The U.S. Supreme Court should decline again to review when it’s OK for police to require someone to unlock an encrypted cellphone, New Jersey said Friday in docket 20-937. In Andrews v. New Jersey, a prosecutor secured a court order directing Robert Andrews, an Essex County sheriff's officer the time, to turn over passwords for two cellphones. Andrews challenged, citing Fifth Amendment protections, but the New Jersey Supreme Court said those protections don’t apply to passwords. No new circuits or state supreme courts have weighed in since October, when the high court chose not to hear a similar Pennsylvania case (see 2010050042), New Jersey told SCOTUS. "Petitioner claims a different result is nevertheless warranted, but he faces a significant threshold problem: Petitioner has not yet gone to trial, let alone been convicted and sentenced.” Future trial court proceedings “may obviate the need for review of any Fifth Amendment issues in this case,” the state said. New Jersey disagreed there's a judicial split over application of the “foregone conclusion” doctrine, which says it’s not self-incriminating to give the state information it already knows. “Petitioner alleges a split over whether a suspect could be required to verbally ‘communicate’ the ‘pure testimony’ of his device’s passcode. ... Yet in this case, Petitioner will be allowed to directly enter the passcode without divulging it.” The state Supreme Court was correct, New Jersey said. "Whenever a suspect enters his passcode, he is only confirming that he ... knows the code. If the government knows as much, that suspect has not incriminated himself and the Fifth Amendment is not offended. ... A contrary rule would elevate form over substance, allowing the State to enforce a search warrant if a device is protected by biometrics but not by a passcode. And it would offer those seeking to evade a lawful search warrant a path to do so.” The American Civil Liberties Union and Electronic Frontier Foundation support SCOTUS hearing the New Jersey case (see 2101080057).
A California freelance journalist is suing the FCC over a Freedom of Information Act request for documents Sinclair submitted to the agency as part of last year's $48 million consent decree for its now-killed Tribune Media purchase (see 2005060063). In her complaint (docket 21-cv-00895, in Pacer) Thursday in U.S. District Court in Washington, Susan Wilson Cowan alleges the agency hasn't provided requested Sinclair documents that were cited in the consent decree but not entered into the public record, nor has it responded to the October FOIA request. The regulator didn't comment.
Broadband providers’ challenge of Maine’s ISP privacy law would be ready for trial Oct. 5 under a revised schedule (in Pacer) entered Monday by U.S. District Court in Maine. Trial was previously scheduled for August. Last July, in case 1:20-cv-00055, the court denied industry plaintiffs' motion for judgment on the pleadings and ruled Maine’s law isn’t preempted by the FCC or Congress (see 2007070053). Under the updated schedule, a written notice of intent to file summary judgment motions is due Aug. 24, motions themselves Sept. 7.
Reinstate net neutrality "as a matter of urgency," tech companies led by Mozilla asked the FCC, the company said Friday. ADT, Dropbox, Eventbrite, Reddit, Vimeo and Wikimedia signed. "We support the efforts of the FCC to act upon its mandate and reinstate these fundamental user rights," they said.
Sony Electronics joined the massive Section 301 litigation inundating the U.S. Court of International Trade by hiring a sole practitioner, David Newman of Nyack, New York, instead of a big multinational law firm to file a complaint (in Pacer) on its behalf Wednesday arguing the List 3 and 4A tariffs on Chinese imports are unlawful and should be refunded. Joining the suit as co-plaintiffs were Sony Latin America and Sony Interactive Entertainment, the arm of the company responsible for the PlayStation 5. Sony argues “the same cause of action” as the first-filed HMTX Industries/Jasco Products case in September, that the Office of the U.S. Trade Representative overstepped its 1974 Trade Act by imposing tariffs that had no link to the Section 301 investigative report's finding of serious Chinese trade misbehavior. It also alleges USTR violated Administrative Procedure Act protections against rulemakings that lack transparency. An attachment to the complaint lists more than 15 dozen import categories to which Sony has List 3 or 4A exposure. Though the vast majority are for capital goods, not finished products, one standout listing is for the Harmonized Tariff Schedule’s 8528.72.64.60 subheading for finished TVs sourced from China on List 4A, with screen sizes exceeding 45 inches. No other categories of finished TVs from China are listed. Sony, like other TV brands playing in the premium tier, is believed to source most of its big-screen products from Mexico. Sony didn’t respond to questions Thursday.
