Changing Position on Insular Cases, Voting Rights

Is this lawsuit for real? Bloomberg Law with June Grasso from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm Kimberly Robinson and I'm Greg Store. We're in for Jane Grasso. Coming up on the show allegations of voter fraud in

Florida and a big new whistleblower complaint against Twitter. But first, the Justice Department is under pressure to change positions and depending Supreme Court case and called for the justices to overrule a series of cases that critics say makes resident of US territory second class citizens with US isn't aware of equally American who represents the plaintiff in the case versus United States? Thanks for joining us my pleasure. I'm

glad to be on your show. So before we jump into the cases that you're asking the justices to overturn, these so called insular cases, can you tell me about what you're asking the justices to do here? What is it that your clients are asking for in this case?

So I represent John City c Manu and other individuals born in American Samoa who are now currently living in Utah and under discriminatory federal statute despite being born on US soil, the federal government does not recognized in the citizens, instead labeling them with the subordinate status of non citis

the national. So this means they have US passports, they're Americans, but they're not citizens, and their passports and facts have a disclaimer in them saying that the bearer of this passport is a national, but not a citizen of the United States. Now whatever that means, I mean that is

incredibly confusing to lawyers, much less to my clients. And so as a result, they can't vote in state or federal elections, they're ineligible for certain jobs, and all they're asking the court to recognize is what citizenship clause of the Fourteenth Amendment already guarantees that if you're born on sovereign ust soil, you have a rights of citizenship. And so you said earlier that there's actually a citizenship clause in the Constitution that says, if you're born on American soil,

then you are an American citizen. And yet the territories are subject to these statutes. And that's where these insular cases come in. Right, Can you tell us a little bit about this series of cases and what it is

that they held. And so the instant cases are a series of Supreme Court decisions decided following the Spanish American War, when the United States found itself with these overseas territories like Puerto Rico and Guam that were inhabited by population that the Supreme Court justices disparaged as alien races, savages, uncivilized,

unset to be U S citizens. And up until the Constitution had always recognized and lawyers had always recognized that should the United States acquire areas the US territory, the people born there would have a constitutional rights of citizenship. Those territories would be on the past to statehood. But with the acquisition of these overseas territories, political leaders didn't

want to extend those rights. The United States wanted to join the Club of Imperial Nations, and the only thing really standing in the way of that was the U. S. Constitution. And so eventually, in a few years after the executive

brand mentioned, Congress try to buzz the lines. These questions came to the U. S. Supreme Court, which essentially ruled that Congress has discretion to act outside traditional constitutional limits and that the people of these areas would never be on the path to eventual full political participation, and that's

these areas could be held as colonies. And Justice John Marshall Harlan, who folks may know as the Loan dissenter and the Plussy versus Ferguson, was also the most local dissenter in the Insular cases, really making the case that

our constitution is anti colonials. What would overturning the Insular cases mean for American Samoa, and in particular, tell me if I've got this wrong, but I understand the American Samoa governments has been on the other side of this case, and they've expressed concern that there are some cultural practices in American Samoa, like the collective ownership of land requirements that a certain percentage of the people who own land have a certain percentage of their ancestry being Americans smoan.

Are those potential consequences that those practices would be deemed unconstitutional if the Court were to overturn the insular cases. Yes, so kind of. The most direct result of overruling in cases would be simply to returning to where they stood before them, which the United States has always had. Territories have always been part of our constitutional structure. Congress has

always had broad power in those territories. But what the Supreme Court and Congress's view prior to the iner cases was is that certain stop signs of the Constitution provides, like the citizenship clause, that Congress has no power to deny birthright citizenships, apply throughout the United States, including the territories. And what the Tent Circuit and other circuits and other lower courts have done is dramatically expand the scope of

what the case has actually helped. With respect to the opposition from elected officials in American sam MOA, there are different views among elected officials within and between different territories. You know, American Samoa position comes down to this agreeing with the United States that Congress has unfettered discretion to

answer this question of citizenship. UM and scholars have looked at these concerns about these land ownership rules have really identified that they're not related to questions of citizenship or

even the insular cases. In fact, an American Samoa right now, the current case law, they're a case decided by three federal District court judges sitting by designation in American Samoa upheld those land rules without applying the inser cases framework, but simply applying traditional equal protection analysis, which certainly applies in each of the territories today. That's new where who represents the plane of in fittymus on o versus the

