP in 2018 in US District Court for the Eastern District of Virginia. A district judge upheld the verdict in January 2021, approving the $1 billion judgment and paving the way for to Cox appeal to the 4th Circuit. //

Given this reality, the stakes of this case for Internet users are enormous. The district court's judgment and the jury's damage award in this case are founded on fundamental errors of law that, if affirmed, will force ISPs to terminate more subscribers with less justification or risk staggering liability. First, the judgment relies on unwarranted extensions of copyright's two "secondary liability" doctrines, which will encourage ISPs to terminate subscribers when more proportionate means of addressing infringement exist. Second, the staggering and poorly justified $1,000,000,000 award of statutory damages against Cox thwarts basic principles of due process and the public interest. //

Previous court decisions set important limits that were disregarded by the district court in the Cox case, the group argued:

First, vicarious liability requires proof of direct financial benefit to the defendant from another's copyright infringement. But since all subscribers (including infringers) pay a monthly fee for Internet access, courts have agreed that an ISP's receipt of such fees is not sufficient to meet this burden. Instead, the plaintiff must show in addition that the customer was "drawn" to use the defendant's Internet service (as opposed to any other Internet service) because of the availability of infringing copies of the plaintiff's works.

Second, because infringement occurs on all Internet networks, this Court, in BMG [see BMG Rights Management v. Cox Communications], refused to impose contributory liability on an ISP simply because it had generalized knowledge that some customers will use the ISP's Internet service to infringe. Instead, contributory liability can be imposed only where an ISP knows of (or willfully blinds itself to) specific acts of infringement by particular subscribers and also knows "that infringement is substantially certain to result from [its] continued provision of Internet access to particular subscribers."

The district court disregarded these critical limitations, sustaining vicarious liability even though there was no proof that infringers were specifically "drawn" to the Cox service, and finding on summary judgment that as a matter of law, Cox had the knowledge necessary to contributory liability solely from receiving the plaintiffs' DMCA notices. It refused to submit the knowledge issue to the jury despite Cox's showing evidence that some of [the] DMCA notices were false and that Cox could not be substantially certain of future infringement by subscribers named in the notices.