Mediaboss Marketing

Often considered a fast-track to resolution of a dispute over patent ownership, Chinas administrative adjudication mechanism has proved to be an efficient and efficacious way to resolve patent infringement issues. Chengda Li explains how it works and why more and more patentees are using it.

With the newly amended China Patent Law that became effective on June 1, 2021, the objective is to, more effectively, protect the legitimate rights and interest of patentees.

In China, there is a so-called dual-track scheme to enforce a patent, namely the administrative route and the judicial route. In case of a patent infringement dispute, the patentee or interested party may file a lawsuit in the Peoples Court or request a local intellectual property (IP) administrative office handle the dispute under Article 65 of the Patent Law. As stipulated in Article 70.1 of the Patent Law, for a patent infringement dispute that has a major impact nationwide, the patentee or the interested party can even directly request the China National Intellectual Property Administration (CNIPA) handle it. The dual-track scheme is also applicable to patent linkage disputes in China. To proceed with a drug patent dispute case arising from patent linkage, there are two routes to go. The first one is to take civil action before the courts and the second one is to file an administrative adjudication request before CNIPA.

The administrative adjudicative route

The basic legislation for using the administrative adjudication mechanism for patent dispute resolution, in addition to the Patent Law, is the Measures for Patent Administrative Enforcement, which were originally enacted in 2001 and were later amended in 2010 and again in 2015. The Measures prescribe fundamental rules of administrative adjudication for patent infringement disputes and patent administrative enforcement. The Measures also set out the primary procedures and standards for handling administrative adjudication cases. Now the Measures are still in effect.

According to the Measures, the local IP administrative offices of each province, as well as the CNIPA (which was previously known as the State Intellectual Property Office, or SIPO) are responsible for both administrative adjudication for patent infringement disputes and patent administrative enforcement. It is to be noted that in the newly amended Patent Law, Article 69 differentiates between patent administrative enforcement authorities and administrative adjudication authorities. The former refers to Administrative Offices for Market Regulation, while the latter to the CNIPA and local IP administrative offices of each province. Pursuant to new Article 69, patent administrative enforcement authorities are granted stronger administrative powers than administrative adjudication authorities. Specifically, an administrative adjudication authority may conduct questioning of the involved parties and examination of sites and products relating to the infringement in a patent infringement dispute, whereas a patent administrative enforcement authority may additionally seize or detain counterfeit products and conduct evidence examination and reproduction. It can be expected that the Measures will be amended in the near future to be in line with the newly amended Patent Law.

To further strengthen the protection of patent rights and improve the efficiency and quality of administrative adjudication concerning patent infringement disputes, the CNIPA issued a more detailed Guideline on December 26, 2019, called the Guidelines for Handling Cases of Administrative Adjudication Concerning Patent Infringement Disputes (hereinafter referred to as the Guidelines). The Guidelines clarify the basic concepts of administrative adjudication on patent infringement disputes, including jurisdiction, avoidance, agency, delivery, case handling procedures such as case docketing, examination, evidence investigation, and rules of evidence. The Guidelines also explain the infringement determination of various types of patents and the relevant principles of infringement determination.

On May 28, 2021, to better handle administrative adjudication cases of patent infringement disputes that have a significant nationwide impact, CNIPA released the Administrative Adjudication Measures for Major Patent Infringement Disputes. The Measures went into force June 1, 2021, along with the amended Patent Law. The Measures provide an explanation of the categories of cases that would fall under the purview of Article 70.1 of the Patent Law. Per Article 3 of the Measures, any of the following situations is a major patent infringement dispute:

(1) Involving major public interests;

(2) Significantly affecting the development of the industry;

(3) Major cases involving cross-provincial administrative regions;

(4) Other patent infringement disputes that may cause significant influence.

