Reading the Fifth: Supreme Court Exercises its Right to Remain Silent on What Comprises a “Criminal Case”

BACKGROUND

The Self-Incrimination Clause of the Fifth Amendment protects individuals from being compelled to bear witness against themselves in a criminal case. Courts have struggled with the scope of this protection, particularly regarding what comprises a “criminal case.” Does the term extend to pre-trial proceedings, such as a bail hearing? Has a person’s Fifth Amendment right against self-incrimination been violated if the compelled statement in question is never used in a court of law?

Over the past thirty years, the Supreme Court has never directly resolved the question of what constitutes a “criminal case.” In dicta from United States v. Verdugo-Urquidez (1990), the Supreme Court indicated that the Fifth Amendment right was merely a trial right. But later, in Mitchell v. United States (1999) the Supreme Court indicated that the right extended to sentencing hearings.

The question of what comprises a criminal case was more recently addressed in Chavez v. Martinez (2003). In his plurality opinion, Justice Clarence Thomas declared that a statement was not a violation of the Fifth Amendment right against self-incrimination where the individual first hadn’t been charged with a crime and where the individual’s statements had not been used in a criminal case. Thomas further wrote:

“Mere coercion doesn’t violate the self-incrimination clause minus use of compelled statements in a criminal case against the witness…a ‘criminal case’ at the very least requires the initiation of legal proceedings.”

Three other justices disagreed, arguing that self-incrimination is complete the moment a confession is compelled, regardless of whether the statement is used at trial.

After the opinions in Chavez were released, a circuit split developed over the definition of a criminal case under the Fifth Amendment.

THE ISSUE

Does the Fifth Amendment right against self-incrimination include statements compelled in pre-trial proceedings?

THE SPLIT

The Third, Fourth and Fifth Circuits resolved this question in favor of Justice Thomas’s view, holding that the right against self-incrimination is only a trial right. In Renda v. King (2003), the Third Circuit determined that questioning while in police custody without providing Miranda warnings is not a Fifth Amendment violation if the individual is never charged with a crime and their responses are never used in a trial.

But on the other hand, in Vogt v. City of Hays (2017) the Tenth Circuit resolved this question in favor of a broader reading of the term “criminal case,” allowing the term to include certain pre-trial proceedings. The Second, Seventh, and Ninth Circuits take a similar view of the right against self-incrimination.

The facts of Vogt are unusual. In Vogt, a police officer for the City of Hays admitted during an interview with a neighboring police department that he had illegally retained a knife obtained during his employment as a police officer. The neighboring police department agreed to hire Vogt on the condition that he report the illegal retention of the knife to the Hays police department. Upon Vogt’s admission, Hays initiated a criminal investigation against him. The charges were dropped, but Vogt sued, claiming that the state violated his Fifth Amendment right against self-incrimination by inducing him to confess.

The Tenth Circuit in Vogt concluded—after examining the text of the Fifth Amendment and the Founders’ intent—that the right against self-incrimination includes pre-trial proceedings. The court noted that the Fifth Amendment makes no mention of “trial” or “criminal prosecution,” instead using the term “criminal case.” The court pointed to Counselman v. Hitchcock (1892) wherein the government argued that a witness could not invoke the Fifth Amendment in a grand jury proceeding because it was not a “criminal case.” The Supreme Court rejected the government’s argument there, holding that the “criminal case” of the Fifth Amendment is a broader term than the Sixth Amendment’s “criminal prosecution.”

Additionally, to determine the meaning of “criminal case,” the Tenth Circuit consulted the most prominent dictionary of the Framers’ era: purportedly Noah Webster’s An American Dictionary of the English Language. In this dictionary, “case” was defined as “a cause or suit in court.” This definition, where “suit” is understood to be nearly synonymous with “cause,” indicates that the Framers understood the criminal case to encompass more than merely the trial. From these facts, Tenth Circuit concluded that the right against self-incrimination is more than just a trial right.

LOOKING FORWARD

The City of Hays appealed the Tenth Circuit’s decision in Vogt, and the Supreme Court granted certiorari on September 28, 2017. The case was argued before the Court on February 20, 2018; however, whether this split will be resolved by the Vogt appeal is yet to be seen. Justices Samuel Alito and Sonia Sotomayor both noted the case was “odd,” and Justice Breyer even questioned whether the strange and distinguishing facts of Vogt made it an appropriate one for the Court to take. The Supreme Court has the option to dismiss the case as improvidently granted, but it is likely that the Court will publish an opinion resolving this constitutional issue soon.

On a constitutional question of this magnitude, let’s hope the Supreme Court doesn’t choose to plead the Fifth.

Does Registration Mean Registration: When Can Copyright Holders Sue?

