USA v. Whatcott is an ongoing federal case regarding mortgage fraud that poses an interesting question regarding the scope of the Fifth Amendment in the digital age.  In Whatcott, the prosecutors wanted defendant Ramona Fricosu to decrypt her laptop to make the contents of the laptop available to the government. Defendant claims that this would violate her Fifth Amendment rights against self-incrimination.

EFF filed an amicus trial brief “to help the Court apply the Fifth Amendment privilege against self-incrimination in a manner that ensures the constitutional rights of those who use this technological measure [encryption] to protect their privacy and security.”  See entry 172 at 1:10CR00509.

EFF stated that their interest in this case, “is the sound and principled application of the Fifth Amendment to encryption passwords and encrypted information stored on computers.” “EFF submits in this brief that “Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity.”  On Page 9 the EFF argues, “The Act of Entering a Password or Otherwise Decrypting Data on a Computer is a Compelled Testimonial Act Protected By The Fifth Amendment.” EFF further argues that “forcing an individual to supply a password necessary to decrypt data is more like revealing the combination to a wall safe than to surrender a key.” The Government replied that, “[t]he privilege against self-incrimination must be interpreted narrowly and is not a mechanism to protect abstract privacy.” See, docket entry 177.

In an order dated July 26, 2011, the Court stated that, “Unless the government establishes by at least a preponderance of the evidence that the laptop that is the subject of the application belonged to defendant, requiring her to provide the password thereto would force her to admit ownership of the laptop, in ostensible violation of the Fifth Amendment.” See docket entry 182. The court scheduled a hearing in this matter for October 19, 2011.

To track this docket to follow up on all the developments in this case, Find the docket by going into the Dockets for the District Court of Colorado database (DOCK-CO-DCT on Westlaw) and run the docket number 1:10CR00509 or simply click on this link:  DN(1:10CR00509). For WestlawNext, click here.

Once you have accessed the docket for this case, you can click on “Track this Docket” (Westlaw) or “Track” (WestlawNext) to keep abreast of the developments in this case:

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Other Research References

For general state of the law on this subject, try these traditional boolean searches:

CASES: In ALLCASES, try 

(FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /P PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

SECONDARY SOURCES: In TP-ALL, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

TRIAL FILINGS: In FILING-ALL, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

and 

 BRIEF-ALL: (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

NEWS: In ALLNEWSPLUS, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

We recently made several changes to our Key Number System. West’s Attorney-editors reclassified approximately 400,000 headnotes. Most significant changes are to Criminal Law (110) and Arrest (35). In the topic Criminal Law, the Key Number System has been substantially revised in several areas relating to the admissibility of evidence, such as “other crimes” evidence, statements and confessions, and evidence wrongfully obtained.  In the topic Arrest, major changes have been made with respect to police stops, among other issues.

Any former key numbers will continue to exist on Westlaw beside the new key numbers, but will be tagged as “formerly.”  So, the former key numbers will remain searchable. To search for former topic and key numbers, go to the appropriate database and try a search such as: TO(FORMERLY +5 110K1)

Thanks to my colleague Susan R. for providing this information.

Crisis averted – for now at least! On Tuesday, President Obama signed into law the “Budget Control Act of 2011” to increase the United States’ debt ceiling and preventing default on our financial obligations. The Senate passed the bill by a 74 to 26 vote and the House passed it by a 269 to 161 vote. See, the Boston Globe article 8/3/11 BOSTONG 1 (2011 WLNR 15298319). The law impacts all Americans and has a wide global impact. We are receiving requests for the text.  A slip copy is available on Westlaw or WestlawNext in the United States Public Laws database US-PL.  Find – PL 112-25

News: For news articles related to the passage of the Budget Control Act of 2011, try a search in the ALLNEWSPLUS database such as DA(8/2011) & PR,CA,TI((DEBT /3 CEILING CRISIS) BUDGET-CONTROL-ACT) & (PRESIDENT /5 SIGNS SIGNED) (CONGRESS! SENATE HOUSE /7 PASS ENACT!)

