WEBVTT - Massive Camera Hack Shows Big Brother Is Watching 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio, 0:00:09.200 --> 0:00:12.200 Rachel Holliman, do you risk your life for your son? 0:00:12.520 --> 0:00:14.560 Who are you as a car park at the corner 0:00:14.560 --> 0:00:17.960 of his block? That you start walking? Allow directions? You'll 0:00:18.000 --> 0:00:19.880 left through this? How are you seeing us right now? 0:00:20.320 --> 0:00:24.800 Somebody's had In the movie Eagle Eye, two people's lives 0:00:24.800 --> 0:00:28.400 are thrown into turmoil by calls from an unknown woman 0:00:28.440 --> 0:00:32.880 who knows their every move using information and communications technology. 0:00:33.159 --> 0:00:35.800 Big brother watching is a theme in many sci fi 0:00:35.880 --> 0:00:38.720 and action movies, but a recent hack of a massive 0:00:38.800 --> 0:00:42.520 trove of security cameras may show how close to reality 0:00:42.600 --> 0:00:46.640 that's becoming. A group of hackers who breed security cameras 0:00:46.720 --> 0:00:49.600 start up for Kanna were able to view the live 0:00:49.720 --> 0:00:55.120 feeds and archive videos of one fifty thousand cameras inside hospitals, 0:00:55.200 --> 0:01:00.760 police departments, prisons, schools, jails, factories, gyms, and corporate offices, 0:01:01.160 --> 0:01:03.400 and one of the hackers said they've found a user 0:01:03.520 --> 0:01:07.480 name and password for an administrator account publicly exposed on 0:01:07.560 --> 0:01:10.639 the internet. Joining me is Rena baje Vala, a partner 0:01:10.640 --> 0:01:14.440 and Ice miller. What kind of privacy do you have 0:01:14.680 --> 0:01:18.280 when you enter a public facility. Let's say you go 0:01:18.360 --> 0:01:21.720 to a hospital or a police station. Do you have 0:01:21.800 --> 0:01:25.160 any privacy rights when you're at in public The answer 0:01:25.240 --> 0:01:29.360 is it depends really on the place you are entering. 0:01:29.760 --> 0:01:32.480 For example, on one end of a spectrum, if you 0:01:32.560 --> 0:01:36.560 are in a correctional facility, your right to privacy is 0:01:36.720 --> 0:01:40.880 very limited there. The way that the privacy laws work 0:01:41.040 --> 0:01:46.080 in the United States is sector specific, so certain types 0:01:46.160 --> 0:01:51.240 of businesses have laws relating to the collection and disclosure 0:01:51.280 --> 0:01:55.080 of private information, but as a whole, the country doesn't 0:01:55.120 --> 0:01:58.240 have a national privacy law. So if you walk into 0:01:58.280 --> 0:02:02.000 a health care facility and you are seeking treatment, you 0:02:02.080 --> 0:02:06.400 are covered by HIPPA, But walking into a retail facility, 0:02:06.600 --> 0:02:10.160 you don't have that type of protection. You know, and 0:02:10.320 --> 0:02:14.840 businesses in this country do have the right to surveile 0:02:15.320 --> 0:02:19.920 for security purposes and other legitimate business purposes. I was 0:02:20.280 --> 0:02:23.679 shocked at some of the places where the video cam 0:02:23.840 --> 0:02:26.320 was were and some of the things that were exposed, 0:02:26.360 --> 0:02:30.720 For example, hospital staff ers pinning down a patient to 0:02:30.880 --> 0:02:34.639 a bed. Don't you have any privacy rights inside a hospital. 0:02:35.080 --> 0:02:38.360 HIPPA is one of the most protective privacy statutes that 0:02:38.440 --> 0:02:41.200 we have in the United States. And I've seen that 0:02:41.360 --> 0:02:45.520 the company that was tacked, Kato, had a case study 0:02:45.560 --> 0:02:48.760 on one of the hospital that they work with that 0:02:49.040 --> 0:02:52.840 we're saying that it's a Hippo compliant security system. So 0:02:53.360 --> 0:02:56.760 it's not that there are not privacy right. You know, 0:02:56.880 --> 0:03:00.760 the question will certainly be attracted through litigation in and 0:03:01.000 --> 0:03:04.600 I imagine regulators like the Department of Healthy Human Services 0:03:04.720 --> 0:03:08.040 Office for Civil Rights will be taking a close look 0:03:08.080 --> 0:03:11.919 at this situation and looking at Bocada and its relationships. 