Vol 42. No. 2 Winter 2018 | School of Law | SIU

Vol 42. No. 2 Winter 2018

ARTICLES

Conflicts in Withholding Classified Evidence from Criminal Defendants: Looking Beyond Statutory Compliance in United States v. Daoud, 755 F.3d 479, (7th Cir. 2014)

Thomas R. Bowman ..................................................................... 99

Sometimes, a seemingly mundane legal issue heard in the trial courts garners such interest that daily newspapers across the United States publicize the issue.  On January 29, 2014, the Los Angeles Times ran a story on an unexpected interlocutory order issued in federal case, United States v. Daoud, which concerned a high-profile terrorism crime allegedly committed in Chicago, Illinois.  The order was issued by the United States District Court for the Northern District of Illinois, Eastern Division, and was reversed five months later by the United States Court of Appeals for the Seventh Circuit.  The district court decision was mainstream newsworthy because Judge Sharon Johnson Coleman ordered the United States government to give accused domestic-terrorist, Abdel Daoud, access to evidence that had been classified “top secret” by the federal government.  Through the discovery process, Daoud requested evidence collected against him under a surveillance warrant authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA).  Daoud sought the classified information so he could determine whether the surveillance was constitutional under doctrine established in Franks v. Delaware.  Since the surveillance warrant was considered extraordinary, the government had to justify the warrant to a FISA Court, a special court established to adjudicate FISA-related matters.   Typically the fact that a FISA warrant was granted remains secret and unknown to a surveillance target until the government announces its intent to use evidence during trial collected under the warrant.  The trial court’s order was newsworthy because no court had previously allowed any defendant access to information shielded from disclosure by FISA.  

The government appealed the trial court order to the Seventh Circuit, which held the trial court failed to comply with FISA’s plain language and committed error when it ordered the warrant’s substantiating evidence released to Daoud.  From a statutory interpretation perspective, the Seventh Circuit made the correct decision.  However, the Daoud concurrence highlighted FISA requirements create serious defendant rights issues because defendants, who seek a constitutionally guaranteed Franks hearing, must have knowledge of the evidence he or she desires to challenge in a Franks motion.  Under FISA, defendants are greatly disadvantaged because they are not allowed any FISA-protected evidence required to support a Franks motion.  Therefore, defendants may not receive full constitutional rights during FISA-involved criminal prosecutions.  Judge Coleman’s order provided Daoud constitutional protections consistent with the adversarial trial process.  For reasons explained in this note, the United States Congress should take thorough notice of concerns raised by the Daoud concurrence and recognize the valid policy underpinning Judge Coleman’s order. Future FISA amendments should provide adequate constitutional protections for criminal defendants seeking Franks hearings.

Levels of Abstraction in Legal Thinking

Michael Evan Gold..................................................................... 117

The concept of the level of abstraction of analysis is used in many disciplines. This article introduces this concept into legal thinking by identifying, justifying, and applying 14 principles of the concept.  The most fundamental principle is that the same set of facts can generate issues that operate on different levels of abstraction, and the rules of law that resolve those issues also operate on different levels.  Perhaps the most important principle is that legislative facts (i.e., the facts on which a rule of law is based) may not be determined by a judge’s intuition or predictions, but must be proved by facts in the record of a case.  This principle constrains judicial lawmaking in a principled way.

The article discusses a case from the initial decision of an administrative agency, the National Labor Relations Board, through the ultimate resolution in the U.S. Supreme Court, along with cases used as precedents therein.  The principles of levels of abstraction, some honored and some violated, are illustrated in these cases.  The article concludes by addressing the question, what is the proper level of abstraction at which a dispute should be resolved?

Institutionalizing Society’s Commitment to Child Well‑Being

Lynn D. Wardle.......................................................................... 225

“Protecting children is a top priority” was a headline in an American newspaper recently.  The headline and accompanying commentary—written by a member of the Minnesota state legislature—expressed a sentiment that is widely supported in the United States of America and in most nations around the world.  Similarly, the director of a British child services agency recently declared: “We need to think about the child’s physical safety, social safety, emotional safety—their whole wellbeing both at home and in the school environment.  Again, the sentiment is nearly universal.  In principle, nearly everyone agrees that the well-being of children should be given top priority not only in our personal and family lives, but even more so in matters of public policy such as government services and programs.  However, in reality, do we (as societies, families, and individuals) actually give top priority to providing for and protecting children?”

This article reviews evidence of changing (mostly deteriorating) marital families in the United States in Part II.  Next, in Part III, the contemporary “marriage crisis” is examined, and why it matters.  Part IV discusses the risks that non-marital cohabitation poses to the institution of marriage.  Children’s need and hunger to live in marital families with their mothers and fathers are reviewed in Part V.  The conclusion, in Part VI, emphasizes the urgent need to revitalize marriage in the United States for the sake of children and future generations.

