Congress Considers Penalties for U.S. Contractors Abroad

The chairman of the Senate Judiciary Committee is making a new push to apply some U.S. criminal laws to federal employees and government contractors who are working abroad.

The move by Sen. Patrick Leahy, D-Vt., is at least the third such attempt since a high-profile killing of Iraqi civilians by Blackwater security guards in September 2007. But this time, Leahy has at least the tentative support of some in the contracting industry and of the U.S. Justice Department.

Leahy said in prepared remarks for a hearing Wednesday that he was planning to introduce the latest version of legislation soon, and that he will move forward with it if he finds bipartisan support.

The Justice Department’s case against the Blackwater guards, one of many incidents involving contractors abroad in recent years, is moving slowly. Last month, a federal appeals court reinstated the case, but prosecutors still face evidence problems that Leahy said could have been avoided if U.S. law clearly applied.

“Had jurisdiction for these offenses been clear, FBI agents likely would have been on the scene immediately, which could well have prevented the problems that have plagued the case,” Leahy said.

DLA Piper partner Tara Lee, who co-chairs the firm’s transnational litigation practice, said at Wednesday’s hearing that many of the government contracting companies she represents would welcome some version of the proposal because existing law is unclear. For example, the law generally applies to contractors working for the Defense Department but it doesn’t always apply to those working for other agencies like the State Department.

“If there’s lack of clarity in a statute, I stay busy all day,” Lee said. “But from the perspective of the companies I represent, I think you do have an opportunity to clearly articulate your intent here.”

via Congress Considers Penalties for U.S. Contractors Abroad.

Court allows warrantless cell location tracking | Privacy Inc. – CNET News

The FBI and other police agencies don’t need a search warrant to track the locations of Americans’ cell phones, a federal appeals court ruled on Tuesday in a precedent-setting decision.

In the first decision of its kind, a Philadelphia appeals court agreed with the Obama administration that no search warrant–signed by a judge based on a belief that there was probable cause to suspect criminal activity–was necessary for police to obtain logs showing where a cell phone user had traveled.

A three-judge panel of the Third Circuit said (PDF) tracking cell phones “does not require the traditional probable-cause determination” enshrined in the Fourth Amendment, which prohibits government agencies from conducting “unreasonable” searches. The court’s decision, however, was focused on which federal privacy statutes apply.

But the panel sided with civil-liberties groups on an important point: it agreed that, in at least some cases, judges may require investigators to obtain a search warrant. That is, however, “an option to be used sparingly,” the court said.

via Court allows warrantless cell location tracking | Privacy Inc. – CNET News.

Judges Divided Over Growing GPS Surveillance – NYTimes.com

The growing use by the police of new technologies that make surveillance far easier and cheaper to conduct is raising difficult questions about the scope of constitutional privacy rights, leading to sharp disagreements among judges.

A federal appeals court, for example, issued a ruling last week that contradicts precedents from three other appeals courts over whether the police must obtain a warrant before secretly attaching a Global Positioning System device beneath a car. The issue is whether the Fourth Amendment’s protection against unreasonable searches covers a device that records a suspect’s movements for weeks or months without any need for an officer to trail him.

The GPS tracking dispute coincides with a burst of other technological tools that expand police monitoring abilities — including automated license-plate readers in squad cars, speed cameras mounted on streetlight poles, and even the widely discussed prospect of linking face-recognition computer programs to the proliferating number of surveillance cameras.

via Judges Divided Over Growing GPS Surveillance – NYTimes.com.

Federal Circuit Ruling May Rein In Patent Re-Examinations | Law.com

Patent Office relief on the Herbert C. Hoover ...
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A federal appeals court ruling may curb the growing trend of using re-examinations to challenge other parties’ patents.

In In Re Suitco Surface Inc., the U.S. Court of Appeals for the Federal Circuit remanded a U.S. Patent and Trademark Office rejection of some claims in a patent re-examination. The PTO’s interpretation of Suitco’s patent claim for “material for finishing the top surface of the floor” was “unreasonably broad,” wrote Circuit Judge Randall Rader.

Rader noted that case law requiring the PTO to give claims “their broadest reasonable construction” does not give the PTO “an unfettered license to interpret claims to embrace anything remotely related to the claimed invention,” Rader wrote. “Rather, claims should always be read in light of the specification and teachings in the underlying patent.”

Suitco will be a frequently cited case for patent lawyers helping clients fight re-examinations, said Steven Moore, an intellectual property litigation partner in the Stamford, Conn., office of New York’s Kelley Drye & Warren, who was not involved in the case.

“It’s a fight that we all have with the patent office,” Moore said. “If it’s in your specification and you’ve used it in a particular manner, that’s what should rule, not this broadest-interpretation concept.”

Seeking a re-examination of the patent is “almost a knee jerk reaction” for defendants in patent infringement cases, he added.

“With the number of re-exams being allowed by the patent office, if you’re in litigation you almost always have a re-exam,” Moore said.

via Law.com – Federal Circuit Ruling May Rein In Patent Re-Examinations.

Supreme Court to consider privacy in text-messaging case

The U.S. Supreme Court has agreed to review a federal appeals court ruling involving the privacy of personal text messages sent and received by a member of the Ontario, Calif., police department on his official pager.

Last June, the U.S. Court of Appeals for the Ninth Circuit ruled that Ontario police Sgt. Jeff Quon had a reasonable expectation of privacy in personal text messages transmitted on his SWAT pager in the absence of an official policy regarding pager use.

The appeals court ruled that a police department search of Quons text messages and those sent to his pager by others violated his Fourth Amendment rights and Californias privacy laws. The appeals court also held that the text-messaging provider for the police department violated the provisions of the Stored Communications Act when it turned over the messages without getting consent from Quon. In a writ issued today, the Supreme Court said it would review those rulings.

The case goes back to August 2002, a couple of years after Quon and other members of the Ontario police department were issued pagers. At that time, the city had no official policy related to text-messaging. However it did have a general computer, Internet and e-mail usage policy that made it explicitly clear that the systems were to be used only for official purposes.

via Supreme Court to consider privacy in text-messaging case.