The Securities Exchange Commission Office of Investor Education has issued a recent bulletin concerning financial advisors. The SEC and FINRA have been under a great deal of pressure. Both Congress and consumer groups are looking for evildoers. So, the politically easy reaction is to attack financial advisors.

Financial advisors are regulated and their records are kept into primary locations. One is the industry‘s secure reporting system and the other one is open to the public. The one open to the public is Broker Check. It is easily available online to the public. The Broker Check report includes a list of the broker’s registrations, his/her licenses, previous employment, customer disputes, and any disciplinary actions.  Any accusations of professional misconduct are readily available online.

The investment advisor public disclosure website has more background information. Information can also be obtained from state regulatory agencies. Most states have their own agency regulating financial advisors and investment vehicles. There are other web sites and online locations to look. Yahoo Finance has information both on current market activities and financial advisors. Forbes magazine, likewise, at Forbes.com. Some security lawyer websites and blogs also have lists of misdeeds. My own website security law website lists alphabetically and defines the myriad of misdeeds wrongful actions and crooked activities of bad stockbrokers.

The SEC maintains regional offices which you can locate online at the SEC website. Offices in Miami and Atlanta have over 150 full-time SEC lawyers who are charging criminally for violations of the securities act.

If you believe you have been the victim of a financial fraud, you can contact the SEC. The SEC is a government agency created by statute. It has both enforcement and regulatory responsibilities.  FINRA is not a government agency. It is a quasi-public quasi-governmental agency. It functions as a dispute resolution form. If you contact FINRA, which maintains a readily accessible website, you can find out how to begin an arbitration proceeding against a financial advisor. There was an expedited process for claims under $25,000, which can easily be done without an attorney. You will be assigned one arbitrator who will hear your complaint and make a finding. For man is in excess of $25,000 a three-panel arbitration board is convened for the arbitration.

As recently as August 6, 2014, the New York Times reported that Justice Ruth Bade Ginsberg has commented on the Supreme Court’s recent decisions, saying that while gay and lesbian rights move ahead, women’s rights have moved off the Court’s radar.  Her comments were that she sees “inconsistency.”

Ginsburg

Source: huffingtonpost.com

Now, no one is suggesting anything sexy about the Court, but their sexitics (sex + politics) is being analyzed, reviewed and digested and has been in the news.  As recently as June 2014, the Supreme Court has ruled that same-sex couples have the right to equal treatment in some clearly defined legal matters.  And, during the same term, the Court has created law that corporations are persons and have religious views and rights.

The fiction of corporations as persons (just as humans are persons) has been used by the Court to give corporations the right to participate in elections and, now, to challenge women’s rights.  The Court is playing this as if it were a trump card. It is assigning human rights to corporate personhood and equating those rights and powers with human personhood.   Now the Court has gone on to use this new concept of “corporate personhood” to restrict women’s rights, and Justice Ginsberg’s reaction is in the news. This modest comment is a powerful statement that the sexitics of the Court is out of balance.  Court followers agree that her stance on “sexitics” on the Court may push her to remain on the Court beyond her hoped-for retirement, and champion women’s rights.  Justice Ginsberg’s comments were made before a law school audience.  Her reported comments are that the Court writes of “equal dignity” and fundamental values in gay rights cases, but the Court is retreating on women’s’ rights issues.

From our perspective, in the courtrooms, it is foreseeable, and I’m forecasting here, that the Supreme Court may soon declare that marriage is a union between persons, and that the sex of the persons does not bear in the legal considerations and rights of marriage.  The clear trend of this Court is to push back on women’s rights.  If you review the recent decisions on medical leave, equal pay for equal work, and abortion and contraception rights in the Court’s recent decisions involving “Obama Care,” the trend appears like a rollback.  Re-read the “Hobby Lobby” case and see how the Court has created a right for corporations to have religious views on non-religious issues and trump a woman’s access to contraception.  Define religious issues as having to do with faith and spiritual matters and a woman’s right to control her body’s reproductive capacity and you can find a defining line between one’s beliefs in spiritual matters and social issues such as reproductive rights and personal choice on access to contraceptives.