0:03:11.919 --> 0:03:16.520 But you know, hospital systems, other health facilities use vendors 0:03:16.520 --> 0:03:20.080 for a wide variety of purposes, and perhaps it's a 0:03:20.560 --> 0:03:27.520 internal risk recording to protect the health facility against legal liability. However, 0:03:27.960 --> 0:03:31.040 the relationship with the video surveillance company was that these 0:03:31.080 --> 0:03:34.000 are supposed to be secure videos. So in a situation 0:03:34.120 --> 0:03:38.240 like that, you know that information being exposed has created 0:03:38.280 --> 0:03:43.080 the liability. Let's say that the prison sues or the 0:03:43.160 --> 0:03:46.080 school sues. What would this suit be based on? I mean, 0:03:46.120 --> 0:03:48.520 does it depend on where they are and what the 0:03:48.640 --> 0:03:51.640 laws are, or does depend on the contract. It's going 0:03:51.680 --> 0:03:54.520 to depend on the contract between the parties. So they 0:03:54.560 --> 0:03:57.960 are going to be provisions and the contract between that 0:03:58.080 --> 0:04:01.839 correctional facility or that health care facility and vocata that 0:04:02.040 --> 0:04:05.840 indicate the scope of liability. There's there are likely detailed 0:04:06.000 --> 0:04:10.119 provisions relating to those privacy and security concerns that we're 0:04:10.160 --> 0:04:12.320 talking about, So it would be a breach of contract. 0:04:12.440 --> 0:04:17.360 Lawsuits likely well. One of the issues be how secure 0:04:17.839 --> 0:04:22.080 the company kept the cameras and the video footage because 0:04:22.320 --> 0:04:28.600 apparently employees had super Redmond privileges and had unrestricted access 0:04:28.640 --> 0:04:34.279 to customers surveillance footage. Absolutely a critical question here is 0:04:34.320 --> 0:04:38.200 going to be access controlled and limiting those controls to 0:04:38.360 --> 0:04:41.680 the need to know basis of individuals. And you know 0:04:41.720 --> 0:04:45.480 that there's a principle called principle of least privilege where 0:04:45.880 --> 0:04:50.159 you manage your access controlled with the default assumption that 0:04:50.240 --> 0:04:53.640 people will not have privileges unless they are required to 0:04:53.760 --> 0:04:56.240 form their jobs. So that is going to get critical 0:04:56.320 --> 0:05:00.120 question going forward. Now, what about the people who have 0:05:00.160 --> 0:05:04.080 been filmed and exposed? What kind of a lawsuit can neighboring? 0:05:04.720 --> 0:05:07.880 So this is a unique situation because in addition to 0:05:08.240 --> 0:05:12.200 the video, there is from what I understand, some sort 0:05:12.200 --> 0:05:15.919 of people analytics service provided. So I don't know what 0:05:16.040 --> 0:05:18.560 the role of that is because that would also connect 0:05:18.760 --> 0:05:23.440 the video to a person and their history, and their 0:05:23.520 --> 0:05:27.680 vehicle history and all types of other publicly available information. 0:05:28.080 --> 0:05:32.680 But in terms of individuals, their main focus likely for 0:05:32.839 --> 0:05:36.240 potential lawsuit would be under tort law. So there are 0:05:36.320 --> 0:05:41.560 privacy tort that include things like unlawfully intruding into someone's 0:05:41.600 --> 0:05:46.080 private affairs or disclosing someone's private information. So you can 0:05:46.120 --> 0:05:50.719 see a scenario where if somebody was in, for example, 0:05:50.760 --> 0:05:54.960 a mental health facility and that video was exposed that 0:05:55.240 --> 0:05:59.640 had an individual in a sensitive situation that was had, 0:06:00.000 --> 0:06:03.320 that individual might be able to make a privacy tort 0:06:03.440 --> 0:06:06.880 claim in a lawsuit. And you know, in terms of 0:06:06.920 --> 0:06:09.799 who they might see, they might do all parties involved. 