The Measures set out detailed guidelines for the administrative handling of such cases by CNIPA, including the procedures of oral hearing and the technical investigator system, which is similar to procedures in a civil litigation before a court. The Measures also clarify that the only remedy available is an injunction, with no damages. Appeals of a decision of CNIPA can be filed before the Beijing Intellectual Property Court within 15 days of the ruling but enforcement of an injunction will not be suspended during the appeal process. Of note, the Measures prescribe that, during the administrative adjudication, if the involved patent is declared invalid by the Reexamination and Invalidation Examination Division of the CNIPA, the administrative adjudication case may be terminated. Where there is evidence to prove that the decision to invalidate the patent has been revoked by an effective administrative judgment, the patentee may file another administrative adjudication request. Considering that the administrative authority handling administrative adjudication cases of patent infringement disputes and the Reexamination and Invalidation Examination Division are both sub-departments of CNIPA, it is seen that, in the future, patent infringement disputes may be settled in a more convenient and cost-effective manner through the administrative adjudication route. Moreover, joint trial of administrative adjudication and patent invalidation procedures may be possible within CNIPA.

Technical investigators

Turning to the technical investigator system, it is believed that the introduction of the technical investigator into patent infringement cases is beneficial and helpful, since most patent infringement dispute cases are difficult and complex with professional and technical challenges. On May 7, 2021, CNIPA issued the Provisions on the Participation of Technical Investigators in Administrative Adjudication of Patent and Integrated Circuit Layout Design Infringement Disputes (Interim) (hereinafter referred to as the Provisions). Issuance of the provisions follows the Supreme Peoples Courts regulation on technical investigators for IP-related litigations. The provisions stipulate in detail the roles and responsibilities of technical investigators. According to the Provisions, both the CNIPA and the local IP administrative offices may assign technical investigators to participate in administrative adjudication cases of patent infringement disputes. The CNIPA is responsible for building a national technical investigator database and selecting and managing the technical investigators. The local IP administrative offices may select and manage the technical investigators in their own jurisdictions but may also apply for the deployment of technical investigators from the national technical investigator database to participate in its administrative adjudication activities. The provisions set out that the technical investigators may participate in the oral hearings and ask questions to the parties and other relevant personnel. The technical investigators may also attend meetings of the collegiate panel as nonvoting delegates. Recently, the CNIPA announced that a first panel of 35 technical investigators has been elected, covering technical fields such as machinery, electricity, communications, medical biology, chemistry, optoelectronics, materials, and design.

Most recently, on July 5, 2021, the CNIPA released the Administrative Adjudication Measures for Early Resolution Mechanisms for Drug Patent Disputes. Together with the above-mentioned administrative adjudication measures for patent infringement dispute, China has established its characteristic and comprehensive administrative adjudication system. The Measures clarify the basic concepts of administrative adjudication for early resolution mechanisms for drug patent disputes (the so called patent linkage system), including jurisdiction, parties, case handling procedures such as case docketing, examination, mediation, and oral hearing. The Measures also explain the relation with patent invalidation and the parallel proceedings with civil litigation.

Specifically, per Article 4 of the Measures, no successful prior lodging of a civil action before a court is one of the preconditions for filing a request for administrative adjudication with CNIPA. However, successful filing of administrative adjudication case with CNIPA can neither preclude from filing nor stay the civil action according to the rules of the Supreme Peoples Court. With respect to invalidation, the Measures clarify that all the claims in suit of the patent being invalidated, either before or during the administrative adjudication, can be a ground for dismissal of the administrative adjudication; in case of a part of the claims in suit of the patent being invalidated, the administrative adjudication will be based on those claims that are maintained valid. But it is not clear where the CNIPAs invalidation decision is appealed to the court, whether status of the claims here would be determined by the CNIPAs invalidation decision, or would rely on the final judgment from the appeal.

Is administrative adjudication a fast-track?

Generally speaking, the administrative adjudication route is much faster and less expensive than civil litigation. When handling patent infringement disputes, the local IP administrative office is required to complete the adjudication within three months from the date of case docketing. If the case is particularly complicated and the time limit needs to be extended, it shall be approved by the person in charge of the local IP administrative office. The approved extension shall not exceed one month at most. It can thus be seen that the administrative adjudication route is a fast-track mechanism for patent infringement dispute resolution. More and more patentees, especially small and microenterprises, choose this route in case of an infringement dispute. According to a statistic of CNIPA, in June 2021, there were as many as 4,257 administrative adjudication patent infringement dispute cases filed before local IP administrative offices in China, among which the IP Administrative Office of Zhejiang Province handled the most, up to 2,450 cases. It appears that the administrative adjudication route is becoming a preferred way to resolve patent infringement disputes, especially for those infringers that are located in a developed province.

