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Enlarge / An Uber driverless Ford Fusion drives in Pittsburgh, Pennsylvania.

Photo by Jeff Swensen/Getty Images

SAN FRANCISCODuring a heated court hearing here today, Waymo lawyersaccused Uber's law firm, Morrison Foerster, of violating a court order by not handing over documentsthat Waymo says were illegally downloaded from Google.

Waymo filed a lawsuit in February, claiming that theformer head of Uber's self-driving car project, Anthony Levandowski, downloaded more than 14,000 Google documents that contain trade secrets about self-driving cars,shortly before he left his job at the company. Levandowskithen created a startup called Otto, which he sold to Uber for $680 million. Waymo has saidthat Uberhasused thosetrade secrets, which were brought over by Levandowski.

Uber deniesthat any trade secrets were on Uber servers and says it built its own technology from the ground up. Levandowski, who is not a defendant in the case, hasn't denied downloading filesinstead, he has pled his Fifth Amendment rights and refused to talk. Uber fired him in May for refusing to cooperate with court orders.

"Weve been trying to get these documents since the outset of this case, and we still dont have them," Waymo lawyer Charles Verhoeven told US District Judge William Alsup.

Uberattorney Arturo Gonzalez protested that Waymo'sexplanation wasmisleading. It's true thata digital forensics firm, Stroz Friedberg, imaged Levandowski's devices as part of Uber's acquisition. But onlya "tiny sliver" of thoseimages came into Morrison Foerster's offices, where they were reviewed by a single associate.

The material came in at a time whenMorrison Foerster, often called MoFo for short, was representing Levandowski in an arbitration over his departure from Google.Gonzalez said he "pulled the plug" on the documents being reviewed once he saw that a conflict was developing between Uber and Levandowski.

He alsopointed out that it's Levandowski who is arguing that the documents are protected by a joint defense privilege. It's Levandowski's lawyers, not Uber, who have appealed the issue to the USCourt of Appeals for the Federal Circuit, which still hasnot ruled on the matter.

"Once the FederalCircuit rules, this will be reviewed under whatever protocol we agree to, and produced,"said Gonzalez.

"We have repeatedly asked, specifically, for the Google documents," said Verhoeven. He continued:

Upuntil June, theysaid they didn'thave it. That MoFodidn'thave it. Thatwas false. Thatis not protected by the FifthAmendment.Theydidnt tell us, intentionallyuntil they were forced to, when we finally battered them down after a dozen motions.

Alsup generally seemed sympathetic to Verhoeven, although he said he would wait for the Federal Circuit ruling. When he pondered a solution to the matter, he said he was inclined to tell the jury exactly what happened.

"I am concerned thatMr. Gonzalezfailed to disclose that he had the documents," Alsup said. "He took a long time to come clean. Maybe he can get on the stand and explain it away. Iam inclinedto tell the jury exactly this scenariothat he was ordered to come clean and did not come clean. Then finally in June and July, he comes clean."

"You've bought into a completely false narrative," Gonzalez said. "We'renot trying to hide anything. Thistrial is against Uber. Uberdidn't even know MoFohad these documents. Thedownloadedmaterials are not at MoFo, and Uberdidn't even know we had these materials."

The arguments over Levandowski's documents were part of a series of three motions that will lay the groundwork for an October trial,now less than 60 days away.

In addition to hearing arguments overLevandowski's imaged devices, Alsup heard two other motions filed by Uber: one attacking Waymo's damages case and another attempting to limit the trade secrets that Waymo can present at trial.

"Uber does not have [damage] calculations, the basis for them, the theoriesand methodology that they're going to rely on," said Uber lawyer Karen Dunn. "It may be time to face up to the fact they want an injunction. They don'thave a damages case at allit's a non-commercialized market."

A Waymo attorney countered that the companyhad provided a 26-page narrative outlining its damages theories.

"We just got Uber'sside of the ledger yesterday," said Waymo attorney Melissa Baily. "So nowwe have ninedays [before the end of discovery] to take that into account. We cant do a complete analysis without that information."

Alsup didn't rule on the damages matter, saying that he needs to see where thetwo sides come out on the matter.

"Thenit will be clearer how fair or unfair the process has been," he said. "This piece of the controversy will be held in abeyance for a while."

A final motion, over limiting Waymo's alleged trade secrets, was held in closed session.

Read the rest here:
Lawyers clash over an imaged hard drive as Waymo v. Uber hurtles toward trial - Ars Technica

Newsweekpublished this story under the headline of G-Men and Klansmen on August 25, 1975. Due to recent events at a white supremacist rally in Charlottesville, Virginia, which resulted in one death and 19 injuries,Newsweekis republishing the story.

