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MC&A Newsletter
Volume XXVII  :: November 2012

 

Mdiwin Charles

 

IN THE SPOTLIGHT

If Former CIA Director Can't Keep Emails Private, Can You?

p  On November 9, 2012, General Petraeus resigned from his position as director of the CIA after the FBI uncovered evidence of an extramarital affair. Petraeus admitted that he and his biographer, Paula Broadwell, were having an affair.

It all began when Petraeus family friend Jill Kelley reported receiving threatening emails from an anonymous source. The FBI began investigating the threatening emails, which were eventually traced to Broadwell. According to a U.S. official, the emails essentially said, "stay away from my guy." It was during this investigation that emails between Broadwell and Petraeus came to the attention of investigators.

Broadwell is a West Point graduate, Army Reserve officer and wrote Petraeus' biography, entitled "All In: The Education of General David Patreaus." News of their affair has left many wondering if she gained access to information involving national security or other classified information. Indeed, investigators found classified information on one of Broadwell's computers. Petraeus, however, claims he never shared any classified information with Broadwell.

Especially alarming about the news of the affair is how it was discovered. Based simply upon Kelley's report of receiving threatening emails, the FBI was able to legally obtain emails from both Petraeus and Broadwell. If the director of the CIA can't even protect his email, what does that mean for the rest of us? Under the 1986 Federal Communications Privacy Act (FCPA), federal officials can obtain emails six months old or older by getting a subpoena from a federal prosecutor. Anything more recent requires a warrant signed by a judge, which carries with the higher burden of showing probable cause that a crime is being committed.

Many groups are pressuring Congress to update the FCPA because, at the time it was passed, the majority of emails were deleted after a few months. This meant officials needed easier access to the emails before they disappeared. However, now that technology has advanced, it is cheap and easy for electronic information to be stored indefinitely, meaning that law enforcement officials can easily find and review electronic information with a subpoena.

Stewart Baker, a former assistant secretary at the Department of Homeland Security told the Associated Press "the government can't just wander through your emails just because they'd like to know what you're thinking or doing. But if the government is investigating a crime, it has a lot of authority to review people's emails."

In addition, email service providers can also share certain personal information about an account holder. Petraeus and Broadwell used Google's Gmail to communicate with one another. According to Google's terms of service, information about an account holder can be shared if the company believes the data is "reasonably necessary" to, among other things, meet any law or government request. Based upon those terms, a government official could obtain personal information by submitting a reasonable request to Google.

What this means for the average citizen is for the most part, your information is private. But, if the government believes they have reason to read your emails, they will have an easy time obtaining them. Petraeus learned this lesson the hard way.

 

Sources: "Petraeus case shows FBI's authority to read email," by Richard Lardner, November 12, 2012, The Huffington Post; "Privacy and General Petraeus: You can't protect your privacy in the digital age," by Larry A. Momo, November 18, 2012, The Washington Times; "Email Privacy: What Petraeus needed to know," by Chenda Ngak, November 14, 2012, www.cbsnews.com; "The Petraeus scandal: What we know," by CNN Wire Staff, November 14, 2012, www.cnn.com

 

Affordable Care Act ("Obamacare") Contraception Mandate Blocked

RX On November 16, 2012, a Washington D.C. federal judge granted a preliminary injunction preventing the government from forcing publishing company Tyndale House to provide certain types of contraception insurance coverage to its employees. The judge is temporarily allowing the Christian publishing company to deny such coverage based upon the fact that the company provides insurance to its employees through a self-insurance plan. This ruling, if made permanent, would be a win for those opposed to The Patient Protection and Affordable Care Act (the Act), often referred to as Obamacare, contraception policy.

Tyndale House is a for-profit Christian publishing company that funds its own insurance for employees. It brought suit against the Health and Human Services Department in October 2012, claiming the contraceptive coverage mandate of the Act forced the company to violate their religious beliefs. Tyndale House does not want to provide to its employees those contraceptives that it equates with abortion.

