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California Governor Jerry Brown disappointed privacy advocates with his October 9 veto of a bill which would have required law enforcement officers to have a warrant before searching cell phones incident to an arrest.


The bill, Senate Bill 914, sailed through the Legislature with a 32-4 Senate vote and unanimous 70-0 support in the Assembly. It would have overturned a California Supreme Court decision, People v. Diaz(2011) 51 Cal. 4th 84, which held that a search of a defendant’s cell phone incident to an arrest was lawful, even without a warrant, because a cell phone is like an article of clothing.

Dissenting Justice Kathryn Werdegar argued that, “The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects,” because a smartphone can contain hundreds of thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and the like.

The Legislature agreed. SB 914 would have overturned the Diaz decision. The author, State Senator Mark Leno (D-San Francisco), said, “If you like to attend political rallies, parades, protests or sit-ins, you might want to consider leaving your cell phone at home in the event arrests are made. A recent California Supreme Court decision allows police to rummage through all of the private information on your smart phone as part of an arrest, including your text messages and e-mails.” He said the court’s decision raised many privacy concerns, and a bi-partisan majority of the Legislature agreed. Leno said cell phones “store a wealth of personal information,” and that accessing information on a cell phone is “fundamentally different than searching an arrested person’s wallet, cigarette pack or jeans pockets.”
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The Occupy movement is raising some thorny First Amendment issues.

Protesters have First Amendment rights to demonstrate and march, and they’ve raised important issues about the rising income inequality in this country.

On the other hand, governments traditionally have been able to impose so-called “time, place and manner” restrictions, so the issue becomes whether Occupy protesters have First Amendment rights to permanently occupy certain public places.

I had little sympathy for homeless people in San Francisco’s Golden Gate Park who left syringes and human waste in the park and despoiled its natural beauty.

But I have more sympathy for those who’ve pitched tents in downtown spaces like San Francisco’s Harry Bridges Plaza and Oakland’s Frank Ogawa Plaza. For one thing, there’s a clear speech message associated with their encampment. For another, they are occupying what seem like public spaces more suitable for public gatherings than enjoyment of natural beauty and the great outdoors.

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Is Mortal Kombat the highest form of free speech?

Maybe not. But it is protected by the First Amendment, according to a majority of the U. S. Supreme Court.

The Supreme Court’s ruling on June 27 in Brown v. Entertainment Merchants Association struck down a California law restricting the sale or rental of violent video games to minors. It makes for interesting reading, and it produced several different opinions. Justice Antonin Scalia — joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan — delivered a full-throated defense of violent video games, holding, “Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny.” He compared violent video games to Grimm’s Fairy Tales, where the wicked queen, as punishment for trying to poison Snow White, “fell dead on the floor,” and to Cinderella, where her evil stepsisters “have their eyes pecked out by doves.”

The California law was dead on arrival, the Court said, because the state “acknowledges that it cannot show a direct causal link between violent video games and harm to minors.”

Justice Samuel Alito and Chief Justice John Roberts weren’t so sure. Alito wrote, “In the view of the Court, all those concerned about the effects of violent video games — federal and state legislators, educators, social scientists, and parents — are unduly fearful, for violent video games really present no serious problem. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in ‘kind’ from reading a description of violence in a work of literature. The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.”
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There’s an old saying: I may not agree with what you say, but I will defend to the death your right to say it.

Add to that: transparency may not always be convenient, but it’s important to government.

This occurred to me recently in a case I am handling for the Los Angeles Times. The Times is suing the LA county retirement system for records of pensions paid to its tens of thousands of retirees. The system, LACERA, fought against disclosure for over a year and a half before finally relenting (in part) in the face of three court decisions ruling that the names and pension amounts of retirees must be disclosed.

Before anything was disclosed, a police union filed a lawsuit trying to block disclosure, claiming that some of its members might be “undercover retirees” who would be endangered by disclosure. Meanwhile, LACERA sent a letter to its members telling them it had to disclose their names and pension amounts. Its call center got jammed.
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I must confess I haven’t been following the Amanda Knox saga closely. But something caught my eye in the story about her return to the States.

