May 14, 2024 • 42 mins
In this episode of Litigation Nation, we covered three significant legal developments.
We discuss a case in New York where a woman was awarded $30 million in a revenge porn lawsuit against her ex-boyfriend, a cyber attack in Fulton County, Georgia, where hackers threatened to release sensitive court documents related to the Trump election case, and explore a U.S. Supreme Court decision regarding the removal of presidential candidates from state ballots.
- (00:00) - - Introduction to Revenge Porn Laws
- (05:30) - - Personal Experience with Cyberbullying Cases
- (10:04) - - Statistics on Revenge Porn Incidents
- (11:24) - - Cyber Attack on Fulton County Court
- (21:02) - - U.S. Supreme Court Decision on Trump Ballot Removal
- (33:00) - - Supreme Court Justices' Decision Making Process
- (36:28) - - Discussion on Section 3 of the 14th Amendment
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Jack Sanker (00:05):
Welcome to Litigation Nation. I'm your
host, Jack Sanker, along withDanessa Watkins. Remember, this
is the show that where we getyou up to date on the most
important and interesting legaldevelopments. You can find us at
Apple Podcasts, Spotify,YouTube, wherever you get your
shows. Danessa, what do we havethis week?
Danessa Watkins (00:21):
Alright, Jack. Well, first, I have a story out
of New York where a jury justawarded a woman $30,000,000
against her ex boyfriend forviolations of New York City's
administrative code againstrevenge porn. And then we have a
decision of the US Supreme Courtor SCOTUS. It was which revealed
(00:49):
that the opinion maybe was notunanimous to begin with.
Jack Sanker (00:53):
And I'm gonna be covering a cyber attack in
Fulton County, Georgia, which,threatens to release a lot of
private sealed court documentsthat are being used in a number
of different cases. But mostimportantly, the Trump election
case which is ongoing, which is,of course, gonna have political
ramifications, but, of course,could affect the trial itself.
(01:15):
All of that and more, here'swhat you need to know.
Danessa Watkins (01:26):
Alright. So starting with our revenge porn
case in late February of 2024,we have a jury that awarded a
SUNY, that's City University ofNew York, public health
professor, $30,000,000 againsther ex boyfriend. Now we use
this term revenge porn, but itreally means nonconsensual
(01:46):
pornography. So the distributionof intimate images without a
person's consent. And eventhough it's usually these
revenge motivated cases that hitthe news, that's the these nude
images online.
(02:07):
And as you know, once things areonline, it's hard to get them
down, and within seconds, theycan be shared. So that's just
kind of some background on whatrevenge porn is. Now looking
back to our story, the plaintiffhere is doctor Spring Chenoa
Cooper. And for about a year,she dated a man, Ryan Bromes.
He's a comedian from Brooklyn.
(02:28):
And the couple split when doctorSpring allegedly learned that
Bromes was actively engaging inaffairs with other women. So she
broke things off. She blockedher ex boyfriend on social
media, and then soon after,Broms began posting nude photos
of her online. Typically, he wasusing usernames that hid who who
(02:50):
the publisher was, but it waspretty easy for doctor Spring to
figure it out because she hadonly shared those images with
her boyfriend at the time theywere dating. Now she did try to
get a protective order, and theand the restraining order that
(03:15):
she had gotten.
And he did this both on socialmedia and on platforms where he
was able to link to her workwebsite, posting her name, her
face, and all of her contactinformation. So as you can
understand, this is certainlycreating a dangerous situation
for doctor Spring. She had 100of men harassing her on social
(03:36):
media. She also had to usesecurity to get to and from work
because people were tracking herdown. So when the restraining
order didn't work, she looked toboth the state law and New York
actually at the time and stilldoes has an administrative code
that was actually stronger backin 2018 than the state code for
(04:01):
providing the type of relief shewas seeking in civil court for
revenge porn.
Now at the same time, there wasa criminal investigation and
eventually a prosecution thatwas going on, and in 2021, Broms
plead guilty to the misdemeanorof disclosure of intimate
images. However, he didn'treceive a jail sentence, and he
(04:24):
was forced to attend a programfor abusive partners. It
ultimately didn't give doctorSpring the relief that she was
looking for under the revengeporn statutes. So 6 years after
she filed this initial lawsuitis when the case finally went to
a jury. By that time, as I said,Broms had already plead guilty,
(04:45):
so there really was no issue onliability.
The judge found him liable, sothe jury really only had to
determine the amount of damages.This 30 $1,000,000 award was the
greatest award that New York hadseen under this statute, and
doctor Cooper says she certainlydoesn't expect to collect, but
Jack Sanker (05:07):
Yeah. He's a comedian.
Danessa Watkins (05:08):
Yeah. Exactly. But for her, it was more about
sending this message ofdeterrence, and and showing that
there is relief available forvictims and hopefully, deterring
these crazy ex boyfriends andprobably ex girlfriends too from
pursuing this type of actionagainst their former partners.
Jack Sanker (05:29):
Well, she will be able to, you know, garner those
guys' wages for the foreseeablefuture several 1000 years
probably. So, I mean, hopefully,she does get, some financial
relief out of this. And Danessa,I think if I'm correct here, you
have some exposure to this areakind of in your personal
(05:51):
practice?
Danessa Watkins (05:52):
Yeah. So my my practice group here, here, we
have had a few of these,cyberbullying, revenge porn type
cases. One of our more recentones actually, we we brought
alternative claims to to revengeporn. We also filed under
defamation, false light invasionof privacy, torturous
(06:15):
interference with businessexpectancy. This was kind of a
crazy case where we had a clientwho his ex girlfriend, was
sending nude photos to his placeof work.
So it it kinda took it toanother level for him and that,
his job and his clients, theywere getting targeted with these
(06:38):
images of him that obviouslydidn't paint him in the best
light.
Jack Sanker (06:41):
Yeah.
Danessa Watkins (06:41):
And she was also accusing him of rape. So,
yeah, and it was the same thing.By the time it got to trial
level, she had already beenprosecuted criminally and been
extradited back to her homestate, so it was really just an
issue of damages. But theimportant thing that you can get
from from that case is that,there are ways to pursue an
(07:06):
action for this type of revengeporn even if your state doesn't
have a statute specific to it orif the statute does not allow
for a civil lawsuit. There arethese type of, you know,
emotional distress or invasionof privacy claims that you can
bring.
But currently, 48 states havesome form of a revenge porn
statute, the 2 holdouts beingMassachusetts. I did look up
(07:30):
though that the house actuallyjust unanimously passed, pending
legislation. So hopefully,Massachusetts Massachusetts will
be passing something soon, butSouth Carolina is the other
holdout, and I did not seeanything currently on their
books, of them trying to passsomething. But the other
available avenue potentially isat the federal level. There is
(07:52):
the Violence Against Women ActReauthorization Act of 2022,
that was passed in March of2022.
So
Jack Sanker (08:01):
So I I do not practice in this area. So I'm
gonna throw something out thereand you tell me how right or
wrong I have this. Myunderstanding is that these, the
at the state level and now atthe federal level, the
legislation that is dealingwith, you know, what we're
calling revenge porn, butbroadly a lot of other things,
(08:23):
are relatively new because ofthe kind of gray area that this
stuff may have fallen inbeforehand and and not great in
a moral or ethical sense, but asto what who has rights to, a
photo or video, under certaincircumstances and then their
rights to distribute itaccordingly. So for example,
(08:44):
there was a point in time ofwhich say, the subject of a
photo, at the time the photo wastaken, consented to that and
then also knowingly andwillingly shared that photo with
their, you know, intimatepartner. The question for some
time and in certainjurisdictions was, well, if that
(09:05):
partner then shares that photo,and and everything else have to
stop them from doing that.
And these, as far as Iunderstand, the state
legislation, in particular inthe 48 states that you mentioned
and maybe at the federal levelis just saying no matter what,
(09:27):
that's not gonna be okay.
Danessa Watkins (09:29):
Yeah. It definitely depends on, a it's a
state by state basis. So thereare states that have different
thresholds, even to the extentof, you know, describing what
type of body parts are shown andand what the images depict. But
typically, there is some sort ofintent involved, some kind of a
(09:49):
men's rea where the personsharing the image either had the
intent to harm, or if theydidn't have that intent, they
knew that this this wasn't animage that was meant to be
shared with others.
Jack Sanker (10:02):
Okay. That makes a lot of sense. Mhmm.
Danessa Watkins (10:04):
And just to put a finer point on it, I'm sure
that there have been morestudies that have come out in
the last 5 years, but I did findone from, 2017, and this was
through the cyber civil rightsinitiative. It found at that
time, 1 in 8 adult social mediausers reported being a victim of
revenge porn.
Jack Sanker (10:23):
1 in 8?
Danessa Watkins (10:24):
1 in 8. So, you can only imagine. Unfortunately,
that number has probablyincreased, but this is the kind
of also the purpose of thislegislation. Now that almost
every state and the federal atthe federal level, you have
these protections, the hope isthat there will be deterrents,
and certainly we're gettingbetter at tracking down IP
(10:47):
addresses and and finding outwho is behind these these
images. Now deep fakepornography is something we'll
have to cover on a differentshow because I think we could
spend a whole hour on that, butthat presents a whole new
problem for, you know, what arethe rights of these people where
it looks like them, but it's notreally them.
(11:08):
I mean, we just saw that
Jack Sanker (11:09):
with Taylor Swift. Say Taylor Swift is is actually
leading the charge on on that
Danessa Watkins (11:14):
as as she so often does. Right? On all
things. Yes. Some more on that.
Jack Sanker (11:24):
A hacking group called LockBit apparently has
hacked the Fulton County, thisis in Georgia, court website and
made copies of sensitive sealedcourt documents related to the
criminal case against formerpresident Donald Trump. I think
among in other cases as well.It's threatening the court
system to release thosedocuments unless it gets paid a
(11:44):
ransom. And I'm gonna quote froma Business Insider article on
the hack, quote, in a messageposted online Saturday, this was
3 weeks ago, in both English andRussian, the hacking group
called LockBit 3.0 said, thestolen documents contain a lot
of interesting things in DonaldTrump's court cases that could
affect the upcoming US election.Initially, LockBit 3 point o set
(12:07):
a Saturday, March 2nd deadlinefor payment according to the
cyber security reporter,Christopher Krebs.
It has since moved that deadlineto 8:49 AM on Thursday, February
29th. LockBit 3 point o'srestored website now shows,
unquote. And I'm covering thestory because Fulton County did
(12:28):
not pay the ransom as ofFebruary 29th. And and then the
deadline was again moved backanother week and they still
didn't pay. We'll talk aboutthat in a moment though.
So this is part of mespeculating here, but this is a
criminal case. And wouldn't theunauthorized and, you know,
illegal disclosure of, thesetypes of documents which are
(12:52):
filed under seal and and areheavily redacted and all those
things, if they were leaked, Imean, wouldn't that seriously
infringe on the criminaldefendant's due process rights
and really make it difficult totry them given our procedural
rules around that kind of thing?I I think it's potentially
grounds for, you know, amistrial, for example. If I was
on the defense, I certainlywould be considering that. And
(13:13):
to my knowledge, this is thefirst time that a court systems
document processing saving,server, whatever you wanna call
it, process has been hacked.
And it just makes me think oflike the amount of sensitive
information those things.Oftentimes, my people who don't
(13:36):
file them under seal and justthose things. Oftentimes, my
people who don't file them underseal just aren't expecting
anyone to go look at them.
Danessa Watkins (13:44):
Right.
Jack Sanker (13:44):
But if they actually did, you know, it would
be could be potentiallydamaging. But everything from
financial statements to, youknow, medical records, personal
identifying information, allthose things. A a court system,
online system is gonna con Imean, it's gonna be, like,
potentially a treasure trove ofof sensitive documentation
information. And seeing this nowbeing targeted by these
(14:08):
ransomware, hacker groups, Imean, it just makes a lot of
sense from their perspective.And it's a bit scary from my
perspective.
I think the implications forthis hack broadly are pretty
scary. But on the kind of Trumpcriminal case alone, which, you
know, we're not gonna get intothe details of that, but I think
it could seriously affectprosecute him. If I mean,
(14:30):
imagine something that shouldwasn't was gonna be filed, with
the intention of jury, all of asudden he gets exposed to the
jury pool. It's gonna raise anendless amount of challenges to
who gets impaled on those juriesand whether, you know, mister
Trump gets a fair trial and allthose things. I do wanna talk
(14:54):
about the most recent update onthis story.
This was as of about 2 weeksago. As I mentioned earlier,
Fulton County has refused to paythe ransom. And I'm relying now
on a write up from an outletcalled State Scoop, which is
actually a pretty cool websitethat tracks data security, AI,
data analytics stories, thingslike that. And according to
that, as of the I think it wasearly March, and I and I've
(15:18):
looked and I haven't seen anyupdates since this, the Board of
Commissions of Fulton County hasrefused to pay the ransom. And
quoting from the piece, and thisis the chair of the board of
commissions, his name is RobPitt speaking.
Quote, they could still releasewhatever data they have at any
time. Today, tomorrow, sometimein the future. We simply have no
control over that, Pitt said ina news briefing, which was live
(15:39):
streamed on the county's YouTubepage, 4 PM local time. We are
monitoring the situation closelyand will continue to work with
law enforcement. Krebs onsecurity reported that on
February 13th, locked at 3.0posted samples of sensitive data
from Fulton County in a newentry on its victim shaming blog
in an effort to force payment.
(16:00):
Quote, we will demonstrate howlocal structures negligently
handled information protection,the hacking group wrote on its
blog post. We will reveal listsof individuals responsible for
confidentiality. Documentsmarked as confidential will be
made publicly available. We willshow documents related to access
to the state citizen's personaldata. We aim to give maximum
publicity to the situation.
(16:21):
The documents will be ofinterest to many. Conscientious
residents will bring order,unquote. I mean, seems to me
like the hackers aren't gettingthe juice, from the squeeze that
they expected here and I thinkthat's a good thing. And now
they're kind of reframing thisas being, you know, white hat
hackers that they're, you know,they're hacking to demonstrate
(16:41):
the vulnerabilities rather thanto just squeeze out a ransom
which is b s as we know. Butgood on Fulton County for not
paying.
It seems like seemingly ransomas far as I can tell. And for
(17:03):
example, I'll go back to 2021.So it's a little bit outdated,
but I think still relevant.Forbes reported that around 15%
of all law firms globally,showed signs of compromised
networks.
Danessa Watkins (17:15):
That's the Chase. Yeah.
Jack Sanker (17:16):
That's the terminology they use. I think
even worse, in October of 2020,the ABA published something
saying that a whopping 29percent of law firms reported a
security breach with more than 1in 5 saying they weren't sure if
they'd even been compromised. Sohopefully, American firms have
(17:37):
made progress in this regard inthe 4 years since that data was
published and collected. Goingback to that state scoop piece.
I'm gonna quote again.
Quote the cybersecurity andinfrastructure security agency
advises against fulfillingransomware payments as they do
not guarantee that data obtainedby hackers will no longer be
compromised or lead to arestoration of services and
(17:59):
data. Any ransom payment sent toa foreign hacker may also
violate sanctions set up by theOffice of Foreign Assets
Control, according to a 2021report by the US Treasury
Department, unquote. That lastbit is kind of interesting
especially in light of theRussian Ukraine war and the fact
that I think a lot of thesehacking groups are at least
affiliated with or associatedwith, nation states and, actors
(18:26):
based in Russia, I think. So,you know, cutting them a check
for whatever the ransom might infact actually get you in
trouble, something to thinkabout. So if you're listening to
this, take whatever steps youneed to take.
I don't know because I'm not oneof these lawyers and I'm not
exactly, the most tech savvyperson, but that's why we rely
on experts to do that and Iwould suggest that anyone at
(18:48):
home who is hearing this and,you know, maybe feeling
concerned do the same. One lastthing, kind of the nature of
these hacks targeting firms andnow court systems, I touched on
it before but the level ofsensitivity alternative target
to, like, I don't know, say abank or a healthcare system
where they do alternative targetto, like, I don't know, say a
(19:11):
bank or a healthcare systemwhere they do have, probably
more robust cybersecurityinfrastructure just based on the
tighter regulatory controls. Imean, you know, the health care
system has been dealing withHIPAA, for example, for decades.
Right? Law firms, you know, wehave ethical obligations and we
and we we do our best, but Ithink anyone who's been around
(19:35):
this has seen, you know, sololitigation attorney attaching
unredacted medical records to amotion, for example.
And then that gets filed and thewhole world can go read them if
they want. I I'll say that thedelta of, you know, best
practices is wider, for maybelaw firms than they are for,
(19:55):
like, banks or healthcare,providers. So I it's another
kinda tightens up.
Danessa Watkins (20:09):
So the issue of the jury pool being tainted is
an interesting one and anddefinitely something that in
first amendment law, we dealwith a lot because, of course,
I'm probably more on the otherside of it where we want to have
open access to documents. Youknow, we want, the public to
know, for example, this comes upa lot with body camera footage.
(20:31):
Oh, yeah. You know? So, eventhough there is a chance that a
jury pool could be tainted by bysome of this stuff, you know,
you you have to do thatbalancing act of making sure
someone has a fair shake at acriminal trial, but also the
right for the public to have tohave the information and and to
have that oversight over itsgovernment.
(20:54):
And it sounds like in this casethat these are government
documents, a lot of them, or orgenerated by government. So,
Jack Sanker (21:02):
Yeah. But I mean, they're, you know, they're
already filed under seal or viaredaction or, you know, were
sent for in camera reviews. So,like, ostensibly, if there was
an objection to it being sealed,that's already been litigated
and adjudicated. Or oftentimesas we know, the parties just
agree. They'll say, hey.