Yesterday, the government made public the set of internal rules that are used to compile the list of names on the infamous No-Fly list. Now, the right of U.S. citizens to move among and between the States has its roots in the U.S. Constitution. The Commerce Clause, the Comity Clause, and the Due Process Clause are all the fundamental laws on the right to travel. When the government tells citizens of the U.S. that their right to unfettered travel has been removed, it gets civil and human rights groups, as well as business interests to take action. And it has.

300px-FBISealThe fact that air travel is only one of many ways to travel makes the No-Fly rules difficult to challenge constitutionally. Those alternative methods of transportation keep the No-Fly rules insulated from primary constitutional law, but not from the rule making Due Process Clause (which is the rule making law). In fact, the Due Process Clause is what is behind the apparent open view policy, which forced the Justice Department and the Transpiration Department to make the No-Fly list rules public in the first place. And although the rules have now been made public, there is no reason to believe that the screening process will become lenient, but at a minimum, the public will see more transparency in the process by which the who, why and when of how names are placed on the No-Fly lists and how they are removed.

As we know, security on domestic air travel is a government function. Screening, for national security purposes, was done under the procedures set out in a document, previously secret, identified as “Watchlisting Guidance.” The procedures were most recently updated in March 2013, and were not available to public scrutiny. All that changed when an online magazine, “The Intercept” obtained “Watchlisting Guidance” and revealed that they had the document. The response from Attorney General Holder was to make the document public. This response is in itself of no real consequence because the next day the internal document and its guidelines were reportedly re-issued and remains secret.

For you to see the skeletal documents that outline the purpose directed policy, one can refer to a 2011 document, which contains a set of rules that the F.B.I. disclosed previously. Other places to look for a quick read are an affidavit from Attorney General Eric Holder and the ruling from a Federal Court judge in Oregon. Attorney General Holder has maintained that the Watchlisting Guidance should remain out of public scrutiny, and the courts are most likely not to force the document into the public domain.

What is, however, of both practical and legal significance is that the government is yielding to transparency over secrecy, and still striving to maintain a high level of security for domestic and international air travel. For individuals, it means that a process and procedure may soon be in place for those who are banned from plane travel to have their status reviewed in a rational and considered forum. Either the government will accede to this or face continued legal battles for a process to review.

Korean Air Lines Shoot Down

Source: www.newsweek.com

Unfortunately, the firing of a missile at Malaysian Airlines Flight 17 is not the first, but one many of such incidents. Here is a list:

  • Libyan Arab Airlines Flight 114, a Boeing 727, was shot down on February 21, 1973 when it strayed over Israeli territory, refused to land, and was shot down.
  • Korean Air Lines Flight 902, was shot down on April 20, 1978 by Soviet Su-15 fighters after entering Soviet airspace and it failed to respond to demands to land.
  • Air Rhodesia Flight RH825, was shot down on September 3, 1978 by Zimbabwe People’s Revolutionary Army by using a Strela-2 missile.  After it crashed, the fifty-six survivors were killed by the Revolutionary Army troops.
  • Air Rhodesia Flight RH827, was shot down on February 12, 1979 by the AIPRA guerrilla army, again using a Strela 2 missile, the same as the previous shoot-down of September 3, 1978.
  • Aerolinee Itavia Flight 870, was shot down by NATO jet fighters on June 27, 1980.  This downing is disputed and there is some report that there was a bomb on board, however Italian Prime Minister Francesco Cossiga attributed the downing to French interceptors used in the Gadio “clandestine” operation.
  • Korean Air Lines Flight 007, was shot down on September 1, 1983 by Soviet Su-15TM fighters west of the Soviet “secret” airbase at Sakhalin Island.  Congressman Larry McDonald was on that flight and died.
  • Polar 3, a research airplane, was shot down on February 24, 1985 by the Polisario Front, a guerrilla army operating in West Africa.
  • Air Malawi 7Q-YMB, shot down on November 6, 1987 over Mozambique: a civil war was in progress there and the shoot-down is attributed to participants in the civil war.
  • Iran Air Flight 655, was shot down on July 3, 1988 by U.S. guided missiles fired from the guided missile cruiser USS Vincennes. The U.S. later apologized and attributed it to a “mistake:” the US. said it thought the commercial airliner (an Airbus A300) was an Iranian F-14 giving false signals that it was a commercial flight.
  • T&G Aviation DC-7, was shot down on December 8, 1988 over the western Sahara desert by the Polisario Front.  The aircraft was a DC-7 used to spray insecticide as a public health goodwill gesture to control a locust outbreak.
  • Transair Georgian Airliner shot down in September 1993 by missiles and gunfire from the former Soviet republic Georgia.
  • In September 1993, three airliners belonging to Transair Georgia were shot down by missiles and gunfire in Sukhumi, Abkhazia, Georgia.
  • Lionair Flight LN 602 was shot down in September 29, 1998 off the coast of Sri Lanka.  Although unproven, it is widely believed to have been shot down by the Liberation Tiers of the Tamil Eelam rebel group operating in Sri Lanka.
  • Siberia Airlines Flight 1812, shot down October 4, 2001 by Ukrainian missiles fired from the Crimea peninsula.  The missile was mistakenly fired during a military exercise.  The President of Ukraine, Leonid Kuchma expressed condolences but never confirmed responsibility.
  • DHL freight aircraft, November 22, 2001, damaged by a mid-air missile strike managed to land with wing damage inflicted by a missile.   It had just taken off from Bagdad, Iraq.
  • Mogadishu TransAVIAexport Airlines Il-76, shot down March 23, 2007 over Somalia.  The missile was reportedly fired by a Somalian private army during the battle for Mogadishu, a conflict by private warlords for Somalia.

The news of July 9, 2014 from Iraq is that 90 pounds of uranium compounds have come into possession of the Islamic State In Iraq and Levant (ISIS).  The uranium was obtained from a university laboratory in Mosul, a city in Northern Iraq that is occupied by ISIS and is beyond the control of the Nation of Iraq.  A spokesperson for the International Atomic Energy Agency has officially notified the United Nations in New York of these developments.

The International Atomic Energy Agency Convention on the Physical Protection of Nuclear Material obligates the signing nations to protect nuclear facilities and material in peaceful domestic use, storage and transport.  The treaty, entered into in 1987 and modified in 2005 has 150 nations as “signatories”.  The treaty covers the “low grade” nuclear material stolen by the ISIS.  The International Atomic Energy Agency, in its press release, indicated that the nuclear material is not suited for atomic explosive weapons, but may be used in “dirty” bombs.  A dirty bomb is a conventional explosive device embedded in radioactive material.  The conventional explosives would spread the nuclear material and contaminate the explosive radius with levels of radioactivity that exceed acceptable levels of exposure for humans.

There is no judicial venue for enforcing agreements signed by nations.  The Charter of the United Nations has a process for member nations to bring treaty violations before the Security Council, but no enforcement process exists.  The United Nations created the International Court of Justice (ICJ) as a court for nations to litigate disputes in accord with international law.  International Court of JusticeThe ICJ has been a forum of limited jurisdiction and has been a court where some member states go to seek resolution of disputes.  The limitation of the court is it has no enforcement powers.   Because the ICJ cannot enforce any of its rulings it has declined to take cases where the outcome would require enforcement.  By example a civil court in the United States can use contempt powers to arrest and detain and fine persons who fail to comply with Court orders.