She was convicted — not of murder, but of defamation — by an Italian jury.

Some states in the U. S. may still have criminal libel laws on the books. But it’s safe to say no appellate court here would do what an Italian appellate court did — overturn her conviction for murder but uphold a criminal conviction for accusing the bar owner she worked for of committing the murder.

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The Bay Area Rapid Transit system (BART) stepped into a touchy First Amendment issue when it shut off cell-phone service this summer in response to protests over a police action.

The decision sparked protests from First Amendment advocates and even criticism from BART board members who thought the agency overreacted to protesters.

BART argues that it has no obligation to provide cell-phone service at all in its underground tube and tunnels. But the protesters argued, with some justification, that once BART provides cell-phone access it shouldn’t cut it off to prevent protesters and riders from communicating and peacefully assembling.

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A San Francisco appellate court on August 26 handed a third victory to open government advocates wanting to know who’s receiving county pensions.

The decision from California’s First District Court of Appeal in Sonoma County Employees’ Retirement Association v. Superior Court comes on the heels of earlier rulings from Courts of Appeal in Sacramento and San Diego and may signal the end of resistance from county pension organizations which have fought against the disclosure of pension amounts received by their members.

The San Francisco-based court held that state law shields retirees’ birth date and age from disclosure, but not their name and the amount of their pension. Like the other appellate courts, the First District Court of Appeal relied upon the California Supreme Court’s ruling (in a case I handled) that public employee salaries are public information, and said “the taxpaying public has substantially the same interest in [the retirement agency’s] operations and payout levels as it does in the salaries of county employees.”

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Two California Courts of Appeal have shed light on a hot issue, ruling that county pension agencies must disclose the names and pension amounts of members receiving generous pension amounts.

Both courts, in rulings a month apart, rejected privacy arguments raised by by the agencies and the pension recipients, and both ruled that a state law providing for confidentiality of “individual records” did not allow the agencies to hide records of their payments to named pension recipients.

The rulings — a May 11, 2011 decision from the Third District Court of Appeal in Sacramento (in a case I handled), and a June 28, 2011 decision from the Fourth District Court of Appeal in San Diego — are welcome news for open government advocates and for taxpayers who foot the bill for the state’s overly generous public pension benefits. In an era when private sector pensions have been eliminated or cut back, and public agencies are laying people off and cutting back services, many retired state and county employees are receiving six-figure annual pensions. Public safety employees in California generally are allowed to retire at age 50 with up to 90 percent of their last salary under a so-called “3 percent at 50” formula giving them 3 percent of their last salary for each year of service. To make matters worse, workers are often able to “spike” their pensions by working overtime in their last year or cashing out vacations and other perks just before they retire.

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California is broke.

There’s plenty of blame to go around, but one of the prime culprits is a lack of transparency. If people don’t know how public money is being spent, it’s hard to ensure that public money is being spent wisely.

One especially troublesome area is public employee pensions, especially for police and firefighters. Legislators who are wary of offending the powerful public safety lobbies, and voters deluged with glossy brochures of burning buildings and police in uniform, have handed public employee retirees pensions which far exceed those in the private sector. In San Francisco alone 709 retirees get pensions of over $100,000 a year. Most private sector workers don’t earn that kind of money while still on the job. Other local agencies in the Golden State also have hundreds of workers in the six-figure pension club, and the state’s pension fund, CalPERS, has nearly 5,000. This is happening while the state is trying to close a deficit of more than $20 billion.

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Why is transparency and openness important? Think about Bernard Madoff.

People invested millions in Madoff on the promise of 14 or 15 percent returns, even though they had no idea what he was investing in or how he was pulling it off. Likewise, poorly-regulated and opaque investment vehicles like securitized mortgages and auction-rate securities share a large part of the blame for the financial crisis gripping this country, and the world, over the past year.

One of the more outrageous spectacles of the past year has been banks and other financial institutions resisting disclosure of how they invested or spent federal bailout money. It’s bad enough when some bureaucrat won’t tell you how much was spent on fixing a pothole. It’s worse when a megabank begs for billions and then won’t tell you where the money is going.

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