South Florida Criminal Defense Lawyer Blog

BuzzFeed, a social media “gadfly” page, reports that the DEA created a fake Facebook account, filled the page with statements that evoked a response, and made criminal cases. Using personal photographs and information (drawn from the personal information of a woman arrested on Cocaine charges) the DEA tricked her “associates” to reveal incriminating information. Here is what the DEA did…. using the name “Sondra Arquiett” the DEA created a Facebook account.

Source: Facebook

The DEA extracted personal photographs and personal information from the cellphone belonging to a New York resident who was arrested in a cocaine case. Using this false Facebook page, some people who knew Sondra Arquiett engaged in Facebook conversations revealing incriminating evidence and making incriminating statements. Photos of her BMW automobile and a narrative of how she was lonesome for her boyfriend were posted. DEA, in a creative binge posted photographs of her on the hood of her car and photos (taken from her cellphone) of her young son and her niece. Now there is a federal lawsuit in U.S. District Court in Albany, New York.

Defending itself, the DEA argued that Arquiett had “implicitly consented” to the DEA using her cellphone contents. It is unknown as to what Arquiett actually said or stipulated as to the use of the contents of her cellphone. Arquiett in her lawsuit against the DEA stated that she was now suffering emotional distress and fear because she was “outed” on Facebook as a cooperating witness and an informant. Aquiett stated that dangerous and violent people who went to the DEA Facebook page were going to kill her because she was an undercover cooperating witness who could testify against them. Her pleadings spoke of “dangerous individuals” who were being investigated and that those “dangerous individuals’ were going to kill her because of the fake Facebook page created by a DEA agent.

Facebook has a policy, known to the DEA and known to the DEA agent that states, “You will not provide any false personal information on Facebook or create an account for anyone other than yourself without permission” [taken from Facebook’s policy and uses agreement that all Facebook users must agree to before creating a Facebook account and constructing a Facebook page]. No comment has been forthcoming from Facebook, but they are summoned to testify at the trial. Arquiett was originally arrested in New York in July of 2010. Her case was resolved in 2012 in Federal Court. Reports of the case can be found in statements by Justice Department spokespersons, NBC and “BuzzFeed.”

As recently as August 6, 2014, the New York Times reported that Justice Ruth Bade Ginsberg has commented on the Supreme Court’s recent decisions, saying that while gay and lesbian rights move ahead, women’s rights have moved off the Court’s radar.  Her comments were that she sees “inconsistency.”

Source: huffingtonpost.com

Now, no one is suggesting anything sexy about the Court, but their sexitics (sex + politics) is being analyzed, reviewed and digested and has been in the news.  As recently as June 2014, the Supreme Court has ruled that same-sex couples have the right to equal treatment in some clearly defined legal matters.  And, during the same term, the Court has created law that corporations are persons and have religious views and rights.

The fiction of corporations as persons (just as humans are persons) has been used by the Court to give corporations the right to participate in elections and, now, to challenge women’s rights.  The Court is playing this as if it were a trump card. It is assigning human rights to corporate personhood and equating those rights and powers with human personhood.   Now the Court has gone on to use this new concept of “corporate personhood” to restrict women’s rights, and Justice Ginsberg’s reaction is in the news. This modest comment is a powerful statement that the sexitics of the Court is out of balance.  Court followers agree that her stance on “sexitics” on the Court may push her to remain on the Court beyond her hoped-for retirement, and champion women’s rights.  Justice Ginsberg’s comments were made before a law school audience.  Her reported comments are that the Court writes of “equal dignity” and fundamental values in gay rights cases, but the Court is retreating on women’s’ rights issues.

From our perspective, in the courtrooms, it is foreseeable, and I’m forecasting here, that the Supreme Court may soon declare that marriage is a union between persons, and that the sex of the persons does not bear in the legal considerations and rights of marriage.  The clear trend of this Court is to push back on women’s rights.  If you review the recent decisions on medical leave, equal pay for equal work, and abortion and contraception rights in the Court’s recent decisions involving “Obama Care,” the trend appears like a rollback.  Re-read the “Hobby Lobby” case and see how the Court has created a right for corporations to have religious views on non-religious issues and trump a woman’s access to contraception.  Define religious issues as having to do with faith and spiritual matters and a woman’s right to control her body’s reproductive capacity and you can find a defining line between one’s beliefs in spiritual matters and social issues such as reproductive rights and personal choice on access to contraceptives.

The news of July 9, 2014 from Iraq is that 90 pounds of uranium compounds have come into possession of the Islamic State In Iraq and Levant (ISIS).  The uranium was obtained from a university laboratory in Mosul, a city in Northern Iraq that is occupied by ISIS and is beyond the control of the Nation of Iraq.  A spokesperson for the International Atomic Energy Agency has officially notified the United Nations in New York of these developments.

The International Atomic Energy Agency Convention on the Physical Protection of Nuclear Material obligates the signing nations to protect nuclear facilities and material in peaceful domestic use, storage and transport.  The treaty, entered into in 1987 and modified in 2005 has 150 nations as “signatories”.  The treaty covers the “low grade” nuclear material stolen by the ISIS.  The International Atomic Energy Agency, in its press release, indicated that the nuclear material is not suited for atomic explosive weapons, but may be used in “dirty” bombs.  A dirty bomb is a conventional explosive device embedded in radioactive material.  The conventional explosives would spread the nuclear material and contaminate the explosive radius with levels of radioactivity that exceed acceptable levels of exposure for humans.

