Three faculty members of the University of Illinois College of Law will provide commentary for WILL-AM's Legal Issues in the News, airing Monday mornings at 7:35 am.More from Legal Issues in the News »
President Trump's recent Executive Order suspending refugee admissions into the United States made headlines around the world. Let us look at one aspect of the Order that may affect every one of us at some time. As those affected by the Executive Order flew into American airports, they were detained and asked to hand over their phone contacts and social media information. If they refused, they could be denied entry into the U.S. We can look at two different issues highlighted by this situation. The first question is whether law enforcement is allowed under the Executive Order to take someone's cell phone information. The Fourth Amendment to the Constitution protects us from unreasonable searches and seizures, such as those conducted without a warrant or without probable cause. However, there is an exception to that rule at international borders. When anyone enters the country, border patrol agents can perform searches and seizures without a warrant or probable cause. Airports are considered international borders no matter where they are since there is no way to perform a security check before they land. Even before the Executive Order was signed, border patrol agents had a lot of authority. Searches at international borders can affect both citizens and non-citizens, and border patrol agents have several different ways of getting electronic information. If asked by a border patrol agent to give a password for an electronic device, you can refuse to do so. However, they can either copy the information from the device in order to access it another way, or they can simply seize the device and wait for a court order demanding that you give up your password. Refusal to cooperate can even prevent your admission into the country. Social media information is even easier to get for border patrol agents. Because social media is public by design, you don't have as much of an expectation of privacy to that information. A visa waiver program even began requiring applicants to disclose their social media accounts in December. The second question in this scenario is broader, and could affect anyone in the country: Can law enforcement inside the country force you to give up your phone password? The answer is a little murky. The question of whether someone has to give up their phone password falls under the Fifth Amendment. The Fifth Amendment protects a person from having to testify against oneself, which is how we get the common phrase "pleading the Fifth." Several courts have weighed in on whether giving up a phone password falls under the category of having to testify against yourself. In December, a Florida court ruled that a phone password was not protected under the Fifth Amendment because the password itself does not give up any information about the crime charged. Before that, a Virginia court in 2014 and a federal court in Michigan in 2010 both said the Fifth Amendment does cover a phone password. They both relied on a U.S. Supreme Court decision which stated that a person cannot "be compelled to reveal the combination to his wall safe" and then applied that logic to smartphones. However, law enforcement can use your fingerprint to unlock your phone. Because law enforcement can easily access your fingerprint, much like your voice, signature, or even a blood sample, using it to unlock a phone does not violate the Fifth Amendment. As a result, if you want to protect your electronic information, you may have to sacrifice the convenience of opening your smartphone with a touch of your finger in favor of a secure password.
Since the time of George Washington, presidents of the United States of America have issued orders telling federal governmental agencies how to do their work. The Constitution does not explicitly permit Executive Orders, but it does require the president to "take care that the laws be faithfully executed." Certainly an executive order must be supported by some type of Constitutional grant of authority, or by a proper delegation of power by Congress. For example, President Trump's Executive Order entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," relies upon the Immigration and Nationality Act. Early executive orders did not get much attention. Until the Department of State started to number them in 1907, they were usually unannounced, and viewed only by the agencies for which they were prepared. They were also off the radar because early presidents did not issue very many. George Washington issued eight. Abraham Lincoln issued 48, including the 1893 Emancipation Proclamation, which declared the freedom of three million enslaved people living in the south. Critics of executive orders argue that they permit sweeping policy changes, without proper Congressional vetting and approval. Laws are hard to pass, but executive orders only require a Presidential signature. However, they are not immune from challenge: both the legislative and judicial branch can overturn them. Congress can void an executive order by passing invalidating legislation, or by refusing to provide the funding needed to support the order. Of course, the President then may veto the invalidating legislation, and a 2/3 majority in both Senate and House is needed for an override. It is easier, and faster, for the judiciary to act. A court can overrule an executive order by finding that it overreaches Presidential authority, or violates a Constitutional right. A court can also stay enforcement of part or all of an executive order, pending a final determination of its constitutionality, as did judges in response to President Trump's "Foreign Entry" order. While many Executive Orders have been controversial, President Roosevelt's Order 9066 may well have been the most notorious. It provided military authority to remove Japanese and German Americans from certain regions of the country, paving the way for Japanese-Americans to be sent to internment camps during the Second World War. Fred Korematsu, an American citizen, challenged Executive Order 9066, arguing that it violated the due process clause of the Fifth Amendment. A majority of the Supreme Court ruled that the Executive Order was valid, as the need to protect against Japanese espionage during wartime outweighed Korematsu's individual rights. It took many years, but subsequent administrations apologized for the Japanese Internment. President Reagan signed the Civil Liberties Act of 1988, which ordered some monetary redress to surviving detainees. President George H. W. Bush signed an Amendment to the Act, which appropriated additional money for redress payments. A stated goal of the United States Constitution is to "establish justice." The words "Equal Justice Under Law" are carved above the entrance to the Supreme Court. Chief Justice John Marshall once explained: "The very essence of civil liberty consists of the right of every individual to claim the protection of the laws... One of the first duties of government is to afford that protection." Accordingly, the government must not only protect us from hostile threats. The government must also keep secure the right to justice, even when threatened by governmental action.