0:06:10.400 --> 0:06:14.760 I assume the company makes representations about the security of 0:06:14.760 --> 0:06:18.680 its cameras to potential customers. How much does it matter 0:06:18.800 --> 0:06:22.680 if the company fell short in that regard? For example, 0:06:22.800 --> 0:06:26.320 suppose it was actually quite easy for the hackers to 0:06:26.360 --> 0:06:30.440 get these admin privileges. If they fell short of their 0:06:31.560 --> 0:06:38.039 assurances of security, that would create liability under the contract 0:06:38.360 --> 0:06:41.960 for that company. Um, you know, one place to look 0:06:42.200 --> 0:06:48.400 is at what Bricada's advertising statements are. And you know, 0:06:48.440 --> 0:06:50.279 I took a look at their website. They have a 0:06:50.360 --> 0:06:53.479 section on security on their website that goes through in 0:06:53.520 --> 0:06:57.039 detail what their security measures are. Um. You know, companies 0:06:57.080 --> 0:07:00.800 have privacy policies where they indicate in terms of us, 0:07:00.839 --> 0:07:05.040 where they indicate how they will protect your information. All 0:07:05.080 --> 0:07:09.880 of these statements, certainly for your regulators like the FTC, 0:07:10.640 --> 0:07:14.440 will be of critical importance to determining well, if they 0:07:14.440 --> 0:07:18.120 made statements and they did not live up to those statements, 0:07:18.200 --> 0:07:22.040 that creates um exposure and liability both from a regulatory 0:07:22.120 --> 0:07:26.720 perspective and in lawsuits. What's the role of the FTC here? 0:07:27.440 --> 0:07:31.880 So the FTC in particular look at privacy policies and 0:07:32.000 --> 0:07:35.880 where companies have not satisfied their promises that are in 0:07:35.920 --> 0:07:40.560 a privacy policy. The FTC has jurisdiction to investigate and 0:07:40.640 --> 0:07:46.040 bring enforcement actions. What are the regulatory agencies might get involved? 0:07:46.840 --> 0:07:49.880 So the Department of Health and Human Services Office for 0:07:50.000 --> 0:07:54.480 Civil Rights has jurisdiction over healthcare entities, so they would 0:07:54.480 --> 0:07:59.040 be enforcing HIPPA and high tech the related law in 0:07:59.080 --> 0:08:01.880 connection with the health care realm. And then you have 0:08:02.040 --> 0:08:05.960 attorneys general, So the California Attorney General, you know this 0:08:06.080 --> 0:08:10.680 is a California company. We can certainly expect some investigation 0:08:11.120 --> 0:08:16.640 action from the California Attorney General. This conversation and sort 0:08:16.680 --> 0:08:20.600 of the piecemeal regulatory approach to this, heck, bring up 0:08:20.640 --> 0:08:24.920 the question do we need a federal privacy law. I 0:08:24.960 --> 0:08:28.400 think everyone agrees that we need a federal privacy law, 0:08:28.600 --> 0:08:32.160 and that's people on all ends of the spectrum of 0:08:32.640 --> 0:08:39.400 privacy advocacy or protectionism. There is a way to comprehensively 0:08:39.760 --> 0:08:44.320 manage data that does not focus on sector specific or 0:08:44.840 --> 0:08:49.079 state by state laws, and instance like this can help 0:08:49.320 --> 0:08:55.320 motivate legislators to move forward on a federal data privacy bill. 0:08:56.440 --> 0:08:59.080 There are a lot of people have these wireless home cameras. 0:08:59.520 --> 0:09:02.120 What do you have to do to make sure that 0:09:02.200 --> 0:09:06.480 this doesn't happen? Do you have any projection from someone 0:09:06.600 --> 0:09:10.960 accessing what's in the cloud? I think we're relying on 0:09:11.040 --> 0:09:13.720 the companies to have the security, so you know, I 0:09:13.720 --> 0:09:17.520 would I would take a look and vet um the companies, 0:09:17.559 --> 0:09:23.480 but unfortunately there's no guarantee that, uh, you know, anything 0:09:23.520 --> 0:09:27.200 that is connected can be hacked. And so that's really 0:09:27.240 --> 0:09:30.280 where we're going in terms of technology is everything is 0:09:30.280 --> 0:09:33.640 getting connected and interconnected, and we have Internet of things, 0:09:34.520 --> 0:09:39.440 so this is a real concern to push back against that. UM, 0:09:39.559 --> 0:09:46.200 and some states are legislating two ensure that reasonable security 