The US Supreme Court

The breakeven point at which the monitoring program achieves business objectives while also protecting employee privacy is dependant on various factors. As technology advances, the popularity and usage would also increase. Employers understand that they cannot do without these systems and if they opted to use them, they would be required to use other technology to oversee. In spite of this advancement, employees would not want to surrender their privacy rights. EU jurisdiction notices the importance of informing employees about being monitored. However, their overall monitoring technology should meet a reasonability test that takes into consideration the concerns of both parties. This article suggests that no one factor determines the decision of a case. A legal obligation to be solved would need a combination of factors that need to be considered. Consequently, law being so subjective, the same case decided by different individuals would require different factors and case decisions would also differ from country to country. However, all, i.e., balance between privacy and security, hold the same goal.

A typical case would be like when the system administrator discovers that e-mail has been used by an employee for personal purposes to transfer confidential or offensive information and is reported to the department head. With his authorization, the administrator may be allowed to scan the employees entire mail box and hard drive. If the employee is guilty, he could face anything from a warning to termination. Following this, the employee would file a suit against the company for breach of privacy. The arbitrator’s decision usually depends upon factors that are discussed below. What needs to be considered is who is being targeted. Is it just one person or a group of people or all? Discriminating and monitoring a single person would not be acceptable to the law. Assuming that there is no discrimination or a group of people are getting monitored, some level of surveillance is preferred and acceptable. For example, if a stock broking firm needs to ensure that its employees are not transferring confidential information about stock price tips to outsiders, it would make no sense for them to monitor the support, admin or human resource personnel.

Also according to jurisdiction this is acceptable as it is less privacy invasive and more effective. However what is important is that employers should not go overboard by monitoring and getting too much information as that would not be acceptable. Law expects employers to have a reason or a purpose for monitoring e-mails and internet usage. The various reasons have already been discussed in the paper above. Reasons range from productivity to company liability to confidentiality. If the purpose seems fair and a reasonable level of surveillance is used, law would allow it. The kind of surveillance technology used also is a factor that is taken into consideration in the reasonableness analyzation. The decision to adapt the best technology would be the less intrusive to gain its purpose as well as respect privacy interests. ]ny monitoring must be carried out in the least intrusive way possible.” In addition, employers should not have the right to store or review their employee’s personal conversations with other colleagues. Before monitoring e-mail accounts, an employer needs to inform the employee about the purpose and method of surveillance. The Australian Office of Privacy has provided six guidelines that should be incorporated into company policies.

1. The policy should be disseminated to all employees to ensure that they understand and do not expect complete privacy in their e-mails and internet usage. Ideally, the policy should be linked from the screen that the user sees when they log on to the network. 2. The policy should be explicit as to what activities are permitted and what are forbidden. 3. The policy should clearly set out what information is logged and who in the organization has rights to access the logs and content. 4. The policy should refer to the organization’s computer security policy as improper usage could create an unnecessary legal liability for the company. 5. The policy should outline how the organization intends to monitor or audit staff compliance. 6. The policy should be reviewed on a regular basis in order to keep up with the accelerating development of the Internet and information technology. The above policy should be re-sent to all employees occasionally to remind them and necessary changes are made as per technology advances. In a particular case, its employees sued a company because they could not access the e-mail policy on the intranet. The employees used e-mail to sexually harass colleagues and when found guilty said employers should not have been reading personal e-mails. The case was taken to court and it was held that the employees view was not unreasonable but the importance of ensuring e-mail policy to employees had been alerted. The US Supreme Court, in a 1987 decision, identified three key considerations when studying a privacy case. These were: does the employee have a reasonable expectation of privacy, does the employer have a justified suspicion or purpose and finally the scope of the search should be limited to what is necessary.