The Security Council of the United Nations, under Chapter VII, can impose sanctions on member nations that threaten international peace and security but does not and has not invoked Chapter VII in matters that would require actual enforcement.   At this time a violation of the Convention on the Physical Protection of Nuclear Material by ISIS may be beyond the powers of the ICJ to act and, for political reasons, the Security Council may not invoke Chapter VII.   Individual citizens cannot force nations to comply with their treaty undertakings with some limited exceptions: The United States Supreme Court has, over the past 120 years, permitted some banks and corporations to sue in Federal Court when they are financially harmed by inaction or non-compliance by signatory nations to some treaty obligations.

The FBI announced changes to its interrogation protocol when investigations concern national security.  Newer rules would allow profiling techniques, such as, mapping of certain ethnic groups.  In past years, civil rights concerns were raised about the use of racial profiling.  The FBI changed its interrogation policies as a result of those concerns.  In June of 2014, the FBI began to circulate a change in its new guidelines to permit racial profiling in national security investigations.  In a release that was made to civil rights groups and in a letter sent to Congress, the policy changes were announced.

In 2006 and 2007, internal investigations undertaken by the FBI revealed abuses involving surveillance, credit card information and telephone logs of racially targeted persons or groups. The report suggested that the use of racial profiling was condoned in domestic criminal investigations and was shortly stopped.  In 2007, a set of guidelines was issued and policy changes were made in FBI investigations.  The breadth of the guidelines to limit or reduce racial profiling has impacted, according to the FBI, national security investigations and accordingly, those restrictions will be lifted.

The FBI said that the current rules made it difficult for agents to conduct terrorism probes.

Source: ACLU.org

Source: ACLU.org

The Director of the American Civil Liberties Union’s Washington legislative office, Ms. Caroline Fredrickson, issued a press release opposing the changes in 2007.  Ms. Fredrickson’s comments were that removing restrictions on national security investigations would “…allow for racial profiling without question.”  Ms. Fredrickson’s comments were generally received as accurate, although the FBI statement reiterated that civil rights would not be violated with the change in investigatory techniques and protocols and limited the permissive use of racial profiling to only national security matters.  The FBI said that once an official of the FBI notifies the suspects of the nature of the investigation that the racial profiling limitations would apply from that point forward.  Due to the focus on terrorism, the FBI did not permit either a careful study or review of its proposed changes when it circulated the draft to members of the press and civil rights groups.

The new guidelines would replace FBI guidelines issued in 2007.  An FBI official said the new rules are crucial to helping the bureau become “an intelligence-driven agency that is not waiting for things to fall on our doorstep, but actually looking proactively for threats within the country.”

Racial profiling, which targets persons on their race or ethnicity, has been the focus of the American Civil Liberties Union’s requests to end profiling.  The FBI has said that race and color are not considerations in selecting investigation targets or investigations.  The use of national origin has given rise to FBI investigation techniques that catalog visual and facial clues, which it believes is a tool in investigations in national security, matters.  Law enforcement finds that racial profiling is a useful investigative technique.  By example: sexual battery is most commonly a crime involving a female victim and a male perpetrator.  In an effort to reduce sexual batteries, law enforcement may use sex as a factor.

Other examples of racial profiling that the FBI will use in national security investigations are statistically justifiable findings as to the national origin of terrorist.   By example: Few terrorist suspects are of German birth while a significant number of suspects are of Saudi or Pakistani birth.  It is argued that without profiling based on provable commonalities among suspects that investigations would be hampered, assets misappropriated and some preventable terrorist acts would not be discovered due to the mis-application of limited investigatory resources.

Obama Care (the Affordable Health Care Act) requires health insurance provide birth control benefits. The Hobby Lobby case tells us you don’t have to if you are a closely held corporation (4 or fewer stockholders) and you have bona fide religious objections to birth control.