Specifically, Tyndale takes issue with the Plan B contraceptive and Intra-Uterine Devices (IUDs). Plan B is a pill that prevents an egg from becoming fertilized, and also may prevent fertilized eggs from attaching to the uterine wall. It has no effect on a woman who is already pregnant. IUDs function by blocking sperm entirely, though they too may prevent eggs from attaching to the uterus.

The Act requires insurance companies to provide contraception coverage to women without charging employers extra, and with no co-payment for the women. According to the White House website, "Contraception coverage will be offered to women by their employers' insurance companies directly, with no role for religious employers who oppose contraception."

Here, however, because Tyndale self-funds its own insurance, it could be seen as directly paying for contraception. It is for this reason that Judge Reggie Walton provided the temporary injunction. Judge Walton acknowledged in his ruling that the government has compelling interests in promoting public health and equal access to health care for women, but stated that the question at issue in this case is "whether the government has shown that the application of the contraceptive mandate to the plaintiffs furthers those compelling interests." Judge Walton said thus far, the government has failed to provide proof that the contraceptive mandate for Plan B and IUDs furthers the government's compelling interest. Judge Walton will hear further arguments on a date yet to be determined.

 

Sources: "Judge Blocks Obamacare Contraception Mandate Because He's Not Sure If It's Good for Ladies," by Katie J. M. Baker, November 19, 2012, Jezebel; "Judge sides with company on contraceptive coverage," by Frederic J. Frommer, November 16, 2012, www.boston.com; "Tyndale's Obamacare mandate injunction hinges on self-insurance," by Charles McAlpin, November 17, 2012, www.examiner.com

 

Obama Re-elected: The Role of Minorities

voteIn our October Newsletter, MC&A brought you all things election. The results are in . . . President Obama for the next four years! Voter turnout was higher than predicted as Americans across the country flooded polling stations. Minority groups especially came out to vote in record numbers.

According to exit polls from voters, Obama won 71% of the Hispanic vote and Mitt Romney won only 27%, giving Obama a larger percentage gap than he had over McCain in the 2008 election. Overall, Latinos made up 10% of voters, up from 6% in 2000. President Obama also won 93% of African American votes.

One large factor in winning the Hispanic vote was Obama's immigration initiative granting temporary relief from deportation for hundreds of illegal immigrants. However, a backlash against the attempted institution of Voter ID laws (as discussed in MC&A's October Newsletter) may also have been to blame.

The Voter ID laws end up suppressing the voting rights of minority groups since they are less likely to have the means to obtain the required identification. In reaction to the creation and passing of such laws, civil rights groups worked especially hard this election to register voters and increase voter turnout, which benefitted Democrats who opposed the Voter ID laws. MIT professor Charles Stewar III stated, "It is certainly the case that so-called voter suppression efforts were rallying points for the base of the Democratic Party." Perhaps this will spark further efforts from the Obama administration to protect the right to vote for all.

 

Sources: What effect did Voter ID laws have on the election?" by Suevon Lee, November 15, 2012, www.pbs.org; "Voter Suppression Efforts Blunted by Vigilant Advocates and High Turnout in Wisconsin and Nationally," by Brendan Fischer, November 9, 2012, www.prwatch.org; "A Record Latino Turnout, Solidly Backing Obama," by Julia Preston and Fernanda Santos, November 7, 2012, The NY Times

 

MC&A is firmly committed to our valued clientele.  We provide services in the areas of litigation, criminal law, and general corporate and business law.

For more information about how we can be of service to you, call us at 212.551.3617 or send an email to info@charleslawfirm.com.

Midwin Charles & Associates LLC
230 Park Avenue, Suite 1000
New York, New York 10169
212.551.3617
www.charleslawfirm.com

© 2010 Midwin Charles & Associates LLC

MC&A is a law firm offering services in criminal defense and civil and commercial litigation.

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