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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com Slash Podcasts. A loss for

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Speaker 1: the Trump administration at the Supreme Court, and the deciding

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Speaker 1: vote came from President Trump Supreme Court nominee Justice Neil Gorcich. Course,

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Speaker 1: it's voted with the liberals on the Court in a

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Speaker 1: five four decision throwing out a provision in federal law

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Speaker 1: that had been used to deport immigrants convicted of serious crimes.

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Speaker 1: Trump criticized the decision on Twitter, saying that it means

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Speaker 1: quote that Congress must close loopholes that block the removal

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Speaker 1: of dangerous criminal aliens, including aggravated felons. My guest is

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Speaker 1: Kevin Johnson, a professor at u C. Davis School of Law.

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Speaker 1: Kevin the Department of Homeland Security also said the ruling

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Speaker 1: undermines its efforts to remove known criminal aliens. How much

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Speaker 1: of an impact could the decision have on deportations in

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Speaker 1: the end, I don't think the decision will have much

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Speaker 1: of impact on deportations. The immigration laws are fairly detailed

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Speaker 1: and fairly thorough, and there are many different grounds that

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Speaker 1: you can try to deport somebody who's a UH convicted

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Speaker 1: of a crime from the United States. In this instance,

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Speaker 1: to what the court held was that this language crime

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Speaker 1: of violence, which is one of many deportation provisions, was

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Speaker 1: just too vague to withstand constitutional scrutiny. So so I

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Speaker 1: think that um Demya, who is the immigrated issue in

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Speaker 1: the case, still may be subject to removal. The Department

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Speaker 1: Holans Security can still seek to remove him, but just

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Speaker 1: not on this particular provisions. We should mention that James

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Speaker 1: Demia came to the US legally from the Philippines when

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Speaker 1: he was thirteen. He was convicted of residential Berkeley twice

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Speaker 1: in California and has been fighting deportation efforts. Justice Kagan

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Speaker 1: wrote the opinion for the majority was her reasoning based

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Speaker 1: on the vagueness of the statute. Yes, basically, um. Justice

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Speaker 1: Keagan for the majority relied on a decision from two

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Speaker 1: thousand and fifteen written by Justice Anton and Scalia. There

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Speaker 1: was a decision in a case called Johnson versus United States,

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Speaker 1: and it found that another provision in a criminal law

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Speaker 1: was unconstitutionally vague. It wasn't clear enough to give notice

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Speaker 1: to the defendant of the possible criminal penalties. In this case,

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Speaker 1: Justice Kagan for the Court held that this language crime

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Speaker 1: of violence was just too vague to withstand constitutional scrutiny.

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Speaker 1: It wasn't clear enough to give notice that you might

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Speaker 1: be subject to removal for for a crime that didn't

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Speaker 1: involve violence, UM, as this one of these two by

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Speaker 1: James Demi did. He was found guilty of residential burglary.

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Speaker 1: Never was was known to have engaged in violence UM,

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Speaker 1: but they still tried to deport him based on the

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Speaker 1: claim he was guilty of a quote crime of violence.

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Speaker 1: This was an unusual case because it was argued twice.

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Speaker 1: Tell us about the history, Well, the case actually originally

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Speaker 1: UM came to the Supreme Court during the Obama administration,

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Speaker 1: and the Obama administration sought reviewing the Supreme Court and

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Speaker 1: last term uh the Supreme Court heard oral arguments in

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Speaker 1: the case UH and then Justice Gale have passed away

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Speaker 1: UH and and in the end they they apparently couldn't

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Speaker 1: reach a conclusion decision, so they ordered reargument in the case. UH.