Source: http://www.popsugar.com/Hobby-Lobby-Birth-Control-34447944

Source: http://www.popsugar.com/Hobby-Lobby-Birth-Control-34447944

The decision is seen as an end run to, in effect, backdoor reproductive and privacy rights by framing the issue as a question that can be decided under the Religious Freedom Restoration Act of 1993. What has upset an entire universe of people, from women’s rights and gay and lesbian rights to, and including, civil rights advocates is the Supreme Court’s willingness to allow this obvious subterfuge.

In deciding the case, the Court agreed to look only at the Religious Freedom Restoration Act of 1993’s procedural processes. The Court went to great pains to say this case has nothing to do with abortion rights and civil rights, and that is why the Court is being attacked.  In its written decision, which is being called intellectually dishonest, the U.S. Supreme Court decided that regulations promulgated by the Department of Health and Human Services under the Patient Protection Act violated the “burdensome” test of the Religious Freedom Restoration Act.  The (RFRA) prohibits the Government from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability unless the Government demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.  Because the Court found that four of the contraceptive coverages “burdened” Hobby Lobby’s right to religious expression, the Court struck the four contraceptives from the insurance of employees of Hobby Lobby.

The Court made great efforts to calm the waters by reminding the reader to keep in mind that this case was not a first amendment religious freedom case.  Nor, so the Court wrote, is it a privacy or a women’s rights case, an abortion rights case or a civil rights case.  The Court was clear that it was only deciding on the issue of burdensome regulations as it affects rights of payers of medical insurance to impose their own religious beliefs. Critics of the decision accuse the Court of  trying to change the relationship of government and religion with this decision.  Critics say  the legal “mechanics” is a  slight of hand by the Roberts Court.

The U.S. Supreme Court accepted and will rule on the Anthony Elonis case in the Court’s upcoming Fall term.  The Elonis case involves a man who was found guilty and sentenced to over three years in prison for posting threats to his wife on Facebook.   Because of the Supreme Court’s recent decision on cellphone searches, commentators are anticipating that the Elonis case will make new law on internet social sites and First Amendment free speech.facebook  With the way our Constitution is set up, the Supreme Court doesn’t “make” law, it resolves conflicts from lower courts and clarifies issues of constitutional law.  In this situation, there  are major conflicts in rulings from various States concerning their criminal laws and those of federal courts interpreting federal law.  The Elonis case is also about internet (like books, or newspapers, or letters, or radio), each medium is, as Marshall McLuhan says,  the message.    The Supreme Court has to address the question: Does that matter?  Internet social sites are a medium for both  conveying  political speech and personal “posts.”  If there is a line, the Supreme Court is expected to focus on that issue.

The conflicting interpretations from lower courts hinge on what the “speaker” intended, as opposed to what the “hearer” understands.  One line of cases hold that a threat is a statement only if  the speaker meant to communicate it as a threat to an individual or a group   (Watts v U.S.).  Other lines of decisions hold that if a reasonable person would see it as a threat then it is not protected speech, regardless of the intent of the speaker.   Elonis’s defense is that his threats, some of which are composed in patterns used in rap music, are protected free speech.

This issue has a long history of litigation both in State and Federal courts.  One federal opinion arose from  a Vietnam War protester who, in front of a protest group said, ”If I’m drafted into the army and they give me a rifle, the first person I’ll put in its sites is the President of the United States.”  Is that protected political speech or a threat to kill the President of the United States?  How about burning a cross?  Is that political speech or a threat against African Americans?  How about burning a copy of the Koran?  Is that protected speech or should I be criminally prosecuted because a Muslim neighbor of mine perceived this as a threat to himself and his family?  Now consider rap music in which the artist goes on about killing police.  Is that a threat to police or protected free speech.

The Supreme Court can, and will, decide on what is the question before they give us an answer.  What most commentators are saying is that this case will make new law because it involves the Internet.