You know, we're not going toput, for example, anything that
(21:23):
has your client's socialSecurity number into a public
publicly filed document. Right?That's, like, a pretty easy one.
So you'll redact that.
Danessa Watkins (21:29):
Right.
Jack Sanker (21:31):
Or, you know, hey. We have to file these financial
documents because the courtneeds to see them. The court can
review them in camera, but weboth understand that the public
shouldn't see these thingsbecause that's not what this
lawsuit is about, for example.Right.
Danessa Watkins (21:43):
Yeah. So I guess what I'm saying is there
are you know, these issues comeup a lot, and so, the court does
have systems in place to ensurethat I mean, even just, you
know, making sure that theRight. That the there are gonna
be jurors out there who have noidea about this story. You know?
I've never read this issue andand known that it that it's even
come up.
So, even if documents wereleaked, you know, there are
(22:06):
gonna be people who haven't seenthem. But I guess what I'm
getting at is that I'm glad thatthe court didn't play pay the
ransom just for the sake ofkeeping these documents,
withheld or redacted or orcensured, however they were.
Jack Sanker (22:21):
Yeah. I mean, good point for them. They're like,
look, they can release itwhenever they want whether we
pay them or not. I mean, you arenegotiating with criminals who
just stole something. So, youknow, no honor amongst thieves.
If you cut them a check, you'rejust crossing your fingers and
hope that they don't come backto the well and they could
anytime. So yeah. I I think justkind of standing up to them and
(22:44):
and is the right thing here andso be it if if these documents
come out and it affects the, youknow, the prosecution's ability
to to get this to trial orwhatever. I mean Right. What can
you do?
Danessa Watkins (22:55):
Right. Well, and it's it could certainly set
a dangerous precedent if youhave courts starting to give
into this because I mean, youthink about all the high profile
cases across the country.Hackers could do this, you know,
in any number of situations.You've got cases against big
corporations, Pfizer, Johnsonand Johnson. I mean, I'm sure.
Jack Sanker (23:18):
What about, like, the so let's say these documents
get dumped into the publicsphere. The defense,
successfully argues argues for Idon't know. Maybe maybe the
documents get released midtrial. They get a mistrial. Or
or they make a proceduralargument one way or the other.
Basically, wouldn't that createan interesting precedent for
(23:41):
politically motivated hackers orprivately funded hackers to just
meddle with criminal proceedingsso that prosecution under our
procedural rules becomesimpossible in a given case, you
know, whether it's Trump oranyone else. You could see a
scenario where it's like, hey.Let's let's cause so much
mayhem, in this system that thisperson who is being tried for x
(24:05):
y z crime cannot be tried.
Danessa Watkins (24:08):
Yeah.
Jack Sanker (24:09):
That's that's an maybe I shouldn't have said
that.
Danessa Watkins (24:12):
I was gonna say, anyone listening at
earmarks Don't do that. Yeah.Oh, yeah. No. That that is
scary.
And I just sitting herelistening to this story scares
me because I think as lawyers,you know, we we do the best we
can. We protect documents. Wetrust in the court system that
things are gonna remain sealed.So now it's like, oh, shoot.
(24:34):
Should I be asking for in camerainspection on certain things?
Yeah.
Jack Sanker (24:37):
Yeah.
Danessa Watkins (24:37):
Instead Instead of, actually trusting that the
the court will, you know,maintain these things in a in a
sealed fashion. And, like, let'sassume that, like, Fulton County
here is
Jack Sanker (24:45):
a that, like, Fulton County here is a 100%
acting in good faith and and,like, took what what we would
anyone would call reasonableprecautions and still was
hacked. You know? I I I don'tI'm not implying that they
weren't Oh, sure. That securesI'm sure I'm sure they probably
were were. Right?
I mean, that's Yeah. Everyonesays that they are until they
get hacked.
Danessa Watkins (25:03):
Right.
Jack Sanker (25:04):
So, yeah, it's, I think the broader implications
of it are interesting. I thinkkind of on on this one off issue
of what's gonna happen in theTrump prosecution. That's just,
you know, kind of interestingand concerning for me, just as
to what it says about privateactors' ability to disrupt,
prosecution, of anyone if theywanted to. And I just think that
(25:25):
that's something that is, Idon't even it actually, by the
way, it doesn't even seem likefrom the words and actions of
the hackers here, lock bit 3point o, that they've grasped
than, you know, what they'reclaiming, which is, probably the
bigger issue here
Danessa Watkins (25:44):
Right.
Jack Sanker (25:45):
Than, you know, what they're claiming, which is,
to expose the public servantswho, you know, didn't encrypt
their files enough or whatever,which no one cares
Danessa Watkins (25:55):
about. Very interesting. Alright. Now, kind
of on the same topic of Trump,but moving it to a recent US
Supreme Court decision. Theyheard an expedited fashion
arguments regarding the state'sability to remove presidential
(26:18):
candidates from state ballots.
So quick background on thiscase. This was out of Colorado.
There was a group of votersthere, which interestingly were
4 registered republicans andthen 2 that were unaffiliated.
They filed a petition againstformer president Trump and the
Colorado secretary of stateclaiming that Trump was
(26:39):
constitutionally ineligible toserve as president again and
should be removed from theballot. These voters, they
relied on section 3 of the 14thamendment, which provides in
pertinent part that no personshall be an elector of president
under the United States whohaving previously taken an oath
as an officer of the UnitedStates to support the
(27:02):
Constitution of the UnitedStates shall have engaged in
insurrection or rebellionagainst the same or given aid or
comfort to the enemies thereof.
So their argument was thatessentially Trump's
participation in the January 6thinsurrection disqualified him
from holding office of thepresident again. Now the Supreme
(27:23):
Court of Colorado agreed withthis and ordered that Trump be
removed from ballot, but thatdecision was stayed pending
resolution at the US SupremeCourt level. Now they took us up
pretty quickly, becauseobviously we're entering
election season, so they had torender a decision because I we
actually saw here in Cook Countythat, wasn't Trump removed from
Jack Sanker (27:46):
I believe it was from
Danessa Watkins (27:47):
the ballot initially. From the Illinois
ballot. Yeah. Yep. So otherstates were taking similar
action.
And, so the supreme court jumpedright on this issue. The
decision that was publishedMarch 4, 2024, was unanimous. So
all justices agreed that Trumpshould remain on the ballot.
(28:08):
While the states may disqualifypeople from holding office in
the state, they don't have anypower under the constitution to
enforce section 3 with respectto federal offices. And, I mean,
this is just from a practicalstandpoint.
It's pretty easy to see howstate resolution on the
qualification of a presidentialcandidate can lead to
(28:28):
inconsistent results. You couldhave some states that are
banning a certain candidate fromtheir ballots while other states
don't, and ultimately thepresident represents the the
voters in the nation. So this isreally an issue of federal law
and oversight. Now what'sinteresting about this case is
that 4 of the justices expressedthat the majority went too far
(28:51):
in the decision that waspublished. So again, the issue
before the court was whether apresidential candidate can be
taken off the ballot by a stateunder section 3 of the 14th
amendment.
The resounding answer was no,but the majority opinion delved
into other issues that weren'treally before the court, and
this was namely whether federalactors can enforce section 3 and
(29:11):
how they must do so. Nowconservative justice Amy Coney
Barrett, she was one of thejustices that wrote a separate
concurrence. However, hers wasfairly short, and the other
concurrence was drafted jointlyby the liberal justices. So
that's Sotomayor, Kagan, andJackson, and this one was a
little bit more aggressive intone. Now when that when the
(29:35):
decision was published, thatconcurrence by the liberal
justices, the metadata was notwiped from that document.
And what the metadata actuallyrevealed was that justice
Sotomayor was initially apartial dissenter, yet the
opinion was published as aunanimous decision. So this led
to a host of conspiracytheories. Why did SCOTUS put out
(29:57):
this opinion as as unanimous onthis very hot button issue when
it seems like potentially one ofthe justices disagreed and and
felt that maybe states couldremove someone from a ballot.
Now an article from the AmericanBar Association explains that
one way to see the metadata wasas simple as taking the the top
(30:20):
top portion of that concurrence,copy and pasting it, putting it
into Word, and when you do that,it shows up that Sotomayor
concurred in part and dissentedin part. Apparently that same
metadata showed up when yousearched for the word dissent.
So the question is whathappened? Certainly this
decision was rendered quickly bySCOTUS standards, so the failure
(30:43):
to scrub this data was likelyjust an oversight in the rush to
publish. But I guess the biggerquestion is how did this lone
dissenter transform into aconcurrence and then become
authored by all 3 of the liberaljustices. So we have Paul Schiff
Berman, who is a professor atGeorge Washington University of
(31:03):
Law, weighing in on this. And itwas his opinion that Sotomayor's
opinion may have become aconcurrence just in an attempt
to emphasize that the justiceswere all on the same page on
this very important issue.