Background

Copyright law protects the exclusive rights of creators of works—like novels, songs, computer software, and even fictional characters. These rights include the distribution and reproduction of copyrighted works and the power to assign or transfer those rights. In the United States, the copyright symbol “©” may serve to provide notice to potential infringers that the creator’s work is protected. But the symbol does not mean that the federal government specifically granted it copyright protections. Copyrights do not need to be registered with the federal government to be protected. Original works are under copyright protection once created and “fixed in a tangible medium of expression.” The owner of a copyright may register it at any time during (or before) the term of the copyright – usually 70 years after an individual creator’s death.

Issue

While registration is not required for copyright protection, it is required for filing a lawsuit to enforce a copyright. Before the enactment of the Copyright Act of 1976, copyright law varied from state to state and so did the conditions necessary for copyright enforcement. The act created a uniform system of copyright enforcement. Section 411 of the Copyright Act provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” The statute prescribes steps in the registration process but does not define when “registration” has occurred to allow a copyright owner’s infringement suit. Courts are split on whether “registration” occurs upon submission of an application for registration (the “application approach”) or upon approval of the registration application (the “registration approach”).

The Split

In Cosmetic Ideas v. IAC (2010), the Ninth Circuit adopted the application approach, which relies more on the purpose of the statute than on a plain language interpretation of the text. In trying to interpret “registration” under § 411 of the Copyright Act, the Ninth Circuit started with the plain language of the statute and referred to § 101 of the Act which defines “registration” as “a registration of a claim in the original or the renewed and extended term of copyright.” The court concluded that the definition was “unhelpful” and provided no guidance in interpreting the meaning of “registration.” The court then examined the statute as a whole, finding ambiguity—it then concluded that the Act’s “plain language” unequivocally supported either interpretation, and that it must “go beyond . . . the plain language to determine which approach better carries out the purpose of the statute.” Ultimately, the court adopted the application approach, finding that its efficiency accomplished the central purpose of registration – a robust national register of existing copyrights.

On the other hand, in Fourth Estate Pub. v. Wall-Street.com (2017), the Eleventh Circuit adopted the registration approach. In Fourth Estate, the court based its reasoning primarily on the language of the Copyright Act. It reasoned that the text “makes clear” that the registration approach is correct. The Eleventh Circuit rejected appeals to the legislative history and the policy of the Act, finding that the Act’s words “are unambiguous” and no further inquiry is required.

Looking Forward

Despite the registration requirement’s prior treatment by circuit courts as jurisdictional, the US Supreme Court held in Reed Elsevier, Inc. v. Muchnick (2010) that not fulfilling the registration requirement does not deprive a federal court of subject matter jurisdiction over a case. However, the Court in Reed Elsevier did not tackle the circuits’ different approaches to defining registration. A resolution may nonetheless be on its way thanks to the Fourth Estate case. A petition for certiorari to the Supreme Court filed in October 2017 is currently pending. The Court has invited the Solicitor General to file a brief expressing the views of the United States on the case. There is a good chance that the Supreme Court will grant certiorari given that the case involves statutory interpretation and there is a clear circuit split. Otherwise, an amendment to the statute may be needed to resolve the issue.

 

Does Pre-Trial Detention Toll a Term of Supervised Release?

Supervised Release

For some people who are convicted of a criminal offense, a sentence can include a term of supervised release (also known as special or mandatory parole). Under 18 U.S.C. § 3624, the federal supervised release statute, a term of supervised release begins on the day that a person is released into the custody of a parole officer. The federal supervised release statute also provides that the term of supervised release is tolled during any period where the person is imprisoned in connection with a conviction for a different federal, state, or local crime.

The Issue

Jason Mont began a five-year period of supervised release on March 6, 2012. On June 1, 2016, Mr. Mont was arrested on state charges and held in pre-trial detention until he pleaded guilty in October 2016. In June 2017, Mr. Mont’s supervised release was revoked, and he was ordered to serve an additional 42 months for violating his supervised release. In United States v. Mont (2018), Mr. Mont claimed that the court did not have jurisdiction to revoke his supervised release, arguing that his supervised release ended on March 6, 2017 (five years after he was initially released). Following circuit precedent established by United States v. Goins (2008), the Sixth Circuit held that pretrial detention that leads to a conviction counts as time “in connection with a conviction,” as described in the federal statute.

The Split

Several circuits have spoken to whether time served in pretrial detention counts as time “in connection with a conviction” for the purposes of the federal supervised release statute, in addition to the Sixth Circuit’s previous ruling in Goins. The Fourth Circuit in United States v. Ide (2010), the Fifth Circuit in United States v. Molina-Gazca (2009), and the Eleventh Circuit in United States v. Johnson (2009) have all held that pretrial detention counts for the purposes of the federal supervised release statute. In contrast, the D.C. Circuit in United States v. Marsh (2016) and the Ninth Circuit in United States v. Morales-Alejo (1999) held that time served in pretrial detention does not qualify.