A most famous administrative adjudication case in China may be Shenzhen Baili Marketing Service Co. Ltd. v. Apple Inc. (the Baili case). In May 2016, the Beijing IP Office issued a decision affirming that Apples iPhone 6 and iPhone 6 Plus infringed a Chinese design patent ZL201430009113.9, owned by Shenzhen Baili Marketing Service Co. Ltd. The Beijing IP Office thus rendered a ban, ordering Apple to stop selling the iPhones. Upon the issuance of this decision, the decision itself, together with Beijing IP office, came under the spotlight. Apple immediately brought forth an administrative lawsuit before the Beijing Intellectual Property Court to challenge the administrative decision. On March 24, 2017, Beijing Intellectual Property Court rendered its first-instance judgment overruling the administrative order by the Beijing IP Office. In the meanwhile, Beijing Intellectual Property Court also ruled directly over the civil dispute between Bali and Apple and reached a non-infringement judgment in favor of Apple.

Conclusion

Administrative adjudication has proved to be an efficient and efficacious mechanism for patent infringement dispute resolution in China. However, some experts have been questioning whether the bifurcated approach, the administrative adjudication and civil litigation dual-track scheme in China, will cause confusion and inconsistent judgments.

In the fourth amendment to Chinas Patent Law, the dual-track scheme has been kept and even extended to disputes involving open licenses and patent linkage disputes. The administrative adjudication mechanism should be encouraged if the primary purpose is to stop patent infringement earlier without focusing on potential damages. If, however, one of the purposes is to obtain payment of damages, it is advisable to go with the court proceedings to settle patent infringement disputes.

Last but not least, for a patent dispute that has a significant impact, it may be advisable to file both a civil action and an administrative adjudication request. But it should be remembered that the administrative adjudication request must be filed simultaneously with or before the civil action; otherwise, the administrative adjudication request will be rejected.

Original post:
The fast-track to patent dispute resolution: The administrative adjudication mechanism - Lexology

Monday, new ministers are expected to be sworn in before His Majesty King Abdullah II, as part of the awaited amendment to the government of Bisher Al-Khasawneh.

This came a day after members of Khasawnehs government submitted their resignations, in preparation for the ministerial reshuffle.

Here is the expected list of the new ministers:

-Faisal Al-Shboul, Minister of State for Media Affairs

-Wafaa Bani Mustafa, Minister of State for Legal Affairs

-Khairy Amr, Minister of Investment

-Haifa Al-Najjar Minister of Culture, succeeding Ali Al-Ayed

-Youssef Al-Shamali, Minister of Industry and Trade

-Saleh Al-Kharabsheh, Minister of Energy

-Nayef Istitieh as Minister of Labor

-Wajih Owais, Minister of Education

-Muawiya Al-Radaydah, Minister of Environment

Notably, this is the fourth amendment to the Khasawneh government, the last of which was on March 29 of this year.

His first amendment to the government was made on Dec. 2, 2020, while the second was on March 7, 2021, and the third was on March 29, 2021.

Go here to see the original:
New ministers expected to be sworn in Monday - Roya News English

What this suggests is that a new round of constitutional revisions might be possible in the not-too-distant future.

Our national charter has been reformed and its principles renewed in four waves of constitutional change that occurred during the most turbulent times in American history. The first was from 1789 to 1804, when the founding generation added a dozen amendments in a 15-year period. Chief among them was the Bill of Rights, the first 10 amendments, adopted in a single bundle to reassure skeptics that a strong national government could be tempered with respect for individual liberty. They also adopted the 11th and 12th Amendments that, respectively, limited citizens lawsuits against states and fixed some defects in the Electoral College.

Then all was quiet on the constitutional front for 61 years, until after the Civil War. Between 1865 and 1870, Republican lawmakers used six years of supermajority control of Congress to drive a second era of amendments that abolished slavery, promised equal citizenship for 4 million newly freed African Americans and barred racial discrimination in voting. Taken together, these amendments laid a second founding for a nation sundered by war. They gave Congress robust new powers to remedy racial injustice while imposing meaningful limits on the excesses of state governments.

