House Democrat to Challenge IRS Tax-Exemption Rules

(Jonathan H. Adler)

The Washington Post reports that Rep. Chris Van Hollen (D-MD) will file suit today against the Internal Revenue Service’s regulations governing what organizations qualify for tax exempt status.

Current law says the organizations must engage “exclusively” in social welfare activities, but IRS tax code requires only that they are “primarily engaged” in such purposes. That discrepancy has led to confusion for application processors, who have struggled to determine what constitutes political activity and how much should disqualify groups from tax-exemption, according to agency officials.

“I don’t think the IRS should be in the business of determining whether the primary purpose of an organization is political or educational,” Van Hollen said in an interview Tuesday. “The statute is very clear they should not be in that business.”

Dean Patterson, an IRS spokesman, declined to comment on the planned suit but noted that the agency’s 2013-2014 work plan, released on Aug. 9, calls for new guidance on determining of 501(c)(4) eligibility. . . .

Three campaign-finance watchdog groups — Democracy 21, the Campaign Legal Center and Public Citizen — are joining Van Hollen in the lawsuit. They have scheduled a joint teleconference Wednesday to discuss the legal action.

Hat tip: Rick Hasen.

[Note: It's been a sloppy day. I accidentally identified Van Hollen with an "R" in the body of the post.  It's fixed now.]

Decimating the Public Defender System

(Jonathan H. Adler)

Former judges Paul Cassell and Nancy Gertner have an op-ed in today’s WSJ decrying the effects of budget constraints and sequestration on federal public defenders.  Here’s a taste:

due to the combination of general budget austerity and sequestration, the federal public defender system—a model of effective indigent defense for the past 40 years—is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings.

A decrease of nearly 10% in the federal public defender budget for 2013 has already resulted in layoffs and up to 20 days of furloughs in many federal defender offices. In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs. . . .

These steep budget cuts will not save us money in the long term. Delays in trials require many defendants to spend more time in costly pretrial detention facilities. But the flow of criminal prosecutions has not abated, so the unavailability of public defenders will simply force courts to engage private attorneys more frequently. Most federal judicial districts have a public defender office and, in those districts, it is more cost effective to have the office handle a majority of cases.

Reducing funding for federal defender budgets means that the remaining federal defenders have less time and fewer resources with which to investigate cases, conduct legal research and hire expert witnesses. This loss severely compromises their ability to represent their client at trial, destroying the adversarial process at the heart of our system. Without balanced, vigorously litigated cases, wrongful convictions may become more common, imprisoning the innocent and allowing the guilty to walk free.


Comment Outage when Using Internet Explorer

(Eugene Volokh)

The commenting software we’re using (Disqus) seems to be having problem on our site, for users using Internet Explorer. We’ve asked the Disqus people about this, and we’re hoping it will be fixed soon. But for now, if you’re finding comments aren’t working for you, please try with Firefox, Chrome, or some other browser; annoying, I realize, but the best workaround we could find so far, I’m afraid.

Sachs on Personal Jurisdiction and Authority

(Will Baude)

Speaking of Steve Sachs and civil procedure, I was recently reminded of this passage, from a recent article by Steve, on the question of whether the Constitution’s limits on personal jurisdiction focus on convenience and fairness or on something more like sovereignty (an issue that may well come up again in next term’s personal jurisdiction cases):

These concepts of convenience and fairness fail to account for another worry. Whether or not one agrees with the McIntyre plurality’s take on sovereignty (or its contractarian theory in particular), the authority of a distant court ought to be supported by some theory of obligation.

Suppose that, after an ordinary fender-bender in a neighboring state, an official visits you from the Tribunal de grande instance de Paris and says:

The person whose fender you hit has asked us to decide your case. We will hear it according to our own rules of procedure and evidence—not just about the kind of paper you file on, but about how intrusive discovery will be, what kind of experts can testify, and whether you will have to pay the plaintiff’s costs and fees if you lose.