COMMENTS 

You Can Run, But You Can’t Hide:  Law Enforcement’s Use of “Stingray” Cell Phone Trackers and the Fourth Amendment

Cody Benway............................................................................. 261

Law enforcement officials have begun to use the connection of cell phones as a major tool in their investigations and subsequent apprehension of criminal suspects.  One such tool officials are using is a cell-site simulator, otherwise known as a “Stingray.”  This device is currently being used by law enforcement to identify and track cell phones of criminal suspects in criminal investigations. These devices, posing as cell towers, capture information relayed from a suspect’s cell phone and can be used by law enforcement to track and locate the cell phone being used by the suspect.  As cell phones have become such a central part of citizens’ lives, most individuals consistently carry and use them during most hours of the day.  From this constant connection between citizen and cell phone, law enforcement’s ability to track the cell phone essentially allows law enforcement to track the person attached to that cell phone. 

Stingrays have raised multiple Fourth Amendment concerns about law enforcement’s improper intrusion into citizens’ privacy, but the courts and Congress have not yet definitively responded.  As cell phones continue to improve and connect to more private information in citizens’ lives, it becomes necessary to create a uniform legal standard which, in the words of Justice Lewis Powell, will allow “a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment.”  This note sets out to propose such an accommodation through the creation of a statutory standard which will govern the use of Stingrays through search warrants and exclusionary rules.

When Care and Conscience Conflict:  Compelled Speech in the Amendment to the Illinois Health Care Right of Conscience Act

Victoria Fuller........................................................................... 297

In Illinois, under the amended Healthcare Right of Conscience Act (“the Act”), health care providers will be required to refer patients for services they may find morally objectionable.  This could include controversial services such as abortion, sterilization, and providing emergency contraception.  The amended Act arguably compels health care providers to provide information they may not have given because of a conscientious objection.  Senate Bill 1564 (“SB 1564”) amended the Act.

As amended, the Act requires health care providers who refuse to perform a service to refer the patient to a facility that may offer the service.  Opponents of SB 1564 have questioned its constitutionality, while proponents argue SB 1564 will ensure women are given medically accurate information even if a healthcare provider is unable to provide the care they need.  Prior to its effective date, the constitutionality of SB 1564 was challenged.  The lawsuit raises the question of whether this amendment runs afoul of the Illinois Constitution and Illinois Religious Freedom Restoration Act.  However, similar legislation has been challenged in federal courts across the nation as violating the federal constitution, and federal courts have taken varying approaches to analyzing constitutionality. In the context of the federal courts’ variegated approach to this important question of federal constitutional law, this Note analyzes the constitutionality of SB 1564 under the First Amendment of the United States Constitution.

A Ding to the Head:  How Concussions and Domestic Violence Impact the NFL in the Next CBA

Spencer Jackson......................................................................... 325

The National Football League (NFL) had its darkest year in 2014.  First, Ray Rice, former a running back with the Baltimore Ravens, assaulted his girlfriend, and lost his job only after the surveillance video surfaced.  Further, the surveillance video was troubling for the FBI to conduct an independent investigation into the NFL’s handling of Ray Rice’s situation.  Second, Greg Hardy, formerly a defensive end with the Carolina Panthers, was convicted of assaulting and threatening to kill his ex-girlfriend at his apartment.  Finally, despite the NFL’s attempts to make the game safer, head injuries remain the biggest threat to the future of football.  For example, after John Abraham suffered his first concussion of his career on Monday Night Football, he told his head coach his “heart was not in the game anymore” and left the team.

Based on this turmoil, the NFL is searching for answers to reduce the negative media surrounding these events.  The NFL and the National Football League Players Association (NFLPA) should focus on situations involving head injuries and domestic violence in the next collective bargaining agreement (CBA). Regarding the CBA, the NFL has been bombarded with lawsuits over the years from antitrust suits to disputes regarding free agency.  New disputes arose involving head injuries and domestic violence, which will carry major consequences if not resolved.  This comment uncovers the issues in the NFL’s CBA and proposes solutions to maintain the integrity of the NFL.