And then there was another four decades of polarization and gridlock, marked by the pervasive corruption and vast inequities of the Gilded Age. Eventually, the political pendulum swung and brought a progressive political coalition to power. At the prodding of social movements from the populists to the suffragists to the temperance warriors, lawmakers sought to reverse the extravagance of the previous era. Between 1909 and 1920, Progressive Era reformers added four amendments that authorized the income tax, provided for the popular election of senators, launched Prohibition and extended the franchise to women. The spectacular failure of the nationwide liquor ban notwithstanding (the 21st amendment repealed Prohibition in 1933), these amendments established the foundation for the modern U.S. government.

Finally, a fourth wave, inspired by the political activism of the 1960s civil rights era, added three voting rights amendments to the Constitution: presidential electors for the District of Columbia, abolition of the poll tax, and the lowering of the voting age to 18. A fourth amendment, the 25th, updated and clarified the rules of presidential and vice presidential succession amid the doomsday fears of the nuclear age. The last of this wave was the 26th Amendment, the voting age measure, ratified in 1971.

Today, we find ourselves five decades into the latest dry spell. After the defeat of the Equal Rights Amendment in the 1980s, many progressives concluded that the Constitutions arduous amending process is not worth the effort. For their part, conservative activists have launched campaigns to win a balanced budget amendment and other ideological policies, which has only bolstered a sense among many that its unwise and even dangerous to tinker with the framers handiwork.

But this sense of defeatism is not new. In 1904, the Washington Post dismissed reformers amendatory schemes, offering the hard-boiled take that our fundamental law is practically unamendable by peaceful and regular methods. And yet, just a half-decade later, that pessimistic prognosis was proven wrong when Congress proposed the first of the Progressive Era amendments.

The presence of certain factors that have prompted past generations of Americans to push for constitutional amendments suggests that a new wave may already be building. Discontent over controversial Supreme Court rulings, for instance, has proven to be a predictable galvanizer of amending activity in previous eras. In fact, seven amendments were motivated by the desire to reverse high court decisions. Today the amendment option is on the table for activists working to overrule Supreme Court decisions such as Citizens United, which has allowed corporations and outside groups to spend unlimited amounts of money on campaigns.

During periods of gridlock, states sometimes look for workarounds for some of the Constitutions most problematic provisions, and that experimentation is another driver of constitutional amendments. In the early 20th century, when the Senate blocked an amendment giving voters the right to directly elect its members (a power originally given to state legislatures), reformers in the states responded with measures such as the Oregon Plan, which allowed voters to express their Senate preference in a popular referendum. By establishing a de facto system of popular election in much of the country, they forced the Senates hand.

In a similar vein, some states today are pushing to circumvent the Electoral College through the adoption of the National Popular Vote Interstate Compact, which would award the presidency to the winner of the popular vote an innovative reform that could lay the groundwork for an amendment to change how we choose the president. Even the Equal Rights Amendment, introduced nearly a century ago, might be back on the agenda thanks to state lawmakers who have revived the effort to ratify it.

It may be hard to imagine, but todays political impasse may eventually give way to a new governing coalition. Look at the Gilded Age a century ago, when mounting social problems fueled a rare consensus for reform. Then, as now, economic inequality was widening as restraints on corporate power eroded and moneyed interests dominated our elections. The nation was polarized along regional lines that mirror todays red state-blue state divide. Immigration was changing the country to the alarm of traditionalists. Elections were won by narrow margins, producing gridlock. And all the while, a conservative Supreme Court stood in the way of needed change. In time, the pressure for reform caused a dramatic leftward swing in national sentiment that few saw coming an earthquake that divided the Republicans, lifted the Democrats and led to the adoption of four amendments after years of fruitless advocacy.

That all sounds a lot like 2021. The country has been going through demographic and economic changes comparable to those in the Gilded Age and a new, diverse generation of voters is on the rise. Like their predecessors in the early 20th century, the new generation has decidedly progressive politics and is leading important social movements.

So theres hope for our Constitution and the political system it governs. While todays partisan rancor and gridlock may currently thwart important national reforms, they may also signal the coming of a new era of constitutional change that could kick-start our countrys journey toward a more perfect Union.