For decades, almost without restraint, the Federal Bureau of Investigation has carried out a wide range of undercover intelligence projects. Unknown to most Americans, some of these operations probably included violations of the law - and others, as they became known, seemed simply foolish. Last week, at the American Bar Association convention in Montreal, Attorney General Edward H. Levi made clear that he intended to put a leash on the FBI by instituting "guidelines" to cover its intelligence activities.

Levi proposed to restrict domestic intelligence gathering to circumstances that may threaten violence in the nation, and he promised to review these programs periodically. Electronic surveillance, such as wiretapping, would be limited to long-range investigations. The use by the FBI of "provocateurs" to lure unpopular people and groups into trouble would be barred completed. The vast amount of unsolicited - and often derogatory - material that the bureau receives about government officials and private citizens would be destroyed within 90 days if it could not be connected to criminal misconduct. And as part of the Watergate legacy. Levi sought to make sure that the bureau was not misused for political purposes. The FBI would undertake probes for the White House, he said, only upon written request by specified high-ranking officials.

As it happened, even as Levi was announcing his guidelines, the FBI released last week some fresh details of just the sort of operation the new rules were designed to prevent:

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Most recent revelations of FBI harassment have involved left-wing groups such as antiwar organizations and the Socialist Workers Party. The newly released document showed that throughout the 1960s, the bureau had also waged a spirited and often imaginative counter-intelligence program - COINTELPRO, in bureau jargon - against right-wing outfits like the Ku Klux Klan and theAmerican Nazi Party.

Central to this campaign was a wholly fictitious organization, surreptitiously run from Washington, dubbed "The National Committee for Domestic Tranquility." In a coy touch of esoteric humor, some unknown wag in the Bureau christened the bogus organization's director "Harman Blennerhassett" - the name of an obscure financial supporter of Aaron Burr in the early nineteenth century. In thousands of mailings to unsuspecting Klansmen, the "committee" portrayed Klan leaders as Communist dupes or greedy grafters and parasites living off the membership.

"By placing themselves above the law of the land through the invocation of the Fifth Amendment," the committee wrote haughtily, "these irresponsible Klan leaders have joined hands with Communists who also always hide behind the Fifth Amendment." FBI field agents prodded the Klan with thousands of postcards, intentionally exposing the messages to outsiders along the way. One widely distributed postcard featured a cartoon of two Klansmen drinking at a bar over a caption, "Which Klan leaders are spending your money tonight?" The bureau also sent anonymous letters accusing various Klansmen of being FBI informants - which carried a double edge. They helped to protect the real informants, of whom there were at least hundreds, and they made Klansmen suspicious of almost everybody.

The FBI had a well-stocked bag of dirty tricks. It once faked a picture of a Miami Klansman consorting with Cuba's Fidel Castro. Upon learning that the Klan was holding a meeting in North Carolina, it called various motels in the area to cancel their room reservations. One Klan official was discovered to be receiving a veteran's disability pension while making $400 a month as a plumbing and electrical contractor; the G-men sicked the Veterans Administration on him to cut off his benefits, then for good measure alerted the Internal Revenue Service that he had not filed income-tax returns for several years.

Trinkets: Almost nothing was beneath the bureau's notice. COINTELPRO proposed an attempt to persuade Virginia GovernorMills E. Godwin Jr. to collect sales tax on trinkets sold at Klan rallies. The bureau seemed particularly upset with the Virginia Klan. A Washington memo, omitting any mention of attacks on blacks, noted the Klan had attacked the FBI. One Klan leader announced that it would be KKK policy to shoot any agent who appeared on its property.

In its campaign against the Nazi Party, the FBI informed party members that their Midwest coordinator was of Jewish descent, thus forcing his rapid expulsion. In the mid-'60s, the Chicago chapter of the party exhausted its meager financial resources to buy and repair a rundown building for use as it headquarters. After waiting until the job was completed, agents anonymously called Cook County inspectors who closed the building for technical violations.

The hitherto-secret FBI report also revealed that in its COINTELPRO campaign the bureau had carefully manipulated the press, leaking to friendly newsmen stories that were sometimes true and sometimes not. It provides prominent Southern publisher Ralph McGill with information to pass on to a colleague who was writing an article about the Klan for a national magazine. McGill is "a staunch and proven friend of the bureau," a memo from Washington to Atlanta said, and "would not betray our confidence."

