November 18, 2025 • 36 mins
Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses a judge finding that the Justice Department’s indictment of former FBI Director James Comey, was riddled with problems. Then Ryan Autullo, Bloomberg Law reporter, discusses a court blocking Texas mid-decade redistricting. And Colin Walke, cybersecurity and data privacy partner at Hall Estill discusses the tech giants suing California over its social media access law. June Grasso hosts.
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Episode Transcript
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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
According to a judge, the Justice Department's indictment of James
Comey was riddled with problems that may give the former
FBI director legal grounds to have it dismissed, and US
Magistrate Judge William Fitzpatrick has ordered an extraordinary remedy the
release of all grand jury materials to the defense due
(00:31):
to the prospect that government misconduct may have tainted the
grand jury proceedings. In a blistering assessment of the Justice
Department's actions leading up to the indictment, Fitzpatrick cited eleven
potential missteps, including fundamental misstatements of the lawn to the
grand jury by the prosecutor, Lindsay Halligan, the use of
(00:53):
potentially privileged communications during the investigation, and unexplained irregularities in
the tree transcript of the grand jury proceedings. My guest
is former federal prosecutor Robert Mintz, a partner maccarter in English, Bob.
In some ways, the judge's opinion seems like a guideline
for the defense to ask for a dismissal of the indictment.
(01:16):
He outlined the procedural and substance of irregularities that occurred
before the grand jury, and said they may give comby
legal grounds to have one or more of the counts dismissed.
Pretty harsh a condemnation of the government's actions.
Speaker 3 (01:31):
It was extremely unusual because, as you say, it's extremely
rare in the first place, for a judge to be
reviewing conduct in front of a grand jury. The grand
jury process, even though it's a very important constitutional right,
and the prosecutor does not have a basis to charge
an individual with a federal crime if it's a felony,
(01:54):
it's something that has to go before a grand jury
and there has to be a finding of probable cause.
But there the reality is, as a federal prosecutor, that
is really most of the time just a formality. It's
extremely rare, almost unheard of, for grand jurors to refuse
to return an indictment when a federal prosecutor presents a
(02:15):
case in front of a grand jury.
Speaker 1 (02:17):
So when you're a.
Speaker 3 (02:17):
Federal prosecutor, the last thing in the world you want
is for a judge to be probing what went on
in that grand jury process. That means that as a prosecutor,
you're on the defense, and instead of talking about the
charges that you're bringing against the defendant, you are defending
your own conduct. And that's exactly what's happened here.
Speaker 2 (02:38):
Judge Fitzpatrick cited eleven potential missteps in the process to
obtain the indictment against Komi. So let's start with the
defense is challenging whether there was privileged information used, and
the judge said the facts established a reasonable basis for
the defense to challenge whether privileged information was used directly
(03:00):
or indirectly by the government to prepare and present its
grand jury presentation. So you have to go back a little,
I guess to explain, you know, why there's privileged information here.
Speaker 3 (03:11):
So what the magistrate judge was tasked with in this
circumstance was to decide whether mister Komy had met the
very high bar for a defendant to be given full
access to the transcripts and recordings of a grand jury proceeding.
What ended up happening here was that, in addition to
the reasons that Comy's lawyers had argued for access to
(03:33):
the grand jury material, the judge found from his own
review of the materials a host of new problems new
issues that could ultimately lead to the dismissal of the case.
The judge went through a series of potential issues that
he decided the defense was entitled to probe and to
raise before the court as a basis to possibly dismiss
(03:55):
the indictment. One of the original issues that Comy's lawyers
raise a basis for accessing the grand jury material had
to do with search warrants that were executed by the
Department of Justice in twenty nineteen and twenty twenty four.
Search warrants were executed by the Department of Justice in
connection with an entirely separate, earlier investigation owned as Artikades,
(04:19):
which took place during President Trump's first presidency and had
to do with the potential leaking of information to the
media about ongoing investigations by the FBI, and the search
warrants were focused on a Columbia University law professor, Daniel Richman,
who was a friend of mister Comy's but who would
also end up representing him as his lawyer for some
(04:42):
period of time, and that created the question of whether
or not the information might have been covered by the
attorney client privilege. The judge here raised a number of
issues as to whether or not there could have been
a violation of mister Comy's rights and whether or not
privileged information, in other words, communications between mister Comy and
(05:03):
mister Richmond when mister Richmond was acting as his lawyer
might have seeped into the grand jury presentation and that
would have been entirely improper and would have tainted the
presentation and could potentially be a basis to dismiss the indictment.
Speaker 2 (05:17):
Yeah, the judge said that the decision to allow an
FBI agent, and there was only one witness in the
grand jury, it was an FBI agent. So the decision
to allow an agent who was exposed to potentially privileged
information to testify before a grand jury is highly irregular
and a radical departure from past DOJ practice.
Speaker 3 (05:39):
Yeah, And what the judge meant by that is there
are circumstances when the issue of privilege does arise, and
typically it will happen if there is a search warrant
that takes place involving an attorney. You know by definition
that there may be communications between an attorney and his
client when you search an attorney's office. And so what
(06:00):
prosecutors do on a routine basis is they set up
a separate team of lawyers, lawyers who are not in
any way involved in the prosecution, who will go through
that material to remove what could be potentially privileged information
so that the trial team, the prosecuting team, is not
tainted by having access to information that they should not
(06:23):
be given access to. What happened here was that one
of the FBI agents, who by the government's own admission,
had been given a briefing at least on some of
the privileged information, that was the sole witness who appeared
in front of the grand jury in order to return
the indictment. In order to return indictments, prosecutors do not
(06:44):
have to present witnesses who have first hand knowledge about
the Alleyish crime. They can, and often do, rely on
one agent who was allowed to summarize and present hearsay
evidence to the grand jury, to summarize all of the
government's case, including all the interviews that might have taken place,
reviews of documents, basically sum up for the jury or
(07:07):
of the government's case through the testimony of a single
witness hear What the judge found potentially problematic was that
that single witness was somebody who had access to privileged information,
and the question is did any of that information, either
directly or indirectly seep into the presentation before the grand jury.
(07:27):
If that happened, it was improper and could be a
serious problem for the government.
Speaker 2 (07:32):
I've been talking to former federal prosecutor Robert Mintz, a
partner Macarter in English. So Bob the prosecutor here. The
interim US attorney Lindsay Halligan was Trump's former personal lawyer,
had never been a prosecutor before, and she was hastily
installed in the position. She presented the case to the
(07:53):
grand jury by herself. She was the only one in
the room with the grand jurors because the experience against
prosecutors in the office. Didn't want to have anything to
do with this indictment, and Judge Fitzpatrick found that two
different comments Halligan made to the grand jurors represented fundamental
misstatements of the law, and her exact comments were redacted
(08:17):
from the judge's order. But it appears that she suggested
to the grand jury that the fact that Comy didn't
testify in his defense should be interpreted as a sign
of guilt. I find that stunning, because any lawyer, even
a first year law student, should know that a defendant
(08:37):
doesn't have to testify. It's a right guaranteed by the
Fifth Amendment and no inference can be drawn from that.
Speaker 3 (08:45):
Well, that's exactly right. And the magistrate judge described these
as quote fundamental misstatements of law by the prosecutor in
front of the grand jury. And one of the issues
that he identified was this Fifth Amendment right.
Speaker 1 (08:59):
Ishue you.
Speaker 3 (09:00):
Apparently, during the course of the grand jury in presentation,
a grandeuror raised questions, as grandeur is often due to
the prosecutor, and the prosecutor has to respond with the
proper law in order to give the grand jurors the
framework by which to consider whether or not to return
an indictment. Here, apparently a grandeuror asked a question, and
(09:21):
as you say, the exact response has been redacted. But
according to the Magistrate judge, it suggested that mister Comy
may have had a burden to explain away the government's evidence.
In other words, the inference was that the burden shifted
to mister Comy to have to explain why he did
what he did, when in fact, under the Fifth Amendment,
(09:44):
a defendant has no obligation whatsoever to testify, and the
fact that they choose not to testify cannot be used
against him. And more fundamentally, in a criminal prosecution, the
burden never shifts to the defense. It's always the prosecution's
to prove its case beyond a reasonable doubt. So any
suggestion that mister Comi's decision not to testify, not to
(10:08):
explain away his conduct could somehow be used by grand
jurors to infer that he committed a crime would have
been improper. The judge also noted that Miss Halligan may
have suggested to the grand jury that they did not
have to rely only on the record that was presented
to them during the grand jury presentation in order to
(10:29):
reach a finding of whether or not there was probable cause,
but that they could assume and they could be assured
of the fact that the government had even more evidence,
perhaps better evidence, than was presented to them during the presentation,
that could be used at trial, and therefore that the
case was even stronger than the evidence presented to them
during the grand jury proceeding. If that was done, that
(10:52):
too would be entirely improper. The grand jury has to
make a decision as to whether or not there is
probable cause based solely on the evidence presented to them
during the grand jury proceeding. It's really no different than
a trial in which jurors have to make a determination
as to whether or not the government has met its
burden of proof beyond a reasonable doubt based solely on
(11:12):
the evidence that's presented to them during the trial. They
can't rely on anything outside of the record during the
trial proceeding. The same holds true for a grand jurors,
and for a prosecutor to just suggest that there is
other more powerful evidence that they should consider but has
not been presented to them would be entirely improper.
Speaker 2 (11:34):
I mean her comments basically come down to a defendant
has to testify before a grand jury, and trust me,
grand jurors, we have a lot more evidence that will
prove his guilt, but we're not showing it to you now.
Speaker 3 (11:48):
Well, I think that's why you saw the opinion written
by the magistrate judge to be as strongly worded at
as detailed as it was. It was a twenty four
page opinion that went not only the issues that mister
Comey's lawyers had raised in order to try to gain
access to the grand jury transcripts, but also a litany
(12:08):
of other issues that he discovered when he reviewed in
camera those grand jury transcripts, and he raised serious questions
in his mind, I believe as to whether or not
there were serious constitutional errors in the presentation, not only
the Fifth Amendment question, not only the question that there
was evidence outside of the grand jury's purview that they
should consider. Even the way the grand jury returned the indictment.
(12:33):
In this case, the original indictment presented to the Grand
jurors was a three count indictment. When the Grand jurors
went back to deliberate, they chose not to return a
true bill, which means they voted not in favor of
one of the three counts. And now there's a question,
based on the transcript of the proceeding, as to whether
or not an entirely new indictment with only the two
(12:55):
counts that the Grand jurors voted in favor of, was
ever presented to them. If that did not happen, if
the Grand jurors did not deliberate on the exact indictment
that was ultimately presented to the court, that is another
issue that could be very problematic.
Speaker 2 (13:10):
I was impressed that the magistrate judge figured out by
the timing of what happened that he thinks the grand
jurors did not review the indictment that was finally presented
in open court. Now, that's exactly.
Speaker 3 (13:24):
Right, the judge wrote. If the prosecutor is mistaken about
the time she received notification of the grand jury's vote
on the original indictment, and this procedure did take place,
then the transcript and audio recording provided to the court
are incomplete. On the other hand, if this procedure did
not take place, then the court is in what the
judge described as uncharted legal territory in that the indictment
(13:49):
returned in open court was not the same charging document
presented to and deliberated upon by the grand jury. Either way,
the judge was not satisfied with the explanation prosecutors gave
about that process, and that's why the magistrate judge at
least has decided to open up all of this grand
jury information to the defense, which is a huge benefit
(14:12):
to the defense and will likely result in even more
motions than the original motions filed by mister Comy's defense team.
Speaker 2 (14:19):
Bob I was wondering so the judge said that all
the grand jury materials that the government filed under seal
have to be made available to Comy's lawyers, and also
the audio recording of the grand jury proceedings. Could the
audio recording reveal things that are not in the transcript.
Speaker 1 (14:38):
Yeah, that's certainly possible.
Speaker 3 (14:40):
I mean, the judge here decided to go full transparency
and that he is giving everything that was presented to
him by the government over to the defense, and that
is something that you rarely see. As I said, this
is something that is a prosecutor's nightmare. The case should
not be about the prosecutor's con right out of the gate.
(15:01):
It should be about the defendant's conduct and about whether
or not the government can prove that the defendant committed
a crime beyond a reasonable doubt. The probe into the
conduct by the government is exactly where you want to
be if you're on the defense side. But it's the
worst place you can possibly be as a prosecutor.
Speaker 2 (15:18):
So federal prosecutors within a few hours filed an emergency
request to the judge in the case we're talking about
the magistrate judges order, saying that the magistrate judge's new
order is contrary to law, and also that he may
have misinterpreted some facts.
Speaker 1 (15:37):
Well.
Speaker 3 (15:37):
I think what's happened here is magistrate judges are appointed
by the court that they serve in and their decisions
generally can be appealed to the district court judge handling
the case. And so the government not surprisingly immediately sought
to stay, and the district court judge, I think wisely
granted it so that he can review everything that went
(15:59):
on and review not only what went on in the
grand jury, but carefully review the twenty four page decision
that was issued by the magistrate judge, and he will
make his own decisions about whether or not this grand
jury material should be turned over. It's so important and
it's so unusual that it's not at all surprising to
me that the district court judge wants to weigh in
(16:20):
on this before a final decision is made.
Speaker 2 (16:22):
The magistrate judge works in tandem with the district court judge,
so Judge Macimuff probably knows what the magistrate judge was doing.
Speaker 3 (16:32):
Dor What happens is that magistrate judges are selected by
the court, as opposed to district court judges, which are
nominated by the President and only appointed with the advice
and consent of the Senate. The magistrate judges essentially work
with specific district court judges, and generally, on the civil side,
they handle a lot of the discovery matters that lead
(16:55):
up to trial. On the criminal side, they hear initial
hearings with regard to bail and issues of that sort.
But they do work hand in glove with the judges
that they are assigned to, So typically you will see
a district court judge agreeing with much of what their
magistrate judge did. But in this case, I think there's
(17:15):
no question that Judge Nachmanoff will take a separate look
at what happened here because it is so unusual, and
make his own decision about whether the grand jury material
should be turned over in total as was ordered by
the magistrate judge.
Speaker 2 (17:30):
So Judge Nachmanoff put Fitzpatrick's order on hold. He gave
the Justice Department until five pm tomorrow to file its
full brief and then Comy side has until five pm
Friday to respond. So now yet another judge is involved
in this case, and that's the judge considering whether Lindsey
Halligan was lawfully appointed. Let's once again explain what the
(17:55):
defense's argument about Halligan's appointment.
Speaker 3 (17:59):
So, in this case, the federal judge is actually a
judge from South Carolina as opposed to the Eastern District
of Virginia. Because the question before the court is whether
or not the US Attorney for the Eastern District of
Virginia has been properly appointed, and the decision was made
by the Circuit Court, that'd be best to have a
judge not in that judicial district making this decision. So
(18:22):
the judge from South Carolina, to Judge Curry, is looking
at the convoluted process by which Lindsay Halligan was appointed
as the interim US Attorney for the Eastern District of Virginia.
There had been a career prosecutor who was appointed by
President Trump to serve on an interim basis. That interim
basis lasts one hundred and twenty days by appointment of
(18:46):
the President. After that time period, the judges in the
district can then extend that appointment. And that's exactly what
happened here with that career prosecutor, Eric Sebert. The Attorney
General then fired mister Siebert and appoint did a new
prosecutor Lindsay Halligan for a new one hundred and twenty
day period, and the question is whether or not the
(19:07):
Executive Branch can continue with these one hundred and twenty
day interim appointments sort of add infinitum, or whether they
can do it only one time and after that time
it's up to the district court judges to appoint the
US attorney. The statute is actually not clear on the process.
It doesn't explicitly say that that one hundred and twenty
(19:29):
day appointment can happen only once. But the argument by
the defense here is if the court were to accept
the government's argument, then the President could really get around
the advice and consent of the Senate which is required
for a US attorney, by simply doing a series of
one hundred and twenty day appointments over and over again,
and that could not be what Congress intended.
Speaker 2 (19:51):
The Justice Department's response to the argument that Lindsay Halligan
was not lawfully appointed dismissed any missteps here, saying the
administration may have made quote at best, a paperwork error,
and also that afterwards the grand jury presentations have been
reviewed and ratified by Attorney General Pam Bondy, the Justice
(20:15):
Department is trying to say, even if we made a mistake,
Pam Bondy looked at it later and approved it. But
the judge did not seem too convinced by that.
Speaker 3 (20:25):
These are all very unusual questions and in very unusual
proceedings that there really is no prior precedent for. So
it's going to be interesting to see how the courts
treat not only her appointment, but the efforts by the
Attorney General. In an effort to prop up Halligan's position,
Attorney General Bondi designated Halligan as a special attorney for
(20:45):
the Justice Department, assigned to oversee cases against former FBI
Director James Comey and New York Attorney General Letitia James.
So what you're seeing is the Department of Justice kind
of struggling here to not only prop up the position
of Lindsay Halligan, but also to try to convince the
court that any errors that were made in connection with
(21:07):
obtaining the indictment against James Comy was more of a
paperwork issue and nothing that should result in dismissal of
the indictment.
Speaker 2 (21:15):
If she decides that Lindsay Halligan was not qualified and
there was no ratification so to speak by Attorney General
Pam Bondi, does the case against Comy then go out
the window because of the Statute of limitations.
Speaker 3 (21:29):
One of the interesting questions that will arise in the
event that the court were to determine that Lindsay Halligan's
appointment was improper is whether or not the government will
have the ability to reindict the case. The case was
indicted right at the very end of the five year
statute limitations. That's why Lindsay Halligan rushed into the grand
(21:51):
jury on very short notice and made this presentation literally
days before the five year statute of limitations was set
to expire. If her appointment is deemed to be improper,
that would mean that the indictment itself is procedurely flawed
because somebody who was not properly appointed as a US
attorney was the only person who presented the case before
(22:14):
the grand jury. The defense will no doubt argue that
the government cannot seek to reindict the case because the
statutal limitations will have since expired. But there is a
statute that says if a case is dismissed on procedural grounds,
which may include potentially a situation like this where the
attorney who presented the case in front of the grand
(22:35):
jury was not appropriately appointed, that the government has a
six month grace period to refile that new indictment even
though the original five year statual limitations has passed. That
will be something that will be front and center if
Lindsay Halligan's appointment is ultimately ruled to be improper and
the government attempts to refile that indictment outside the five
(22:58):
year statue limitations.
Speaker 2 (23:00):
This case raises so many novel questions. Thanks so much
for exploring them with US Bob. That's Robert Mintz of
Macarter and English Today. A panel of federal judges shot
down Texas's rare mid decade redistricting, delivering the loss to
President Trump in a two to one vote. The panel
(23:20):
blocked Texas from using a redrawn US House map, saying
that substantial evidence shows that Texas racially gerrymander the twenty
twenty five map. A Trump appointee and a Biden appointee
we're in the majority, and a Reagan appointee in the minority.
This closes a path for Republicans to gain five House
(23:41):
seats in next year's midterm elections unless the Supreme Court
steps in and reverses the decision, But the timeline is tight.
Joining me is Ryan Attulo, who covers Texas courts for
Bloomberg Law. Ryan tell us why the judges blocked the
new map.
Speaker 4 (23:58):
The panel says that the maps that Texas drew this
summer racially discriminated against minority groups. It was a decision
that criticized heavily a letter from the Department of Justice
that said that the existing maps that Texas had been
(24:19):
using were racially discriminatory and therefore needed to be redrawn.
The majority in today's opinion strongly disagreed with that letter
and shot it down, and they said, Texas, for the
upcoming congressional elections in twenty twenty six, you need to
use the old maps, not the ones you just passed.
Speaker 2 (24:41):
Explain what happened at the two week trial.
Speaker 4 (24:44):
Last month in El Paso, Texas. There was a trial
challenging the maps that Texas used on racial gerrymandering grounds.
Texas was in a tough spot because initially they said
that we need to rea draw these four racial reasons
based on that Department of Justice letter. Well, that's tougher
(25:07):
to defend than just saying. What they ended up saying
is redrew the strictly for partisan gain, which is a
very unapologetic position. But you can say, look, we wanted
five more seats for the Republican Party so that we
can keep Congress after the midterms. That's what they said,
and the majority of judges on the panels disagreed. They
(25:28):
said no, it was redrawn for racial reasons.
Speaker 2 (25:31):
And which districts were redrawn.
Speaker 4 (25:34):
Largely urban districts Dallas, Austin, when near Houston. There were
five total that the Republican lawmakers in Texas and President
Trump identified as being able to flip from solidly blue
to solidly read. And you saw a scramble there, Democratic
(25:55):
lawmakers getting Congressional lawmakers getting drawn out of their seats,
and what are we going to do. I will run
for reelection if the maps are struck down, or I
will retire if they're not. So there's been a lot
of relief from House Democrats today, not knowing whether they
were going to be able to run for their House seat.
Now they will be.
Speaker 2 (26:14):
I assume that Texas is going to appeal this to
the Supreme Court since it's a redistricting matter.
Speaker 4 (26:21):
I would guess they're working on that as we speak June.
They're going to go straight to the Supreme Court. They're
not not going to the intermediary Fifth Circuit. I think
we'll know a little more once they file that. But
Attorney General Ken Paxton and Governor Greg Abbott, who used
to be the Attorney general in Texas before he became governor,
(26:41):
both came out with statements saying, we strongly disagree with
this decision and we'll go in straight to the Supreme Court.
There is a time crunch here because the deadline for
candidates to file for the congressional primaries is coming up
a couple weeks December eighth. I believe it is, so
(27:03):
the Supreme Court may have to act quick or maybe
they extend that deadline. Anyone's guess at this point, but
this is something that will probably move pretty quickly.
Speaker 2 (27:12):
Very quickly. I'm sure, Thanks so much. Ryan, that's Bloomberg Laws,
Ryan Atulo, Meta TikTok, Google and YouTube are challenging a
California law that forbids social media platforms from allowing miners
to access personalized feeds without parental consent. They say it
violates their First Amendment rights. Joining me is Colin Walkee,
(27:37):
a cybersecurity and data privacy partner at haul Estel. Colin
tell us about this law. California is protecting Our Kids
from Social Media Addiction Act.
Speaker 1 (27:49):
Yeah.
Speaker 5 (27:49):
So this is a new law that requires several things,
one of which is, for example, that individuals provide proof
that they are over the age of eighteen or a
parental consent if you're a minor before you get curated algorithms.
It also requires tech companies to do things like set
(28:09):
default settings on the amount of time that children see
curated algorithms, things along those lines.
Speaker 2 (28:16):
Will you explain exactly what a curated algorithm is?
Speaker 5 (28:20):
Yes, So if I go on YouTube and I don't
log in as Calin Walkie, they generally speaking don't know
who I am, and so I see a feed, but
the feed isn't tailored to me or my desires. But
the moment that I plug in that I'm Callin Walkie
and here's my Google account access it now knows hey
Callin likes videos of dogs and ponies, and so that's
(28:41):
what it shows me. And so these curated algorithms in
theory get individuals more addictive than they otherwise would because
they're seeing more of what they want to see.
Speaker 2 (28:51):
What are the social media platforms arguing here?
Speaker 5 (28:55):
So this is actually a lawsuit that is a subsequent
lawsuit from an earlier one that was brought by a
trade association called net Choice and YouTube and Meta and
Google or all members of net Choice, And in that case,
the Ninth Circuit said, yeah, this law might violate the
First Amendment because even children have a right to freedom
(29:15):
of speech and freedom of expression, and so this very
well may violate the First Amendment. But you, as a
trade association, do not have standing to make these arguments.
Speaker 1 (29:26):
And so that decision was issued.
Speaker 5 (29:27):
Last month, and now we have Google and Meta coming
in and going, okay, here we are.
Speaker 1 (29:32):
We have standing.
Speaker 5 (29:33):
Now we want you to know that this violates the
First Amendment because even children have freedom of speech and
we have the right to curate these algorithms for children
as freedom of expression.
Speaker 2 (29:45):
Is there any room in the First Amendment to prevent
children from hearing things that will be harmful to them?
Speaker 1 (29:55):
There certainly is right.
Speaker 5 (29:56):
So we have regulations that say you can't view pornographic
material until you're eighteen or twenty one years of age,
and so there certainly is precedent for that. The problem
comes though, with regard to how broad is this law.
This law would cover not just pornographic images that YouTube
may show, but it would also cover content that is
(30:16):
perfectly fine for teenagers to view, and so therefore it
is an overly broad law, according to Google and Meta
and YouTube.
Speaker 2 (30:25):
The State ags, pointing to its preliminary win in defense
of the law, it tells about the Ninth Circuits holding.
Speaker 5 (30:32):
Yeah, the Ninth Circuit essentially said that you, as a
trade association, have not demonstrated a record where when you
apply this law to a particular algorithm it results in
something being overly broad. So, for example, they didn't show
that Google's algorithm apply to both pornographic material and material
that's acceptable to teenagers.
Speaker 1 (30:54):
Why because that wasn't the argument they were making.
Speaker 5 (30:57):
And so the Ninth Circuit said, Hey, if you have
a record that can actually show to us that Google's
algorithm covers both.
Speaker 1 (31:05):
Of these things, then maybe you have a point.
Speaker 5 (31:07):
And so as a result, the trade association loss basically
on a procedural issue, not so much on a substantive issue.
Speaker 2 (31:15):
Is this a tough argument, then to make to protect
the laws. Who has the tougher argument, the state AG
or the internet companies?
Speaker 5 (31:23):
I apparently just think it depends on who you ask.
The AG is going to say that the tech companies
do all day long. But unfortunately, I think that the
tech companies, because of the way we have interpreted the
First Amendment and the scope and the breadth of the
information that that covers, I unfortunately think that they will
ultimately prevail in this matter. It's hard for me to
think of a single age verification law that has been
(31:45):
upheld of recent memory. But the other side of it
too is you know, the thing is is that these
things are addictive.
Speaker 1 (31:51):
Not just because of the algorithms.
Speaker 5 (31:53):
Showing you curated materials, the phones themselves, the pixels, the
brightness of the screen means the automatic response is irrespective
of the fact that the responses you don't want. That's
what makes these things addictive. They're much more like casinos, right,
So it's not even necessarily that we need to address
the algorithms.
Speaker 1 (32:12):
So there's so many other things.
Speaker 5 (32:14):
That we could address that would not run a foul
of the First Amendment that could be taken advantage of.
Speaker 2 (32:20):
Is there any way for California to pass a different
law that would somehow escape these First Amendment objections.
Speaker 5 (32:30):
That's the thing is that it becomes very difficult until
the court is willing to interpret algorithms as something more
akin to pornography, as something more akin to showing an
actual harm to children. And I think that's where the
ag and the law stems from. It stems from the
fact that we know these curated algorithms and algorithms in general,
do not help children in their mental health, so let's
(32:52):
do something about it. And unfortunately, the courts have not
treated this in the same way they have other materials
like pornography, And once it gets to that point in time,
you're talking about something totally different, and I think courts
may change their mind, But right now, I don't see
a good way for us to win on a free
speech ground in a regulation like this.
Speaker 2 (33:13):
In light of all the horrific stories we've heard about
kids being addicted to social media, I'm a little surprised
that these companies are taking this tactic because it makes
them look like they're contributing to the problem instead of
helping to solve the problem.
Speaker 5 (33:32):
Well, they're actually talking on both sides of the mouth
at once. So on the one hand, what they are
actually saying is is we actually curate these feeds in
the first place for kids to make sure that they're safe.
We already limit the amount of time that.
Speaker 1 (33:44):
We show them curated feeds. That we're already being proactive.
That's the first thing they say.
Speaker 5 (33:49):
But on the flip side of that point, they're also saying,
let us continue to show these kids this because that's
the best way to get their attention. It's the best
way for us to make money. You know, you think
about it, Think about the nineteen eighties and the nineteen
nineties when used to kick kids out of R rated
movies because they weren't old.
Speaker 1 (34:03):
Enough to do it right.
Speaker 5 (34:04):
I'm confident those movie theaters would love to have had
those kids and their dollars in their pockets, but they
made a rule in staid we're not going to do that.
These tech companies have not made that rule. They don't care.
They want the profits.
Speaker 2 (34:17):
And Colin, how does this work? Because my daughter is
long grown up? How does it work? Do parents have
to click on something to give their consent?
Speaker 5 (34:26):
So that's part of the complaint is is that what
would have to happen is a parent would have to
upload an ID and disclose personal information about that parent
that they shouldn't have to do in order to access
freedom of spreach content right. And so for example, that's
part of the problem with age verification laws for pornography.
Speaker 1 (34:45):
If I am twenty.
Speaker 5 (34:45):
Five years of age, why should I have to prove
to you that I am this age in order to
engage in that conduct online? And so that's where the
objection comes in is that parents, in order to use
this lawfully may have to disclose information they shouldn't have
to disclose absent this law.
Speaker 2 (35:01):
What's the status of the lawsuits filed by parents against
social media companies?
Speaker 5 (35:09):
Yeah, so the most recent lawfoods, specifically with regard to AI,
those are still in existence to my knowledge, I'm not
aware of any of that have been dismissed yet.
Speaker 1 (35:19):
I am not aware of any penning ones.
Speaker 5 (35:21):
I mean, there are massed court litigation I think going
on against some social media companies, but I'm not aware
of the current status of those. And that's just it
is that the courts, if they're not going to learn
how to recategorize addictive algorithms to address it. Under the
first Amendment. Then they need to rethink how we can
litigate claims when companies negligently create these algorithms that hurt
(35:43):
ourselves and our children.
Speaker 2 (35:45):
I don't know what recourse parents have besides the courts.
Thanks so much, Colin. That's Colin Walkee, cybersecurity and data
privacy partner at hall Estel. And that's it for this
edition of The Bloomberg Law Show. Remember you can always
get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at
(36:06):
www dot Bloomberg dot com, slash podcast Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
According to a judge, the Justice Department's indictment of James
Comey was riddled with problems that may give the former
FBI director legal grounds to have it dismissed, and US
Magistrate Judge William Fitzpatrick has ordered an extraordinary remedy the
release of all grand jury materials to the defense due
(00:31):
to the prospect that government misconduct may have tainted the
grand jury proceedings. In a blistering assessment of the Justice
Department's actions leading up to the indictment, Fitzpatrick cited eleven
potential missteps, including fundamental misstatements of the lawn to the
grand jury by the prosecutor, Lindsay Halligan, the use of
(00:53):
potentially privileged communications during the investigation, and unexplained irregularities in
the tree transcript of the grand jury proceedings. My guest
is former federal prosecutor Robert Mintz, a partner maccarter in English, Bob.
In some ways, the judge's opinion seems like a guideline
for the defense to ask for a dismissal of the indictment.
(01:16):
He outlined the procedural and substance of irregularities that occurred
before the grand jury, and said they may give comby
legal grounds to have one or more of the counts dismissed.
Pretty harsh a condemnation of the government's actions.
Speaker 3 (01:31):
It was extremely unusual because, as you say, it's extremely
rare in the first place, for a judge to be
reviewing conduct in front of a grand jury. The grand
jury process, even though it's a very important constitutional right,
and the prosecutor does not have a basis to charge
an individual with a federal crime if it's a felony,
(01:54):
it's something that has to go before a grand jury
and there has to be a finding of probable cause.
But there the reality is, as a federal prosecutor, that
is really most of the time just a formality. It's
extremely rare, almost unheard of, for grand jurors to refuse
to return an indictment when a federal prosecutor presents a
(02:15):
case in front of a grand jury.
Speaker 1 (02:17):
So when you're a.
Speaker 3 (02:17):
Federal prosecutor, the last thing in the world you want
is for a judge to be probing what went on
in that grand jury process. That means that as a prosecutor,
you're on the defense, and instead of talking about the
charges that you're bringing against the defendant, you are defending
your own conduct. And that's exactly what's happened here.
Speaker 2 (02:38):
Judge Fitzpatrick cited eleven potential missteps in the process to
obtain the indictment against Komi. So let's start with the
defense is challenging whether there was privileged information used, and
the judge said the facts established a reasonable basis for
the defense to challenge whether privileged information was used directly
(03:00):
or indirectly by the government to prepare and present its
grand jury presentation. So you have to go back a little,
I guess to explain, you know, why there's privileged information here.
Speaker 3 (03:11):
So what the magistrate judge was tasked with in this
circumstance was to decide whether mister Komy had met the
very high bar for a defendant to be given full
access to the transcripts and recordings of a grand jury proceeding.
What ended up happening here was that, in addition to
the reasons that Comy's lawyers had argued for access to
(03:33):
the grand jury material, the judge found from his own
review of the materials a host of new problems new
issues that could ultimately lead to the dismissal of the case.
The judge went through a series of potential issues that
he decided the defense was entitled to probe and to
raise before the court as a basis to possibly dismiss
(03:55):
the indictment. One of the original issues that Comy's lawyers
raise a basis for accessing the grand jury material had
to do with search warrants that were executed by the
Department of Justice in twenty nineteen and twenty twenty four.
Search warrants were executed by the Department of Justice in
connection with an entirely separate, earlier investigation owned as Artikades,
(04:19):
which took place during President Trump's first presidency and had
to do with the potential leaking of information to the
media about ongoing investigations by the FBI, and the search
warrants were focused on a Columbia University law professor, Daniel Richman,
who was a friend of mister Comy's but who would
also end up representing him as his lawyer for some
(04:42):
period of time, and that created the question of whether
or not the information might have been covered by the
attorney client privilege. The judge here raised a number of
issues as to whether or not there could have been
a violation of mister Comy's rights and whether or not
privileged information, in other words, communications between mister Comy and
(05:03):
mister Richmond when mister Richmond was acting as his lawyer
might have seeped into the grand jury presentation and that
would have been entirely improper and would have tainted the
presentation and could potentially be a basis to dismiss the indictment.
Speaker 2 (05:17):
Yeah, the judge said that the decision to allow an
FBI agent, and there was only one witness in the
grand jury, it was an FBI agent. So the decision
to allow an agent who was exposed to potentially privileged
information to testify before a grand jury is highly irregular
and a radical departure from past DOJ practice.
Speaker 3 (05:39):
Yeah, And what the judge meant by that is there
are circumstances when the issue of privilege does arise, and
typically it will happen if there is a search warrant
that takes place involving an attorney. You know by definition
that there may be communications between an attorney and his
client when you search an attorney's office. And so what
(06:00):
prosecutors do on a routine basis is they set up
a separate team of lawyers, lawyers who are not in
any way involved in the prosecution, who will go through
that material to remove what could be potentially privileged information
so that the trial team, the prosecuting team, is not
tainted by having access to information that they should not
(06:23):
be given access to. What happened here was that one
of the FBI agents, who by the government's own admission,
had been given a briefing at least on some of
the privileged information, that was the sole witness who appeared
in front of the grand jury in order to return
the indictment. In order to return indictments, prosecutors do not
(06:44):
have to present witnesses who have first hand knowledge about
the Alleyish crime. They can, and often do, rely on
one agent who was allowed to summarize and present hearsay
evidence to the grand jury, to summarize all of the
government's case, including all the interviews that might have taken place,
reviews of documents, basically sum up for the jury or
(07:07):
of the government's case through the testimony of a single
witness hear What the judge found potentially problematic was that
that single witness was somebody who had access to privileged information,
and the question is did any of that information, either
directly or indirectly seep into the presentation before the grand jury.
(07:27):
If that happened, it was improper and could be a
serious problem for the government.
Speaker 2 (07:32):
I've been talking to former federal prosecutor Robert Mintz, a
partner Macarter in English. So Bob the prosecutor here. The
interim US attorney Lindsay Halligan was Trump's former personal lawyer,
had never been a prosecutor before, and she was hastily
installed in the position. She presented the case to the
(07:53):
grand jury by herself. She was the only one in
the room with the grand jurors because the experience against
prosecutors in the office. Didn't want to have anything to
do with this indictment, and Judge Fitzpatrick found that two
different comments Halligan made to the grand jurors represented fundamental
misstatements of the law, and her exact comments were redacted
(08:17):
from the judge's order. But it appears that she suggested
to the grand jury that the fact that Comy didn't
testify in his defense should be interpreted as a sign
of guilt. I find that stunning, because any lawyer, even
a first year law student, should know that a defendant
(08:37):
doesn't have to testify. It's a right guaranteed by the
Fifth Amendment and no inference can be drawn from that.
Speaker 3 (08:45):
Well, that's exactly right. And the magistrate judge described these
as quote fundamental misstatements of law by the prosecutor in
front of the grand jury. And one of the issues
that he identified was this Fifth Amendment right.
Speaker 1 (08:59):
Ishue you.
Speaker 3 (09:00):
Apparently, during the course of the grand jury in presentation,
a grandeuror raised questions, as grandeur is often due to
the prosecutor, and the prosecutor has to respond with the
proper law in order to give the grand jurors the
framework by which to consider whether or not to return
an indictment. Here, apparently a grandeuror asked a question, and
(09:21):
as you say, the exact response has been redacted. But
according to the Magistrate judge, it suggested that mister Comy
may have had a burden to explain away the government's evidence.
In other words, the inference was that the burden shifted
to mister Comy to have to explain why he did
what he did, when in fact, under the Fifth Amendment,
(09:44):
a defendant has no obligation whatsoever to testify, and the
fact that they choose not to testify cannot be used
against him. And more fundamentally, in a criminal prosecution, the
burden never shifts to the defense. It's always the prosecution's
to prove its case beyond a reasonable doubt. So any
suggestion that mister Comi's decision not to testify, not to
(10:08):
explain away his conduct could somehow be used by grand
jurors to infer that he committed a crime would have
been improper. The judge also noted that Miss Halligan may
have suggested to the grand jury that they did not
have to rely only on the record that was presented
to them during the grand jury presentation in order to
(10:29):
reach a finding of whether or not there was probable cause,
but that they could assume and they could be assured
of the fact that the government had even more evidence,
perhaps better evidence, than was presented to them during the presentation,
that could be used at trial, and therefore that the
case was even stronger than the evidence presented to them
during the grand jury proceeding. If that was done, that
(10:52):
too would be entirely improper. The grand jury has to
make a decision as to whether or not there is
probable cause based solely on the evidence presented to them
during the grand jury proceeding. It's really no different than
a trial in which jurors have to make a determination
as to whether or not the government has met its
burden of proof beyond a reasonable doubt based solely on
(11:12):
the evidence that's presented to them during the trial. They
can't rely on anything outside of the record during the
trial proceeding. The same holds true for a grand jurors,
and for a prosecutor to just suggest that there is
other more powerful evidence that they should consider but has
not been presented to them would be entirely improper.
Speaker 2 (11:34):
I mean her comments basically come down to a defendant
has to testify before a grand jury, and trust me,
grand jurors, we have a lot more evidence that will
prove his guilt, but we're not showing it to you now.
Speaker 3 (11:48):
Well, I think that's why you saw the opinion written
by the magistrate judge to be as strongly worded at
as detailed as it was. It was a twenty four
page opinion that went not only the issues that mister
Comey's lawyers had raised in order to try to gain
access to the grand jury transcripts, but also a litany
(12:08):
of other issues that he discovered when he reviewed in
camera those grand jury transcripts, and he raised serious questions
in his mind, I believe as to whether or not
there were serious constitutional errors in the presentation, not only
the Fifth Amendment question, not only the question that there
was evidence outside of the grand jury's purview that they
should consider. Even the way the grand jury returned the indictment.
(12:33):
In this case, the original indictment presented to the Grand
jurors was a three count indictment. When the Grand jurors
went back to deliberate, they chose not to return a
true bill, which means they voted not in favor of
one of the three counts. And now there's a question,
based on the transcript of the proceeding, as to whether
or not an entirely new indictment with only the two
(12:55):
counts that the Grand jurors voted in favor of, was
ever presented to them. If that did not happen, if
the Grand jurors did not deliberate on the exact indictment
that was ultimately presented to the court, that is another
issue that could be very problematic.
Speaker 2 (13:10):
I was impressed that the magistrate judge figured out by
the timing of what happened that he thinks the grand
jurors did not review the indictment that was finally presented
in open court. Now, that's exactly.
Speaker 3 (13:24):
Right, the judge wrote. If the prosecutor is mistaken about
the time she received notification of the grand jury's vote
on the original indictment, and this procedure did take place,
then the transcript and audio recording provided to the court
are incomplete. On the other hand, if this procedure did
not take place, then the court is in what the
judge described as uncharted legal territory in that the indictment
(13:49):
returned in open court was not the same charging document
presented to and deliberated upon by the grand jury. Either way,
the judge was not satisfied with the explanation prosecutors gave
about that process, and that's why the magistrate judge at
least has decided to open up all of this grand
jury information to the defense, which is a huge benefit
(14:12):
to the defense and will likely result in even more
motions than the original motions filed by mister Comy's defense team.
Speaker 2 (14:19):
Bob I was wondering so the judge said that all
the grand jury materials that the government filed under seal
have to be made available to Comy's lawyers, and also
the audio recording of the grand jury proceedings. Could the
audio recording reveal things that are not in the transcript.
Speaker 1 (14:38):
Yeah, that's certainly possible.
Speaker 3 (14:40):
I mean, the judge here decided to go full transparency
and that he is giving everything that was presented to
him by the government over to the defense, and that
is something that you rarely see. As I said, this
is something that is a prosecutor's nightmare. The case should
not be about the prosecutor's con right out of the gate.
(15:01):
It should be about the defendant's conduct and about whether
or not the government can prove that the defendant committed
a crime beyond a reasonable doubt. The probe into the
conduct by the government is exactly where you want to
be if you're on the defense side. But it's the
worst place you can possibly be as a prosecutor.
Speaker 2 (15:18):
So federal prosecutors within a few hours filed an emergency
request to the judge in the case we're talking about
the magistrate judges order, saying that the magistrate judge's new
order is contrary to law, and also that he may
have misinterpreted some facts.
Speaker 1 (15:37):
Well.
Speaker 3 (15:37):
I think what's happened here is magistrate judges are appointed
by the court that they serve in and their decisions
generally can be appealed to the district court judge handling
the case. And so the government not surprisingly immediately sought
to stay, and the district court judge, I think wisely
granted it so that he can review everything that went
(15:59):
on and review not only what went on in the
grand jury, but carefully review the twenty four page decision
that was issued by the magistrate judge, and he will
make his own decisions about whether or not this grand
jury material should be turned over. It's so important and
it's so unusual that it's not at all surprising to
me that the district court judge wants to weigh in
(16:20):
on this before a final decision is made.
Speaker 2 (16:22):
The magistrate judge works in tandem with the district court judge,
so Judge Macimuff probably knows what the magistrate judge was doing.
Speaker 3 (16:32):
Dor What happens is that magistrate judges are selected by
the court, as opposed to district court judges, which are
nominated by the President and only appointed with the advice
and consent of the Senate. The magistrate judges essentially work
with specific district court judges, and generally, on the civil side,
they handle a lot of the discovery matters that lead
(16:55):
up to trial. On the criminal side, they hear initial
hearings with regard to bail and issues of that sort.
But they do work hand in glove with the judges
that they are assigned to, So typically you will see
a district court judge agreeing with much of what their
magistrate judge did. But in this case, I think there's
(17:15):
no question that Judge Nachmanoff will take a separate look
at what happened here because it is so unusual, and
make his own decision about whether the grand jury material
should be turned over in total as was ordered by
the magistrate judge.
Speaker 2 (17:30):
So Judge Nachmanoff put Fitzpatrick's order on hold. He gave
the Justice Department until five pm tomorrow to file its
full brief and then Comy side has until five pm
Friday to respond. So now yet another judge is involved
in this case, and that's the judge considering whether Lindsey
Halligan was lawfully appointed. Let's once again explain what the
(17:55):
defense's argument about Halligan's appointment.
Speaker 3 (17:59):
So, in this case, the federal judge is actually a
judge from South Carolina as opposed to the Eastern District
of Virginia. Because the question before the court is whether
or not the US Attorney for the Eastern District of
Virginia has been properly appointed, and the decision was made
by the Circuit Court, that'd be best to have a
judge not in that judicial district making this decision. So
(18:22):
the judge from South Carolina, to Judge Curry, is looking
at the convoluted process by which Lindsay Halligan was appointed
as the interim US Attorney for the Eastern District of Virginia.
There had been a career prosecutor who was appointed by
President Trump to serve on an interim basis. That interim
basis lasts one hundred and twenty days by appointment of
(18:46):
the President. After that time period, the judges in the
district can then extend that appointment. And that's exactly what
happened here with that career prosecutor, Eric Sebert. The Attorney
General then fired mister Siebert and appoint did a new
prosecutor Lindsay Halligan for a new one hundred and twenty
day period, and the question is whether or not the
(19:07):
Executive Branch can continue with these one hundred and twenty
day interim appointments sort of add infinitum, or whether they
can do it only one time and after that time
it's up to the district court judges to appoint the
US attorney. The statute is actually not clear on the process.
It doesn't explicitly say that that one hundred and twenty
(19:29):
day appointment can happen only once. But the argument by
the defense here is if the court were to accept
the government's argument, then the President could really get around
the advice and consent of the Senate which is required
for a US attorney, by simply doing a series of
one hundred and twenty day appointments over and over again,
and that could not be what Congress intended.
Speaker 2 (19:51):
The Justice Department's response to the argument that Lindsay Halligan
was not lawfully appointed dismissed any missteps here, saying the
administration may have made quote at best, a paperwork error,
and also that afterwards the grand jury presentations have been
reviewed and ratified by Attorney General Pam Bondy, the Justice
(20:15):
Department is trying to say, even if we made a mistake,
Pam Bondy looked at it later and approved it. But
the judge did not seem too convinced by that.
Speaker 3 (20:25):
These are all very unusual questions and in very unusual
proceedings that there really is no prior precedent for. So
it's going to be interesting to see how the courts
treat not only her appointment, but the efforts by the
Attorney General. In an effort to prop up Halligan's position,
Attorney General Bondi designated Halligan as a special attorney for
(20:45):
the Justice Department, assigned to oversee cases against former FBI
Director James Comey and New York Attorney General Letitia James.
So what you're seeing is the Department of Justice kind
of struggling here to not only prop up the position
of Lindsay Halligan, but also to try to convince the
court that any errors that were made in connection with
(21:07):
obtaining the indictment against James Comy was more of a
paperwork issue and nothing that should result in dismissal of
the indictment.
Speaker 2 (21:15):
If she decides that Lindsay Halligan was not qualified and
there was no ratification so to speak by Attorney General
Pam Bondi, does the case against Comy then go out
the window because of the Statute of limitations.
Speaker 3 (21:29):
One of the interesting questions that will arise in the
event that the court were to determine that Lindsay Halligan's
appointment was improper is whether or not the government will
have the ability to reindict the case. The case was
indicted right at the very end of the five year
statute limitations. That's why Lindsay Halligan rushed into the grand
(21:51):
jury on very short notice and made this presentation literally
days before the five year statute of limitations was set
to expire. If her appointment is deemed to be improper,
that would mean that the indictment itself is procedurely flawed
because somebody who was not properly appointed as a US
attorney was the only person who presented the case before
(22:14):
the grand jury. The defense will no doubt argue that
the government cannot seek to reindict the case because the
statutal limitations will have since expired. But there is a
statute that says if a case is dismissed on procedural grounds,
which may include potentially a situation like this where the
attorney who presented the case in front of the grand
(22:35):
jury was not appropriately appointed, that the government has a
six month grace period to refile that new indictment even
though the original five year statual limitations has passed. That
will be something that will be front and center if
Lindsay Halligan's appointment is ultimately ruled to be improper and
the government attempts to refile that indictment outside the five
(22:58):
year statue limitations.
Speaker 2 (23:00):
This case raises so many novel questions. Thanks so much
for exploring them with US Bob. That's Robert Mintz of
Macarter and English Today. A panel of federal judges shot
down Texas's rare mid decade redistricting, delivering the loss to
President Trump in a two to one vote. The panel
(23:20):
blocked Texas from using a redrawn US House map, saying
that substantial evidence shows that Texas racially gerrymander the twenty
twenty five map. A Trump appointee and a Biden appointee
we're in the majority, and a Reagan appointee in the minority.
This closes a path for Republicans to gain five House
(23:41):
seats in next year's midterm elections unless the Supreme Court
steps in and reverses the decision, But the timeline is tight.
Joining me is Ryan Attulo, who covers Texas courts for
Bloomberg Law. Ryan tell us why the judges blocked the
new map.
Speaker 4 (23:58):
The panel says that the maps that Texas drew this
summer racially discriminated against minority groups. It was a decision
that criticized heavily a letter from the Department of Justice
that said that the existing maps that Texas had been
(24:19):
using were racially discriminatory and therefore needed to be redrawn.
The majority in today's opinion strongly disagreed with that letter
and shot it down, and they said, Texas, for the
upcoming congressional elections in twenty twenty six, you need to
use the old maps, not the ones you just passed.
Speaker 2 (24:41):
Explain what happened at the two week trial.
Speaker 4 (24:44):
Last month in El Paso, Texas. There was a trial
challenging the maps that Texas used on racial gerrymandering grounds.
Texas was in a tough spot because initially they said
that we need to rea draw these four racial reasons
based on that Department of Justice letter. Well, that's tougher
(25:07):
to defend than just saying. What they ended up saying
is redrew the strictly for partisan gain, which is a
very unapologetic position. But you can say, look, we wanted
five more seats for the Republican Party so that we
can keep Congress after the midterms. That's what they said,
and the majority of judges on the panels disagreed. They
(25:28):
said no, it was redrawn for racial reasons.
Speaker 2 (25:31):
And which districts were redrawn.
Speaker 4 (25:34):
Largely urban districts Dallas, Austin, when near Houston. There were
five total that the Republican lawmakers in Texas and President
Trump identified as being able to flip from solidly blue
to solidly read. And you saw a scramble there, Democratic
(25:55):
lawmakers getting Congressional lawmakers getting drawn out of their seats,
and what are we going to do. I will run
for reelection if the maps are struck down, or I
will retire if they're not. So there's been a lot
of relief from House Democrats today, not knowing whether they
were going to be able to run for their House seat.
Now they will be.
Speaker 2 (26:14):
I assume that Texas is going to appeal this to
the Supreme Court since it's a redistricting matter.
Speaker 4 (26:21):
I would guess they're working on that as we speak June.
They're going to go straight to the Supreme Court. They're
not not going to the intermediary Fifth Circuit. I think
we'll know a little more once they file that. But
Attorney General Ken Paxton and Governor Greg Abbott, who used
to be the Attorney general in Texas before he became governor,
(26:41):
both came out with statements saying, we strongly disagree with
this decision and we'll go in straight to the Supreme Court.
There is a time crunch here because the deadline for
candidates to file for the congressional primaries is coming up
a couple weeks December eighth. I believe it is, so
(27:03):
the Supreme Court may have to act quick or maybe
they extend that deadline. Anyone's guess at this point, but
this is something that will probably move pretty quickly.
Speaker 2 (27:12):
Very quickly. I'm sure, Thanks so much. Ryan, that's Bloomberg Laws,
Ryan Atulo, Meta TikTok, Google and YouTube are challenging a
California law that forbids social media platforms from allowing miners
to access personalized feeds without parental consent. They say it
violates their First Amendment rights. Joining me is Colin Walkee,
(27:37):
a cybersecurity and data privacy partner at haul Estel. Colin
tell us about this law. California is protecting Our Kids
from Social Media Addiction Act.
Speaker 1 (27:49):
Yeah.
Speaker 5 (27:49):
So this is a new law that requires several things,
one of which is, for example, that individuals provide proof
that they are over the age of eighteen or a
parental consent if you're a minor before you get curated algorithms.
It also requires tech companies to do things like set
(28:09):
default settings on the amount of time that children see
curated algorithms, things along those lines.
Speaker 2 (28:16):
Will you explain exactly what a curated algorithm is?
Speaker 5 (28:20):
Yes, So if I go on YouTube and I don't
log in as Calin Walkie, they generally speaking don't know
who I am, and so I see a feed, but
the feed isn't tailored to me or my desires. But
the moment that I plug in that I'm Callin Walkie
and here's my Google account access it now knows hey
Callin likes videos of dogs and ponies, and so that's
(28:41):
what it shows me. And so these curated algorithms in
theory get individuals more addictive than they otherwise would because
they're seeing more of what they want to see.
Speaker 2 (28:51):
What are the social media platforms arguing here?
Speaker 5 (28:55):
So this is actually a lawsuit that is a subsequent
lawsuit from an earlier one that was brought by a
trade association called net Choice and YouTube and Meta and
Google or all members of net Choice, And in that case,
the Ninth Circuit said, yeah, this law might violate the
First Amendment because even children have a right to freedom
(29:15):
of speech and freedom of expression, and so this very
well may violate the First Amendment. But you, as a
trade association, do not have standing to make these arguments.
Speaker 1 (29:26):
And so that decision was issued.
Speaker 5 (29:27):
Last month, and now we have Google and Meta coming
in and going, okay, here we are.
Speaker 1 (29:32):
We have standing.
Speaker 5 (29:33):
Now we want you to know that this violates the
First Amendment because even children have freedom of speech and
we have the right to curate these algorithms for children
as freedom of expression.
Speaker 2 (29:45):
Is there any room in the First Amendment to prevent
children from hearing things that will be harmful to them?
Speaker 1 (29:55):
There certainly is right.
Speaker 5 (29:56):
So we have regulations that say you can't view pornographic
material until you're eighteen or twenty one years of age,
and so there certainly is precedent for that. The problem
comes though, with regard to how broad is this law.
This law would cover not just pornographic images that YouTube
may show, but it would also cover content that is
(30:16):
perfectly fine for teenagers to view, and so therefore it
is an overly broad law, according to Google and Meta
and YouTube.
Speaker 2 (30:25):
The State ags, pointing to its preliminary win in defense
of the law, it tells about the Ninth Circuits holding.
Speaker 5 (30:32):
Yeah, the Ninth Circuit essentially said that you, as a
trade association, have not demonstrated a record where when you
apply this law to a particular algorithm it results in
something being overly broad. So, for example, they didn't show
that Google's algorithm apply to both pornographic material and material
that's acceptable to teenagers.
Speaker 1 (30:54):
Why because that wasn't the argument they were making.
Speaker 5 (30:57):
And so the Ninth Circuit said, Hey, if you have
a record that can actually show to us that Google's
algorithm covers both.
Speaker 1 (31:05):
Of these things, then maybe you have a point.
Speaker 5 (31:07):
And so as a result, the trade association loss basically
on a procedural issue, not so much on a substantive issue.
Speaker 2 (31:15):
Is this a tough argument, then to make to protect
the laws. Who has the tougher argument, the state AG
or the internet companies?
Speaker 5 (31:23):
I apparently just think it depends on who you ask.
The AG is going to say that the tech companies
do all day long. But unfortunately, I think that the
tech companies, because of the way we have interpreted the
First Amendment and the scope and the breadth of the
information that that covers, I unfortunately think that they will
ultimately prevail in this matter. It's hard for me to
think of a single age verification law that has been
(31:45):
upheld of recent memory. But the other side of it
too is you know, the thing is is that these
things are addictive.
Speaker 1 (31:51):
Not just because of the algorithms.
Speaker 5 (31:53):
Showing you curated materials, the phones themselves, the pixels, the
brightness of the screen means the automatic response is irrespective
of the fact that the responses you don't want. That's
what makes these things addictive. They're much more like casinos, right,
So it's not even necessarily that we need to address
the algorithms.
Speaker 1 (32:12):
So there's so many other things.
Speaker 5 (32:14):
That we could address that would not run a foul
of the First Amendment that could be taken advantage of.
Speaker 2 (32:20):
Is there any way for California to pass a different
law that would somehow escape these First Amendment objections.
Speaker 5 (32:30):
That's the thing is that it becomes very difficult until
the court is willing to interpret algorithms as something more
akin to pornography, as something more akin to showing an
actual harm to children. And I think that's where the
ag and the law stems from. It stems from the
fact that we know these curated algorithms and algorithms in general,
do not help children in their mental health, so let's
(32:52):
do something about it. And unfortunately, the courts have not
treated this in the same way they have other materials
like pornography, And once it gets to that point in time,
you're talking about something totally different, and I think courts
may change their mind, But right now, I don't see
a good way for us to win on a free
speech ground in a regulation like this.
Speaker 2 (33:13):
In light of all the horrific stories we've heard about
kids being addicted to social media, I'm a little surprised
that these companies are taking this tactic because it makes
them look like they're contributing to the problem instead of
helping to solve the problem.
Speaker 5 (33:32):
Well, they're actually talking on both sides of the mouth
at once. So on the one hand, what they are
actually saying is is we actually curate these feeds in
the first place for kids to make sure that they're safe.
We already limit the amount of time that.
Speaker 1 (33:44):
We show them curated feeds. That we're already being proactive.
That's the first thing they say.
Speaker 5 (33:49):
But on the flip side of that point, they're also saying,
let us continue to show these kids this because that's
the best way to get their attention. It's the best
way for us to make money. You know, you think
about it, Think about the nineteen eighties and the nineteen
nineties when used to kick kids out of R rated
movies because they weren't old.
Speaker 1 (34:03):
Enough to do it right.
Speaker 5 (34:04):
I'm confident those movie theaters would love to have had
those kids and their dollars in their pockets, but they
made a rule in staid we're not going to do that.
These tech companies have not made that rule. They don't care.
They want the profits.
Speaker 2 (34:17):
And Colin, how does this work? Because my daughter is
long grown up? How does it work? Do parents have
to click on something to give their consent?
Speaker 5 (34:26):
So that's part of the complaint is is that what
would have to happen is a parent would have to
upload an ID and disclose personal information about that parent
that they shouldn't have to do in order to access
freedom of spreach content right. And so for example, that's
part of the problem with age verification laws for pornography.
Speaker 1 (34:45):
If I am twenty.
Speaker 5 (34:45):
Five years of age, why should I have to prove
to you that I am this age in order to
engage in that conduct online? And so that's where the
objection comes in is that parents, in order to use
this lawfully may have to disclose information they shouldn't have
to disclose absent this law.
Speaker 2 (35:01):
What's the status of the lawsuits filed by parents against
social media companies?
Speaker 5 (35:09):
Yeah, so the most recent lawfoods, specifically with regard to AI,
those are still in existence to my knowledge, I'm not
aware of any of that have been dismissed yet.
Speaker 1 (35:19):
I am not aware of any penning ones.
Speaker 5 (35:21):
I mean, there are massed court litigation I think going
on against some social media companies, but I'm not aware
of the current status of those. And that's just it
is that the courts, if they're not going to learn
how to recategorize addictive algorithms to address it. Under the
first Amendment. Then they need to rethink how we can
litigate claims when companies negligently create these algorithms that hurt
(35:43):
ourselves and our children.
Speaker 2 (35:45):
I don't know what recourse parents have besides the courts.
Thanks so much, Colin. That's Colin Walkee, cybersecurity and data
privacy partner at hall Estel. And that's it for this
edition of The Bloomberg Law Show. Remember you can always
get the latest legal news on our Bloomberg Law podcasts.
You can find them on Apple Podcasts, Spotify, and at
(36:06):
www dot Bloomberg dot com, slash podcast Slash Law, and
remember to tune into The Bloomberg Law Show every weeknight
at ten pm Wall Street Time. I'm June Grosso and
you're listening to Bloomberg
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