Read the original here:
History Teaches that Constitutional Reforms Come in Waves. We May Be Approaching One Now. - POLITICO

from the thus-answering-the-question-'when-is-a-search-not-a-search' dept

Private searches that uncover contraband can be handed off to law enforcement without the Fourth Amendment getting too involved. Restrictions apply, of course. For instance, a tech repairing a computer may come across illicit images and give that information to law enforcement, which can use what was observed in the search as the basis for a search warrant.

What law enforcement can't do is ask private individuals to perform searches for it and then use the results of those searches to perform warrantless searches of their own. A Ninth Circuit Appeals Court case [PDF] points out another thing law enforcement can't do: assume (or pretend) a private search has already taken place in order to excuse its own Fourth Amendment violation. (h/t Rianna Pfefferkorn)

Automated scanning of email attachments led to a series of events that culminated in an unlawful search. Here's the court's description of this case's origination:

The events giving rise to Luke Wilsons conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilsons email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilsons email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilsons email account and Wilsons home, describing the attachments in detail in the application.

You can see where things went wrong: the warrantless search engaged in by the officer to view images neither of the other parties had actually opened or inspected. Apparently, Fourth Amendment violations are standard practice at the San Diego ICAC.

NCMEC then forwarded the CyberTip to the San Diego Internet Crimes Against Children Task Force (ICAC). Agent Thompson, a member of the San Diego ICAC, received the report. He followed San Diego ICAC procedure, which at the time called for inspecting the images without a warrant whether or not a Google employee had reviewed them.

A footnote attached to this paragraph states the new "standard procedure" is to obtain a warrant before opening a CyberTip "when the provider has not viewed the images." The court notes it is "not clear from the record" that this is standard practice at other ICAC offices, or whether they've also been instructed to obtain warrants first from now on. So, more challenges are likely on the way.

The lower court refused to suppress the evidence obtained from Wilson's email account and home, deciding the private search that had never actually occurred was a private search, salvaging the warrantless search that immediately followed the forwarding of the tip by NMCEC.

The Appeals Court disagrees.

First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilsons email attachments even though no Google employeeor other personhad done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilsons images. And, even if they were duplicates, such viewing of others digital communications would not have violated Wilsons expectation of privacy in his images, as Fourth Amendment rights are personal.

Matching hashes is not enough. And that's all Google and NMCEC had when they forwarded the tip down the line to law enforcement. Just because both entities retain hashes (NMCEC retains images as well) that matched the hashes of the attachment doesn't mean there's no subjective expectation of privacy in one's own email account. A strong probability that the files were child porn is the perfect basis for a warrant request. Unfortunately, the officer decided to engage in a search without one.

Wilson did not have an expectation of privacy in other individuals files, even if their files were identical to his files. The corollary of this principle must also be true: Wilson did have an expectation of privacy in his files, even if others had identical files. If, for example, police officers search someone elses house and find documents evidencing wrongdoing along with notes indicating that I have identical documents in my house, they cannot, without a warrant or some distinct exception to the warrant requirement, seize my copies. I would retain a personal expectation of privacy in them, and in my connection to them, even if law enforcement had a strong basis for anticipating what my copies would contain. A violation of a third partys privacy has no bearing on my reasonable expectation of privacy in my own documents. The government does not argue otherwise.

All of the evidence is suppressed, since it all relies on the initial lawless search. The ICAC in San Diego has, belatedly, put a warrant requirement in place. It won't salvage this conviction, which has been reversed. And it may result in similar suppressions and reversals if the same search-first procedure was used in other child porn cases. But it's always easier to bypass the warrant and get to the searching. After all, not every court will see the facts the same way, as is evidenced by the lower court's refusal to suppress the evidence. But it's now crystal clear in the Ninth Circuit: get a warrant.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

Filed Under: 4th amendment, child sexual abuse materials, scanning, warrant

Read more:
Court Tells Child Sexual Abuse Investigators That The Private Search Warrant Exception Only Works When There's A Private Search - Techdirt

The New York Times recently reported that the FBI had an undercover informant amid the mob that entered the U.S. Capitol on Jan. 6 who had related to them his knowledge of the demonstrators' plans beforehand and his observations of events in the building in real time. The informant was a genuine member of the Proud Boys, one of the groups the feds are trying to charge with conspiracy to overthrow the government.