Lord Neuberger asked about what the Foreign Secretary had said in the Commons. Lord Pannick said that there were various statements at various times and said that Mr Chambers would take the court to some of them. Point 2 – Limits of prerogative power regarding treaties. The appellant failed to recognise that the treaty power may not be used to nullify, frustrate, domestic law, in particular, rights or schemes created by Parliament. The prerogative power is not an independent overarching power. It is defined and limited by other principles of constitutional law, in particular, parliamentary sovereignty. Lord P then referred to speeches by Lord Oliver in J.H. Rayner (Mincing Lane) Ltd v Department of Trade and by Lord Hoffmann in Higgs v Minister for National Security. The appellant emphasised the power but sought to avoid the corollary that it was for Parliament to change domestic law. The power ends where domestic rights begin. Examples of Ministers seeking to frustrate statutory or common law rights are rare (pg 161). Lord P then referred the court to The Parlement Belge; Laker Airways; Walker v Baird and the Canadian TURP case.

The first principle is the principle applicable in relation to Henry VIII powers, that is a delegated power conferred by Parliament on a minister to use subordinate legislation to amend or repeal primary legislation. Secondly there is the principle of legality. Thirdly, implied repeal is excluded given the constitutional nature of the ECA72. Page 178. The ECA72 did not contain any express provision allowing rights to be removed by executive action and there are strong indications that Parliament did not intend that. The appellant failed to recognise the nature and significance of the ECA72 as a new source of law approved and authorised by Parliament. This new legal order was not just about rights between States or giving individuals rights in international law (as per European Convention on Human Rights). The ECA72 recognised rights and duties at international level which take effect in national law and which courts are obliged to protect and enforce. Those rights and duties have priority over inconsistent national law irrespective of when that national law was enacted – ECA72 s.2(4).

The Court of Justice of the EU conclusively determines the interpretation and scope of the rights and duties (pg 180). Those features were established before the UK joined the European Communities. Parliament had brought this new legal order into effect. Lord P then referred to paragraph 7 of the written case regarding the point that the ECA72 was enacted before the Treaty of Accession was ratified. Lord P then referred to section 18 of the European Union Act 2011. This made EU law to which ECA72 s2(1) applied dependent on a continuing statutory basis. [Note: The Explanatory notes to the 2011 Act are worth noting. They are not part of the Act. ]. Lord P said that section 18 was a strong indication that Parliament thought and reaffirmed that it was in control. It was difficult to reconcile this with the contention that it all depends on prerogative power. The discussion at Transcript pages 183-4 should now be noted.

At page 185, Lord P turned to the Robinson case and the statements therein by Lord Bingham. Lord P said that the values inherent in the ECA72 were a commitment by Parliament, unless and until Parliament changed its mind, to include EU law as part of domestic law. Lord P said that the phrase “flexible response” could not be bent so that Ministers are able to take away what Parliament has created. Lord P went on to say that the same point could made by reference to the AXA case. The case involved looking at the legislative competence of the Scottish Parliament. For Lord P, the general message of the ECA72 was clear as to Parliament’s commitment to the new source of law. Lord P then went on to look at provisions in the ECA72. The Long Title spoke of “enlargement” and it could not be consistent with that ti say that the size of the EU could be reduced by Ministers acting under the prerogative so as to remove the UK. The ECA72 section 1 deals with the treaties to which the Act applies.

New Treaties have been added to the list in section 1. It made no sense to have this requirement but to allow Ministers to notify that the UK was leaving the EU and destroy the whole structure. Section 1 showed Parliamentary control. ECA72 section 2 was concerned with General Implementation of the Treaties. The treaties are those included in section 1. It would conflict with the heading of section 2 if the Minister could remove the UK from the treaties. Section 2(1) – “from time to time” recognises that rights and duties will change (pg 201) but they will evolve through acts of the EU institutions and section 2(1) simply gives effect to this feature of EU law. Section 2(1) is not concerned with nullification – the conduit cannot be made redundant – the words from time to time do not mean “membership” from time to time. The day concluded with discussion with Lord Carnwath as to whether Article 50 required a domestic law legal base. Lord P said that it had nothing to do with prerogative. Article 50 was not part of domestic law and did no more the recognise that notice has to be in accordance with domestic constitutional requirements.