0:09:46.240 --> 0:09:50.680 features are in the Internet of Things devices, like California 0:09:50.800 --> 0:09:55.280 has SP three, which is IoT law. UM. But I 0:09:55.320 --> 0:09:58.040 think that the things you can do is you can 0:09:58.080 --> 0:10:01.400 do as a consumer are make sure you understand what 0:10:01.559 --> 0:10:05.280 the access rights are to your account. So if they 0:10:05.320 --> 0:10:09.600 give you a default password, change that password. That is 0:10:09.679 --> 0:10:12.840 something that is maybe even the simplest. You know, you 0:10:12.880 --> 0:10:17.200 can inquire about what the security measures are, but you know, 0:10:17.280 --> 0:10:20.520 you can't expect every consumer to be an expert in security. 0:10:21.080 --> 0:10:25.600 So you know, the safest root is to not go connected, um, 0:10:25.640 --> 0:10:27.440 you know, and and to not have things stored in 0:10:27.440 --> 0:10:31.480 the cloud. If you can have a simpler camera that 0:10:31.600 --> 0:10:34.040 you know, records a certain amount of footage and then 0:10:34.400 --> 0:10:38.199 you know, rewrites over it. UH, that's a safer place 0:10:38.280 --> 0:10:41.880 to be from a security perspective. UM. But you know, 0:10:42.000 --> 0:10:48.800 convenience UH and technological innovation has has trended towards winning 0:10:48.800 --> 0:10:52.240 out on those on those battles. Thanks Rina. That's Rina 0:10:52.240 --> 0:10:57.400 baje Vala of Ice Miller. The Buying Justice Department is 0:10:57.480 --> 0:11:00.280 using a controversial statute that was a that did in 0:11:00.360 --> 0:11:04.000 nineteen sixty eight, at a time of civil rights demonstrations 0:11:04.040 --> 0:11:07.600 and anti war protests, to charge more than sixty people 0:11:07.600 --> 0:11:10.720 in the capital riots. The law had rarely been used 0:11:10.760 --> 0:11:14.720 since the Nixon administration until the Trump administration began using 0:11:14.720 --> 0:11:17.720 it to charge people in the Black Lives Matters protests. 0:11:18.320 --> 0:11:22.120 Joining me, as former federal prosecutor Michael Zelden tell us, 0:11:22.120 --> 0:11:26.000 the history of the Federal Anti Riot Act. The history 0:11:26.040 --> 0:11:30.119 of the statute, which is sort of dubious in many respects, 0:11:30.400 --> 0:11:35.240 was an effort, I think, to use the powers of 0:11:35.600 --> 0:11:40.600 law enforcement to arrest disrupt those who were engaged in 0:11:41.200 --> 0:11:44.440 acts of civil disobedience. I think that the history of 0:11:44.520 --> 0:11:47.640 this thing was to make sure that the police were 0:11:48.080 --> 0:11:52.640 able to ensure that those who blocked the bridges in 0:11:52.760 --> 0:11:58.360 Selma or involved themselves in protests that led to shit 0:11:58.480 --> 0:12:02.880 ins and closures of commercial establishments could be charged with 0:12:03.040 --> 0:12:08.599 an offense beyond the normal still disobedient type of statutes 0:12:08.720 --> 0:12:10.760 that already were in exist. So I think they have 0:12:10.800 --> 0:12:15.959 a very dubious history. Does that history matter in how 0:12:16.000 --> 0:12:20.959 the statute is used by law enforcement, Well, it doesn't 0:12:21.080 --> 0:12:25.280 matter in a technical legal sense. That is, if the 0:12:25.320 --> 0:12:28.600 statute was passed if its history is sort of for 0:12:28.760 --> 0:12:33.000 bad purpose, That is, they meant this as a statute 0:12:33.040 --> 0:12:38.240 to impose obedience to the state from those who are 0:12:38.360 --> 0:12:44.640 engaged in civil disobedience. That doesn't make the statute infirm legally, 0:12:44.800 --> 0:12:48.480 meaning that if someone chose to use the statute in 0:12:48.520 --> 0:12:52.280 the future for some other purpose other than what maybe 0:12:52.280 --> 0:12:57.240 the legislators had as their original meaning, it doesn't mean 0:12:57.400 --> 0:13:02.320 the statue can't be used. So put other words, it 0:13:02.400 --> 0:13:06.760 may be bad in its intention, but it may be 0:13:07.200 --> 0:13:12.840 legal in its effect. Now, this statute hadn't been used 0:13:13.000 --> 0:13:16.559 since the Nixon era until it was used in the 0:13:16.600 --> 0:13:20.560 Trump administration. Yeah, more or less. I mean, then you 0:13:20.559 --> 0:13:23.480 may find an odd case here or there. But as 0:13:23.480 --> 0:13:28.920 I said, these cases involved cases of civil disorder. The 0:13:28.920 --> 0:13:32.720 statute has a definition that says we shall use this 0:13:32.920 --> 0:13:37.800 when interstate commerce is interfered with in the course of 0:13:37.840 --> 0:13:43.680 a civil disorder, which means any public disturbance involving acts 0:13:43.720 --> 0:13:47.160 of violence or by assemblages of three or more people 0:13:47.679 --> 0:13:51.960 which causes immediate danger of or results in damage to 0:13:52.120 --> 0:13:56.360 injury of property your person. So these are intended to 0:13:57.120 --> 0:14:01.840 disrupt disturbances. And yes, of course, the Nixon administration used 0:14:01.840 --> 0:14:06.440 them against anti war protesters, and the Trump administration used 0:14:06.440 --> 0:14:10.959 them against what they called the Antifa civil disobedient gatherers 0:14:11.000 --> 0:14:14.800 in Portland and Seattle and Minneapolis and other such cities. 0:14:16.120 --> 0:14:20.960 Bill Barr apparently he told his U S attorneys two 0:14:21.840 --> 0:14:27.840 pursue aggressive federal prosecution against protesters in the Black Lives 0:14:27.880 --> 0:14:32.480 Matters movement, and they used this particular statute to do that. 0:14:33.640 --> 0:14:38.000 When Jeff Sessions became Attorney General of the United States, 0:14:38.040 --> 0:14:43.000 he reversed the policy of the Obama administration, which was 0:14:43.160 --> 0:14:49.120 to use judgment in charging criminal offensive. Sessions wanted to 0:14:49.360 --> 0:14:54.200 charge the most serious charge available bar When he became 0:14:54.240 --> 0:14:57.920 Attorney general, also said that he believed that the most 0:14:58.120 --> 0:15:03.360 serious charge availables being used, and particularly he singled out 0:15:03.840 --> 0:15:10.280 the protesters in Oregon and Minneapolis and in Seattle as 0:15:10.640 --> 0:15:14.920 essentially inciting an insurrection. I think was some of the 0:15:15.000 --> 0:15:19.160 languages that he used during his um press statements. And 0:15:19.240 --> 0:15:24.160 so here we find prosecutors bringing this charge eight United 0:15:24.160 --> 0:15:27.360 States Code such as two thirty one, which is this 0:15:28.200 --> 0:15:33.680 charging of people of interfering with the police or firefighters 0:15:33.680 --> 0:15:38.040 who are trying to deal with a civil disturbance, and 0:15:38.160 --> 0:15:41.960 they cite that it had a negative impact on interstate 0:15:42.600 --> 0:15:45.560 commerce as they used weapons in order to do this, 0:15:45.680 --> 0:15:51.840 and that therefore this ANSI assemblage statute, the statute really 0:15:51.960 --> 0:15:55.240 had some sense of its origins, as I said, in 0:15:56.000 --> 0:16:01.800 targeting civil disobedient protesters. They've decided to use this statute 0:16:02.080 --> 0:16:06.520 that what they think most promperate charge in cases like this. 0:16:07.200 --> 0:16:12.560 I think that it's problematic from a a charging philosophy standpoint. 0:16:12.640 --> 0:16:16.240 I don't know why this would be the appropriate charge 0:16:16.400 --> 0:16:20.680 to bring when there are all sorts of more straightforward 0:16:20.760 --> 0:16:26.320 statutes like assault on a police officer, destruction of property, 0:16:26.720 --> 0:16:29.280 destruction of the federal property. There are a lot of 0:16:30.080 --> 0:16:35.360 great forward state and federal statutes that governed the behavior 0:16:35.480 --> 0:16:40.000 that they things should be criminalized, and why they're using 0:16:40.040 --> 0:16:44.240 this is not easily from understandable to my politics. So 0:16:44.520 --> 0:16:50.200 more than sixty of the rioters charged in the Capital 0:16:50.560 --> 0:16:55.800 riot have been charged with this civil disobedience charge. Does 0:16:55.840 --> 0:17:01.520 it seem appropriate