The United Kingdom is Leaving The European Union: Analyzing the Contractual and Legal Implications for a Member Leaving 

Duncan A. Taylor....................................................................... 347

On June 23, 2016, the United Kingdom, consisting of England, Scotland, Wales, and Northern Ireland, participated in a referendum to determine whether the bloc of countries would maintain membership and remain in the European Union or withdraw.  Seventy-two percent of 46,501,241 eligible voters voted in this referendum, with “Leave” receiving 51.9% of the votes and “Remain” receiving 48.1% of the votes.  Despite the overall national results, very different results were seen throughout the countries of the United Kingdom.  England and Wales narrowly voted to leave the European Union, while an overwhelming majority of voters in Scotland and Northern Ireland chose to remain.  This significant historic event in the United Kingdom, now termed “Brexit,” was influenced by two distinct ideologies and groups; “Britain Stronger in Europe” and “Vote Leave,” each of which attracted the involvement of other groups, entities, and individuals.

Part I of this Comment provides a history of the United Kingdom as it relates to membership in the European Union, the abilities for the countries in the United Kingdom to gain membership in the European Union, and the factors surrounding the United Kingdom’s desire to leave the European Union.  This section also discusses the European Union, the interconnectedness of the treaties forming this organization, and the process of leaving the bloc of nations.  The 1972 European Communities Act, the Lisbon Treaty, the Treaty of the European Union, and the Treaty on the Functioning of the European Union will be specific areas of focus because of their impacts on membership in the European Union and process of withdrawing membership.  This section concludes by discussing the Norway and Liechtenstein Plans, both of which helped the country negotiate a limited relationship with the European Union.  Part II analyzes the information related to the United Kingdom leaving the European Union domestically and internationally and attempts to identify the pertinent and related contractual and legal obligations that will impact leaving the European Union.  Part III offers solutions to the difficulties that the United Kingdom will encounter as a result of leaving the European Union and offers amendments that the European Union could enact to more directly address a Member-State leaving.

Rethinking Immigration Removal Proceedings: Providing Counsel at Government Expense to Economically Beneficial Immigrants

Austin Wright ............................................................................ 367

Demonstrated by the clear need for counsel in immigrant removal proceedings, it is evident the present system leads to inadequate legal representation.  This flawed system is inadvertently eliminating potential economic benefits the United States could derive from immigrants if they were not detained or deported. Presently, minors are deported to countries ravaged by violence, undocumented soldiers who bravely fought for our freedom are deported, and the talents of highly skilled and educated immigrants go to waste because they fear deportation while thousands more immigrants languish in detention.  Combined, these children, soldiers, and highly educated and trained immigrants have the potential to make significant contributions to the American economy if they are able to succeed in their immigration proceedings.  But, without access to legal counsel, the likelihood of these individuals remaining in the country is greatly diminished.

Accordingly, this Comment demonstrates the economic opportunities the United States squanders each year by failing to provide counsel to certain immigrants in removal proceedings, and proposes a way to partially rectify the situation.  Section II introduces the history of legal representation available to undocumented immigrants in the United States.  Section II also examines the implications of congressional enactments and judicial opinions on immigrant representation, as well alternative proposals debated in Congress and academia. Section III discusses the potential economic benefits that can be realized from providing legal counsel in removal proceedings.  Section IV proposes an amendment to the Immigration and Nationality Act, which would provide legal representation to unaccompanied minors and other economically valuable immigrants.  Section V gives brief treatment to potential sources of funding for the amendment.

Subscribe Here for More:  Analyzing the Video Privacy Protection Act in the Mobile Era

Katherine Yuhas ........................................................................ 389

Today, the majority of videos are obtained online, rather than in a video rental store.  Nonetheless, understanding the Video Privacy Protection Act (VPPA) is more crucial today than it was nearly 30 years ago.  This is because online video service providers and third-party data collectors have a greater ability to track, monitor, and identify users in significant detail through a process known as reverse engineering.  Despite these precautions, two computer scientists uncovered the identities of numerous Netflix subscribers by linking the released data profiles to customer reviews visible on the Internet Movie Database.  The resulting data breach exposed sensitive user information, such as sexual orientation and political affiliations.  Accordingly, the VPPA provides a valuable remedy for many disgruntled consumers whose privacy expectations have been compromised.  Unfortunately, the challenge in applying an out-of-date privacy protection law in our modern technological era has led to disagreement and confusion among the federal circuit courts.  Resolving this dispute is essential to adequately protecting the privacy interests of online video subscribers.

The purpose of this Note is to address the applicability of the VPPA to videos viewed on mobile devices through downloaded applications (“apps”).  The fundamental issue presented is whether the user of a free mobile application constitutes a “subscriber” under the VPPA.  The following section describes the legal evolution of the VPPA since its creation, including the conflicting interpretations of the term “subscriber” between the First and Eleventh Circuits. Section III employs the concept of “push notifications” to create a bright-line test for determining when the use of a free mobile application qualifies as a subscription for purposes of the VPPA.