United States. You're listening to Bloomberg Law. Up next, we continue our conversation, including efforts to love the Biden administration to switch sides. And Kimberly Robinson and I'm Greg Stewart. This is Bloomberg. This is Bloomberg Law with June Grasso from Bloomberg Radio. I'm Gregg Storm and I'm Kimberly Robinson. We're in for June Grasso. We've been talking with Niowere of equally American about a case pending before the US Supreme Court. Before we left, we were talking about the

cases that you're asking the justices to overturn. Now, tell us a little bit about the lobbying effort to get the US on your side in this case. What does that look like, What steps are being taking and by which groups? Yeah, so, you know, the question for the Department of Justice and the Biden administration to decide is whether to support or oppose calls to overrule the insular cases.

And so just a few months ago, Justice Course such a justice so to mayor both agreed that it was time for the United States Supreme Court to overrule the Insular cases. And echoing their views have been a broad array of civil rights organizations like the American Civil Liberties Union, Latino Justice pro Best, the Legal Defense Fund, and others who have called upon the Biden administration to jettison these archaic,

racist Supreme Court decisions. At the same time, a number of bar associations have also taken a stand, calling on the Biden administration to support, rather than opposed, calls to overrule the Inser cases. The American Bar Association, just a couple of weeks ago passed a resolution supporting calls to turn the page on the in cases and the colonial

playwork they established. The New York State Bar Association has passed a similar resolution, with bar associations in the US, Virgin Islands and Guam being very active and seeking to advance equality and overruling the in cases. And we shall soon hear what the Biden administration position is in these cases. They're set to file their deadline as August twenty nine, so we'll soon know what they've decided. Then we'll look beyond that to see what the Supreme Court has to set.

So there was a case last term involving social security benefits in the island of Puerto Rico in which the Biden administration did not ask the court to overturn the insular cases. Is there something about your case that gives you reason to hope that the administration may come out differently. Yeah.

The case last term, United States versus Via Madero, dealt with the application of the Equal Protection Clause to federal laws that deny federal benefits to residents a certain territories while extending them to others, and all throughout the case,

while the cases kind of hung in the background. They weren't central to the actual holdings of the lower courts, and the United States had not relied on them to advance the argument that residents of Porto Rico could be denied on supplemental security income benefits and citizen monuversus United States.

The Department of Justices argument really begins and ends with the cases, So unlike prior cases where the cases were in the background, they really are front and center in the fit Monum case, and in our petition we expressly asked the Supreme Court to consider whether or not to

overrule the cases. You know, I'm remembering back under President Obama, where the Justice Department did in fact change positions on the Defense Against Marriage Act in the same sex marriage context, and just wondering how unusual is it for an administration to kind of do a one eight. At the beginning of Biden's term, the Justice Department did change a number of its positions from what the Trump Justice Department had

been litigating. But in fact, probably the more apt president to look at in terms of the Justice Department is former Acting Solicitor General Neil katial Um. In the Obama administration issued a confession of air with respect to the Hormatsu case, that's the Japanese internment case, saying that the United States have been wrong to argue in favor of Japanese internment and really condemning those cases even as they

remained quote unquote good law under Supreme Court precedent. And that's really what all that we're asking the Listener General to do here. We wrote her a letter claiming that the Justice Departments simply don't rely on these racist cases. If they want to continue defending the discriminatory statutes, that's up to them. They do have some other arguments, but what they shouldn't do is rely on cases that sit in the same class as Plessy versus Ferguson, Dread Scott,

and Cormatsu Um. So, you know, that's what what arguments the Department Justice makes to advance their cases completely within their discretion. And it's actually a much less of a lift for them to decide to stop relying on racist Supreme Court cases than other examples like don't know where they actually changed their litigating position to support the others five and they had been supporting in the case. Remind

us just exactly where this case stands. This is not a case that the Justices have agreed to consider yet, right, Yeah, we're still at the review stage. And so at the district court, the district court judge ruled in favor of Mr. City Simano, recognizing that under Constitution he had the rights to citizenship. At the circuit court stage, that decision was reversed two to one, with three separate opinions being written by the judges at the Tent Circuit. We appealed for

review by the full Tent Circuit. Weren't successful, but two judges did write a very long and scholarly opinion dissenting to the denial of that review. And so now we've asked the court to take up the case. The anarchist briefs that then filed in support of the Supreme Court review. And now when people hear from the United States Department Justice in the Sister of General on whether they will support or oppose the calls to overrule the INFIR case

is in this case, Neil. One final question. You know we've been talking about, you know, how these cases have been criticized sort of across the board, including from the justices themselves, you know, across the ideological spectrum. Why is it that these cases are still on the books and still considered good law. What work are they doing now that might make the justices hesitate to take them off the books. It's really not clear, and that's been one

the challenges and overruling them. You know, over the last five years, there's been three or four big Supreme Court cases involving Puerto Rico, where again the inser cases kind of hung in the background, but as the Supreme Court you know, says they should be helped to their facts and narrows them that limit situations where they necessarily arise

and are central to the disposition of a case. So ours is one of perhaps the only situations where lower courts would squarely rely on the cases to reach the legal result in a case, you know, the Department of Justice has been hesitant to call in the Supreme Court to overrule them, even when pressed by Justice Court. That's three or four separate times, and the argument last term, and the Justices themselves until recently have been hesitants too, so not kind of reaching out to decide the issue

even when you know it's been in the mix. And that's problematic because you know, the Supreme Court itself is responsible for the development of this doctrine. You know, the Supreme Court and the Instant their cases reached well beyond um the issues in the case to establish this colonial framework.

So just as the Supreme Court and the justices who sit on it were themselves responsible for the instant cases, they also need to be responsible for some of the solution and addressing the harms that have splunk from that of the last more than twenty years. Well, thanks so much to our guests nowhere. You're listening to Bloomberg Law. I'm Kimberly Robinson and I'm Greg Store. Coming up next.

Florida has arrested meet people for voter fraud, even though many of those people say they thought they were entitled to vote. This is Bloomberg. This is Bloombird Law with June Grasso from Bloomberg Radio. I'm Kimberly Robinson and I'm Greg Store. We're in for June Grasso. Florida Governor Ron De Santis last week trumpeted the arrest of twenty people who allegedly committed voter fraud by casting ballots, even though

they were convicted felons. But it turns out. Many of those people say they thought they were entitled to vote. With us to talk about this is Neil Voles. He is the deputy director of the Florida Rights Restoration Coalition. Neil, this all stems from a balled initiative that your group sponsored. Tell us what that balled initiative did. Yeah, well, Gregg kimberly one, thanks for having having us on and shining

a light on this important issue. In two thousand eighteen, the voters of Florida past Amendment four, which restored the voting eligibility for nearly one point four million people with past felony convictions. At folks like myself and others in our movement who had passed felony convictions and who up until that point had to deal with a lifetime voting

ban in the state of Florida. So this was there's a little bit of history here, because this is kind of like a Dickens novel, right, the best of times

the worst of times. On one hand, we saw the largest expansion of democracy in our country in a generation, but we also saw the implementation of that amendment end up requiring people to pay certain financial obligations before they are in fact eligible to vote, which means that there are hundreds of thousands of people with past convictions who are still not yet able to vote in a state

of Florida. That's right. Yeah, that was one of the questions that I had was, you know, there is this requirement that felons have to pay off all fines and fees before being able to vote. What effect does that have with restoring voting rights? Is there any kind of evidence that most people have been able to get their voting rights back or is this being a of the

book for that well one. As far as our organization and this movement, I mean, we just give up every day, you know, kind of put our work boots on and just keep moving forward. And I know according to the voter file last months voter file UM, there are but two hundred sixteen thousand people with past convictions who are currently registered in the state of Florida. And that's a lot of people, a lot of families, a lot of

voices being heard. But we know there's still a long way to go, especially when you consider that there are hundreds of thousands of people who have continue and not be eligible because they ope financial obligations. What do you see are the impacts of these arrests if we see that defines and the implementing the legislation is kind of holding up the ability of people to regain the right to vote. Is this going to have any effect on

that as well? Yeah, I mean to be honest with you, there's such a human element to this, and you know, there's not a better advocate for democracy, in my opinion, than somebody lost the right to vote and got it back. So we know that there's a deeper conversation going on here about how we see each other and and and and the role in society. But on a very tangible level, it also just shines a light on an issue that we've been talking about for the last four years since

the passage of Amendment four. Everywhere we go publicly in private meetings, we've been saying the same thing that the process is broken, that what we need is a statewide database that would allow people to become eligible or understand that they're eligible vote from the government on the front end, because everybody who's being impacted by this latest move by the governor and this election police course actually is in the spot in which we should not be um We

know that when someone registers the vote is it's the responsibility of the state that determined an individual's eligibility prior to issue a voter identification card. So we're talking about people who got identification card voter ID cards from the government and therefore it gone through the front end of

the process. To then spend time and um taxpayer dollars investigating and law enforcements time and now arresting people who have been given voter ID cards on the front end years ago just seems like we're not doing it right, because at the end of the day, the best way to fight crime is to stop it from happening in

the first place. Tell us a little more about what you're reading and hearing about the people who were arrested and why they say they thought they were entitled to vote, in addition to the fact that they actually had those

voter registration cards that you mentioned. Yeah, it's a great question, and it just kind of exemplifies kind of the humanity of this story, right because across the state, we have individuals with their individual stories and family members who are reaching out to us who are concerned about their loved ones, and we know that it's important for people to be

able to know that somebody's got their back. And then that's the role of FRC and reaching out and talking and walking it out with people who are impacted by this. The through line of these conversations really just keeps coming back to the fact that the states them is not working for anybody, right that, uh, you know, we need to fix the system to prevent the criminalization of voting, and the waste will spending the tax dollars to investigate

and prosecute flow to citizens. Right, It's just less costly and easier to prevent those situations from happening in the first place. And when you talk to somebody who gets caught up in that process, you know, we don't know exactly what every individual's case is. Somebody might have come in from another state and they they thought that their conviction had been you know, cleared up, or somebody you know, went through the clemency process and and and and had

their voting rights restored. We don't know everybody's individual situation. But that's part of the situation that we're dealing with, which is the government is the one who can provide assurances for folks who are voting. You know, if you can't rely on the government to verify their voting and eligibility. Who can they rely on? And so to come back years afterwards and to begin to prosecute people just shows how the system isn't working. Okay, thank you very much.

That was Neil Voles, the deputy director of the Florida Rights Restoration Coalition. Coming up next, Twitter faces a whistleblower complaint file by its former security chief. I'm Greg Store and I'm Kimberly Robinson. This is Bloomberg. This is Bloomberg Law with June Brusso from Bloomberg Radio. I'm Kimberly Robinson

and I'm Greg Store. We're in for June Brusso. Twitter is facing a new whistleblower complaint with its former head of security claiming severe shortcomings and the company's handling of users personal data. News of the complaints sent Twitter shares tumbling on Tuesday. With us to talk about it is Bloomberg News reporter Leah Nilan. She covers the Federal Trade Commission. Leah, thanks for being here. Let's start off by just telling us who this whistleblower is. Yeah. So, Peter Zak was

the head of cybersecurity for Twitter. He was brought in about after there was another hack of Twitter system, and he was there until January when he was fired by the Twitter CEO allegedly for performance issues. UM he filed a whistle blower complaint with the Federal Trade Commission, the

Justice Department, and the Securities and Exchange Commission. That whistleblower complaint was also sent to members of Congress, and so you know, the allegations here are said not only to put user data at risk, but also UM, perhaps national security. Can you tell us about what allegations are actually in the whistle blower complaint. There's a lot of them. So there are several allegations about bots, the number of bots that Twitter says it has on its platform versus what

it internally thinks are on the system. This is an issue, of course in um elon Musk's potential takeover of Twitter and the lawsuit that is now pending up in Delaware that's going to trial in October. The other big issue is that Twitter has been under order with the Federal Trade Commission over at cybrus A scurity practices since two

thousand eleven. There was at hack back in two thousand nine that the FTC investigated and then they reached the settlement with Twitter then um and put them under order. So they are supposed to be reporting to the FTC things on their privacy and data security for twenty years. He says that Twitter has not accurately been portraying things about its privacy and data security to federal regulators, and that they have been in violation of this consent decree.

This would not actually be the first time that Twitter had violated the consent decree. It has already paid a hundred and fifty million dollars to the Federal Trade Commission for taking user phone numbers that users had uploaded for security purposes and using them for targeted advertising. What has been the reaction to this complaint? What our lawmakers saying about it? What, if anything, are the agency saying about it?

The agencies are being pretty mum about it right now. Um. They usually don't disclose if they are investigating something, but almost always when a rate of this nature would be submitted to the FTC or even the dj that would at least look at it, particularly from someone of this level at the company. Congress, however, has been very vocal about their concerns you know, most members of Congress actually used Twitter, so there is um, you know, a little

bit of concerned about their own accounts. There is also a lot of concern given that, um, you know, the Justice Department just convicted a former Twitter employee of using his access at the company to spy on behalf of the Saudi Arabian government on dissidents. And those were some of the sort of like national security concerns that Zak talked about in his complaint. He suggested that the Indian government had been doing something similar about those who sort

of opposed the current regime. He also raised some concerns about Russia and China, China's access to the platform. Earlier, you mentioned the forty four billion dollar deal between Twitter and Elon Musk. This has been going back and forth or quite a while. Now. Can you tell us how the allegations in there could have affect this legal fight? Yes. So, one of the big issues in Musk's legal fight has to do with the number of bots on Twitter's platform.

These are computer created accounts, and obviously advertisers don't really want to be paying for their ads to be shown to computers. They want to pay for their ads to be shown to people. Um. So, Musk has alleged that the number of bots on the platform is actually much

higher than what Twitter has disclosed publicly. Twitter says that they believe it's about less than five percent of they have a funny metric for it, but about five percent of active accounts, and za Co says that actually it's probably higher than that, and that you know, Twitter has been sort of fudging the numbers a little bit internally so that they don't have to come up with a very clear metric for the number of bots that would obviously help you know, Musk's complaint in Delaware, since he

is trying to walk away from this deal for Twitter because of allegations that they didn't you have him enough information to accurately estimate the number of thoughts. And so, immediately after this complaint became public, he started posting on Twitter about how this helped him. There was a a meme he posted of Jiminy cricket from Pinocchio. Um And so, you know, obviously his lawyers and he were pretty happy about this disclosure. The meme referenced whistling. If I recall, yes,

so step back for a second. Obviously these are allegations and so we don't know, you know, the extent to which they are true. But how big of a problem is this for Twitter? It certainly seems as though it's a multifaceted issue for them that they're going to have to deal with on on several fronts. Yeah, this is what's interesting is compared to the other tech companies, Twitter

hasn't had as much difficulty in Washington. Yes, they have had these investigations by the FTC over security practices in two thousand and eleven and then more recently the one over phone numbers, but they haven't near really had as much difficulties as like Google, which is facing you know, about five different anti trust investigations, or Facebook, which is

also facing several anti trust investigations. Jack Dorsey has testified, the former Twitter CEO has testified on the Hill, but not nearly as many times as for example, Mark Zuckerberg has been dragged up there. But this is like definitely the biggest whistleblower complaint that is Twitter has faced, and and sort of regulatory issues that Twitter has faced in Washington yet, and the fact that it is very multifaceted, that it involves you know, user privacy and security. It

involves national security, It involves potentially lying to advertisers. I mean, it runs the gamut, and Twitter, as I said, has not generally dealt with as big problems like this in the past. What has been Twitter's response so far? Have they said anything about the allegations. They've mostly said, you know, he was fired for performance issues in January, so please take a grain of salt of anything he's saying. And you know, they have categorically denied some of his allegations.

They say that, you know, they particularly have pushed back on the allegations about bots and have said that they don't think that his allegations are accurate and that they intend to contest some of them. What happens next with this, or do we know what happens next? Well, obviously you know, the trial involving Elon Musk is coming up in October. Some of this will definitely get aired there. The FTC, as I said, is not probably not going to confirm

that it's looking into this. It sometimes does confirm in what they consider major cases. So for example, it confirmed in the Cambridge Analytica case that I was looking at Facebook just because that was of such intense public interest.

But um, they would be looking at this complaint and possibly bringing Twitter in to explain why they think that this does not violate the consent to cree that they've been out for over a decade, and then probably you know a lot of members of Congress have already said that they want to hear from this whizzle blow personally, so we may sort of see a bunch of congressional hearings in the same way that we did with Facebook

whistle blower friends. As how again, lest Fall, can you tell us a little bit more about these national security concerns? You know, there's an allegation in the witial blower report that talks about the access that employees have to certain high profile accounts. How does that factor into the concerns that are being raised here? Yeah, there's a couple of

different national security concerns. You know. He says that a lot of Twitter employees have access that would allow them to uh sort of take over prominent accounts and or look in to the d ms that people send. Obviously, that could be problematic. I mean, you're not supposed to be talking about super secret things on Twitter d m s. But aside from that, you know, the case that the Justice Department had brought um against the employee who was

spying for the Saudies. The allegation there was, you know, a lot of people in Saudi Arabia had created accounts anonymously, but insiders could see, for example, the email or phone number that was associated with the account, and if they gave that to the government, it would be a way for the government to sort of track down people who are critics and potentially do you harm to them in

real life. The the overall kind of atmosphere that this complaint suggests about Twitter, tell me if I'm wrong, seems to be that this is all stuff that Twitter just doesn't care about that much, that it doesn't make a priority to deal with these national security issues and just

general user experience issues. Isn't that right? Yeah, The complaint alleges that a lot of Twitter executives just cared much more about the company's stock price, that's the company continuing to get new users, and they did about the security. The whistleblower, as we mentioned, had only been brought in, but he is a very prominent cybersecurity expert. He had worked you know, for the federal government at places including DARPA. He is a well known hacker, so he knows this

stuff backwards and forwards. And he was talking about Twitter not having updated software, not really having information on all of the computers that could access its servers. He alleged that, you know, if Twitter didn't even have enough backups, so if there had been a cyber attack in which they attack some of the data centers, the company might not even be able to keep its platform up or bring

it back online. So he was focused a lot more on some of the infrastructure cyber security issues then maybe past whistleblowers. And he has a lot of knowledge and respect within the community, so I think that's why a lot of people are taking his complaints seriously. And so these are just allegations at this point. But if they do turn out to be accurate, what is it that

can be done about it? Is it only something that Twitter can take care of it, or is there something that Congress can do for their action by federal officials that they can take to kind of clear up these shortcomings. Yeah, Well, if Twitter is found to have violated the Federal Trade Commission's consent to create the FTC could impose bines on them, as I mentioned, they had already paid a one fifty

million dollar fine. The FTC also does have the ability to impose liability on individuals, So if they had found that Twitter was flagrantly not paying attention to these issues, they could try and impose penalties on individuals. And then if they did find that there were other sort of employees who had been spying for governments, as in the case of the Saudi Arabian case, they could potentially bring criminal charges. Okay, well, thank you very much, Bloomberg News

Federal Trade Commission reporter Leah Nilan. That does it for this episode of Bloomberg Law. I'm Greg Store and I'm Kimberly Robinson. This is Bloomberg