there? Well? My view of the law 0:17:01.840 --> 0:17:06.399 is that if it's appropriate for one category, it should 0:17:06.440 --> 0:17:10.680 be appropriate for another category. If it's inappropriate for one 0:17:10.720 --> 0:17:15.160 category to be inappropriate for another category. So my politics 0:17:15.400 --> 0:17:18.359 is that if I were a federal prosecutor. I would 0:17:18.400 --> 0:17:21.120 not bring a charge that has this, you know, sort 0:17:21.160 --> 0:17:24.879 of terrible history behind it, and I wouldn't bring it 0:17:25.000 --> 0:17:28.000 in the Portland cases, and I wouldn't bring it in 0:17:28.080 --> 0:17:31.880 the Capital riot cases. I think that there are other 0:17:32.000 --> 0:17:36.280 statutes that get at what you want to charge people 0:17:36.359 --> 0:17:40.000 with without invoking a statue that as such a horrible 0:17:40.080 --> 0:17:43.520 history to it. So what other statutes would they could 0:17:43.520 --> 0:17:48.960 they use in the Capital riots? Illegal entry, staying beyond 0:17:49.400 --> 0:17:54.240 your entitlement to stay, destruction of property, assault on a 0:17:54.280 --> 0:17:57.679 police officer. There may be a murder charge that comes 0:17:57.680 --> 0:18:01.680 out of this as well. So though destruction of property 0:18:01.840 --> 0:18:07.320 and and and assault styled statutes are the most easily 0:18:07.359 --> 0:18:13.439 available for prosecutors to use. You know, I understand that 0:18:13.760 --> 0:18:18.080 what took place at the Capitol was unique, and maybe 0:18:18.160 --> 0:18:21.560 it requires a unique charge to be brought. And it's 0:18:21.640 --> 0:18:26.400 not that this is equivalent to what took place in Portland. 0:18:26.960 --> 0:18:29.359 What took place in Portland, I think is very different 0:18:29.359 --> 0:18:32.359 than what took place at the Capitol. I just don't 0:18:32.400 --> 0:18:36.320 like this statute. And we talked previously about beware of 0:18:37.080 --> 0:18:41.840 impending war on domestic terror and what would that mean 0:18:42.400 --> 0:18:45.000 in terms of the passage of new statutes with the 0:18:45.000 --> 0:18:48.880 application of old statutes to new conduct. This is what 0:18:48.920 --> 0:18:51.520 we talked about in an earlier conversation, and this is 0:18:51.560 --> 0:18:55.120 exactly what we're seeing. This is conduct that I think, 0:18:56.040 --> 0:18:59.680 in many respects has a free speech overlaid to it. 0:18:59.680 --> 0:19:02.760 It may not be exactly on point, but it is 0:19:02.800 --> 0:19:07.720 surely there. And I just don't like statutes that criminalize 0:19:07.960 --> 0:19:11.480 anything that has to do with a free speech, right 0:19:11.560 --> 0:19:15.600 to assemble, right to protest component to it. Is one 0:19:15.640 --> 0:19:19.159 of the reasons that prosecutors are using this is that 0:19:19.200 --> 0:19:23.600 it's a felony with up to five years in prison possible. Well, 0:19:23.640 --> 0:19:27.480 that's a great question, because you know, assault and and 0:19:28.119 --> 0:19:33.600 those types of statutes carry you hefty prison sentences as well. 0:19:33.720 --> 0:19:37.640 I think that their thought is, you know, psychoanalyzing people. 0:19:37.680 --> 0:19:40.120 I don't know, but I think their thought is that 0:19:40.760 --> 0:19:47.480 this is what these protesters did. They interfered with the 0:19:47.520 --> 0:19:52.000 application of police and fire authority in the context of 0:19:52.000 --> 0:19:54.720 a civil disobedience. So the statute is right on point, 0:19:55.320 --> 0:19:58.440 and so they're going to charge it. So I don't 0:19:58.520 --> 0:20:01.400 assert bad motives as to these people because I don't 0:20:01.440 --> 0:20:04.240 I don't know them. I think that they do think 0:20:04.320 --> 0:20:09.119 that this statute is what is most applicable to the behavior. 