In 1600, a financially distressed English farmer named Pierce gave away his sheep herd to Twyne before Pierce's creditors could close in. An English court said Twyne had to give the sheep to Pierce's creditors. Four hundred years later, the same legal principles lie at the heart of a number of cases today where bankruptcy trustees have demanded that colleges and universities return tuition paid by parents who later filed bankruptcy.When people are able to pay their debts as they become due, what they do with their money is pretty much their own business. When people become insolvent, their creditors now have a very concrete stake in how they spend their money. Every dollar spent is one less dollar for creditors Thus, when people are solvent and give away their money, they have made a gift. When people are insolvent and give away their money – well, that's just it. They are not giving away their money. They are being generous with what is essentially their creditors' money.These were the basic ideas that were behind the 17th-century decision of that English court. The law already prohibited debtors from committing a fraud on their creditors. But, courts have to judge after the fact, and people will rarely admit they intended to commit a fraud. What the courts did was to develop factors the courts believed indicated that fraud was present. These factors came to be called badges of fraud. For example, courts are more suspicious of transfers that occur in secret or with close friends and family. If a court believes a prebankruptcy transfer has enough badges of fraud, it will order the recipient to surrender the money so it could be shared among all the creditors. Perhaps the most important badge of fraud is whether the debtor received fair value in exchange for the transfer. The modern-day Bankruptcy Code reflects that rule. The trustee in bankruptcy can recover any transfer of property for which the debtor did not receive reasonably equivalent value. Because of the rule's history, such transfers are known as fraudulent transfers. Whatever the bankruptcy trustee recovers from a fraudulent transfer gets shared among all of the creditors. With that legal background, we can come back to the college tuition cases. When mom and dad pay Sally or Bobby's tuition, Sally or Bobby receives a college education. The child has received reasonably equivalent value but have mom and dad? If not, it is a fraudulent transfer, and the bankruptcy trustee will win a lawsuit to force the college to give up the tuition payment. The courts have split over whether the parents have received value. Legally, parents have no financial obligation toward their adult children. To some courts, that answers the question. Without any obligation to pay for their adult child's college tuition, parents do not receive any value when they do so. Other courts have struggled to protect the tuition payments, undoubtedly influenced by the consequences to an adult child who may suddenly find that either they have to come up with a few years of tuition or quit college. The traditional rule has been that value must be economic. The reciprocal affection of family and friends may be priceless, but it is not value within the meaning of the bankruptcy laws.Thus, some courts have gone hunting for something to call value. A Pennsylvania court decided that, for purposes of the fraudulent transfer law only, college tuition for an adult child was a necessary household expense. Within the past month, a Massachusetts court ruled that the self-sufficiency college will bring to the adult child is a financial benefit to the parents. The tuition payment issue has just begun to percolate up through the federal court system. It may be that the appeals courts eventually will settle on a rule, but I suspect that it will be an issue that Congress eventually will resolve by amending the Bankruptcy Code itself.