Bill Text: For recent legislative documents related to this law try a search in CONG-BILLTXT. This database has Congressional Bills has the text of all available congressional bills and resolutions introduced into the current session of Congress. In CONG-BILLTXT, try a search such as: DA(2011) & (DEBT /4 CEILING CRISIS) (BUDGET /2 CONTROL /2 ACT)

Some consider the Americans with Disabilities Act (ADA) one of the most important pieces of anti-discrimination legislation enacted by Congress since the passage of the Civil Rights Act of 1964. In the late 1980s, the social and political climate was ripe for change when Congress recognized a need to protect individuals with disabilities from discrimination. On July 26, 1990, the ADA was enacted and signed into law by President George Bush. This month we celebrate the twenty first anniversary of the ADA. The preamble to the ADA clearly establishes its mandate: “An Act to establish a clear and comprehensive prohibition of discrimination on the basis of disability.” See PL 101-336

The ADA has several Titles that provide protection in several different areas that were of particular concern to Congress.

Title I of the ADA protects individuals with disabilities from discrimination in the employment context.

Title II of the ADA relates to public services and prohibits public entities that provide public services, from discriminating against disabled individuals on the basis of their disability in the provision of such public services.

Title III of the ADA prohibits discrimination in access to or use of public accommodations.

Title IV of the ADA relates to the Telecommunications Relay Services for Hearing-Impaired and Speech-Impaired Individuals

Title V of the ADA contains certain additional protections.

For a discussion of the various titles of the ADA, see PLIREF-DISLAW s 1:3

The signing of the ADA was a historic moment in the evolution of America’s disability policy. In enacting the ADA and the subsequent amendments, “Congress recognized that physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society” and  enacted the ADA Amendments Act (ADAAA) in 2008 to restore the intent and protections of the Americans with Disabilities Act of 1990 which had been judicially narrowed over the years since its enactment in 1990. See PL 110-325

There are several great resources for researching Disability Law on Westlaw:

PLIREF-DISLAW: Disability Law Deskbook: The Americans with Disabilities Act in the Workplace

ADA-PUBACC : This database contains the text of “Public Accommodations Under The Americans With Disabilities Act” which gives a comprehensive review of ADA standards, litigation issues, and practical applications of the law.

ADAWORKPLACE: This database contains the complete text of Workplace Accommodations Under the ADA, and provides insight into the “reasonable accommodation” requirement, explaining when you must provide unpaid leave, keep jobs open or reassign workers as accommodations for those with disabilities.

CCGADA : Corporate Counsel’s Guide to Americans with Disabilities Act

ABA-DISMAN: The ADA and People With Mental Illness: A Resource Manual for Employers

ADAGUIDE  This database contains the complete text of the ADA Compliance Guide, as published by the Thompson Publishing Group Inc. The guide explains the meaning of disability, reasonable accommodation, undue hardship, readily achievable barrier removal, program accessibility and the law’s many other key terms in plain English. In addition, it highlights steps that should be taken to ensure ongoing compliance. ADA regulations, enforcement guidance and accessibility standards are included, as well as summaries of significant ADA decisions.

Trends (2006 – 12011):

Using the following search, we tracked ADA claims from 2005 forward: nos(445 446) & fld(200x)

year: number of filings

2005: 2208

2006: 2500

2007: 2489

2008: 3192

2009: 3606

2010: 4520

Space shuttle Atlantis lifted off on July 8, 2011 from Cape Canaveral for a flight that lasted twelve days with four astronauts on board and made its last landing back in Florida on July 21, 2011. With this, the final flight of National Aeronautics and Space Administration’s (NASA) shuttle program, Americans and people world over are left wondering about the uncertain future of US space exploration and the Space Agency itself.

The Federal Register, FR, is a great resource on Westlaw to track the workings of various Federal Agencies including NASA. This database contains documents from the Federal Register. A document is a Rule or Regulation, a Proposed Rule, an Agenda appearing in the Unified Agenda, a Notice, an Executive Order, or a Presidential Proclamation. The Unified Agenda is a compilation of the agendas set by federal agencies that is published in April and October of each year. Each agenda includes regulations being developed for publication in the next year, regulations to be reviewed in the upcoming year, and regulatory activity completed in the past year.

To research NASA’s Unified Agendas, for example, try a search such as PR(“UNIFIED AGENDA” & N.A.S.A. “NATIONAL AERONAUTICS AND SPACE ADMINISTRATION”) in the FR database.