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Speaker 1: So that the case was re argued last October, so

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Speaker 1: it was argued twice in the Supreme Court, and then

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Speaker 1: we got the decision yesterday. It was a long, long process,

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Speaker 1: and it's very rare uh for a case to be reargued, um,

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Speaker 1: but it gives you an idea just just how divided

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Speaker 1: the court was in the end. We had a five

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Speaker 1: to four decisions, so that that really wasn't a surprise,

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Speaker 1: given that the case has been reargued, Kevin. But was

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Speaker 1: there an assumption that Justice Corsage would vote with the Conservatives? Well,

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Speaker 1: I think some people might have assumed that, But the

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Speaker 1: law is a good deal more complex than liberal conservative.

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Speaker 1: In this case, Justice course that he wrote a concurring opinion,

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Speaker 1: and he emphasized the importance of having clear statutes so

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Speaker 1: that government can't act arbitrarily, and he detailed the long

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Speaker 1: history uh going all the way back is is uh

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Speaker 1: England's Blackstone um of reviewing statutes to make sure that

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Speaker 1: they're they're clear uh and and allow for predictability if

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Speaker 1: you're going to be punished under them. Uh. So So

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Speaker 1: I think that basically Justice gorstch Uh, he saw that

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Speaker 1: that this was a way of constraining government from going

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Speaker 1: too far. You could view that as liberally, you can

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Speaker 1: view that as conservative. UM. But I think that he

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Speaker 1: was careful to look at the law, and I do

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Speaker 1: think it was important to him that Um. Really the

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Speaker 1: basis for the lower court's ruling was a decision by

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Speaker 1: Justice Scalia, a relatively conservative justice. Uh. And that that

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Speaker 1: that that decision seemed to dictate the result in this case,

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Speaker 1: at least in justice course which his eyes. So I

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Speaker 1: really don't think it's fair to characterize as a liberal conservative.

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Speaker 1: Some people might have predicted it that way. UM, But

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Speaker 1: in the end, I think laws of a deal more

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Speaker 1: complex than that. Justice Kegan quoted from Justice Scalia several

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Speaker 1: times in her majority opinion. So how did the conservatives

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Speaker 1: on the court defend this provision in their descent? Well,

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Speaker 1: Chief Justice Roberts wrote for the dissenters, uh, And there

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Speaker 1: were four justice in descent, and basically the Chief said, well,

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Speaker 1: it's not really in constitutionly vague this statute. It's a

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Speaker 1: different statute than the one that was an issue in

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Speaker 1: the Johnson versus United States case, is a little bit

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Speaker 1: more clear. And here all you need, uh is to

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Speaker 1: be found guilty of a crime that creates the substantial

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Speaker 1: risk of violence. Uh And here a residential burglary, uh does,

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Speaker 1: in Chief Justice Robert's view, create the substantial risk of

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Speaker 1: violence because if you break into somebody's house and they

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Speaker 1: may defend themselves and that could escalate. Uh So, to

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Speaker 1: to to Chief Justice Roberts, it wasn't unconsciously vague, and

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Speaker 1: it was different from Johnson. Uh so, So I think

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Speaker 1: that was the way that they kind of tried to

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Speaker 1: um defend um the removal of de Maya. Now, in

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Speaker 1: the DHS statement, it said that Secretary of Kristen Nielsen

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Speaker 1: has met with hundreds of Members of Congress over the

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Speaker 1: last few months to implore them to take action on

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Speaker 1: passing legislation to close public safety loopholes such as these

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Speaker 1: that encourage illegal immigration and tie the hands of law enforcement.

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Speaker 1: Does Congress really need to take action here? Well, I

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Speaker 1: do think Congress needs to take action in terms of

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Speaker 1: immigration reform um, but I don't see Congress need to

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Speaker 1: take action to respond to the Demia case. Actually, if

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Speaker 1: you look at the Department of Home and Security statement,

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Speaker 1: you see a little bit of confusion there, because, as

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Speaker 1: you mentioned, James Demaia was a legal immigrant. He was

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Speaker 1: a lawful immigrant. He came here into the correct procedures

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Speaker 1: that the statement talks about. Um. You know, people here

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Speaker 1: undocumented without proper authorization. So I think this is just