0:20:09.720 --> 0:20:12.840 I just wouldn't do it myself because I don't like yes, 0:20:12.920 --> 0:20:14.960 I said twice. Now, I don't like its history. I 0:20:15.000 --> 0:20:18.680 don't like what it's how it was intended, and I 0:20:18.720 --> 0:20:23.040 think that it may well be vague um from a 0:20:23.200 --> 0:20:27.439 First Amendment law enforcement standpoint, because you have to be 0:20:27.480 --> 0:20:30.960 part of a civil disorder um when this is taking place, 0:20:31.000 --> 0:20:33.440 and it's really not all that clear to me how 0:20:33.480 --> 0:20:36.800 one wants to define that or how one could have 0:20:37.000 --> 0:20:40.520 defined that as it relates to one's First Amendment right 0:20:40.600 --> 0:20:46.639 to address grievances, protests symbol speak. You know, there are 0:20:46.680 --> 0:20:50.480 several cases in Oregon and where there are similar allegations 0:20:50.520 --> 0:20:54.000 to some of the cases in the Capital, and the 0:20:54.080 --> 0:21:00.200 defense there is challenging the use of this statute is 0:21:00.240 --> 0:21:04.040 their legal challenge. But as I understand it, as I 0:21:04.160 --> 0:21:10.240 best understand it, it is again that this statute, the 0:21:10.359 --> 0:21:15.399 application of this statute to this conduct is inappropriate. That 0:21:15.600 --> 0:21:20.000 what this person did is not a violation of of 0:21:20.240 --> 0:21:24.120 of two one, that he may be chargeable with some 0:21:24.200 --> 0:21:29.800 type of assaultive conduct with respect to spraying the bare spray, 0:21:29.960 --> 0:21:35.000 But it wasn't an effort to disrupt the police in 0:21:35.040 --> 0:21:40.680 the context of a civil disorder implicating interstate and foreign commerce. 0:21:40.760 --> 0:21:43.639 I think that they're taking a technical defense. This statute 0:21:43.880 --> 0:21:47.240 doesn't apply, and in addition, if it were to apply, 0:21:47.840 --> 0:21:55.119 it is unconstitutionally vague. And what's the prosecution's response. The 0:21:55.160 --> 0:21:59.480 prosecution is saying that we are using this statute in 0:21:59.520 --> 0:22:06.160 a very narrow context, that it is the application of 0:22:06.200 --> 0:22:11.920 the statute in respective conduct as relates to the federal 0:22:12.119 --> 0:22:15.520 government business being conducted. There was an assault on the 0:22:15.560 --> 0:22:20.080 federal courthouse, and so they're saying that in this case 0:22:20.680 --> 0:22:27.080 has narrowly applied in the circumstances. The statute is legitimate, 0:22:27.200 --> 0:22:33.800 it's not overly broad, and it's appropriately targeted to the 0:22:33.840 --> 0:22:38.320 type of violent conduct that the individual charge with it 0:22:38.760 --> 0:22:41.240 engaged in. And they have photos of him with pepper 0:22:41.400 --> 0:22:45.639 spray and with a knife and things of that sort. 0:22:46.119 --> 0:22:50.040 But the defendant is saying, this is an overly broad statute, 0:22:50.040 --> 0:22:52.919 it's unconstitutional, doesn't shouldn't apply to me. It should be 0:22:52.960 --> 0:22:57.080 struck down as an illegal statute, as a government saying no, no, no, 0:22:57.600 --> 0:23:00.080 as it was applied to you in this case with 0:23:00.119 --> 0:23:02.600 respect to the conduct that you engaged in at that 0:23:02.720 --> 0:23:08.160 point in time. It's perfectly appropriate, lawfully applied, and framed 0:23:08.200 --> 0:23:12.840 in a constitutionally adequate way. So our federal prosecutors in 0:23:13.000 --> 0:23:18.359 d C concerned about what happens, what the ruling is 0:23:19.119 --> 0:23:23.800 in Oregon as far as the statute is concerned. Yeah. 0:23:23.840 --> 0:23:28.280 Of course, if this case were to go forward and 0:23:29.080 --> 0:23:32.000 the court were to rule, for example, that the statute 0:23:32.240 --> 0:23:37.560 was unconstitutionally vague, it was overbroad, or it was inappropriately 0:23:37.640 --> 0:23:40.760 applied in some way, that would have a ripple effect 0:23:40.840 --> 0:23:46.800 on the charges that were brought against the January six insurrectionists. So, 0:23:48.280 --> 0:23:52.639 because they're used in both places, any case that goes 0:23:52.680 --> 0:23:58.240 first had become president for how it's interpreted down the line. 0:23:58.800 --> 0:24:05.400 So Yes, and UM not sure that