Chief Judge Timothy Stanceu of the U.S. Court of International Trade will assume senior status at the court April 5, said an updated listing Wednesday on the U.S. Courts website. Stanceu, who turns 70 this year, was a 2003 appointee by President George W. Bush. It's speculated that Judge Mark Barnett, the longest-serving active judge on the court, will become chief judge. Barnett sits on the three-judge panel presiding over the massive Section 301 litigation, assigned there by Stanceu last month (see 2102050038).
The FTC ordered Wellco to pay $650,000 in a settlement over allegations it deceived consumers about TV antenna products, the agency announced Monday. Wellco and its CEO, George Moscone, violated the FTC Act by “making deceptive performance claims” for “over-the-air television antennas and related signal amplifiers,” commissioners alleged 4-0. The complaint was filed with U.S. District Court for the Southern District of New York in Manhattan. The company used “deceptive consumer endorsements” and misrepresented some of its own webpages as "objective news reports about the antennas,” the agency said. An FTC order imposed a $32 million judgment against the company, which will be suspended if the defendants pay $650,000 to the commission, “based on their inability to pay the full judgment,” the FTC said. An attorney for the defendant didn’t comment.
Former Apple engineer Simon Lancaster-Larocque stole and disseminated trade secrets that included “details of unreleased Apple hardware products, unannounced feature changes to existing hardware products, and future product announcements, all of which Apple guards closely,” alleged the company Thursday in a complaint (in Pacer) in U.S. District Court in San Jose. The complaint, which refers to him only as Lancaster, seeks an injunction to stop his alleged misbehavior, plus damages and the recovery of any profits he gained from the allegedly stolen material. It also alleges Lancaster-Larocque breached an intellectual property confidentiality agreement (in Pacer) he signed in May 2008, a month before joining Apple. “Despite over a decade of employment at Apple,” Lancaster-Larocque “abused his position and trust within the company to systematically disseminate Apple’s sensitive trade secret information in an effort to obtain personal benefits,” said the complaint. “He used his seniority to gain access to internal meetings and documents outside the scope of his job’s responsibilities containing Apple’s trade secrets, and he provided these trade secrets to his outside media correspondent.” The correspondent is not identified in court papers. After Lancaster-Larocque resigned from Apple, “he began working at a company that served as a vendor for Apple under a vendor service agreement,” said the complaint. Portions of the information he misappropriated “relate directly to his role at his new employer,” and it’s likely his “misuse of Apple’s trade secrets continues to this day,” it said. On his last day at Apple, he downloaded “a substantial number of confidential Apple documents from Apple’s corporate network onto his personal computer that would benefit his new company,” it said. Lancaster-Larocque’s LinkedIn profile shows him as joining Arris Composites as head-consumer products in November 2019. His profile says he was Apple’s “advanced materials and prototyping lead” for years and was a key product design architect on the MacBook. Arris didn’t respond to questions, and attempts to reach Lancaster-Larocque were unsuccessful.
ISP associations appealed last month's court ruling denying their preliminary injunction against California's net neutrality law to the 9th U.S. Circuit Court of Appeals Tuesday (in Pacer and see 2102230073), as expected. ACA Connects, CTIA, NCTA and USTelecom told U.S. District Court in Sacramento of their plans. "As the district court has already recognized, California has the authority to protect and enforce net neutrality during ongoing litigation," said a state DOJ spokesperson. "We will continue to fight for net neutrality in court and oppose all efforts to stop enforcement of the law.”
Walmart threw its hefty weight behind the Section 301 litigation inundating the U.S. Court of International Trade, joining thousands of other importers Monday in seeking to get the Lists 3 and 4A Chinese tariffs vacated and the duties refunded. The Office of the U.S. Trade Representative overstepped 1974 Trade Act authority when it waged the retaliatory tariffs against the Chinese and violated the 1946 Administrative Procedure Act with rulemakings lacking transparency, said Walmart’s complaint (in Pacer), mirroring virtually all the 3,500 others filed since beginning in mid-September. Walmart also joined about two dozen smaller importers to argue the Lists 3 and 4A duties are “unlawful and unconstitutional” because only Congress has the power of taxation. The levies also “were enacted contrary to the Fifth Amendment guarantee of due process of law,” said Walmart. From statements made by President Donald Trump and others in his administration, “an additional, if not the sole, reason and purpose for the List 3 additional duties was to collect revenue,” said the complaint. “To the extent the List 3 additional duties were revenue collection measures, they were beyond the scope of actions USTR was authorized to take by the Trade Act of 1974.” USTR didn’t comment Tuesday.