To particularly track what information NASA may be publishing regarding the future of space exploration or the space shuttle, create a WestClip in the Alert Center on Westlaw with a search such as PR(N.A.S.A. “NATIONAL AERONAUTICS AND SPACE ADMINISTRATION”) & (SPACE /5 EXPLOR!) SHUTTLE in the FR database.

Researchers interested in NASA regulations can find them in the Code of Federal Regulations, the CFR. You can try a search such as PR(TITLE /2 14 & CHAPTER /2 V & “NATIONAL AERONAUTICS AND SPACE ADMINISTRATION”)

On July 21, 2011, NASA Administrator Charles Bolden issued a statement about the final landing, “The future is bright for human spaceflight and for NASA. American ingenuity is alive and well. And it will fire up our economy and help us win the future, but only if we dream big and imagine endless possibilities. That future begins today.” You can view the statement at: 7/21/11 PRWIRE 10:34:00.

In a recent June 6, 2011 decision, the United States Supreme Court construed the Bayh-Dole Act in resolving issues related to ownership of intellectual property rights and held that the Bayh-Dole Act does not automatically vest title to federally funded inventions in federal contractors or authorize contractors to unilaterally take title to such inventions. Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., 2011 WL 2175210.  In describing the Bayh-Dole Act, the Court stated, “In 1980, Congress passed the Bayh–Dole Act to ‘promote the utilization of inventions arising from federally supported research,’ ‘promote collaboration between commercial concerns and nonprofit organizations,’ and ‘ensure that the Government obtains sufficient rights in federally supported inventions.” 35 U.S.C. § 200. To achieve these aims, the Act allocates rights in federally funded “subject invention[s]” between the Federal Government and federal contractors (“any person, small business firm, or nonprofit organization that is a party to a funding agreement”). §§ 201(e), (c), 202(a). The Act defines “subject invention” as “any invention of the contractor conceived or first actually reduced to practice in the performance of work under a funding agreement.” § 201(e).”  You can see the text of the Bayh-Dole Act at PL 96-517.

The Bayh-Dole Act holds a particular significance for universities and is also known as the Bayh-Dole University and Small Business Patent Procedures Act. Technology commercialization has become a very important issue for universities, not only from the perspective of  bringing inventions to benefit the public but also as an additional stream of revenue. The database ECKLICN, Eckstrom’s Licensing in Foreign and Domestic Operations, provides great guidance for university licensing issues. Try the following search in this database: PR,TI(LICENSING /5 UNIVERSITY).

For general information on the Bayh-Dole Act a search in the texts and periodicals database TP-ALL is a good place to start. PR,CA,TI(BAYH-DOLE)

Dr. Jack Kevorkian, a well known controversial figure in the arena of assisted suicide, passed away on June 3, 2011 at the age of 83 in Michigan. Some viewed Dr. Kevorkian, nick-named “Dr. Death”, as a menace to society; and others viewed him as an angel of mercy liberating the terminally ill from excruciating pain and offering them an option of dying with dignity. Dr. Kevorkian’s life work spawned many ethical debates in both the medical and legal communities. His campaign to assist the terminally ill to end their lives, led to many cases and prosecutions. (Try, TI(JACK /3 KEVORKIAN) in ALLCASES on Westlaw).

In 1997 Oregon was the first state and remains perhaps the only state which allows for physician assisted suicide of the terminally ill. For a state by state analysis of the right to die issues, try the SURVEYS database in Westlaw with the following search: EUTHANASIA RIGHT-TO-DIE ASSISTED-SUICIDE MERCY-KILLING. The Surveys database contains a variety of topical surveys providing references to applicable state laws. Tables in PDF format, where provided, include important subtopics and related statutory provisions. Tables in PDF format, where provided, include summaries and legal analysis for important subtopics with related statutory provisions. 

An important white collar conviction came down very recently in the Southern District of New York. Raj Rajaratnam, a Sri Lankan born billionaire investor, was found guilty by a jury in Manhattan and was convicted of fourteen counts of securities fraud and conspiracy. Until sentencing, which is scheduled for July, Rajaratnam has been placed under home detention with electronic monitoring. Credit for the conviction goes in large part to use of wiretaps. Federal prosecutors used dozens of recordings to prove their claims of insider trading. In some of these recordings Rajaratnam could be heard sharing inside information and also creating plans to create email records to cover up the fact that it was inside information. In the wake of Rajaratnam, wiretaps are expected to become a prosecution tool of choice for insider trading cases. Westlaw has excellent sources of information for wiretaps and insider trading.

WIRETAP This database contains a two volume set that includes coverage of criminal and civil statutes, penalties and remedies. Expert authors Clifford Fishman and Anne McKenna present vital information on obtaining and executing eavesdropping warrants, computer and network search warrants, minimization requirements and procedures, monitoring and reporting instructions, suppression, recording identification, pretrial and trial tactics, and more.

CCGINTRR, Corporate Counsel’s Guide to Insider Trading and Reporting will help attorneys, officers, directors, and others with insider trading law compliance. Definitions and key concepts are listed, and topics covered include potential causes of action, reporting and disclosure, liability, remedies and enforcement, and corporate compliance. Also included are several sample insider trading plans and insider trading policies.

SECBROMLOW, Bromberg and Lowenfels on Securities Fraud and Commodities Fraud contains a full analysis of all of the securities fraud provisions, particularly Rule 10b-5.

INSIDETRAD, Insider Trading Regulation, Enforcement, and Prevention contains Extensive coverage of issues raised by the criminal and SEC investigations into suspicions of widespread hedge fund insider trading.

SECLAW-HB, Securities Law Handbook provides in-depth coverage of basic and specialized issues.

You can see and track the Rajaratnam docket:

DOCK-NY-SDCT, (DEF (raja-ratnam )), 5 docs

You can also set up a docket alert in Westlaw to see if and when the Rajaratnam case gets appealed.

Anyone who has seen the latest in legal television drama – Fairly Legal –  knows what I am talking about when I say “red soled shoes.” In one of the most popular and well recognized clips of the show, Sarah Shahi, the star of the show, is shown walking provocatively away from the audience wearing a pair of high heeled red-soled shoes.

You might be wondering what a conversation of women’s red-soled shoes is doing in the Reference Attorney Blog? Trademark issues. Christian Louboutin S.A. (“CLSA”), the plaintiff and a French Company, has sued Yves Saint Laurent, another French Company in the Southern District of New York over red-soled shoes for, among other things, Trademark infringement. As per the complaint, this is an action for injunctive relief and damages for trademark infringement, unfair competition and false designation of origin, and trademark dilution. The plaintiff alleges that Mr. Louboutin is the first designer to develop the idea of having red soles on women’s shoes. Further the complaint states that the “Red Sole Mark” is the signature of CHRISTIAN LOUBOUTIN brand footwear and is instantly recognizable as a result of plaintiffs’ trademark red outsole. “The location of the bright color on the outsole of a women’s pump is said to provide an alluring ‘flash of red’ when a woman walks down the street, or on the red carpet of a special event.” Westlaw has the complaint and can be found at: 2011 WL 1327659. The complaint also lists numerous other famous celebrities and shows that have worn the Red Sole Mark shoes. You can track the progress of this case by tracking this docket on Westlaw.

Westlaw has a wealth of Trademark information online. You can also add a Trademark tab to access all Trademark related content in one place. Check out some of the following databases:

ALL-TM TRADEMARKSCAN-All has trademarks, service marks and pending applications registered in the U.S., Canada and some European states.

CCGTMLAW  Corporate Counsels Guide to Trademark Law and covers the basics of trademark law to help manage day-to-day legal issues

MCCARTHY McCarthy on Trademarks and Unfair Competition

FIPTM-CS Federal Intellectual Property Trademark Cases

TM-DOCK-SUM  Trademark Docket Summaries contains abstracts of docket and trademark information from trademark-related lawsuits filed in federal district courts.

In a recent decision delivered by Chief Justice Roberts, the United States Supreme Court addressed the question whether the First Amendment shields church members from tort liability for their hateful speech. The followers of the Westboro Baptist Church in Topeka, Kansas (Defendants), believe that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. Defendants picketed the funeral of Marine Lance Corporal Snyder, who was killed in Iraq in the line of duty. Defendants picketed on public land displaying signs stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”, approximately 1,000 feet from the church where the funeral was held. Plaintiff, father of the deceased soldier, filed action under various tort theories.  Justice Roberts stated, “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and-as it did here-inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course-to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.” Snyder v. Phelps, 09-751, 2011 WL 709517 (U.S. Mar. 2, 2011). The Supreme Court oral argument transcript is here: 2010 WL 3907899.