And this certainly makes sensebecause as justice Barrett noted
in her concurrence, quote, thecourt has settled a politically
(31:23):
charged issue in the volatileseason of a presidential
election. Particularly in thiscircumstance, court should turn
the national temperature down,not up. For present purposes,
our differences are far lessimportant than our unanimity.
All 9 justices agree on theoutcome of this case and that is
the message that Americansshould take home, unquote. Now
(31:44):
an article by Slate offeredfurther speculation as to why
justice Sotomayor may havechanged her decision.
One of the broader theories thatthey put out is that this could
have been a bargain between thejustices. So if they issued a
unanimous opinion that Trumpshould stay on the ballot, then
possibly they would to take upTrump's separate dispute that he
(32:06):
was immune from criminalprosecution. So in other words,
they would allow Trump to run-inall 50 states, but then he would
also have to contend with acriminal trial prior to election
day. Now we know as of the dateof this airing that that
bargain, if it ever in factexisted, it didn't come to
fruition because SCOTUS hasgranted certiorari, and we'll
hear argument in April on thisissue of whether Trump is immune
(32:30):
from criminal prosecution. Butmaybe that actually was the
bargain.
So it's possible that the courtcould have pushed that argument
on Trump's immunity to the fallterm, which definitely would
have guaranteed that theelection would proceed before a
decision was rendered. Butperhaps in exchange for a
(32:51):
unanimous opinion on this issue,they decided to hear argument in
April. Just another theory beingthrown out.
Jack Sanker (32:57):
Yeah. I mean, the I I think that the past couple
years in particular, to anyonewho's paid attention and we're
not this is not a court watchingpodcast, and neither one of us
is practicing in front of theSupreme Court, but is people who
are aware of our surroundingsand and pay attention to this
(33:19):
type of thing. The idea of thesupreme court justices as, as
justice Roberts, I think put it,umpires calling balls and
strikes, you know, nonpartisan,nonpolitical actors, I think
it's really taken a hit. I mean,there's this of course which
seems in some way I don't knowif it was quid pro quo, you
know, we're going to take thiscase and not the other. But
there was certainly some type ofpolitical calculus involved so
(33:42):
that they could get a 9 to 0opinion and I think protect the,
legitimacy of the court whichhas, I think, been under popular
scrutiny for the past coupleyears.
And to tell the public, like,look at us. We're actually not
divided. We're united on thisimportant issue and, you know,
that's why we're 9 to 0. And soto arrive at that conclusion
(34:05):
would require someone whointended to dissent to be
persuaded to change their mind.And that's just part of it.
And I think anyone who haslooked into, like, the inner
dealings of the court and allthat stuff, I think Jeffrey
Toobin's books on this stuff areare decently good,
notwithstanding all the otherstuff Jeffrey Toobin has gotten
involved in. But, there is someelement of horse trading and
(34:28):
political negotiation among thejustices. And I think that
really that that idea that theyare nonpartisan actors,
nonpolitical, I think is I'd sayit but kinda somewhat naive,
these days. I mean, remember theDobbs leak. Right?
Like, that was huge. And by theway, they never resolved that.
(34:49):
That's another thing that's justout there.
Danessa Watkins (34:51):
Yeah.
Jack Sanker (34:51):
You just don't know who did it or for what reason or
to one end. I mean so I thinkthis, I think reaching a 9 to 0
conclusion or, decision ratheron this is, like, more important
than the substance of thedecision. And and there is, a
pretty, wide variety ofreasoning offered among the 9
(35:13):
justices for their decision. Andwe could talk about that if if
in a moment, I think it'sprobably worth getting into. But
ultimately, I think the goalhere was, like, folks, we need
to put on a united front herefor the benefit of the public,
not necessarily for theadministration of justice even
(35:34):
though but I don't think that'sthe reason why it's 9 to 0.
And I think if you, you know, ifyou took 9 people off the street
and asked them about this, Idon't think you would get, you
you know, a unanimous decisionfrom 9 people. I don't know why
you would expect anythingdifferent from the justices, for
example. So I think it's more ofthat. Ultimately, if you're
paying attention, I think it Ithink it further serves to hurt
(35:59):
the legitimacy of the court whenyou have this type of thing
leaked. Also, let me put on myTinfoil hat here.
The metadata being included inthe I mean, what if it's the
same person who leaked the Dobbsthing? Like, it's it's some
clerk there who's just puttingout drafts and getting everyone
in trouble. Right?
Danessa Watkins (36:17):
I think I think clerks are limited to what? A 2
year term at the supreme courtlevel?
Jack Sanker (36:22):
I have no idea to,
Danessa Watkins (36:23):
I may have just pulled that out of nowhere, but
that that was, like, deep in thememory bank from somewhere.
Sure. So we'll go with that.
Jack Sanker (36:29):
You know, someone is screwing up at, like, a
document management level upthere and it and it just so
happens to be on, like, 2 of themost important things that the
public is worried about for thepast couple years. I don't know,
man. Maybe that maybe the moleis still active.
Danessa Watkins (36:43):
Sounds like another conspiracy theory, Jack.
I
Jack Sanker (36:47):
for a minute, can you indulge me on section 3 of
the 14th Amendment? Yeah.
Danessa Watkins (36:50):
Of course.
Jack Sanker (36:50):
Okay. And my ongoing threat to pull the rug
out from under the show and turnit into a civil war podcast, I I
have to, again, make clear tothe listeners that I'm gonna do
it one of these days. And thewhat's I I think ultimately the
decision here that and itpractically makes a ton of
(37:11):
sense. You can't have differentstates saying, you know, this
person can be on, this personcan't be on. Like, it it really
just screws with the federalelection in a way that makes it
unworkable.
So figure out a way to make surethat doesn't happen. I will say
though, that the the reasoning,given by some of the
conservative justice, I don'tthink necessarily addresses some
of the, arguments that were madeat the Colorado, Supreme Court
(37:36):
level and which ultimately theColorado justices in this case
relied on. I don't necessarilythink they're persuasive, but I
think they're worth mentioning.Example, you know, this idea of
the federal government is thefinal say on whether you can be
listed on a state, a state,election form or whatever. There
are a lot of instances wherestates are intervening and
(37:59):
adjudicating federalrequirements for candidacy on
the ballot.
Danessa Watkins (38:05):
For federal candidates?
Jack Sanker (38:06):
Yeah. So for example, if you're not 35 years
old, right, you can't bepresident. Yeah. So state courts
deal with that often all overthe country. So, you know, if
you wanna put in and file thepaperwork to run for president
when you're 12 years old, astate court will tell you no, or
can tell you no.
And there's, like, plenty ofexamples of that. That's, you
know, that's a constitutionalrequirement on the 14th
amendment but, you know, therule for nationalized citizens
(38:30):
also gets adjudicated at thestate level. So hard and fast
rule that only federal courtscan adjudicate these issues,
which is not exactly what theysaid in the the supreme court
opinion, but it's that's what Ithink people have taken away
from it. It's just not the case.Right?
Civil or, state courts areadjudicating eligibility
requirements for the office ofpresidency, for example. It was
(38:54):
specific to this, section 3 ofthe 14th Amendment, you know,
the part that deals with, quote,unquote insurrections, which is
not defined by the 14thAmendment
Danessa Watkins (39:06):
Right.
Jack Sanker (39:06):
Or this subsection, and was passed in the wake of
the civil war where everyonesort of knew what they meant.
And I think that, it's a littletedious when the originalists on
the court pretend like they haveno clue what this word means, in
certain circumstances. And, youknow, shy away from going, oh,
(39:29):
well, what you know, we don'tknow. It's not in there. So how
can we possibly interpret it?
When they do that for everythingelse. So that's my my 2¢ on on
that. I think the collective,playing dumb on on some of these
opinions when it comes to thecivil war amendments and, versus
we know exactly what ThomasJefferson was thinking when he
(39:49):
wrote the bill of rights, doesjust kind of annoy me.
Danessa Watkins (39:52):
Yeah. So just for the for the listeners, what
the Supreme Court says aboutthis section 3 and when it was
passed, quote, it was designedto help ensure an enduring union
by preventing formerConfederates from returning to
power in the aftermath of theCivil War. So that was their
intent behind this, this section3 of the amendment.
Jack Sanker (40:13):
Sure. And and they they shy away from actually
deciding the issue of, like, wasthis or was this not an
insurrection on the grounds of,well, it's not in the amendment
so we have to look to laterconstitutional or sorry, later
congressional acts which defineit in different contexts. So I
think, I I wanna say that thefirst loosely called
insurrection act was was passedin the 18 seventies. But there
(40:38):
are interim periods where thepresident of the United States
could unilaterally declare thean insurrection and invoke,
think, proponents of, I thinkproponents of, President Trump's
(41:02):
arguments on the at the ColoradoSupreme Court level, forgot or
did not mention or shied awayfrom. And I just, I I would I
would like to give the framersof the, post civil war
amendments, the respect theydeserve.
I'll put it that way.