Two members of the Virgil Griffin White Knights, a group that claims affiliation with the Ku Klux Klan, pose for a photograph in their robes ahead of a cross lighting ceremony at a private farm house in Carter County, Tennessee July 4, 2015. REUTERS/Johnny Milano

See more here:
The US Government's Secret War on the KKK Involved the FBI, Fidel Castro and Lots of Dirty Tricks - Newsweek

A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun.

Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files.

Defense Distributed

The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export.

The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions.

Most specifically in this cert petition they have asked the Supreme Court to answer these questions:

1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits. 2. Whether it is always in the public interest to follow constitutional requirements. 3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech.

The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it.

It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources.

Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have:

simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without sayingand so it must now be saidthat federal courts cannot dismiss the Constitution's primacy in our legal system...

The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance.

Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes.

The petition also details the history of interpretation of ITAR over the past decades in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involves non-classified information.

The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so:

Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.

Gura finds that assertion unsatisfying, leaning on a Fifth Circuit dissent from the panel's majority opinion. Dissenter Judge Edith Jones:

noted that "[i]nterference with First Amendment rights for any period of time, even for short periods, constitutes irreparable injury,"...and that "Defense Distributed has been denied publication rights for over three years,"...She then found it "a mystery" why the majority was "unwilling to correct" the district court's "obvious error" in applying only intermediate scrutiny to the content-based prior restraint at issue...

[Judge Jones believes the State Department's censorship of Defense Distributed] "appears to violate the governing statute, represents an irrational interpretation of the regulations, and violates the First Amendment as a content-based regulation and a prior restraint."

Jones also pointed out how weirdly ineffectual is the government's desired power to violate the First Amendment. The government admits stating or publishing that same information at a conference in the U.S., or in a domestic publication or library, would be protected speech if they somehow could insure no foreigners accessed it. Foreigners could, of course, access such information on the Internet, an act considered a blow against national security so severe it trumps the First Amendment. That is, if "foreigners can't hear this speech" is to be held as true and important, the power to restrict speech applies far beyond the Internet.

The Fifth Circuit's decision to ignore the First Amendment is dangerous far beyond the simple question of publishing files for printing plastic armaments on the internet, Gura argues. That decision:

has unsettled the established norms for adjudicating preliminary injunction requests. Gone is this [Supreme] Court's careful balancing test, with its reliance on the merits. In its place, a wholly arbitrary system: The court will consider the merits, when it wishes to do so. Whether the merits might reveal a constitutional violation is less important, because the court will enforce the Constitution only when it seems to be a good idea.

What are courts, attorneys, and the public to make of this innovation?

Critics of this or that opinion often allege that a court has followed an extra-constitutional agenda. For a court to declare that it has done just thatin ignoring a content-based prior restraint no lessraises basic questions about the judiciary's function. The public is left with no way of knowing when a judge would declare some interest more important than the Constitution, or even bother hearing the merits of plainly significant pleas to enjoin unconstitutional conduct.

Absent a merits inquiry, a court balancing the unknown equities is reduced...to declaring whether an abstract interest in constitutional rights is more or less important than an equally abstract government interest. And if the court then decides, as did the majority below, that security > freedom, that ends the matter. The logic is inescapable; where applied, it bars any injunctive relief.

Expressed that way, the danger of letting the Fifth Circuit decision stand should be clear even to Americans who don't understand why anyone, domestic or foreign, needs a computer file that helps them print a plastic gun at home.

The Supreme Court should take up the case, and let lower courts know they can't, absent a fair consideration of the merits, blithely decide that security beats the First Amendment in court.

Reason TV interviewed Cody Wilson of Defense Distributed last year:

See the article here:
Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment? - Reason (blog)

Macomb County's clerk/register of deeds Karen Spranger has had a controversial start. Tanya Wildt/Detroit Free Press

Macomb County Clerk/Register of Deeds Karen Spranger in Macomb County Circuit Court on a motion in a lawsuit she filed against the county on Aug. 14, 2017.(Photo: Christina Hall, Detroit Free Press)Buy Photo

A Macomb County Circuit Court judge today recused herself from a civil lawsuit that the county clerk/register of deeds has filed against the county and its officials.

Judge Kathryn Viviano cited numerous reasons to recuse herself from Clerk/Register of Deeds Karen Spranger's lawsuit against the county, including avoiding any appearance of impropriety and that she personally has been involved in the court's e-filing project.

"In this county, there is a high level, which everyone knows,of dispute between the clerk and the county offices, including the court. There are substantial arguments and disputes going on and they have been escalating," Viviano said.

