Articles Posted in First Amendment

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Under the Sex Offender Registration Act, registered sex offenders must tell New York State about all “internet accounts with internet access providers” and “internet identifiers that such offender uses.” Does that mean you have to disclose your social media accounts?

Most police and the the State Division of Criminal Justice Services would have said yes. Police agencies routinely scour the internet looking for sex offenders who are on social media but have not properly disclosed their presence. People always thought hiding a social media account was a felony — failure to register under Corrections Law Sec. 168-t.

Turns out it is not.

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Last week, President Trump signed legislation that expands criminal liability for people who own or operate online platforms that “promote or facilitate” not only sex trafficking, but virtually any consensual sex work. The new law, which amends Section 230 of the Communications Decency Act (“CDA”), is commonly referred to as the “Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), or by its Senate name, the “Stop Enabling Sex Traffickers Act (SESTA).”

The FOSTA-SESTA amendment to the CDA is fairly short, but raises questions about how it will be enforced by prosecutors and plaintiffs’ attorneys granted a private right of action under the law. Under the new law:

  1. Anyone who “owns, manages, or operates” an online platform or “conspires or attempts to do
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Adam Elewa, Esq.We are delighted to announce that attorney Adam Elewa has joined the Law Office of Zachary Margulis-Ohnuma as an associate. Mr. Elewa is a graduate of Fordham Law School. His career has focused on defending against accusations of technology- and computer-related crimes including charges of computer hacking, child pornography and wire fraud. He has represented clients in the First, Second, Fifth, Sixth, and Ninth Circuits.

“Technology affects virtually every case we defend,” said principal attorney Zachary Margulis-Ohnuma. “Adam’s experience expands our capacity to fight the most difficult, sophisticated cases involving computers, cell phones, social media and internet communications.”

Over the past two years, Mr. Elewa represented journalist Matthew Keys in connection with his alleged role in defacing the Los Angeles Times website, individuals accused of being associated with Anonymous (the “hacktivist” collective), and an information technology professional accused of damaging his employer’s computer network.

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In a brief filed today, attorney Zachary Margulis-Ohnuma criticized what appears to have become a routine practice in the Eastern District of New York of handling certain prosecutions entirely in secret. The brief is an appeal from a district court order allowing the government to prosecute an alleged terrorist entirely behind closed doors.  The person charged is not identified by name, all papers are filed under seal, and the courtroom has been closed for all proceedings.

As the Supreme Court and the Second Circuit have repeated over and over again, secret court proceedings are almost never allowed in American courts. Sealing an entire case is without precedent. But it turns out that this case is just one of at least eight pending “John Doe” prosecutions uncovered by journalist Johnny Dwyer, on whose behalf the appeal was filed. If the appeal succeeds, at least some parts of this mysterious case will be made public.

The brief also highlights the insidious effect of secret criminal prosecutions. The district judge allowed the case to proceed in secret because, it said, “unsealing this matter could jeopardize the safety of numerous individuals.” But it’s not the “unsealing” that puts people in danger; it’s the government’s investigation and the techniques it employs. If unsealing the case would be so dangerous, the government should not have brought it in the first case. It only did because it knew — based on the other cases uncovered by Mr. Dwyer — that it could force the defendant and the court to agree to seal. If the normal rules applied, i.e. if prosecutions had to be public, the government would still be able to pursue its investigation and stop the crimes, but it would have to do so with techniques that don’t “jeopardize the safety of numerous individuals.” All this is pretty abstract.  That’s because until the Second Circuit enforces the First and Sixth Amendments and unseals the case, we won’t really know what it’s all about or how the district court justified its departure from our tradition of public prosecutions.

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One month after Albany County passed its anti-cyberbullying law, an anonymous teenager obligingly posted “Cohoes Flame” — a Facebook page of photos of his classmates along with crude “descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information.” An investigation revealed the teen’s identity; he was arrested and charged with a misdemeanor under the new law. But — even though the posts were intended to cause emotional harm — the new cyberbullying law was so broad that it was held unconstitutional in People v. Marquan M., decided Tuesday by the New York Court of Appeals.

The People tried to rescue the law by claiming, despite its broad language, that it could be severed to apply only to “(1) sexually explicit photographs; (2) private or personal sexual information; and (3) false sexual information with no legitimate public, personal or private purpose.” Apparently, the People believed those categories — unlike, say, depictions of extreme violence or hate speech — could be criminalized. Of course, the first category might constitute child pornography and therefore already be criminal. But revealing private information or even making up false sexual information has rarely been held to be unprotected by the First Amendment. In any case, the court disagreed that the law could be parsed out that way: “Although the First Amendment may not give defendant the right to engage in these activities, the text of Albany County’s law envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression.” It was therefore overbroad and unconstitutional.

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The Honorable Harold Baer, who passed away earlier this week, was one of the legendary judges deciding cases in federal court in Manhattan. A stalwart for civil liberties who landed in the middle of contentious political battles, he was also quick witted and plainspoken in court. Though I only appeared before him a few times, he left a lasting impression, not least by his cheeky comments placed on the public docket. Here are a few samples from our archive:

  • To a lawyer looking to correct a judgment: “The Bureau of Prisons makes these decisions. All I can do is recommend.”
  • In response to a request that a client be allowed to travel while on bail: “I don’t object either. So ordered.”
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The death of Al Feldstein is a major cultural event. His sensibility, if not his work itself, helped inspire me to become a journalist and then a lawyer. While Mad Magazine was a wonderful achievement, the bigger story is Feldstein’s socially conscious and horrifying writing for Shock Suspenstories and the other EC “New Trend” titles in the early 1950s. These comics, almost all written by Feldstein and many of them illustrated in his familiar, emotionally-present, almost childlike lines, went for the jugular. At a time when such things were seldom discussed, ECs presented stories of drug abuse, suicide, rape, police brutality, KKK violence, anti-semitism and — over and over again — racism.

Shock-SuspenStories-12Two of the very best Shocks hang on the wall of my office: the one at left describes (in a mode that straddles the line between stereotype and icon) a teenager’s descent into heroin addiction, delusion, violent crime and patricide. The cover is an unforgettable drawing by Feldstein.

The other is the story of a false rape confession beat out of a stranger with the bad luck to pass through a small town. The shock comes at the end when we learn who the real culprit it. That cover, by George Evans, illustrates the old, unsubtle technique for extracting unrecorded “confessions” that continues to cast a shadow on my cases today.