Danessa Watkins (41:22):
That's fair. Well, certainly, either way,
this intermingling of politicsin our current supreme court is
equally interesting andterrifying. So I'm sure we'll be
covering more on this subject.That is our show for today.
Definitely join us in 2 weekswhen we come out with our next
show.
You can follow us on Apple,Spotify, think of the think of
(41:53):
the show, any questions you mayhave, topics you wanna hear in
the future, and that's
Jack Sanker (41:58):
it for now. Thanks everyone.
Welcome to Litigation Nation. I'm your
host, Jack Sanker, along withDanessa Watkins. Remember, this
is the show that where we getyou up to date on the most
important and interesting legaldevelopments. You can find us at
Apple Podcasts, Spotify,YouTube, wherever you get your
shows. Danessa, what do we havethis week?
Danessa Watkins (00:21):
Alright, Jack. Well, first, I have a story out
of New York where a jury justawarded a woman $30,000,000
against her ex boyfriend forviolations of New York City's
administrative code againstrevenge porn. And then we have a
decision of the US Supreme Courtor SCOTUS. It was which revealed
(00:49):
that the opinion maybe was notunanimous to begin with.
Jack Sanker (00:53):
And I'm gonna be covering a cyber attack in
Fulton County, Georgia, which,threatens to release a lot of
private sealed court documentsthat are being used in a number
of different cases. But mostimportantly, the Trump election
case which is ongoing, which is,of course, gonna have political
ramifications, but, of course,could affect the trial itself.
(01:15):
All of that and more, here'swhat you need to know.
Danessa Watkins (01:26):
Alright. So starting with our revenge porn
case in late February of 2024,we have a jury that awarded a
SUNY, that's City University ofNew York, public health
professor, $30,000,000 againsther ex boyfriend. Now we use
this term revenge porn, but itreally means nonconsensual
(01:46):
pornography. So the distributionof intimate images without a
person's consent. And eventhough it's usually these
revenge motivated cases that hitthe news, that's the these nude
images online.
(02:07):
And as you know, once things areonline, it's hard to get them
down, and within seconds, theycan be shared. So that's just
kind of some background on whatrevenge porn is. Now looking
back to our story, the plaintiffhere is doctor Spring Chenoa
Cooper. And for about a year,she dated a man, Ryan Bromes.
He's a comedian from Brooklyn.
(02:28):
And the couple split when doctorSpring allegedly learned that
Bromes was actively engaging inaffairs with other women. So she
broke things off. She blockedher ex boyfriend on social
media, and then soon after,Broms began posting nude photos
of her online. Typically, he wasusing usernames that hid who who
(02:50):
the publisher was, but it waspretty easy for doctor Spring to
figure it out because she hadonly shared those images with
her boyfriend at the time theywere dating. Now she did try to
get a protective order, and theand the restraining order that
(03:15):
she had gotten.
And he did this both on socialmedia and on platforms where he
was able to link to her workwebsite, posting her name, her
face, and all of her contactinformation. So as you can
understand, this is certainlycreating a dangerous situation
for doctor Spring. She had 100of men harassing her on social
(03:36):
media. She also had to usesecurity to get to and from work
because people were tracking herdown. So when the restraining
order didn't work, she looked toboth the state law and New York
actually at the time and stilldoes has an administrative code
that was actually stronger backin 2018 than the state code for
(04:01):
providing the type of relief shewas seeking in civil court for
revenge porn.
Now at the same time, there wasa criminal investigation and
eventually a prosecution thatwas going on, and in 2021, Broms
plead guilty to the misdemeanorof disclosure of intimate
images. However, he didn'treceive a jail sentence, and he
(04:24):
was forced to attend a programfor abusive partners. It
ultimately didn't give doctorSpring the relief that she was
looking for under the revengeporn statutes. So 6 years after
she filed this initial lawsuitis when the case finally went to
a jury. By that time, as I said,Broms had already plead guilty,
(04:45):
so there really was no issue onliability.
The judge found him liable, sothe jury really only had to
determine the amount of damages.This 30 $1,000,000 award was the
greatest award that New York hadseen under this statute, and
doctor Cooper says she certainlydoesn't expect to collect, but
Jack Sanker (05:07):
Yeah. He's a comedian.
Danessa Watkins (05:08):
Yeah. Exactly. But for her, it was more about
sending this message ofdeterrence, and and showing that
there is relief available forvictims and hopefully, deterring
these crazy ex boyfriends andprobably ex girlfriends too from
pursuing this type of actionagainst their former partners.
Jack Sanker (05:29):
Well, she will be able to, you know, garner those
guys' wages for the foreseeablefuture several 1000 years
probably. So, I mean, hopefully,she does get, some financial
relief out of this. And Danessa,I think if I'm correct here, you
have some exposure to this areakind of in your personal
(05:51):
practice?
Danessa Watkins (05:52):
Yeah. So my my practice group here, here, we
have had a few of these,cyberbullying, revenge porn type
cases. One of our more recentones actually, we we brought
alternative claims to to revengeporn. We also filed under
defamation, false light invasionof privacy, torturous
(06:15):
interference with businessexpectancy. This was kind of a
crazy case where we had a clientwho his ex girlfriend, was
sending nude photos to his placeof work.
So it it kinda took it toanother level for him and that,
his job and his clients, theywere getting targeted with these
(06:38):
images of him that obviouslydidn't paint him in the best
light.
Jack Sanker (06:41):
Yeah.
Danessa Watkins (06:41):
And she was also accusing him of rape. So,
yeah, and it was the same thing.By the time it got to trial
level, she had already beenprosecuted criminally and been
extradited back to her homestate, so it was really just an
issue of damages. But theimportant thing that you can get
from from that case is that,there are ways to pursue an
(07:06):
action for this type of revengeporn even if your state doesn't
have a statute specific to it orif the statute does not allow
for a civil lawsuit. There arethese type of, you know,
emotional distress or invasionof privacy claims that you can
bring.
But currently, 48 states havesome form of a revenge porn
statute, the 2 holdouts beingMassachusetts. I did look up
(07:30):
though that the house actuallyjust unanimously passed, pending
legislation. So hopefully,Massachusetts Massachusetts will
be passing something soon, butSouth Carolina is the other
holdout, and I did not seeanything currently on their
books, of them trying to passsomething. But the other
available avenue potentially isat the federal level. There is
(07:52):
the Violence Against Women ActReauthorization Act of 2022,
that was passed in March of2022.
So
Jack Sanker (08:01):
So I I do not practice in this area. So I'm
gonna throw something out thereand you tell me how right or
wrong I have this. Myunderstanding is that these, the
at the state level and now atthe federal level, the
legislation that is dealingwith, you know, what we're
calling revenge porn, butbroadly a lot of other things,
(08:23):
are relatively new because ofthe kind of gray area that this
stuff may have fallen inbeforehand and and not great in
a moral or ethical sense, but asto what who has rights to, a
photo or video, under certaincircumstances and then their
rights to distribute itaccordingly. So for example,
(08:44):
there was a point in time ofwhich say, the subject of a
photo, at the time the photo wastaken, consented to that and
then also knowingly andwillingly shared that photo with
their, you know, intimatepartner. The question for some
time and in certainjurisdictions was, well, if that
(09:05):
partner then shares that photo,and and everything else have to
stop them from doing that.
And these, as far as Iunderstand, the state
legislation, in particular inthe 48 states that you mentioned
and maybe at the federal levelis just saying no matter what,
(09:27):
that's not gonna be okay.
Danessa Watkins (09:29):
Yeah. It definitely depends on, a it's a
state by state basis. So thereare states that have different
thresholds, even to the extentof, you know, describing what
type of body parts are shown andand what the images depict. But
typically, there is some sort ofintent involved, some kind of a
(09:49):
men's rea where the personsharing the image either had the
intent to harm, or if theydidn't have that intent, they
knew that this this wasn't animage that was meant to be
shared with others.
Jack Sanker (10:02):
Okay. That makes a lot of sense. Mhmm.
Danessa Watkins (10:04):
And just to put a finer point on it, I'm sure
that there have been morestudies that have come out in
the last 5 years, but I did findone from, 2017, and this was
through the cyber civil rightsinitiative. It found at that
time, 1 in 8 adult social mediausers reported being a victim of
revenge porn.
Jack Sanker (10:23):
1 in 8?
Danessa Watkins (10:24):
1 in 8. So, you can only imagine. Unfortunately,
that number has probablyincreased, but this is the kind
of also the purpose of thislegislation. Now that almost
every state and the federal atthe federal level, you have
these protections, the hope isthat there will be deterrents,
and certainly we're gettingbetter at tracking down IP
(10:47):
addresses and and finding outwho is behind these these
images. Now deep fakepornography is something we'll
have to cover on a differentshow because I think we could
spend a whole hour on that, butthat presents a whole new
problem for, you know, what arethe rights of these people where
it looks like them, but it's notreally them.
(11:08):
I mean, we just saw that
Jack Sanker (11:09):
with Taylor Swift. Say Taylor Swift is is actually
leading the charge on on that
Danessa Watkins (11:14):
as as she so often does. Right? On all
things. Yes. Some more on that.
Jack Sanker (11:24):
A hacking group called LockBit apparently has
hacked the Fulton County, thisis in Georgia, court website and
made copies of sensitive sealedcourt documents related to the
criminal case against formerpresident Donald Trump. I think
among in other cases as well.It's threatening the court
system to release thosedocuments unless it gets paid a
(11:44):
ransom. And I'm gonna quote froma Business Insider article on
the hack, quote, in a messageposted online Saturday, this was
3 weeks ago, in both English andRussian, the hacking group
called LockBit 3.0 said, thestolen documents contain a lot
of interesting things in DonaldTrump's court cases that could
affect the upcoming US election.Initially, LockBit 3 point o set
(12:07):
a Saturday, March 2nd deadlinefor payment according to the
cyber security reporter,Christopher Krebs.
It has since moved that deadlineto 8:49 AM on Thursday, February
29th. LockBit 3 point o'srestored website now shows,
unquote. And I'm covering thestory because Fulton County did
(12:28):
not pay the ransom as ofFebruary 29th. And and then the
deadline was again moved backanother week and they still
didn't pay. We'll talk aboutthat in a moment though.
So this is part of mespeculating here, but this is a
criminal case. And wouldn't theunauthorized and, you know,
illegal disclosure of, thesetypes of documents which are
(12:52):
filed under seal and and areheavily redacted and all those
things, if they were leaked, Imean, wouldn't that seriously
infringe on the criminaldefendant's due process rights
and really make it difficult totry them given our procedural
rules around that kind of thing?I I think it's potentially
grounds for, you know, amistrial, for example. If I was
on the defense, I certainlywould be considering that. And
(13:13):
to my knowledge, this is thefirst time that a court systems
document processing saving,server, whatever you wanna call
it, process has been hacked.
And it just makes me think oflike the amount of sensitive
information those things.Oftentimes, my people who don't
(13:36):
file them under seal and justthose things. Oftentimes, my
people who don't file them underseal just aren't expecting
anyone to go look at them.
Danessa Watkins (13:44):
Right.
Jack Sanker (13:44):
But if they actually did, you know, it would
be could be potentiallydamaging. But everything from
financial statements to, youknow, medical records, personal
identifying information, allthose things. A a court system,
online system is gonna con Imean, it's gonna be, like,
potentially a treasure trove ofof sensitive documentation
information. And seeing this nowbeing targeted by these
(14:08):
ransomware, hacker groups, Imean, it just makes a lot of
sense from their perspective.And it's a bit scary from my
perspective.
I think the implications forthis hack broadly are pretty
scary. But on the kind of Trumpcriminal case alone, which, you
know, we're not gonna get intothe details of that, but I think
it could seriously affectprosecute him. If I mean,
(14:30):
imagine something that shouldwasn't was gonna be filed, with
the intention of jury, all of asudden he gets exposed to the
jury pool. It's gonna raise anendless amount of challenges to
who gets impaled on those juriesand whether, you know, mister
Trump gets a fair trial and allthose things. I do wanna talk
(14:54):
about the most recent update onthis story.
This was as of about 2 weeksago. As I mentioned earlier,
Fulton County has refused to paythe ransom. And I'm relying now
on a write up from an outletcalled State Scoop, which is
actually a pretty cool websitethat tracks data security, AI,
data analytics stories, thingslike that. And according to
that, as of the I think it wasearly March, and I and I've
(15:18):
looked and I haven't seen anyupdates since this, the Board of
Commissions of Fulton County hasrefused to pay the ransom. And
quoting from the piece, and thisis the chair of the board of
commissions, his name is RobPitt speaking.
Quote, they could still releasewhatever data they have at any
time. Today, tomorrow, sometimein the future. We simply have no
control over that, Pitt said ina news briefing, which was live
(15:39):
streamed on the county's YouTubepage, 4 PM local time. We are
monitoring the situation closelyand will continue to work with
law enforcement. Krebs onsecurity reported that on
February 13th, locked at 3.0posted samples of sensitive data
from Fulton County in a newentry on its victim shaming blog
in an effort to force payment.
(16:00):
Quote, we will demonstrate howlocal structures negligently
handled information protection,the hacking group wrote on its
blog post. We will reveal listsof individuals responsible for
confidentiality. Documentsmarked as confidential will be
made publicly available. We willshow documents related to access
to the state citizen's personaldata. We aim to give maximum
publicity to the situation.
(16:21):
The documents will be ofinterest to many. Conscientious
residents will bring order,unquote. I mean, seems to me
like the hackers aren't gettingthe juice, from the squeeze that
they expected here and I thinkthat's a good thing. And now
they're kind of reframing thisas being, you know, white hat
hackers that they're, you know,they're hacking to demonstrate
(16:41):
the vulnerabilities rather thanto just squeeze out a ransom
which is b s as we know. Butgood on Fulton County for not
paying.
It seems like seemingly ransomas far as I can tell. And for
(17:03):
example, I'll go back to 2021.So it's a little bit outdated,
but I think still relevant.Forbes reported that around 15%
of all law firms globally,showed signs of compromised
networks.
Danessa Watkins (17:15):
That's the Chase. Yeah.
Jack Sanker (17:16):
That's the terminology they use. I think
even worse, in October of 2020,the ABA published something
saying that a whopping 29percent of law firms reported a
security breach with more than 1in 5 saying they weren't sure if
they'd even been compromised. Sohopefully, American firms have
(17:37):
made progress in this regard inthe 4 years since that data was
published and collected. Goingback to that state scoop piece.
I'm gonna quote again.
Quote the cybersecurity andinfrastructure security agency
advises against fulfillingransomware payments as they do
not guarantee that data obtainedby hackers will no longer be
compromised or lead to arestoration of services and
(17:59):
data. Any ransom payment sent toa foreign hacker may also
violate sanctions set up by theOffice of Foreign Assets
Control, according to a 2021report by the US Treasury
Department, unquote. That lastbit is kind of interesting
especially in light of theRussian Ukraine war and the fact
that I think a lot of thesehacking groups are at least
affiliated with or associatedwith, nation states and, actors
(18:26):
based in Russia, I think. So,you know, cutting them a check
for whatever the ransom might infact actually get you in
trouble, something to thinkabout. So if you're listening to
this, take whatever steps youneed to take.
I don't know because I'm not oneof these lawyers and I'm not
exactly, the most tech savvyperson, but that's why we rely
on experts to do that and Iwould suggest that anyone at
(18:48):
home who is hearing this and,you know, maybe feeling
concerned do the same. One lastthing, kind of the nature of
these hacks targeting firms andnow court systems, I touched on
it before but the level ofsensitivity alternative target
to, like, I don't know, say abank or a healthcare system
where they do alternative targetto, like, I don't know, say a
(19:11):
bank or a healthcare systemwhere they do have, probably
more robust cybersecurityinfrastructure just based on the
tighter regulatory controls. Imean, you know, the health care
system has been dealing withHIPAA, for example, for decades.
Right? Law firms, you know, wehave ethical obligations and we
and we we do our best, but Ithink anyone who's been around
(19:35):
this has seen, you know, sololitigation attorney attaching
unredacted medical records to amotion, for example.
And then that gets filed and thewhole world can go read them if
they want. I I'll say that thedelta of, you know, best
practices is wider, for maybelaw firms than they are for,
(19:55):
like, banks or healthcare,providers. So I it's another
kinda tightens up.
Danessa Watkins (20:09):
So the issue of the jury pool being tainted is
an interesting one and anddefinitely something that in
first amendment law, we dealwith a lot because, of course,
I'm probably more on the otherside of it where we want to have
open access to documents. Youknow, we want, the public to
know, for example, this comes upa lot with body camera footage.
(20:31):
Oh, yeah. You know? So, eventhough there is a chance that a
jury pool could be tainted by bysome of this stuff, you know,
you you have to do thatbalancing act of making sure
someone has a fair shake at acriminal trial, but also the
right for the public to have tohave the information and and to
have that oversight over itsgovernment.
(20:54):
And it sounds like in this casethat these are government
documents, a lot of them, or orgenerated by government. So,
Jack Sanker (21:02):
Yeah. But I mean, they're, you know, they're
already filed under seal or viaredaction or, you know, were
sent for in camera reviews. So,like, ostensibly, if there was
an objection to it being sealed,that's already been litigated
and adjudicated. Or oftentimesas we know, the parties just
agree. They'll say, hey.
You know, we're not going toput, for example, anything that
(21:23):
has your client's socialSecurity number into a public
publicly filed document. Right?That's, like, a pretty easy one.
So you'll redact that.
Danessa Watkins (21:29):
Right.
Jack Sanker (21:31):
Or, you know, hey. We have to file these financial
documents because the courtneeds to see them. The court can
review them in camera, but weboth understand that the public
shouldn't see these thingsbecause that's not what this
lawsuit is about, for example.Right.
Danessa Watkins (21:43):
Yeah. So I guess what I'm saying is there
are you know, these issues comeup a lot, and so, the court does
have systems in place to ensurethat I mean, even just, you
know, making sure that theRight. That the there are gonna
be jurors out there who have noidea about this story. You know?
I've never read this issue andand known that it that it's even
come up.
So, even if documents wereleaked, you know, there are
(22:06):
gonna be people who haven't seenthem. But I guess what I'm
getting at is that I'm glad thatthe court didn't play pay the
ransom just for the sake ofkeeping these documents,
withheld or redacted or orcensured, however they were.
Jack Sanker (22:21):
Yeah. I mean, good point for them. They're like,
look, they can release itwhenever they want whether we
pay them or not. I mean, you arenegotiating with criminals who
just stole something. So, youknow, no honor amongst thieves.
If you cut them a check, you'rejust crossing your fingers and
hope that they don't come backto the well and they could
anytime. So yeah. I I think justkind of standing up to them and
(22:44):
and is the right thing here andso be it if if these documents
come out and it affects the, youknow, the prosecution's ability
to to get this to trial orwhatever. I mean Right. What can
you do?
Danessa Watkins (22:55):
Right. Well, and it's it could certainly set
a dangerous precedent if youhave courts starting to give
into this because I mean, youthink about all the high profile
cases across the country.Hackers could do this, you know,
in any number of situations.You've got cases against big
corporations, Pfizer, Johnsonand Johnson. I mean, I'm sure.
Jack Sanker (23:18):
What about, like, the so let's say these documents
get dumped into the publicsphere. The defense,
successfully argues argues for Idon't know. Maybe maybe the
documents get released midtrial. They get a mistrial. Or
or they make a proceduralargument one way or the other.
Basically, wouldn't that createan interesting precedent for
(23:41):
politically motivated hackers orprivately funded hackers to just
meddle with criminal proceedingsso that prosecution under our
procedural rules becomesimpossible in a given case, you
know, whether it's Trump oranyone else. You could see a
scenario where it's like, hey.Let's let's cause so much
mayhem, in this system that thisperson who is being tried for x
(24:05):
y z crime cannot be tried.
Danessa Watkins (24:08):
Yeah.
Jack Sanker (24:09):
That's that's an maybe I shouldn't have said
that.
Danessa Watkins (24:12):
I was gonna say, anyone listening at
earmarks Don't do that. Yeah.Oh, yeah. No. That that is
scary.
And I just sitting herelistening to this story scares
me because I think as lawyers,you know, we we do the best we
can. We protect documents. Wetrust in the court system that
things are gonna remain sealed.So now it's like, oh, shoot.
(24:34):
Should I be asking for in camerainspection on certain things?
Yeah.
Jack Sanker (24:37):
Yeah.
Danessa Watkins (24:37):
Instead Instead of, actually trusting that the
the court will, you know,maintain these things in a in a
sealed fashion. And, like, let'sassume that, like, Fulton County
here is
Jack Sanker (24:45):
a that, like, Fulton County here is a 100%
acting in good faith and and,like, took what what we would
anyone would call reasonableprecautions and still was
hacked. You know? I I I don'tI'm not implying that they
weren't Oh, sure. That securesI'm sure I'm sure they probably
were were. Right?
I mean, that's Yeah. Everyonesays that they are until they
get hacked.
Danessa Watkins (25:03):
Right.
Jack Sanker (25:04):
So, yeah, it's, I think the broader implications
of it are interesting. I thinkkind of on on this one off issue
of what's gonna happen in theTrump prosecution. That's just,
you know, kind of interestingand concerning for me, just as
to what it says about privateactors' ability to disrupt,
prosecution, of anyone if theywanted to. And I just think that
(25:25):
that's something that is, Idon't even it actually, by the
way, it doesn't even seem likefrom the words and actions of
the hackers here, lock bit 3point o, that they've grasped
than, you know, what they'reclaiming, which is, probably the
bigger issue here
Danessa Watkins (25:44):
Right.
Jack Sanker (25:45):
Than, you know, what they're claiming, which is,
to expose the public servantswho, you know, didn't encrypt
their files enough or whatever,which no one cares
Danessa Watkins (25:55):
about. Very interesting. Alright. Now, kind
of on the same topic of Trump,but moving it to a recent US
Supreme Court decision. Theyheard an expedited fashion
arguments regarding the state'sability to remove presidential
(26:18):
candidates from state ballots.
So quick background on thiscase. This was out of Colorado.
There was a group of votersthere, which interestingly were
4 registered republicans andthen 2 that were unaffiliated.
They filed a petition againstformer president Trump and the
Colorado secretary of stateclaiming that Trump was
(26:39):
constitutionally ineligible toserve as president again and
should be removed from theballot. These voters, they
relied on section 3 of the 14thamendment, which provides in
pertinent part that no personshall be an elector of president
under the United States whohaving previously taken an oath
as an officer of the UnitedStates to support the
(27:02):
Constitution of the UnitedStates shall have engaged in
insurrection or rebellionagainst the same or given aid or
comfort to the enemies thereof.
So their argument was thatessentially Trump's
participation in the January 6thinsurrection disqualified him
from holding office of thepresident again. Now the Supreme
(27:23):
Court of Colorado agreed withthis and ordered that Trump be
removed from ballot, but thatdecision was stayed pending
resolution at the US SupremeCourt level. Now they took us up
pretty quickly, becauseobviously we're entering
election season, so they had torender a decision because I we
actually saw here in Cook Countythat, wasn't Trump removed from
Jack Sanker (27:46):
I believe it was from
Danessa Watkins (27:47):
the ballot initially. From the Illinois
ballot. Yeah. Yep. So otherstates were taking similar
action.
And, so the supreme court jumpedright on this issue. The
decision that was publishedMarch 4, 2024, was unanimous. So
all justices agreed that Trumpshould remain on the ballot.
(28:08):
While the states may disqualifypeople from holding office in
the state, they don't have anypower under the constitution to
enforce section 3 with respectto federal offices. And, I mean,
this is just from a practicalstandpoint.
It's pretty easy to see howstate resolution on the
qualification of a presidentialcandidate can lead to
(28:28):
inconsistent results. You couldhave some states that are
banning a certain candidate fromtheir ballots while other states
don't, and ultimately thepresident represents the the
voters in the nation. So this isreally an issue of federal law
and oversight. Now what'sinteresting about this case is
that 4 of the justices expressedthat the majority went too far
(28:51):
in the decision that waspublished. So again, the issue
before the court was whether apresidential candidate can be
taken off the ballot by a stateunder section 3 of the 14th
amendment.
The resounding answer was no,but the majority opinion delved
into other issues that weren'treally before the court, and
this was namely whether federalactors can enforce section 3 and
(29:11):
how they must do so. Nowconservative justice Amy Coney
Barrett, she was one of thejustices that wrote a separate
concurrence. However, hers wasfairly short, and the other
concurrence was drafted jointlyby the liberal justices. So
that's Sotomayor, Kagan, andJackson, and this one was a
little bit more aggressive intone. Now when that when the
(29:35):
decision was published, thatconcurrence by the liberal
justices, the metadata was notwiped from that document.
And what the metadata actuallyrevealed was that justice
Sotomayor was initially apartial dissenter, yet the
opinion was published as aunanimous decision. So this led
to a host of conspiracytheories. Why did SCOTUS put out
(29:57):
this opinion as as unanimous onthis very hot button issue when
it seems like potentially one ofthe justices disagreed and and
felt that maybe states couldremove someone from a ballot.
Now an article from the AmericanBar Association explains that
one way to see the metadata wasas simple as taking the the top
(30:20):
top portion of that concurrence,copy and pasting it, putting it
into Word, and when you do that,it shows up that Sotomayor
concurred in part and dissentedin part. Apparently that same
metadata showed up when yousearched for the word dissent.
So the question is whathappened? Certainly this
decision was rendered quickly bySCOTUS standards, so the failure
(30:43):
to scrub this data was likelyjust an oversight in the rush to
publish. But I guess the biggerquestion is how did this lone
dissenter transform into aconcurrence and then become
authored by all 3 of the liberaljustices. So we have Paul Schiff
Berman, who is a professor atGeorge Washington University of
(31:03):
Law, weighing in on this. And itwas his opinion that Sotomayor's
opinion may have become aconcurrence just in an attempt
to emphasize that the justiceswere all on the same page on
this very important issue.
And this certainly makes sensebecause as justice Barrett noted
in her concurrence, quote, thecourt has settled a politically
(31:23):
charged issue in the volatileseason of a presidential
election. Particularly in thiscircumstance, court should turn
the national temperature down,not up. For present purposes,
our differences are far lessimportant than our unanimity.
All 9 justices agree on theoutcome of this case and that is
the message that Americansshould take home, unquote. Now
(31:44):
an article by Slate offeredfurther speculation as to why
justice Sotomayor may havechanged her decision.
One of the broader theories thatthey put out is that this could
have been a bargain between thejustices. So if they issued a
unanimous opinion that Trumpshould stay on the ballot, then
possibly they would to take upTrump's separate dispute that he
(32:06):
was immune from criminalprosecution. So in other words,
they would allow Trump to run-inall 50 states, but then he would
also have to contend with acriminal trial prior to election
day. Now we know as of the dateof this airing that that
bargain, if it ever in factexisted, it didn't come to
fruition because SCOTUS hasgranted certiorari, and we'll
hear argument in April on thisissue of whether Trump is immune
(32:30):
from criminal prosecution. Butmaybe that actually was the
bargain.
So it's possible that the courtcould have pushed that argument
on Trump's immunity to the fallterm, which definitely would
have guaranteed that theelection would proceed before a
decision was rendered. Butperhaps in exchange for a
(32:51):
unanimous opinion on this issue,they decided to hear argument in
April. Just another theory beingthrown out.
Jack Sanker (32:57):
Yeah. I mean, the I I think that the past couple
years in particular, to anyonewho's paid attention and we're
not this is not a court watchingpodcast, and neither one of us
is practicing in front of theSupreme Court, but is people who
are aware of our surroundingsand and pay attention to this
(33:19):
type of thing. The idea of thesupreme court justices as, as
justice Roberts, I think put it,umpires calling balls and
strikes, you know, nonpartisan,nonpolitical actors, I think
it's really taken a hit. I mean,there's this of course which
seems in some way I don't knowif it was quid pro quo, you
know, we're going to take thiscase and not the other. But
there was certainly some type ofpolitical calculus involved so
(33:42):
that they could get a 9 to 0opinion and I think protect the,
legitimacy of the court whichhas, I think, been under popular
scrutiny for the past coupleyears.
And to tell the public, like,look at us. We're actually not
divided. We're united on thisimportant issue and, you know,
that's why we're 9 to 0. And soto arrive at that conclusion
(34:05):
would require someone whointended to dissent to be
persuaded to change their mind.And that's just part of it.
And I think anyone who haslooked into, like, the inner
dealings of the court and allthat stuff, I think Jeffrey
Toobin's books on this stuff areare decently good,
notwithstanding all the otherstuff Jeffrey Toobin has gotten
involved in. But, there is someelement of horse trading and
(34:28):
political negotiation among thejustices. And I think that
really that that idea that theyare nonpartisan actors,
nonpolitical, I think is I'd sayit but kinda somewhat naive,
these days. I mean, remember theDobbs leak. Right?
Like, that was huge. And by theway, they never resolved that.
(34:49):
That's another thing that's justout there.
Danessa Watkins (34:51):
Yeah.
Jack Sanker (34:51):
You just don't know who did it or for what reason or
to one end. I mean so I thinkthis, I think reaching a 9 to 0
conclusion or, decision ratheron this is, like, more important
than the substance of thedecision. And and there is, a
pretty, wide variety ofreasoning offered among the 9
(35:13):
justices for their decision. Andwe could talk about that if if
in a moment, I think it'sprobably worth getting into. But
ultimately, I think the goalhere was, like, folks, we need
to put on a united front herefor the benefit of the public,
not necessarily for theadministration of justice even
(35:34):
though but I don't think that'sthe reason why it's 9 to 0.
And I think if you, you know, ifyou took 9 people off the street
and asked them about this, Idon't think you would get, you
you know, a unanimous decisionfrom 9 people. I don't know why
you would expect anythingdifferent from the justices, for
example. So I think it's more ofthat. Ultimately, if you're
paying attention, I think it Ithink it further serves to hurt
(35:59):
the legitimacy of the court whenyou have this type of thing
leaked. Also, let me put on myTinfoil hat here.
The metadata being included inthe I mean, what if it's the
same person who leaked the Dobbsthing? Like, it's it's some
clerk there who's just puttingout drafts and getting everyone
in trouble. Right?
Danessa Watkins (36:17):
I think I think clerks are limited to what? A 2
year term at the supreme courtlevel?
Jack Sanker (36:22):
I have no idea to,
Danessa Watkins (36:23):
I may have just pulled that out of nowhere, but
that that was, like, deep in thememory bank from somewhere.
Sure. So we'll go with that.
Jack Sanker (36:29):
You know, someone is screwing up at, like, a
document management level upthere and it and it just so
happens to be on, like, 2 of themost important things that the
public is worried about for thepast couple years. I don't know,
man. Maybe that maybe the moleis still active.
Danessa Watkins (36:43):
Sounds like another conspiracy theory, Jack.
I
Jack Sanker (36:47):
for a minute, can you indulge me on section 3 of
the 14th Amendment? Yeah.
Danessa Watkins (36:50):
Of course.
Jack Sanker (36:50):
Okay. And my ongoing threat to pull the rug
out from under the show and turnit into a civil war podcast, I I
have to, again, make clear tothe listeners that I'm gonna do
it one of these days. And thewhat's I I think ultimately the
decision here that and itpractically makes a ton of
(37:11):
sense. You can't have differentstates saying, you know, this
person can be on, this personcan't be on. Like, it it really
just screws with the federalelection in a way that makes it
unworkable.
So figure out a way to make surethat doesn't happen. I will say
though, that the the reasoning,given by some of the
conservative justice, I don'tthink necessarily addresses some
of the, arguments that were madeat the Colorado, Supreme Court
(37:36):
level and which ultimately theColorado justices in this case
relied on. I don't necessarilythink they're persuasive, but I
think they're worth mentioning.Example, you know, this idea of
the federal government is thefinal say on whether you can be
listed on a state, a state,election form or whatever. There
are a lot of instances wherestates are intervening and
(37:59):
adjudicating federalrequirements for candidacy on
the ballot.
Danessa Watkins (38:05):
For federal candidates?
Jack Sanker (38:06):
Yeah. So for example, if you're not 35 years
old, right, you can't bepresident. Yeah. So state courts
deal with that often all overthe country. So, you know, if
you wanna put in and file thepaperwork to run for president
when you're 12 years old, astate court will tell you no, or
can tell you no.
And there's, like, plenty ofexamples of that. That's, you
know, that's a constitutionalrequirement on the 14th
amendment but, you know, therule for nationalized citizens
(38:30):
also gets adjudicated at thestate level. So hard and fast
rule that only federal courtscan adjudicate these issues,
which is not exactly what theysaid in the the supreme court
opinion, but it's that's what Ithink people have taken away
from it. It's just not the case.Right?
Civil or, state courts areadjudicating eligibility
requirements for the office ofpresidency, for example. It was
(38:54):
specific to this, section 3 ofthe 14th Amendment, you know,
the part that deals with, quote,unquote insurrections, which is
not defined by the 14thAmendment
Danessa Watkins (39:06):
Right.
Jack Sanker (39:06):
Or this subsection, and was passed in the wake of
the civil war where everyonesort of knew what they meant.
And I think that, it's a littletedious when the originalists on
the court pretend like they haveno clue what this word means, in
certain circumstances. And, youknow, shy away from going, oh,
(39:29):
well, what you know, we don'tknow. It's not in there. So how
can we possibly interpret it?
When they do that for everythingelse. So that's my my 2¢ on on
that. I think the collective,playing dumb on on some of these
opinions when it comes to thecivil war amendments and, versus
we know exactly what ThomasJefferson was thinking when he
(39:49):
wrote the bill of rights, doesjust kind of annoy me.
Danessa Watkins (39:52):
Yeah. So just for the for the listeners, what
the Supreme Court says aboutthis section 3 and when it was
passed, quote, it was designedto help ensure an enduring union
by preventing formerConfederates from returning to
power in the aftermath of theCivil War. So that was their
intent behind this, this section3 of the amendment.
Jack Sanker (40:13):
Sure. And and they they shy away from actually
deciding the issue of, like, wasthis or was this not an
insurrection on the grounds of,well, it's not in the amendment
so we have to look to laterconstitutional or sorry, later
congressional acts which defineit in different contexts. So I
think, I I wanna say that thefirst loosely called
insurrection act was was passedin the 18 seventies. But there
(40:38):
are interim periods where thepresident of the United States
could unilaterally declare thean insurrection and invoke,
think, proponents of, I thinkproponents of, President Trump's
(41:02):
arguments on the at the ColoradoSupreme Court level, forgot or
did not mention or shied awayfrom. And I just, I I would I
would like to give the framersof the, post civil war
amendments, the respect theydeserve.
I'll put it that way.
Danessa Watkins (41:22):
That's fair. Well, certainly, either way,
this intermingling of politicsin our current supreme court is
equally interesting andterrifying. So I'm sure we'll be
covering more on this subject.That is our show for today.
Definitely join us in 2 weekswhen we come out with our next
show.
You can follow us on Apple,Spotify, think of the think of
(41:53):
the show, any questions you mayhave, topics you wanna hear in
the future, and that's
Jack Sanker (41:58):
it for now. Thanks everyone.
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