Related:

Karen Spranger: Agent of change or simply unqualified to hold Macomb clerk's job?

Macomb Co. clerk Karen Spranger invokes 5th Amendment in perjury complaint

Viviano said she can be fair and that she struggled with the decision, adding "this is a close call."

The county has filed a motion to file a counter-complaint in Spranger's lawsuit, seeking to disqualify her from office over her not living at a house in Warren that she said was her residence on an affidavit to run for office. That motion was not heard today because Viviano recused herself.

Viviano said this is"significant leave that is being requested" of the court. She said thedecision to remove someone from office is important not only for the litigants, but also for public and she said the appearance of impropriety needs to be avoided in all cases.

"I believe the judge made a very good decision," Spranger said after the hearing.

County Corporation Counsel said the case now will go to the chief judge who has denied several of Spranger's recommended appointees to the vacant deputy clerk position for reassignment. He said that could take a few days or maybe a week to reassign.

"I think it was very cautious," Schapka said of Viviano's ruling, but added that "it's a Macomb County case. This is the proper venue for the case."

Spranger has been controversial since she came into office in January, including a backlog in e-filing and a rise inemployee grievances about a hostile work environment.Spranger was fined for a county ethics violation, firedtwo deputies who are now suing her in federal court and is under investigation for lying about her residency in Warren on her affidavit of identify to run for office last year.

She invoked the Fifth Amendment and is not interviewing with sheriff's authorities investigating perjury in the residency question.

Spranger's attorney, Frank Cusumano, who on Friday asked for a change of venue in Spranger's lawsuitand the disqualification of all of the Macomb circuit judges, also believes Viviano made the correct decision to recuse herself.

Macomb County Circuit Court Judge Kathryn Viviano talks with lawyers regarding the lawsuit that county Clerk/Register of Deeds Karen Spranger filed against the county during a hearing Aug. 14, 2017.(Photo: Christina Hall, Detroit Free Press)

Viviano said that she didn't see that she had any authority to recuse the entire bench of judges, adding "I have to deny that straight up."

When asked if Spranger was qualified for the job, Cusumano said: "The voters have decided she's qualified." Spranger declined comment when she was asked the same question.

Among his arguments, Cusumano said the court is seeking to take over several efiling positions of the clerk and has petitioned to county commissioners for a change in the budget.

County commissioners soon will receive the county's proposed 2018 budget. As of last week, Spranger had not submitted proposed budgets for her offices. She is to appear before commissioners to discuss her budget Aug. 28.

Contact Christina Hall: chall@freepress.com. Follow her on Twitter: @challreporter.

Macomb County Clerk/Register of Deeds Karen Spranger and her attorney, Frank Cusumano, address the media after a hearing Aug. 14, 2017 on a lawsuit she has filed against the county.(Photo: Christina Hall, Detroit Free Press)

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Judge recuses herself from Karen Spranger's lawsuit against Macomb County - Detroit Free Press

Challenging the Transgender Ban

The Trump administration's recent rollback of Obama-era sexual orientation and transgender policies has led to litigation claiming violations of due process and equal protection rights.

By Anjali Patel

Monday, August 14, 2017

Five transgender servicemembers recently filed suit following President Trump's July 26 tweets announcing that transgender individuals will not be allowed to openly serve in the Armed Forces. Jane Doe 1, et al, v. Trump, No. 1:17-cv-01597, complaint filed for declaratory and injunctive relief (D.D.C. 08/09/17).

This policy shift reverses existing guidelines that began allowing transgender individuals to serve openly in the military on June 30, 2016. The ban will impact at least three Department of Defense policy documents, along with any division-specific policies. DOD, Military Service of Transgender Service Members (June 2016); DOD, Transgender Service in the U.S. Military: An Implementation Handbook (September 2016); DOD, Transgender and Gender Transition Commanding Officer's Toolkit (November 2016).

The complaint alleges Trump failed to consult with the Joint Chiefs of Staff and the Department of Defense before "the White House [allowed] a plan to end the active service of transgender servicemembers to be transmitted to the Department of Defense for implementation."

The complaint argues that the ban on transgender servicemembers:

Violates the equal protection component of the Fifth Amendment's due process clause, "lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." Violates the Fifth Amendment's due process clause by taking "arbitrary and capricious" action to reverse the 2016 policy allowing transgender people to openly serve. The 2016 policy created a protected interest in being able to openly serve as transgender servicemembers, and the reversal of that policy deprived the plaintiffs of those interests without due process of law, and impermissibly burdened their fundamental rights to autonomy and privacy, the complaint said.