The Ninth Circuit is the only circuit that has directly addressed the statutory language in the federal supervised release statute:

“A plain reading of this language…suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted.”

In Mont, the Sixth Circuit explicitly rejected this interpretation.

Looking Forward

This case has not attracted much attention within the legal community since the Sixth Circuit’s ruling was handed down this past February, but it does have important ramifications for persons whose sentences include a period of supervised release. With six circuits having weighed in on opposite sides of a matter of federal statutory interpretation, the time is ripe for an aggrieved party to petition the Supreme Court for a definite ruling on this issue. Mr. Mont has ninety days from the date of the Sixth Circuit’s judgment to file a writ of certiorari to the Supreme Court – while this deadline has not passed, it is not yet clear whether he will file a petition. In the alternative, given that this issue arises out of different interpretations of a federal statute, Congress could pass a bill to amend the current statute and clarify whether pretrial detention that leads to a conviction counts as time served in connection with a conviction.

On an Electronic Soapbox: Is a Privately-Operated Public Access Television Channel Subject to the First Amendment?

The Issue

The First Amendment normally only limits and regulates governmental action, not the acts of private entities; therefore, First Amendment violation claims are only viable if they are against a state actor. But when does a private entity become a state actor for First Amendment purposes? Regarding public access television channels, this answer has remained unclear. Public access channels are set aside for public, educational, or governmental purposes and a cable system operator provides them at the request of local government. The Second Circuit recently held in Halleck v. Manhattan Cmty. Access Corp. (2018) that a public access television station operated by a non-profit corporation is a public forum and considered a governmental actor for constitutional purposes. In making this determination, the Second Circuit acknowledged that it was in direct contrast with its sister D.C. Circuit’s decision in Alliance for Community Media v. FCC (1995).

The Split

In Halleck, two producers for the Manhattan Neighborhood Network (MNN), a not-for-profit corporation designated as the operator of the public access channel by the Manhattan Borough President, were suspended after they produced content that presented MNN in a negative light. The producers brought a claim against MNN, stating that as a public access channel under municipal control, its employees were subject to First Amendment restrictions. The Second Circuit found in favor of the producers, analogizing a public access channel to “a speaker’s soapbox” and finding support in a concurring opinion written by Justice Kennedy and joined by Justice Ginsburg in Denver Area Educ. Telcoms. Consortium v. FCC (1996).

In Denver Area Educ. Telecoms. Consortium, the plurality opinion did not definitively resolve the classification of such channels as public fora. Instead, two opposing camps each articulated different views. On one side, Justice Kennedy and Justice Ginsburg concluded that:

public fora do not have to be physical gathering places, nor are they limited to property owned by the government. Indeed, in the majority of jurisdictions, title to some of the most traditional of public fora, streets and sidewalks, remains in private hands…Public access channels are analogous; they are public fora even though they operate over property to which the cable operator holds title.

On the opposing side, Justice Thomas, Justice Scalia, and Chief Justice Rehnquist stated that because the channel was privately owned it could not be a public forum. As neither view held majority support, the issue remained unanswered by the Supreme Court.

In Alliance for Community Media, the D.C. Circuit Court of Appeals held that a public access channel was not a public forum and, therefore, not subject to First Amendment restrictions. The court differentiated parks and streets—which it classified as examples of public fora—from public access channels because the channels “belong to private cable operators; are managed by them as part of their systems; and are among the products for which operators collect a fee from their subscribers.” In contrast to the reasoning in Halleck, the D.C. Circuit held that although a public access channel “must provide communications facilities to those who desire access for their own purposes,” it is not a public forum “in the First Amendment sense and does not transform the entity’s discretionary carriage decisions into decisions of the government.”

Looking to the Supreme Court for an answer

Labeling a television station as a public forum carries significant consequences for its operators as it limits their ability to restrict content. Therefore, whether courts classify channels as modern versions of a town square—or the equivalent—has direct implications on the programming that can be broadcast to the public. In his plurality opinion in Denver Area Educ. Telecoms. Consortium, Justice Breyer said it would be “premature” to classify public access channels as public fora. (Or to not classify them as such.) However, given that 22 years have elapsed since the Court’s opinion and that a circuit split has subsequently developed, perhaps the Supreme Court would consider the issue appropriately mature enough to return with a clear answer sometime soon.

Sitting or Standing … Injury in Fact after a Data Breach?

The Issue

“If you live in the U.S. and breathe oxygen, there’s a good chance you may be impacted by the latest security breach [Equifax].” –CNN

A battle wages on between creative hackers and information security professionals, each struggling to outpace the other.  Likely, most of us already have had personal or medical information leaked in one of several massive data breaches in recent years, possibly even today with the news coming out that five million Lord and Taylor and Saks Fifth Avenue customers had their information stolen. Until you are hit with identify theft, medical insurance fraud, or some other abuse of your data, your options are only to lock down credit reports and purchase identity theft insurance, then sit back and hope your personal information is not misused.