this case will 0:24:05.440 --> 0:24:08.240 continue to go forward, that the U. S. Attorney will 0:24:08.480 --> 0:24:12.240 continue to prosecute under this statute because of that the 0:24:12.359 --> 0:24:15.240 ripple effect that they may decide and as they're doing 0:24:15.280 --> 0:24:18.400 with many other cases in Oregon, which is dismissing them 0:24:19.600 --> 0:24:24.320 and allowing the state to bring the more appropriate charges 0:24:24.359 --> 0:24:26.920 that we've been talking about, the type of assault charges, 0:24:27.000 --> 0:24:32.159 destruction of property, UH charges, failure to obey a police 0:24:32.160 --> 0:24:37.840 officer type of charge. Those federal cases are being dismissed 0:24:37.840 --> 0:24:42.360 in favor of the more direct state cases. And we've 0:24:42.359 --> 0:24:44.800 seen this before. We've seen this. For example, in the 0:24:44.920 --> 0:24:48.600 Rodney King case, they were assault charges brought under the 0:24:48.640 --> 0:24:53.240 state laws of California. When those cases didn't proceed well, 0:24:53.800 --> 0:24:57.560 they then decided that they would bring a federal Civil 0:24:57.640 --> 0:25:04.000 Rights Act violation charge against the officers. So normally you 0:25:04.240 --> 0:25:08.920 start with the statutes that apply most directly, in my 0:25:09.160 --> 0:25:11.680 opinion as a prosecutor, and then though in this case, 0:25:11.720 --> 0:25:15.400 those would be the state styled charges, and then you'd 0:25:15.400 --> 0:25:18.920 see how it evolved if, for example, you were able 0:25:18.960 --> 0:25:22.159 to convict the individuals that you want to convict or 0:25:22.760 --> 0:25:28.359 assault on a police officer, destruction and government five year plus, 0:25:29.320 --> 0:25:32.719 Why we do then need to bring a federal charge 0:25:32.840 --> 0:25:39.800 using this statue. It's terrible past and possibly aspect to 0:25:39.920 --> 0:25:43.199 it when you don't have to. So I like to 0:25:43.240 --> 0:25:47.600 proceed from that which is most easily proved, most directly chargeable, 0:25:47.920 --> 0:25:51.639 and leave these more obscure statutes to another day. Despite 0:25:51.680 --> 0:25:54.800 that your preference, and you're right, the U. S. Attorney 0:25:54.800 --> 0:25:57.840 important has dropped more than thirty of the nine cases. 0:25:58.160 --> 0:26:01.280 If they decide to go forward. Is this an uphill 0:26:01.320 --> 0:26:03.960 battle for the defense to get the charges dismissed on 0:26:04.000 --> 0:26:07.080 this basis? I think so yes, Because remember what we 0:26:07.119 --> 0:26:11.120 said at the very outset of our conversation was, while 0:26:11.200 --> 0:26:14.800 the statute has a sort of bad history, and while 0:26:15.000 --> 0:26:18.720 the proponents of it I think had bad political motives 0:26:18.720 --> 0:26:23.600 and enacting a statute like this, those motives don't in 0:26:23.680 --> 0:26:28.760 and of themselves make the statute legally infirm. And so 0:26:29.040 --> 0:26:34.359 if the statute is legally correct, the defense citing the 0:26:34.640 --> 0:26:38.320 history of it doesn't win. They maybe win in a 0:26:38.359 --> 0:26:41.720 court of public opinion, but they don't win in a 0:26:41.760 --> 0:26:47.919 courtroom that is determining whether the statute is constitutional or unconstitutional. Usage. 0:26:48.520 --> 0:26:50.920 Thanks for being on the Bloomberg Lawn Show. Michael. That's 0:26:50.960 --> 0:26:54.560 former federal prosecutor Michael Zelden, and that's it for the 0:26:54.560 --> 0:26:57.480 sedition of the Bloomberg Law Show. Remember you can always 0:26:57.480 --> 0:27:00.119 at the latest legal news on our Bloomberg Lawn Podcast US. 0:27:00.320 --> 0:27:03.320 You can find them on Apple Podcasts, Spotify, and at 0:27:03.480 --> 0:27:08.800 www dot Bloomberg dot com, Slash podcast Slash Law. I'm 0:27:08.880 --> 0:27:11.880 June Grosso. Thanks so much for listening. Please tune into 0:27:11.880 --> 0:27:14.159 the Bloomberg and Wall Show every week night attend in 0:27:14.240 --> 0:27:16.440 Eastern right here on Bloomberg Radio,