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Speaker 1: another political statement trying to make hay about the sort

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Speaker 1: of public concern with with immigration currently. I do think

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Speaker 1: that there's plenty of other grounds under the Immigration Statute

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Speaker 1: for the Department of Him and Security to seek to

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Speaker 1: deport Demia. And it doesn't seem necessary to me to

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Speaker 1: amend the loss to try to try to make um

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Speaker 1: him automatically to portable. All right, thank you so much

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Speaker 1: for being with us here. That's Kevin Johnson. He's a

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Speaker 1: professor at u C. Davis School of Law. Strict new

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Speaker 1: privacy rules are taking effect in the European Union on May,

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Speaker 1: and Facebook is starting to comply with them there and

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Speaker 1: then to get ahead of scrutiny in the U S

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Speaker 1: and elsewhere, the company said it will provide the same

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Speaker 1: protections to the rest of its two billion users. Joining

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Speaker 1: us as Daniel Stoler, Bloomberg Law Senior Legal editor, Daniel

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Speaker 1: give us some highlights of this General Data Protection regulation

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Speaker 1: in the EU. Yes, so, the General Data Protection Regulation

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Speaker 1: which is mostly known as the gdp r UM. It

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Speaker 1: is it is a pretty broad update to EU wide

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Speaker 1: privacy laws and a lot of it is based on

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Speaker 1: user consent. So UM. Pretty much, if you log into

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Speaker 1: Facebook or any other social media platform, if they're going

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Speaker 1: to be using your data, UM, taking control of your data,

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Speaker 1: trying to sell it to a third party. UM. There's

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Speaker 1: there's spots in the in the regulation that UM stops

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Speaker 1: companies from doing that without express consent from users. So UM.

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Speaker 1: A lot of the activities that Facebook is getting in

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Speaker 1: trouble with now and they've said they UM did get consent. UM.

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Speaker 1: Some of those issues would have fallen under some of

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Speaker 1: the provisions of the g d p r UM because

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Speaker 1: they didn't get consumer consent. But UM, at the end

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Speaker 1: of the day, as long as a company is quite

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Speaker 1: um open about their privacy policies, UM, they've UM tried

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Speaker 1: to get consumer consent, give consumers direct control over the data. UM,

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Speaker 1: they'd be able to fall out of the four percent

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Speaker 1: of their global turnover or the up to twenty million

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Speaker 1: dollar fines. That's been often discussed about what has Facebook

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Speaker 1: said it will do in this country? What specifically, Yeah,

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Speaker 1: so UM, as you said, before they will be rolling

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Speaker 1: out the GPR protections as the opt in consent rules. So, um,

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Speaker 1: they're going to pretty much allow consumers to opt in

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Speaker 1: or out of certain data collection processes. UM. When you're

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Speaker 1: going to use an app, UM, that will have to

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Speaker 1: be more clear UM about how they're using your data. Um,

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Speaker 1: it'll have to be much more clear than some of

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Speaker 1: the boxes that you or I may have clicked on

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Speaker 1: in the past, UM to actually use your data in

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Speaker 1: future UM instances. And also gives users the right to

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Speaker 1: make their data portable. So if I was using Facebook

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Speaker 1: well but wanted to use a new social media network,

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Speaker 1: I'd be able to get all that data move it

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Speaker 1: over new network without Facebook having ownership of that data.

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Speaker 1: I mean, at the end of the day, it's giving

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Speaker 1: the users and as they say, data subjects more control

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Speaker 1: over their data and able to move it around, um

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Speaker 1: no matter where they are. So the gdp R could

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Speaker 1: be used as a model for let inslation in the US.

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Speaker 1: But how likely are US lawmakers to pass new regulations? Yeah,

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Speaker 1: so they've they've brought it up in and they even

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Speaker 1: brought up in Azaca Werks testimony. UM, and they all

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Speaker 1: have kind of said yes, it is a great model,

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Speaker 1: but we'll have to see how it works in effect. UM.