Verity Winship University of Illinois College of Law The Supreme Court often makes headline news. But most of the judging in the United States takes place outside of the highest court. This radio commentary explores some fundamental differences between the job of Supreme Court Justices and other judges, especially trial court judges. It makes the point that your opinion about the Supreme Court – whatever it is - should not necessarily dictate how you think about judging more generally.
Alleged Russian Involvement in Hacking at Vermont Power Utility
There is an old proverb or curse that is often falsely attributed to ancient Chinese wisdom: May you live in interesting times. Cyber conflict and information warfare certainly make our present very interesting. Back in the 1980s, if two countries were at war and one wanted to interrupt the other's operations by cutting off their electricity, they would probably need some physical presence at their enemy's power plants. This might be an in person saboteur, or an airstrike. In contrast, a large region of Ukraine was plunged into darkness in December of 2015 when malware enabled attackers to shut down part of the country's power grid. The blackout lasted three hours before the electricity provider was able to switch the systems back to manual control. At the turn of the New Year, the Washington Post wrote itself into a controversy when it reported that Russian hackers had infiltrated our country's electricity grid through a Vermont utility company. A retraction followed. The truth was more complicated. Earlier that week, the FBI and DHS had released a report about "Grizzly Steppe," a cyber operation attributed to Russia and named after the Russian Grasslands. The initial claim was that code related to Grizzly Steppe was found on a laptop belonging to a Burlington Electric employee, but this was not fully accurate either. The malware on the employee's computer was recently reported as actually being the Neutrino malware package, which is not thought to be related to Grizzly Steppe. Further, the laptop was not connected to the grid. When the employee checked his Yahoo e-mail account, suspicious traffic triggered an alert. This questionable report comes at a bad time. U.S. intelligence officials increasingly point their fingers at Russian hackers for interfering with the U.S. election. In the midst of all of this, the Washington Post published a flawed article crying Cyber Wolf. The cyber threats to industrial control systems such as industrial relays and programmable logic controllers that are deployed in utilities and in transportation are significant. Industrial control systems are very vulnerable to cyber attacks since they are also susceptible to being controlled by outside actors deploying malware. Stuxnet was a cyber weapon that had physically destroyed hundreds of Iran's nuclear centrifuges by the middle of 2010. In late 2014, a cyberattack on a German steel mill caused massive damage to the mill's blast furnace. Hackers used Black Energy malware to shut down part of Ukraine's power grid in late 2015. This is not a question of "If," but "when," and unfortunately, the more effective our security is against these threats, the less real these threats will seem to everyone else, especially when all the public sees are false or questionable reports. The basics remain: The Burlington Electric employee's laptop was infected by malware. If that employee had used a USB drive to transfer any information from that laptop to a computer connected to the grid, the malware could have spread. Cybersecurity is only as strong as its weakest link. If the Burlington Electric employee's laptop had been infected by malware that could enable international espionage, we could be teetering on the edge of global cyberwar. The line between generic criminal hacking and international incidents is increasingly blurry, even as technology improves to make attribution more reliable. The danger of this report from the Washington Post is that people may underestimate the actual risk of a cyberattack to our critical infrastructure. This isn't about partisan politics, Democrat or Republican, blue states or red states. The dangers are real. We cannot let our legislators ignore cyber risks because one report was not accurate this time.