The blog entries for these last two months have been dominated by various tales of woe from retirees caught in the snare of PERS Strunk/Eugene remediation team. One group that I’ve singled out for special care has been the not-so-small group of retirees who had the misfortune to retire after 3/1/04 – not window retirees – whose benefit was calculated on the basis of the “lookback”. To refresh memories, the Legislature implemented the “lookback” as part of HB 2004, which mandated that PERS implement new mortality tables every two years as part of an ongoing effort to keep the tables current with actual experience. To “protect” a small group of individuals whose service occurred virtually entirely under one set of mortality tables, the Legislature offered a small sop. At my encouragement, several of my correspondents did two things: (a) appealed to PERS following the procedures described in the invoice and (b) communicated directly with Greg Hartman. To date, there has been no response from PERS, and very discouraging responses from Greg Hartman. In a nutshell, unless the White case wins and holds through appeals, there is no litigation potential for these folks. Talk about your caught between a rock and a hard place. Hence the title for my entry today. I wonder how many other surprises still lurk out there? Back to celebrating Mother’s Day. A reason to take pictures, look at a slide show, and not think about PERS for half a day.

AKRON, Ohio — Lawyers suing the personal-injury law firm Kisling, Nestico and Redick have asked the Ohio Supreme Court to remove the judge overseeing the case. Breaux has 15 days to respond to the complaint. Supreme Court Chief Justice Maureen O’Connor will then decide whether to allow her to continue to oversee the case, a spokesman for the court said. The request sets up the latest legal battle in the case which has grown more and more contentious since it was filed last year. The lawsuit, filed on behalf of three former KNR clients, accuses the firm and owners Alberto Nestico and Robert Redick of engaging in illegal kickback schemes with chiropractors and lending agencies, and charging clients fees for “investigations” that never happened. KNR denied the allegations, and Breaux dismissed the claims against Nestico and ordered the plaintiffs to pay his attorney fees. KNR allowed Breaux’s campaign to use a billboard truck from May through November. The same truck displayed signs for both Breaux and Oldfield, according to a photograph that Chandra attached as an exhibit to the affidavit. 3,600, the maximum allowed for an in-kind contribution. Chandra questioned the discrepancy.

1,000 per week. Because the campaigns used the trucks for six months, Chandra said the campaigns greatly underestimated the impact of the billboard donation on the campaigns. 30,000, beat then-Judge Todd McKenney by less than 2 percent of the vote. 20,000 to Oldfield’s campaign. Chandra’s filing erroneously states that McKenney never accepted campaign contributions from KNR. He also accepted an in-kind contribution for advertising from KNR Properties LLC, though McKenney’s campaign did not attach a dollar amount to the donation. KNR has pointed to a 2014 Ohio Supreme Court opinion that held that judges are not required to recuse themselves from a case solely because an attorney on the case donated to their election campaign. Chandra pointed to a series of decisions by Breaux to further bolster his claims that her impartiality could be questioned. Breaux imposed a sweeping gag order and forced Chandra and his co-counsel, Peter Pattakos, to delete all of their social media posts linking back to a proposed complaint against KNR that was filed in February. The complaint included copies of emails that former KNR lawyer Robert Horton gave to Pattakos. KNR has filed a counterclaim against Horton and sought to keep Horton from providing other records to Pattakos and Chandra. Chandra argued in court filings this week that Breaux’s gag order violates their First Amendment rights and stifled their efforts to seek class-action status for their case. They also said Breaux improperly imposed the orders without first holding a hearing to find that the need for the orders outweighed the presumption of their ability to speak about their case. To comment on this story, please visit Friday’s crime and courts comments section. Greater Cleveland Food Bank. Every dollar buys four meals for the hungry. Click here to donate.

A Supreme Court ruling on immigration this week is igniting a new political battle over federal officials’ power to deport foreigners who have been convicted of certain crimes. “It is yet another example of the need for Congress to urgently close the loopholes that allow criminal aliens to avoid removal and remain in the United States,” Thomas Homan, acting director of U.S. Immigration and Customs Enforcement, said in a statement. But immigration lawyers countered that the federal law makes clear that foreigners convicted of murder, rape and other violent offenses can be deported. They say the ruling offers important protections to immigrants whom the Department of Homeland Security has portrayed as “aggravated felons” based on a broad and vaguely defined category called “crimes of violence,” which may not have resulted in physical harm. Boston lawyer Matt Cameron said he is aware of “dozens” of immigrants who might be spared from deportation or be allowed to apply for U.S. Among them is a Salvadoran man who grabbed a baseball bat to defend himself after he was followed home by a gang of white men hurling racial slurs at him and then was convicted of a crime.