There is no judicial venue for enforcing agreements signed by nations.  The Charter of the United Nations has a process for member nations to bring treaty violations before the Security Council, but no enforcement process exists.  The United Nations created the International Court of Justice (ICJ) as a court for nations to litigate disputes in accord with international law.  The ICJ has been a forum of limited jurisdiction and has been a court where some member states go to seek resolution of disputes.  The limitation of the court is it has no enforcement powers.   Because the ICJ cannot enforce any of its rulings it has declined to take cases where the outcome would require enforcement.  By example a civil court in the United States can use contempt powers to arrest and detain and fine persons who fail to comply with Court orders.

The Security Council of the United Nations, under Chapter VII, can impose sanctions on member nations that threaten international peace and security but does not and has not invoked Chapter VII in matters that would require actual enforcement.   At this time a violation of the Convention on the Physical Protection of Nuclear Material by ISIS may be beyond the powers of the ICJ to act and, for political reasons, the Security Council may not invoke Chapter VII.   Individual citizens cannot force nations to comply with their treaty undertakings with some limited exceptions: The United States Supreme Court has, over the past 120 years, permitted some banks and corporations to sue in Federal Court when they are financially harmed by inaction or non-compliance by signatory nations to some treaty obligations.

Obama Care (the Affordable Health Care Act) requires health insurance provide birth control benefits. The Hobby Lobby case tells us you don’t have to if you are a closely held corporation (4 or fewer stockholders) and you have bona fide religious objections to birth control.

Source: http://www.popsugar.com/Hobby-Lobby-Birth-Control-34447944

The decision is seen as an end run to, in effect, backdoor reproductive and privacy rights by framing the issue as a question that can be decided under the Religious Freedom Restoration Act of 1993. What has upset an entire universe of people, from women’s rights and gay and lesbian rights to, and including, civil rights advocates is the Supreme Court’s willingness to allow this obvious subterfuge.

In deciding the case, the Court agreed to look only at the Religious Freedom Restoration Act of 1993’s procedural processes. The Court went to great pains to say this case has nothing to do with abortion rights and civil rights, and that is why the Court is being attacked.  In its written decision, which is being called intellectually dishonest, the U.S. Supreme Court decided that regulations promulgated by the Department of Health and Human Services under the Patient Protection Act violated the “burdensome” test of the Religious Freedom Restoration Act.  The (RFRA) prohibits the Government from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability unless the Government demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.  Because the Court found that four of the contraceptive coverages “burdened” Hobby Lobby’s right to religious expression, the Court struck the four contraceptives from the insurance of employees of Hobby Lobby.

The Court made great efforts to calm the waters by reminding the reader to keep in mind that this case was not a first amendment religious freedom case.  Nor, so the Court wrote, is it a privacy or a women’s rights case, an abortion rights case or a civil rights case.  The Court was clear that it was only deciding on the issue of burdensome regulations as it affects rights of payers of medical insurance to impose their own religious beliefs. Critics of the decision accuse the Court of  trying to change the relationship of government and religion with this decision.  Critics say  the legal “mechanics” is a  slight of hand by the Roberts Court.

The U.S. Supreme Court accepted and will rule on the Anthony Elonis case in the Court’s upcoming Fall term.  The Elonis case involves a man who was found guilty and sentenced to over three years in prison for posting threats to his wife on Facebook.   Because of the Supreme Court’s recent decision on cellphone searches, commentators are anticipating that the Elonis case will make new law on internet social sites and First Amendment free speech.  With the way our Constitution is set up, the Supreme Court doesn’t “make” law, it resolves conflicts from lower courts and clarifies issues of constitutional law.  In this situation, there  are major conflicts in rulings from various States concerning their criminal laws and those of federal courts interpreting federal law.  The Elonis case is also about internet (like books, or newspapers, or letters, or radio), each medium is, as Marshall McLuhan says,  the message.    The Supreme Court has to address the question: Does that matter?  Internet social sites are a medium for both  conveying  political speech and personal “posts.”  If there is a line, the Supreme Court is expected to focus on that issue.

The conflicting interpretations from lower courts hinge on what the “speaker” intended, as opposed to what the “hearer” understands.  One line of cases hold that a threat is a statement only if  the speaker meant to communicate it as a threat to an individual or a group   (Watts v U.S.).  Other lines of decisions hold that if a reasonable person would see it as a threat then it is not protected speech, regardless of the intent of the speaker.   Elonis’s defense is that his threats, some of which are composed in patterns used in rap music, are protected free speech.

This issue has a long history of litigation both in State and Federal courts.  One federal opinion arose from  a Vietnam War protester who, in front of a protest group said, ”If I’m drafted into the army and they give me a rifle, the first person I’ll put in its sites is the President of the United States.”  Is that protected political speech or a threat to kill the President of the United States?  How about burning a cross?  Is that political speech or a threat against African Americans?  How about burning a copy of the Koran?  Is that protected speech or should I be criminally prosecuted because a Muslim neighbor of mine perceived this as a threat to himself and his family?  Now consider rap music in which the artist goes on about killing police.  Is that a threat to police or protected free speech.

The Supreme Court can, and will, decide on what is the question before they give us an answer.  What most commentators are saying is that this case will make new law because it involves the Internet.