According to the Times, the informant told the FBI in advance that there was no plan by his colleagues to disrupt the government. He also reported violence and destruction in the Capitol to his FBI handler as it was happening, and the FBI did nothing timely to stop it.

The presence of the informant as a de facto federal agent at the scene before, during and after the commission of what the government considers to be serious felonies raises serious constitutional questions about the FBI's behavior. The feds have not revealed the existence or identity of this informant; rather, the Times' reporters found out about him and found another person to corroborate what they learned that he did.

Can the government insert a person into a group under criminal investigation -- or "flip" a person who is already in the group -- and use him for surveillance without a search warrant? And, when they do this, must prosecutors tell defense attorneys about their informant, particularly if his knowledge and observations are inconsistent with the government's version of events?

Here is the backstory.

The Fourth Amendment to the Constitution was written to protect the quintessentially American right to be left alone. It was enacted in the aftermath of egregious violations of colonial privacy by British soldiers and agents.

The typical violation of privacy came in the form of British soldiers knocking on the door of a colonial home -- or breaking it down -- bearing a general warrant. A general warrant, issued by a secret court in London or by colonial courts here whose judges were loyal to the king, permitted the bearer to search wherever he wished and seize whatever he found.

The Fourth Amendment was ratified to force the government to focus its searches on evidence of crimes for which the government had probable cause, and to protect the privacy and security of "persons, houses, papers, and effects" by requiring search warrants before the government could invade any of them.

The warrants must be issued by a neutral judge, must be based on probable cause of crime sworn to under oath, and must specifically describe the place to be searched and the person or things to be seized.

In the early 1960s, the Supreme Court realized that the use of electronic surveillance was just as much a search as a physical search, and it required search warrants for the government to be able to use at trial whatever it learned from the surveillance. This is universally accepted today as the contemporary understanding of the Fourth Amendment. Yet, it applies only to searches by government agents or their use of evidence obtained from electronic surveillance. It does not pertain to informants.

Stated differently, the feds and the states need search warrants to bug your bedroom, your office or your cellphone, but they do not need a search warrant to threaten, bribe or employ your neighbor or colleague or brother-in-law to engage you in a conversation about personal behavior and then report the contents of that conversation to them.

The government's argument is that you have waived your right to privacy by trusting the person to whom you were speaking, and that waiver obviates the need for a search warrant.

But the use of an informant can be as invasive as the use of a wiretap. Because the informant is usually capable of getting in the face of the person being surveilled, his presence is a direct violation of the Fourth Amendment's protection of "persons." Since the informant can often prod the person to say what he might not say if unprodded, the use of informants is arguably more invasive of privacy and hence more violative of the Fourth Amendment than a wiretap silently recording a conversation.

Now back to Jan. 6 at the Capitol. The Department of Justice requires approval by FBI management before an agent can engage an informant. Thus, senior FBI personnel knew that a trusted member of the Proud Boys trusted by the Proud Boys and by the FBI had advised one of their agents that the group had no plans for violence or disruption of a governmental function. We also know that senior FBI personnel knew that personal injury and property damage were happening at the Capitol and they did nothing to stop it.

The Times reporters promised anonymity to their sources. But their identity is now of paramount importance to some of the folks whom the FBI has arrested and whom federal prosecutors have charged with felonies. If the feds have an eyewitness who works for them -- even though his presence at the scene was unconstitutional -- and whose testimony contradicts the prosecutors' narrative, the feds have a moral and legal obligation to reveal all this to defense counsel.

Who knows what the FBI knew of Jan. 6 ahead of time and did nothing or why it conveniently looked the other way during the events in the Capitol? We do know that every FBI agent and federal prosecutor has taken an oath to uphold the Constitution, whether convenient or not.

The Fourth Amendment is the framers' value judgement that the privacy of all persons is a greater moral good than the government's convenience. It is an intentional obstacle to law enforcement to keep it respectful of our rights. Why do we hire the FBI to protect our safety but permit it to invade our liberty?

Judge Andrew Napolitano's column is syndicated by Creators.

View post:
Napolitano: On Jan. 6, what did the FBI know? - The Winchester Star