Your arguments will be considered by a French judge, who was appointed by French politicians or selected by French bureaucrats. Your substantive rights and liabilities will be determined through our choice-of-law principles, which (all else being equal) tend to favor the laws of France. You can get a jury trial only if French law permits one (which it doesn’t), so the judge will decide all the facts. And any appeals will run to the regional cour d’appel and from there to our Cour de cassation.

This isn’t optional, by the way.

But you do have some protections. We’ll apply whatever U.S. federal law is relevant to your garden-variety tort case; our procedures won’t be inconsistent with your Constitution; and we’ve made arrangements for your Supreme Court to hear final appeals, albeit on federal issues only. And there’s no need for you to travel to France; we’ll hold all of the proceedings right here in your hometown — even in your living room, if that’s what you want.

Most people, on hearing this, would think it horribly improper. So would most lawyers. But what’s troubling about this arrangement isn’t its inconvenience, or any place-based burden it imposes. The trial can be held in your living room, and for all we know French procedures are just as fair as American ones. (Though probably not, if the plaintiff asked for them.) What’s troubling about this process is the obvious lack of legitimate authority. You haven’t voted for the politicians who pick the judges; you haven’t been asked what you think of the rules that apply; you haven’t had any say in the system that has all the say over you.

Where did these French judges get the right to “decree the ownership of all [your] worldly goods”? Why not Bill Gates, or the Pope?

The problem isn’t limited to bizarre hypotheticals and foreign courts. It arises daily in all fifty states. Why should other Americans be bound by rules of procedure, evidence, and discovery favored by New Jersey’s legislature; obtain a jury trial at New Jersey’s pleasure; have their rights and liabilities ascertained by rules preferring New Jersey law; or have their fortunes determined by judges appointed by New Jersey’s governor—or, worse yet, directly elected by the ordinary people of New Jersey? Sure, the federal government might intervene, if there happens to be federal law on point or constitutional rights at stake. But those issues matter in a vanishingly small fraction of cases. In all the rest, the defendant’s fate is placed in others’ hands.

That’s from Stephen Sachs, How Congress Should Fix Personal Jurisdiction, (discussed here on JOTWELL).

£85,000 Fine for Stating That It’s Permissible to Kill Anyone Who Disrespects Mohammed

(Eugene Volokh)

The PressGazette (UK) reports:

Ofcom [the UK communications regulatory body] has fined an Islamic TV channel £85,000 after it broadcast statements saying it was acceptable to murder anyone who disrespects the Prophet Mohammed.

The decision appears to be the one that starts on p. 18 of this document; Ofcom found that Noor violated the prohibition (Rule 3.1) on “Material likely to encourage or incite the commission of crime or to lead to disorder must not be included in television or radio services,” and the mandate (Rule 4.1) that “Broadcasters must exercise the proper degree of responsibility with respect to the content of programmes which are religious programmes.” Noor is “a digital satellite television channel that broadcasts programmes about Islam in a number of languages, including English, Urdu and Punjabi,” which “can be received in the United Kingdom, Europe, Africa, the Middle East and Asia”; the program, mostly in Urdu, involved a presenter (Allama Muhammad Farooq Nazimi) answering questions about Islam:

At approximately one hour and 18 minutes into the programme Mr Nazimi answered a question from a caller, who was identified as “brother Yasir Nahif” (“Mr Nahif”), who asked:

“What is the punishment for the individual who shows disrespect for Prophet Muhammad?”

In response to the question from Mr Nahif, we noted the following remarks made by Mr Nazimi:

“There is no disagreement about this [the punishment]; there is absolutely no doubt about it that the punishment for the person who shows disrespect for the Prophet is death. No one [among the Islamic scholars] disagrees about this. No one disagrees about this. The Koran, hadeeth [orally transmitted quotes of Prophet Muhammad], the actions of the companions of Prophet Muhammad, all testify to this [punishment] and there is no room for doubt in it. Whoever shows disrespect for Prophet Muhammad will be given death penalty. The procedure for carrying out the death penalty is that if there is an Islamic government operating in a country, then the Islamic government will carry out the implementation of this punishment to the one who shows disrespect for the Prophet. However, if there are no Islamic laws [implemented], if Islamic Law is not being abided by, if the Islamic Law is being shredded and is in tatters – and this environment prevails in Pakistan, then [drops the sentence]. You saw a few months ago, a man specifically said that the Islamic law which was especially designed to protect the sanctity of Prophet Muhammad, whom Allah praises and protects, was a black law. By saying so, he slighted the law and committed insolence against Prophet Muhammad. Then what happened? You saw what happened. The man who did it [killed the Governor] is Mumtaz Hussein. He is a Ghazi and we can absolutely not say that his act was a wrong act [because] the Koran and hadeeth [orally transmitted traditions], testify that the punishment of the one who shows disrespect for the Prophet is death.”

Ofcom also noted the following statements made by Mr Nazimi:

“However, I will state again that it was the duty of the government [to execute the Governor] but the government was not carrying out this duty. The government was supporting him [the Governor]. The government was providing support to him. Obviously, the consequence had to be that which happened. If this will happen [i.e. if the Prophet will be allegedly slighted] then the slaves of Mustafa [Muhammad] cannot tolerate. A true slave, a true lover [of Prophet Muhammad], if he finds one disrespecting and slighting his Lord [Muhammad] in front of him, and he remains quiet and tolerates it, then surely he loses his faith. We are not saying that this should be done. We say one should obey the law. However, if one is not abiding by the law [of Muhammad’s sanctity], if the one [the Governor] supposed to protect the law [of Muhammad’s sanctity] is tearing it apart, then the same consequences [i.e. murder] will follow. I salute Mumtaz Hussein Ghazi [the assassin of Governor Taseer] in the whole world, and I salute others such as Ghazi Ilm Deen, and other lovers of Mustafa [Muhammad] who sacrificed their lives to protect the sanctity of Prophet Muhammad, and who sacrificed all they had to protect the sanctity of their Lord. We consider it a matter of pride to line our eyes with the dust lying at their [the assassins’] feet and we salute those who protect the sanctity of our Lord [Muhammad] and we pray for ourselves too, O Allah, accept us among those who protect the sanctity of our beloved [Muhammad]. There is no privilege in the world greater than this that the Exalted Allah should select and accept one to [kill to] protect the sanctity of our beloved Lord [Muhammad].”

The presenter concluded his answer to Mr Nahif’s question as follows:

“No one can be more fortunate than the one who loses his life, wealth and children for the sake of glorifying our beloved Lord whom Allah praises and protects. I say the aim of establishing Noor TV, and the slogan of the founder of Noor TV, is the protection of the sanctity of Prophet Muhammad. When we say it, and it is the particular slogan of the honourable Pir Sahib: Elevate the lowly to heights through the power of love Illuminate the world through the love of Muhammad. Who does it mean? It means in the whole world, there should be slaves of Mustafa [Muhammad] everywhere, and disrespectful people should be eliminated. One has to choose one’s own method. Our way is the peaceful way but when someone crosses the limits, faith-base emotions are instigated...The mission of our life is to protect the sanctity of our beloved Lord. May Allah accept us wherever there is a need [to kill a blasphemer].We are ready and should be ready at all times [to kill a blasphemer].

2011 FISC Opinion Invalidating Part of Section 702 Surveillance Program Released

(Orin Kerr)

The declassified and redacted opinion is here. I’m reading it now, and I hope to post some comments when I have finished. Meanwhile press coverage confirms my earlier suggestion that the problem was an overcollection problem. As the Post summarizes:

Under the program, the NSA for three years diverted large volumes of international data passing through fiber-optic cables in the United States into a repository where the material could be stored temporarily for processing and for the selection of foreign communications, rather than domestic ones. But in practice, the NSA was unable to filter out the communications between Americans.

According to NSA estimates, the agency may have been collecting as many as 56,000 “wholly domestic” communications each year.

As I have said before, it’s all about the filters. More when I have had a chance to read the full opinion.