Rescinds the rights, benefits, and privileges promised to the plaintiffs who relied on the 2016 policy, notified their commanding officers that they were transgender, and received ongoing support for their continued service as openly transgender. However, now that they have already identified themselves as transgender, they no longer have "the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service." Since coming out, the plaintiffs have served "honorably and successfully" and their transgender status "has not had any detrimental effect on their ability to serve or fulfill their duties," the complaint states. Consequently, the U.S. government should be prevented from "rescinding the rights, benefits, and protections promised to Plaintiffs."

As relief for the ban, the plaintiffs said the court should find the president's directive unconstitutional and issue a preliminary injunction, along with a permanent injunction, prohibiting the categorical exclusion of transgender people from military service.

Sexual orientation

On the same day as the president's tweets -- July 26 -- the Department of Justice argued that Title VII does not cover sexual orientation discrimination, taking the opposite position of the Equal Employment Opportunity Commission in an amicus brief submitted to the 2d U.S. Circuit Court of Appeals. Zarda v. Altitude Express, Inc., 117 LRP 30114 , No. 15-3775 (2d Cir. 04/18/17); EEOC amicus curiae brief filed (2d Cir. 06/23/17); DOJ amicus curiae brief filed (2d Cir. 07/26/17).

Shannon Farmer, a partner at Ballard Spahr, told cyberFEDS that Zarda will have limited impact for federal employees, who can choose to pursue a sexual orientation claim through the administrative process, which follows the EEOC's holding that Title VII does encompass sexual orientation claims. Baldwin v. Department of Transportation, 115 LRP 31813 (EEOC OFO 2015).

Nonetheless, "it will be interesting to see what if anything the court will do with the DOJ and EEOC having split views because they don't have to address it all and could just leave that issue on the side."

Regardless of the 2d Circuit's ruling, ultimately this will be addressed either through legislation or the Supreme Court, she added.

Right now, the EEOC is aligned with the 7th Circuit, while the DOJ is aligned with the 11th Circuit.

"The EEOC is also going to trial as a plaintiff in a 3d Circuit sexual orientation case, which will bring another court into the issue," Farmer said.

During a Town Hall conversation at the 32nd Annual FDR Training, the EEOC's Robbie Dix, associate director of the Appellate Review Program, said the EEOC has been clear that Title VII prohibits agencies from discriminating against or harassing employees based on their sexual orientation and gender identity.

"Agencies should process these cases using 1614 procedures," Dix said. "If they decide to reject these cases relying on the DOJ stance, we will send them back to be processed in a New York second."

Farmer warned, however, that once Trump's nominees for the EEOC are confirmed, new leadership could take a different position than the current EEOC.

If the EEOC's position remains the same, the Supreme Court could be in the "rare -- although not unheard of -- position" of hearing agencies in the same administration arguing as amici for opposing parties, she noted.

However, "it's hard to imagine that the administration would not try to get the EEOC and DOJ aligned on this issue -- which involves the interpretation of a key federal statute -- before going to the Supreme Court," Farmer said.

Sex stereotyping

Agencies also should "keep in mind that there has been a line of cases, for both federal and nonfederal employees, finding that sex stereotyping is sex discrimination protected by Title VII" under the Supreme Court's decision in Price Waterhouse v. Hopkins, 89 FEOR 9001 (U.S. 1989), Farmer said.

If the facts allow, usually complainants allege sex stereotyping instead of sexual orientation discrimination, such as "because I am gay, I don't fit the masculine stereotypes, and therefore I was discriminated against under Title VII," she said.

However, these cases can get somewhat "messy" because courts must make highly subjective calls on whether the person was perceived as "effeminate enough or butch enough" to fall within sex stereotyping, she added.

Additionally, not every case will have facts fitting a sex stereotyping claim. And "from a judicial perspective, it's far cleaner to have a firm line than a rule that asks how much sex stereotyping do you need to have," Farmer explained.

That said, if the Supreme Court ultimately includes sexual orientation under Title VII, plaintiffs would not have to try fitting the facts into a sex stereotyping framework, she added.

Although many believe including sexual orientation under Title VII expands the statute, "as a practical matter, it is not that much of an expansion because litigants can plead enough facts to be recognized as a sex stereotyping case," she said. However, the standard of proof would change and require showing sexual orientation, rather than sex stereotyping, she added.

Anjali Patel is cyberFEDS Legal Editor Washington Bureau. Send questions or comments about this story to hreletters@lrp.com.

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Challenging the Transgender Ban - Human Resource Executive Online