Another, he said, is a man from Cambodia who pleaded guilty to participating in a bar fight, even though he hid in the bathroom. In all, thousands of immigrants could be affected, immigration lawyers say, particularly green-card holders, who are lawful permanent residents on a path to U.S. But they say the decision could also aid undocumented immigrants, who, depending on the severity of their crime, may now have a chance to plead their case to stay. Conservative Justice Neil M. Gorsuch, who was nominated by President Trump, joined four liberal colleagues in saying the statute was too vague for the immigration courts to reach that conclusion. They said the Immigration and Nationality Act lists many crimes, such as murder, rape and sexual abuse of a minor, as “aggravated felonies” that require deportation, and that will not change. It is up to the immigration courts and the Board of Immigration Appeals, which are part of the U.S.

Department of Justice, to determine if those crimes should be considered aggravated felonies that make an immigrant eligible for deportation. Gorsuch said that meant everyone from “armed home intruders to door-to-door salesmen peddling shady products” could be classified as meeting the “crime of violence” definition. “How, on that vast spectrum, is anyone supposed to . . . ” he wrote in his decision. E. Joshua Rosenkranz, Dimaya’s lawyer, said his client never physically hurt anyone during the break-ins, adding that the court’s decision does not preclude violent felons — whom Trump has referred to as “bad hombres” — from being deported. “It’s the hombres that have lived generally law-abiding lives but for what is often a youthful lapse that are protected by this decision,” Rosenkranz said. Trump administration officials disagreed, saying that the court ruling means that burglary in many states, drug trafficking in Florida and sexual abuse of a minor in New Jersey will no longer be considered aggravated felonies. Dale L. Wilcox, executive director and general counsel for the Immigration Reform Law Institute, which favors less immigration, noted that government attempts to deport Dimaya began when President Barack Obama was in office.

We should close book on Ninoy Aquino’s murder. No this is not a good way to commemorate Ninoy Aquino’s martyrdom, whose death galvanized the people that toppled the conjugal dictatorship in a peaceful uprising of people in its quest for freedom. Andres Narvasa is the former Supreme Court Justice and a member of the Agrava Fact Finding Commission tasked by then dictator errrr cheating President (like the present one) Marcos to investigate the assassination of Benigno “Ninoy” Aquino. “They have suffered enough” Narvasa was quoted referring to the convicted soldiers responsible for the cold blooded murder of Ninoy Aquino. This closure he said should be made even if the mastermind of the murder remained unknown. The soldiers have been in jail for 10 years and he felt it was enough punishment, I am sorry Justice Narvasa but people committing lesser crime than these soldiers have been in jail longer. This is not about vengeance but justice.

While Mueller’s mandate was originally to explore election meddling in 2016, he has since dug into whether Trump may have committed the crime of obstruction of justice, deliberately protecting himself or others from law enforcement. But how likely is a Trump subpoena to actually end up before the Supreme Court? Would justices really come down along strict party lines, as they did in Bush v. Gore, to decide whether he had to honor it? And if Trump’s camp thinks Kavanaugh—a former George W. Bush administration attorney—would swoop in to save them, are they right? For answers to those questions and more, I called up Ciara Torres-Spelliscy, a law professor at Stetson University and constitutional expert. VICE: Generally speaking, does the back and forth between Trump’s legal team and Robert Mueller over the president possibly being interviewed—and what that might look like—strike you as normal lawyer stuff, normal legal maneuvering, or something a bit stranger? Ciara Torres-Spelliscy: Oh man, I feel like we are so far from normal legal maneuvering, it’s not even funny. This is nervous laughter, not ha-ha laughter.