Alleged Russian Involvement in Hacking at Vermont Power Utility
Every four years, following a nation-wide election, the President-Elect of the United States takes his oath of office. In 1933, the Twentieth Amendment to the United States Constitution moved the date forward from March in order to shorten the Congressional lame-duck session. Thus, January 20th is the day that the next president will take the oath. Oath-taking is an ancient institution, but the first oaths were given to the rulers by the ruled. Two thousand years ago, King Herod purportedly demanded an oath of allegiance, and the penalties for refusal included execution. In more recent history, leaders have taken oaths to faithfully serve those whom they lead. The coronation oath of the United Kingdom's Queen Elizabeth II, given in 1952, requires her to execute her judgements with law, and justice in mercy. The current form of her oath dates back to the 17th Century. In the United States, we have the Presidential Oath. It use dates back to the 1789, when George Washington became the first President. Now, the Presidential Oath is a very particular oath, an example of what is called a "performative utterance." A performative utterance is different from normal types of speech: it is a phrase that not only describes reality, but also affects it in some way. So, by taking the oath of office, the President not only agrees that he is the new President, but he also becomes the new President. Performative utterances appear in many places. Another example are the words "You are under arrest," said by a police officer when a suspect is apprehended. The suspect is told that he or she is under arrest, and by saying those words, they become an arrested person. More benevolently, the words "I do" uttered in response to the phrase "do you take this person to be your lawful wedded spouse?" both signal an agreement to marry, and facilitate matrimony. But the Presidential Oath is a special type of performative utterance, as its words are specifically mandated by the charter document of a great nation. Now, the Constitution generally recognizes the importance of oaths. In Article VI, the Constitution declares that executive officers, judges, senators, and representatives are to be bound by an oath or affirmation to support the Constitution. But Article II, Section 1, which establishes the Presidential Oath, requires far more. This clause demands that the President swear or affirm that he "will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States." Thus, this oath requires that the President not only support the Constitution, but that he do so to the best of his ability. Where there may be a conflict with his own desires and ideas, the President must, first and foremost, fulfill the requirements of the Constitution. And there are other clauses in the Constitution that impose particular demands on the President. One noteworthy clause is part of Article 2, Section One. It says that the President must "take care that the laws be faithfully executed." In 1935, in the case Humphrey's Executor v. United States, the Supreme Court interpreted that clause to require that the nation's laws must be faithfully executed by the President, even if he disagrees with their purpose. It is interesting to think that in settling the law on the faithful execution clause, the Supreme Court used the same historic utterance that it has deployed to end racially- segregated education, eliminate prior restraints on newspaper publication, clarify that Presidents do not have unqualified executive privilege, and ensure that defendants in criminal cases have legal representation. Over and over, the Supreme Court has used the following four words to state the law and change the world: "It is so ordered."
The glow of the holidays is behind us. It was very thoughtful of your aunt to give you that plaid scarf, and your in-laws really shouldn't have gone to all the trouble to give you that sweater that lights up. I mean they really shouldn't have.It seemed like it might be a good time of year to review the law governing merchandise returns. We all know that most stores will accept returns. The reason they do so is rarely because of any legal obligation but because people are more likely to shop at a store that accepts returns. Consider a hypothetical case involving two big corporations with a contract where one promises to buy and the other promises to sell $10 million worth of steel. After the steel is delivered and paid for, could the buyer return the steel and demand return of the purchase price? Your instinct should be that it depends on what the contract says. Unless the contract allows the return, the buyer is out of luck. The law treats a consumer's purchase as just another contract. Thus, the law generally imposes no limits on what conditions stores can set for the return of merchandise. It is true that the recipient of a gift did not enter into the contract; the gift giver did. But, the law would allow the recipient to enforce the contract as an intended beneficiary. Contracts do not have to be in writing, and not every term of a contract has to be expressly stated. If I have been buying goods from a store for ten years and occasionally returning some, our course of dealing has established an implied term of our contract that I can return items. In actual practice, most stores have clearly stated return policies that will defeat any argument about an implied contractual term. I can hardly argue that our agreement implicitly allowed returns if I was expressly told the opposite. If the reason you want to return a gift is that it is defective, then you are in luck. Every contract for the sale of goods carries an implied warranty of merchantability, which is just the law's way of saying the contract carries an implied promise that the goods work. Words like "sold as is" can override this implied