In the meantime, you are upset, you are worried, but so far it does not seem like the hackers have used your data.  For the sake of this article, we will call you an “Unharmed Victim.”   Do you have standing to sue?

In Fero v. Excellus Health Plan (W.D.N.Y. 2018), hackers gained access to the Excellus’ computer network and the personal identity information (PII) of more than 10.5 million individuals; however, as far as the plaintiffs knew, the hackers had not yet used or misused their stolen data.

The Fero case highlights a wide split among the Circuit courts.  In Fero, a district court found standing for Unharmed Victims of a data breach to sue, relying on the rationale of a recent unpublished Second Circuit case, Whalen v. Michaels Stores (2017)The Fero court cited to similar holdings in several other Circuits which found plaintiffs had standing based on an increased identity theft risk, including Galaria v. Nationwide (6th Cir. 2016), Remijas v Neiman Marcus (7th Cir. 2015), and Attias v. Carefirst (D.C. Cir. 2017).

On the other hand, the Third, Fourth and Eighth circuits in Reilly v. Ceridian Corp. (3rd Cir. 2011), Beck v. McDonald (4th Cir. 2016) and In re: SuperValu Inc., Customer Data Security Breach Litigation. (8th Cir. 2017), all declined to find standing in data breach cases wherein hackers had not yet used or misused plaintiffs’ stolen data.

The Standing Requirement

In Lujan v. Defenders of Wildlife (1992), the U.S. Supreme Court noted that a plaintiff bears the burden of establishing standing by demonstrating three elements: 1) an injury in fact; 2) fairly traceable to the challenged conduct of the defendant; and 3) likely to be redressed by a favorable judicial decision.

Further to the first element of Lujan, in Clapper v. Amnesty Int’l USA (2013), the U.S. Supreme Court stated that a plaintiff must allege an injury that is “concrete, particularized, actual or imminent…” and emphasized that a future injury must be “certainly impending,” rather than simply speculative.

In certain circuits, Unharmed Victims’ ability to establish standing by pleading an injury in fact is significantly more challenging than in other circuits.

The Split

The Fero court cites the Sixth, Seventh and D.C. Circuit in finding standing on the basis that an increased identity theft risk is sufficient to state an injury in fact.

Those three Circuit Courts could not find a reason why hackers would break into a database and steal consumers’ private information, if not intending harm. The courts reasoned that the most likely and obvious motivation for hackers was to use plaintiff’s PII nefariously or to sell it to someone who would.  The court in Fero adopted this rationale, especially because the PII stored on the Excellus networks was particularly valuable for committing identity theft and fraud.  “All of these injuries suffered by the Plaintiffs and Class Members are a direct and proximate result of the Excellus data breach and include … the imminent and certain impending injury flowing from fraud and identity theft posed by their PII and PHI being placed in the hands of unknown third parties.”

The Sixth Circuit went a step further by holding that the combination of theft by “ill-intentioned criminals” and the reasonable mitigation costs by the plaintiffs such as purchasing credit reporting services and frequently reviewing bank statements results in an injury in fact. “Where Plaintiffs already know they have lost control of their data, it would be unreasonable to expect plaintiffs to wait for actual misuse…before taking steps to ensure their own personal and financial security.”

On the other side of the split, the Third, Fourth and Eighth circuits have declined to grant standing to plaintiffs whose stolen data was not yet used or misused, saying the mere risk of identity theft is too speculative to constitute an injury, and therefore insufficient to constitute injury in fact.   Specifically, the Fourth Circuit argued against standing because as more and more time passed after the breach, with the plaintiffs still unable to produce evidence of their PII or PHI being misused, the threat of injury became more and more speculative.

The Fourth and Eighth Circuits argued against the mitigation of risk argument put forth by the Sixth Circuit and held that the costs plaintiffs incurred in “protecting themselves against this speculative threat cannot create injury” (8th Cir.)  and “self-imposed harms cannot confer standing.” (4th Cir.)

Notably, the D.C Circuit flatly contradicts the more time, more speculation rationale put forth by the 4th Circuit and found the plaintiffs had standing, even though they had “not suffered any identity theft or other harm in more than three years since the breach.”

Looking Forward

On February 16, 2018, the U.S. Supreme Court denied certiorari to review an appeal of the D.C. Circuit’s decision to deny standing in Attias v. CareFirst.

Without Supreme Court guidance, the Sixth, Seventh, and D.C. circuits have now seemingly emerged as the clear forums of choice for data breach class actions.  Conversely, defendant companies will logically seek to consolidate data breach class actions in the Third, Fourth and Eighth Circuits.  There are other Circuits not mentioned in the Fero case that may widen the split on this issue.