SCIL Loses First Amendment Challenge to Bar Passage Disclosure Requirement

(Jonathan H. Adler)

As I noted here, the Southern California Institute of Law sought to challenge a requirement that it disclose the bar passage rate of its graduates.  The San Francisco Chronicle reports that the judge was not too impressed with this argument. SCIL’s attorney says the school may appeal.  More from the WSJ Law Blog and ABA Journal.

The Overcollection Problem Identified in the 2011 FISC Opinion

(Orin Kerr)

The FISC’s newly-declassified 2011 Opinion on the NSA’s implementation of Section 702 surveillance is both dense and fascinating. In this post, I thought I would just bring readers up to speed on the basic factual problem identified in the opinion (at least to the extent I can understand it). In later posts, I’ll consider the legal implications of those facts, both as Judge Bates interpreted them and as I see them.

Here’s the context. Under Section 702 of the Foreign Intelligence Surveillance Act, the law permits wiretapping of communications from “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” The government has to offer its plan for how to do that to the FISC, and the FISC needs to determine whether the government’s “procedures are reasonably designed to” achieve compliance with the statute.

In this opinion, Judge Bates concludes that one aspect of the government’s procedures failed that test: specifically, the NSA’s “upstream collection” protocols. To understand what that means, you need to realize that the government can get Section 702 information in two ways: 1) By going directly to the major providers such as Facebook, Microsoft and Google and getting data from them, or 2) by installing its own devices at major Internet hubs and scanning for traffic. According to the opinion, 91% of the data collected under Section 702 involves data directly from ISPs, the so-called PRISM program.

The FISC opinion deals only with the remaining 9% of Section 702 acquisition, which is obtained directly by the NSA in what the opinion calls “upstream collection.” “Upstream collection” is ther term used for collection using the NSA-installed surveillance tools installed an Internet traffic hubs; it is “upstream” in the sense that it collects the traffic before it has reached individual providers like Facebook or gmail. The 9% of Section 703 traffic picked up through “upstream collection” is still a ton of traffic: According to the opinion, in the 1st 6 months of 2011, the 9% of traffic involved 13.25 million “Internet transactions.” As best I can tell from Footnote 23, “Internet transactions” are sets of packets of Internet traffic that belong together.

The NSA’s tools are programmed to filter for Internet communications that fall within the parameters allowed by law. In this opinion, though, Judge Bates is trying to determine whether the tools are working in a way that satisfies the statutory standard. How can he know that? He’s just a judge in chambers; he can’t know how the protocols are working Internet-wide. At his request, however, the NSA manually looked at a sample of about 50,000 collections of the 13 million in the previous six months to get a snapshot of what is happening. Judge Bates figured that the protocols probably will work in the future in the same way they did in the past. By extrapolating from the study of the 50,000 collections, Judge Bates can get a rough sense of whether the NSA’s collection protocols are sufficiently careful that they only collect the communications that they are supposed to collect.

The apparent problem with the NSA’s filter involves what the opinion refers to as MCTs, “multi communication transactions.” As the Administration has explained, MCTs are packets of internet traffic that combine multiple messages:

One example of this is if you have a webmail email account, like Gmail or Hotmail or something like that, you know that when you go and you open up your email program, you will get a screenshot of some number of emails that are sitting in your inbox. In the case of my server, what I get is the date of the email, the sender, the subject line, and the size of the email message. But I may get 15 of them at one time.

Those are all transmitted across the Internet as one communication, even though there are 15 separate emails mentioned in them. And for technological reasons, NSA was not capable of breaking those down into their — and still is not capable — of breaking those down into their individual components.

When that happened, the NSA was inadvertently collecting parts of communications involving purely domestic communications. The NSA’s review found that of the 50,000 communications reviewed in its sample, about 5,000 were MCTS. Of the 5,000, a total of 10 of these MCTs were known to have at least one purely domestic communication embedded in it. Judge Bates then estimated that it was probably the case that on the order of thousands of instances of the NSA unintentionally collecting purely domestic communications occurred per year because of the technology of bundling messages together in ways that the NSA could not separate out.