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Speaker 1: They wanted to see if it's going to be too

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Speaker 1: much UM for U S regulation, and the US doesn't

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Speaker 1: really have a long history of strong privacy and data

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Speaker 1: protection regulations, so jumping from almost nothing to a GPR

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Speaker 1: style doesn't look too feasible. And then Senator soon after

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Speaker 1: the UM hearings told us that don't expect any new

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Speaker 1: data protection legislation soon. We need to see how it works.

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Speaker 1: And they also want to give UM Facebook and other

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Speaker 1: social media companies is not just a Facebook issue, the

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Speaker 1: ability to self regulate themselves. Now, they do fall under

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Speaker 1: some self regulatory guidelines for direct marketing UM, but there

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Speaker 1: isn't this strong social media at tech industry like self

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Speaker 1: regulatory guidelines like the financial sector has. So they're going

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Speaker 1: to give them a chance to do that. If that

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Speaker 1: fails and we see more UM issues like a Facebook

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Speaker 1: event again, then maybe that there would be more pushes.

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Speaker 1: But in the short term I don't see, and as

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Speaker 1: other policy announs have told me, UM, we're likely not

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Speaker 1: to see UM a global or a US wide UM

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Speaker 1: data protection regulation will be left up to the states. Yeah,

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Speaker 1: and you've written that federal and state enforcement authorities, state

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Speaker 1: attorneys general, and state legislatures are way ahead of Congress

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Speaker 1: in this regard. So tell us about a few of

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Speaker 1: the states that are seemed to be moving faster. Yeah, So, California,

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Speaker 1: New York have historically been at the head of the

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Speaker 1: curve for data protection, privacy, cybersecurity enforcement, and they've already

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Speaker 1: come together and have announced their UM multi state UM

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Speaker 1: investigation into the Facebook issues. UM. The FTC, which rarely

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Speaker 1: are the Federal Trade Commission, which rarely ever tells the

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Speaker 1: public they're investigating a company, came out and said that

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Speaker 1: they are investing investigating Facebook UM in this instance, and

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Speaker 1: they which is something they did for Equifax. But in

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Speaker 1: these large instances, it's rare for federal enforcement authorities to

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Speaker 1: come out and just say that, UM. So it is

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Speaker 1: important UM that that that also happened, and that it

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Speaker 1: was important from the FTC side, because Facebook was under

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Speaker 1: UM order to have based on their prior privacy policy issues.

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Speaker 1: So going back to that and with prior state California

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Speaker 1: New York enforcement actions dating back almost not dawn of

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Speaker 1: the Internet, but let's say late early two thousand's they've

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Speaker 1: been on the the forefront of online privacy issues and

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Speaker 1: aren't likely to slow down just about forty five seconds here.

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Speaker 1: But if you have states like New York and California

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Speaker 1: passing bills, would then there would be a patchwork of

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Speaker 1: legal requirements with that force companies to almost comply with

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Speaker 1: the most stringent laws to keep compliance cost down. Yeah,

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Speaker 1: and and that's been the case with UM data breach

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Speaker 1: notification laws up until this year. UM not every state

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Speaker 1: had one, but it was pretty much at UH state patchwork.

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Speaker 1: And now we have all fifty plus DC and then

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Speaker 1: some of the U S territories, and the general consensus

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Speaker 1: from attorneys and other companies is you follow the most

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Speaker 1: stringent one. And that way, when let's see had a

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Speaker 1: data breach in a South Dakota who just passed their law,

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Speaker 1: if you're already following California and New York's laws, you're

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Speaker 1: going to be We're gonna we're gonna have to pick

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Speaker 1: this up again next time. That's Daniel Stoler, Bloomberg Law

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Speaker 1: Senior Legal Editor. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on bloomberg dot Com Slash Podcast. I'm June Brasso.

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Speaker 1: This is Bloomberg