promise, but for new goods bought at a store the warranty of merchantability almost always will apply. If I buy a computer monitor, the store has promised me that the monitor works even if the store did not expressly say so. When the monitor stops working the next day, the store has broken that promise, and I have a claim for breach of contract. If these legal principles seem overly convoluted in how they deal with the return of an unwanted or defective item bought at a store, it is because they are. The law calls both the $10 million steel purchase and the consumer's moment in the checkout lane a contract. We can probably think of ways they are the same and ways they are different. The consumer's purchase seems contract-like but not quite a contract. A good change in the law would be to give consumer transactions their own category of rules, and the law is moving slowly in that direction. For example, Illinois joins many states in having three-day "cooling off periods" that allow the cancellation of certain contracts such as for door-to-door sales. Other states recognize that limits on returns can frustrate consumer expectations and require stores to notify shoppers of their return policies by posting a sign. As these examples show, legislatures and law reform groups are slowly changing traditional contract law to meet the needs of today's consumers. Have a great new year with many happy returns
Click here to accept these terms. That sentence, or a variation of it, is something that we routinely encounter. It shows up in app updates, on website registration pages, and during the installation of software and computer games. Most people don't read the terms that they're accepting, which can be a problem if they have a dispute with the company that provided the product because these unknown terms are now part of a binding contract. In the law, such a contract is often referred to as a contract of adhesion. Contracts are usually about a "meeting of the minds" – in other words, the people signing the contract know what's in the contract and mutually agree to it. But form contracts, like clickwrap agreements, don't give customers the opportunity to negotiate for more favorable terms. Some of these form contracts might include terms that limit the customer's rights. In 2003, a court in New York ruled that the popular anti-virus company McAfee could no longer use language in its form contracts that prohibited customers from publishing reviews or benchmark tests of its product without McAfee's permission. That ruling, however, only applied to one company in one jurisdiction. Since then, similar gag clauses have continued to show up. For example, the owner of a vacation home rental might sneak in a line saying that he may keep the deposit in the event of an unflattering review. This past week, Congress passed a bill called the Consumer Review Fairness Act of 2016. This bill renders void any provisions of a form contract that prohibits customers from posting reviews or that requires customers to transfer their intellectual property rights in a review to the company. By doing these things, the bill makes it harder for companies to silence unfavorable reviews. It is likely that President Obama will sign the bill. There are exceptions, of course. The prohibition doesn't affect a company's ability to take action if there has been defamation, or if the review is unrelated to the goods or services provided by the company, or if the review is clearly false or misleading. Reviews can also be removed for abusive or inappropriate content, or if they include confidential or other sensitive information, like trade secrets or medical information. The bill gives the Federal Trade Commission the authority to enforce the Consumer Review Fairness Act. State attorneys general and state consumer protection officers can also investigate and sue companies that include these prohibited terms in their form contracts. Ultimately, the Consumer Review Fairness Act should protect customers from one method that has been used to silence honest criticism. However, SLAPPs are still a concern. SLAPP stands for–Strategic Lawsuit Against Public Participation. 28 states, plus DC, have anti-SLAPP laws. The Consumer Review Fairness Act fixes the problem of companies bullying critics into silence using gag clauses in form contracts, but it doesn't fix the whole problem. Still, some argue that anti-SLAPP laws make it harder for sincere plaintiffs to ask courts to fix real wrongs. We know that it is always a challenge to control for abuses of the legal system on either side. People have been urging Congress for years to enact a federal anti-SLAPP law. The Consumer Review Fairness Act is a good step, but there are a lot of ways to use lawsuits to harass and intimidate critics into silence. Passing this law might be a way for Congress to test the waters and see how much demand there is for a federal anti-SLAPP law. The passage of this Act also shows that there is support for such legislation, so a new federal anti-SLAPP law may be on the cards in the future.
Did you know that cities are fighting zombies in the Supreme Court? Well, zombie foreclosures at least. In 2014, the city of Miami sued major US banks who lent money to homebuyers. According to the city, the banks had targeted minority homeowners for exploitative loans, leading to a city devastated by foreclosures. These included homes stuck in the realm of the undead, in the process of being foreclosed but not yet reclaimed by the lender. The city bore the costs of fighting the spreading urban blight. It was now trying to collect that money from the banks. The banks' response: the city can't sue. Miami is the wrong plaintiff for this Fair Housing Act claim. The fight over when cities can sue has reached the Supreme Court. This radio commentary previews the pending case: Bank of America v. City of Miami.