In the aftermath of the San Bernadino terrorist attack, the Federal Bureau of Investigations sought the assistance of Apple in its investigation. An Apple phone used by one of the terrorists included a function, which the FBI wanted Apple to defeat, that would automatically delete all stored information after ten failed hacking attempts. Defeating the function would have required Apple employees to write code, which Apple contended amounted to compelled speech. Privacy issues were also asserted, but countered, at least in part, by the fact that the user of the phone was deceased, and the phone was actually owned by a local government. After the FBI used other sources to get the information it sought, Apple moved against the FBI to disclose exactly whether and how it had bypassed the delete function. Our experts discussed this interesting matter and next steps.
Prof. Justin (Gus) Hurwitz, Assistant Professor of Law, Nebraska College of Law
Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee
Should the United States Cede Control of the Internet? On Tuesday, May 24, the United States Senate Committee on Commerce, Science, and Transportation, will hold a hearing titled “Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority.” The hearing will examine the proposed transition of oversight of the Internet Assigned Numbers Authority (IANA), a department of the Internet Corporation for Assigned Names and Numbers (ICANN) that allocates Internet IP addresses and domain names, to the global multistakeholder community. Our experts discussed the implications of the proposed transition.
John M.R. Kneuer, President and Founder, JKC Consulting LLC and Seinor Partner, Fairfax Media Partners
Shane Tews, Visiting Fellow, Center for Internet, Communications, and Technology Policy, American Enterprise Institute
The Supreme Court issued its 7-1 ruling in Foster v. Chatman on May 23, reversing the Supreme Court of Georgia and remanding the case. Foster was convicted of murder and sentenced to death three decades ago by an all-white jury. The prosecutor struck all of the black jurors and had plans to do so before the voir dire began. The prosecution presented several race-neutral reasons for striking the jurors, and the Georgia courts ruled against the Batson claim. Foster later gained access to the prosecution's jury-selection notes that showed some racial pretext and used them for a renewed Batson claim. The Georgia courts rejected the claim as barred by state res judicata. Chief Justice Roberts wrote for the majority of the court finding that the court did still have jurisdiction and impermissible racial pretext was apparent for at least two of the state's peremptory strikes. Justice Thomas wrote a firm dissent where he doubted the court's jurisdiction. This Teleforum discussed the ramifications of this decision on the future of Batson deference, res judicata, and how this case might affect capital appeals pending throughout the nation.
Prof. Joseph L. Hoffmann, Harry Pratter Professor of Law and Director for Strategic Projects, Indiana University Maurer School of Law
Unconventional oil and gas production (or "fracking") has generated new wealth, new jobs, and new sources of energy for many Americans. But fracking has also generated local congestion and pollution problems, and some believe that it creates significant risks for state fresh water supplies or global climate change. In many states, localities opposed to fracking are trying to ban the practice or impose long moratoriums on it within municipal limits, notwithstanding statewide political support for fracking. The tensions between state-level energy policies and local restrictions raise legal questions about when statewide energy regulations should preempt local efforts to restrict fracking using local powers over land use. Earlier this month, the Colorado Supreme Court handed down two new and important preemption decisions, City of Fort Collins v. Colorado Oil & Gas Association, and Longmont v. Colorado Oil & Gas Association. Our experts discussed both cases, their significance in Colorado, and their implications for fracking and preemption law elsewhere in the United States.
Prof. Eric R. Claeys, Professor of Law, George Mason University School of Law
Prof. Hannah Wiseman, Attorneys' Title Professor, Florida State University College of Law