More than 65,000,000 (one in four adults) people in the U.S. have some form of criminal record. For each of them the consequences of a criminal record carries both legal disability and a social and economic stigma. Collateral consequences of a conviction impose legal restrictions including the loss of civil rights, voting privileges, disqualification from many professions, loss of economic opportunities from lenders, credit providers, educational opportunities and grants, public assistance and publicly funded training programs. The U.S. Congress has convened a Task Force under the House Judiciary Committee.overcriminalization  The bipartisan Over-Criminalization Task Force has conveyed and taken testimony.  The National Association of Criminal Defense Lawyers has appeared before the committee to provide the House with information and insight.  The Task Force will study and produce suggestions to address the collateral consequences on the federal level.  The committee has heard testimony that across the board mandatory collateral consequences be eliminated.

Expected findings are that the collateral consequences fall disproportionately on racial and ethnic minorities.  Many members of Congress were clearly looking for information and guidance from criminal justice activists and the Department of Justice. The issue involves the loss of productivity and the total economic and social costs borne by the U.S. economy when persons with criminal records cannot become tax-paying citizens and become less productive or non-productive members of the community.

The Task Force will study and consider changes in the laws and policies so that as a national policy the nation will:

  1. Seek to end second-class legal status and stigmatization of persons who have completed their sentences;
  2. Only impose collateral consequences for specific offenses and not all convictions;
  3. Impose collateral consequences on recent offenders and create a route for consequences to be eliminated with the passage of time and proof of improved conduct;
  4. Restore legal rights and status upon completion of sentence;
  5. Design and implement a program whereby individuals can earn the right to end collateral consequences;
  6. Permit individuals charged with a crime to avoid collateral consequences by court-sanctioned programs;
  7. Encourage decision makers such as lenders and landlords to review on a case-by-case basis individual offenders who have had collateral consequences lifted;
  8. Fund States to purge old in inaccurate criminal records;
  9. Encourage criminal lawyers to seek avoidance of collateral consequences in plea negotiations; and
  10. Fund public education programs.

For more information, read:

NACDL’s Executive Summary of its report: “Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest or Conviction”

This week, the U.S. Supreme Court released a unanimous decision on cell phone searches by the police.   It is now a requirement for police to have a search warrant to search a cell phone.
supreme ctThe Supreme Court observed citizens are under increasing governmental surveillance.  Face recognition software can recognize individuals with 20% of the  face covered.  Cellphones and mobile devices can be triangulated to location.  Voice recognition identifies individual voices, and artificial intelligence systems listen, screen, discern and know who said what to whom when and where.  Ten years ago the fractionated accumulation data did not mean anything other then geewizz tech stuff, until, the Justices observed, law enforcement agencies collected and collated the data to track individuals without a warrant.

The Supreme Court decision requiring warrants for cell phone searches stated that the assembling of available data to track citizens has constitutional implications.   May the government  assemble data to track citizens without a warrant is the issue.    The public debate goes from: “If I’m doing nothing wrong, then I have nothing to hide.”  To: “If I’ve done nothing wrong, I have nothing to prove.”   The landmark ruling holds:  a cellphone taken off a person in custody cannot be examined and used as a window into derivative content.   To do that, the police must obtain a warrant.  Getting a warrant means they have to present information to a neutral magistrate (Judge) that justifies probable cause that a crime has been committed or is being committed.

This is the first of what will be a decades long series of cases, as yet unfiled and as yet unimagined, to test the limits of governmental accumulation of seemingly harmless information.  Supreme Court decisions have recognized  a right of privacy, but commentators correctly point out that there is no constitutional language creating it.  It is argued that privacy rights have been spun of whole cloth by judges wanting  to create a legal concept of privacy rights without a constitutional basis.    Privacy has been defined as acts, thoughts, or exploits to the edge of an individual’s emotional and moral compass that are protected from governmental regulation.    Embodied in constitutional structure,  the Bill of Rights, grants government  limited powers.     The Supreme Court has given  a frame, a skeleton, upon which the law can flesh out limits that let government govern conduct but not rule lives.  Defined as such, the Court ruled,  it is reasonable for a warrant requirement before an intrusion.

For more information, read: