Cyber - Identity Theft: Our Children At Risk

Our Global Insurance Group Just Issued this Alert! entitled: "Identity Theft: Our Children At Risk." We hope you find this information beneficial and informative.

Interviewing for your first job as a teenager is as exciting as it is intimidating. Thoughts of what to do with your first paycheck consume your mind as you rehearse your best do-you-want-fries-with-that smile. The interview proceeds flawlessly, and you start to count the dollar signs as you await the job offer. But, imagine your surprise when you are informed that you did not get the job because your background check revealed that you are more than $75,000 in debt and five years behind in child support payments for your 11-year-old child—a terrifying thought considering you are only 16 years old. Click here for the full story.

ON VACATION

New posts after Labor Day, or before if the muse strikes. Enjoy the rest of the summer.

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Bloomberg for Sestak

Mayor Mike Bloomberg went to Philadelphia today to support Democrat Joe Sestak's bid for the US Senate from Pennsylvania. David Bronston and I were there.

Sestak defeated Arlen Specter for the Democratic party nomination after Specter switched his affiliation from Republican to avoid a party challenge from the right. He's in a tight race with Pat Toomey.

Both the Mayor and the candidate mentioned that they had not met until today, and that Bloomberg had greeted him by saying that they didn't agree on every issue. Although he touched lightly on issues where they did agree, and more heavily on Sestak's management experience gained moving up the ranks to his retirement rank of three star Admiral, the Mayor seemed most enthusiastic when he talked about Sestak acting from political conviction and not convenience.

He took several shots at legislators who "lead from behind" by jumping on the issue of the day whether they care about it or not. It seemed that he admired Sestak's willingness to give up his Congressional seat to take on a Senator to change parties solely out of self preservation. Of course, he did acknowledge that he himself had some experience with Republicans, Democrats and Independents, having been all three at some point in his life.

EXCLUSIVE Brad Lander on Charter Legislation

The Charter Revision Commission, as predicted, has decided to pass on major changes to the City's Uniform Land Use Review Procedures for this year. But political nature abhors a vacuum and City Council Brad Lander may try to fill it.

Since his election last November to the Brooklyn Council seat previously held by Public Advocate Bill DiBlasio, Brad Lander has established himself as among the more influential of the new Members. He was alread known to many of the Members for his advocacy of reform of the 421-a tax incentive program for new residential development, and upon entering the Council, helped organize a new Progressive Caucus which he co-chairs. Reflecting both his planning experience and his political savvy, Lander was named to chair the important Land Use Subcommittee on Landmarks, Public Siting & Maritime Uses. In addition to oversight of the Landmarks Preservation Commission (and their designations), the subcommittee reviews decisions about where to locate City services from new courthouses to sewage treatments plants to City offices. Sooner or later, almost every commissioner will find themselves in need of his nod.

Recently, he told a group of planning professionals from the Institute for Urban Design that he was looking at land use areas of the City Charter which the Council could amend without having to go through a public referendum. Under the law, the Council can make changes to the Charter (such as extending the terms limits law) that don't "diminish" the Mayor's power, sometimes referred to as the balance of power. If the charge does infringe, such a a requirement to submit commissioners' appointments to the Council for advice and consent, it can only be done by referendum.

I followed up with him and he outlined three areas of interest, two of which are under his committee's jurisdiction. The first is "fair share" a provision which in theory obligates the City to consider the cumulative impact of siting decisions on a particular community. The second is Section 197-a of the Charter which authorizes community boards to sponsor their own non-binding neighborhood plans. Both have been criticized as being without teeth and the Environmental Justice Alliance(.pdf) has been campaigning for them to be strengthened. The 197-a portion would fall under Mark Weprin's Zoning subcommittee.

The other area of interest is the designation of landmarks and historic districts. Currently, a property is "calendared" in the discretion of the Commission. Once calendared, any significant alterations are delayed by the Buildings Department to give LPC a chance to decide if it wants to go through with designation. That can complicate development and financing for owners, who express frustration that such calandaring may have occurred decades earlier. Advocates, on the other hand, are dissatified that  they can't always get an up or down vote on what they consider important buildings. Lander will use his subcommittee's oversight authority to try and put more transparency and structure to the process.

Sustained Sustainabilty Effort At ConEd

ConEd released their 2009 Sustainability Report. The full report is only available on the web, with a "condensed" version available in print. By going digital, ConEd says they saved-

86,168 gallons of water

9,882 pounds of solid waste

180 million BTUs, the amount of energy used by two homes in a year

28, 432 pounds of greenhouse gases, the equivalent of taking three cars off the road for a year.

Of course, the real reductions come from upgrading their systems. The company reports that their greenhouse gas emissions plunged 36 percent, or by about 2.4 million tons, between 2005 and 2009.

Cyber Security Alter

Lest one question the severity of the evolving challenges in our rapidly growing cyber world, President Obama has crystallized it succinctly: (1) "cyber threat is one of the most serious economic and national security challenges we face as a nation;" and (2) "America’s economic prosperity in the 21st century will depend on cybersecurity." In other words, President Obama has declared cybersecurity to be a national security priority.
 

Our firm has just posted an alert.(pdf) on "The White House's 'Progress' Report on Cybersecurity: There's a Long Road Ahead." We hope you find this information beneficial and informative.

Bloomberg Statement on Lower Manhattan Mosque

The Mayor chose Governors Island as the venue to speak out against religious bias in the wake of the lower Mahattan mosque controvery. Here's the release from City Hall:

MAYOR BLOOMBERG DISCUSSES THE LANDMARKS PRESERVATION COMMISSION VOTE ON 45-47 PARK PLACE

Council Speaker Christine Quinn, Father Alexander Karloutsos from the Greek Orthodox Archdiocese, Rabbi Bob Kaplan from the Jewish Community Council, Reverend Brian Jordan from the Church of St. Francis of Assisi, Rabbi Irwin Kula from the National Jewish Center for Learning and Leadership-CLAL, Reverend Jim Cooper from Trinity Church, Reverend Les Mullings from the Church of the Nazarene, Imam Shamsi Ali from the Islamic Cultural Center of New York, Reverend T.K. Nakagaki from the New York City Buddhist Church, Cara Berkowitz from the UJA Federation and Matthew Weiner from the Interfaith Center of New York Join Mayor on Governors Island, Where the Dutch who Founded New Amsterdam – the Earliest Religiously-tolerant Colonial Settlement in America – First Lived

High resolution photos can be downloaded from the Mayor’s Office Flickr Page at www.flickr.com/photos/nycmayorsoffice/

The following are Mayor Michael R. Bloomberg’s remarks as delivered on Governors Island:

“We have come here to Governors Island to stand where the earliest settlers first set foot in New Amsterdam, and where the seeds of religious tolerance were first planted. We’ve come here to see the inspiring symbol of liberty that, more than 250 years later, would greet millions of immigrants in the harbor, and we come here to state as strongly as ever – this is the freest City in the world. That’s what makes New York special and different and strong.

“Our doors are open to everyone – everyone with a dream and a willingness to work hard and play by the rules. New York City was built by immigrants, and it is sustained by immigrants – by people from more than a hundred different countries speaking more than two hundred different languages and professing every faith. And whether your parents were born here, or you came yesterday, you are a New Yorker.

“We may not always agree with every one of our neighbors. That’s life and it’s part of living in such a diverse and dense city. But we also recognize that part of being a New Yorker is living with your neighbors in mutual respect and tolerance. It was exactly that spirit of openness and acceptance that was attacked on 9/11.

“On that day, 3,000 people were killed because some murderous fanatics didn’t want us to enjoy the freedom to profess our own faiths, to speak our own minds, to follow our own dreams and to live our own lives.

“Of all our precious freedoms, the most important may be the freedom to worship as we wish. And it is a freedom that, even here in a City that is rooted in Dutch tolerance, was hard-won over many years. In the mid-1650s, the small Jewish community living in Lower Manhattan petitioned Dutch Governor Peter Stuyvesant for the right to build a synagogue – and they were turned down.

“In 1657, when Stuyvesant also prohibited Quakers from holding meetings, a group of non-Quakers in Queens signed the Flushing Remonstrance, a petition in defense of the right of Quakers and others to freely practice their religion. It was perhaps the first formal, political petition for religious freedom in the American colonies – and the organizer was thrown in jail and then banished from New Amsterdam.

“In the 1700s, even as religious freedom took hold in America, Catholics in New York were effectively prohibited from practicing their religion – and priests could be arrested. Largely as a result, the first Catholic parish in New York City was not established until the 1780’s – St. Peter’s on Barclay Street, which still stands just one block north of the World Trade Center site and one block south of the proposed mosque and community center.

“This morning, the City’s Landmark Preservation Commission unanimously voted not to extend landmark status to the building on Park Place where the mosque and community center are planned. The decision was based solely on the fact that there was little architectural significance to the building. But with or without landmark designation, there is nothing in the law that would prevent the owners from opening a mosque within the existing building. The simple fact is this building is private property, and the owners have a right to use the building as a house of worship.

“The government has no right whatsoever to deny that right – and if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution. Whatever you may think of the proposed mosque and community center, lost in the heat of the debate has been a basic question – should government attempt to deny private citizens the right to build a house of worship on private property based on their particular religion? That may happen in other countries, but we should never allow it to happen here. This nation was founded on the principle that the government must never choose between religions, or favor one over another.

“The World Trade Center Site will forever hold a special place in our City, in our hearts. But we would be untrue to the best part of ourselves – and who we are as New Yorkers and Americans – if we said ‘no’ to a mosque in Lower Manhattan.

“Let us not forget that Muslims were among those murdered on 9/11 and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values – and play into our enemies’ hands – if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists – and we should not stand for that.

“For that reason, I believe that this is an important test of the separation of church and state as we may see in our lifetime – as important a test – and it is critically important that we get it right.

“On September 11, 2001, thousands of first responders heroically rushed to the scene and saved tens of thousands of lives. More than 400 of those first responders did not make it out alive. In rushing into those burning buildings, not one of them asked ‘What God do you pray to?’ ‘What beliefs do you hold?’

“The attack was an act of war – and our first responders defended not only our City but also our country and our Constitution. We do not honor their lives by denying the very Constitutional rights they died protecting. We honor their lives by defending those rights – and the freedoms that the terrorists attacked.

“Of course, it is fair to ask the organizers of the mosque to show some special sensitivity to the situation – and in fact, their plan envisions reaching beyond their walls and building an interfaith community. By doing so, it is my hope that the mosque will help to bring our City even closer together and help repudiate the false and repugnant idea that the attacks of 9/11 were in any way consistent with Islam. Muslims are as much a part of our City and our country as the people of any faith and they are as welcome to worship in Lower Manhattan as any other group. In fact, they have been worshipping at the site for the better part of a year, as is their right.

“The local community board in Lower Manhattan voted overwhelming to support the proposal and if it moves forward, I expect the community center and mosque will add to the life and vitality of the neighborhood and the entire City.

“Political controversies come and go, but our values and our traditions endure – and there is no neighborhood in this City that is off limits to God’s love and mercy, as the religious leaders here with us today can attest.”

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Contact: Stu Loeser (212) 788-2958

 

Third Way for the Internet?

In response to some recent court decisions, the Federal Communications Commission has edged towards a "Third Way" of regulating Internet providers. Our partner, David Bronston, just published an analysis of this approach(.pdf) in the New York Law Journal.

NY Court of Appeals Selection Panned

James Gardiner has published a law review article(.pdf) panning the method of selecting New York State Court of Appeals judges. After a trial lawyer named Jacob Fuchsberg came close to defeating the then Chief Judge through a self-funded campaign, and the following year was elected to the Court, the State Constitution was amended to create a judicial nominating commission with the Governor limited to selecting only from among applicants found to be qualified. There's a good discussion of how the process has played out and the judges who emerged from it here.

Gardiner's argument isn't an attack on the nominating commission itself. Rather, he faults the commission for selecting mostly from lower court judges who themselves were products of an elective system. The article abstract is after the jump but the key concept is:

"Although New York’s current method of selecting Court of Appeals judgess was designed to be wide open and based entirely on merit, the selection process, as it has actually evolved in practice, is neither. It has instead degenerated into a fundamentally closed competition among a very small number of sitting judges of the intermediate state appeals court, making it a process not of judicial appointment, but of judicial promotion. Worse, unlike appointees to the U.S. Court of Appeals for the Second Circuit, which draws from essentially the same lawyer population, few appointees to the New York Court of Appeals have previously distinguished themselves in arenas other than judicial service on lower state courts. Whereas Second Circuit appointees overwhelmingly have significant prior accomplishments in legal practice and executive branch service, the judges of the New York Court of Appeals are distinguished mainly for having worked their way up through the state judiciary."

 I was previously a supporter of judicial elections, particular when I was a Democratic Party official involved in candidate selection, as I thought that community ties were important and that they provided better access for underrepresented groups such as people of color and women. Over time, I lost confidence in that system as it appeared to me not to be designed to put the best people on the bench. In other words, its not that the election system can't produce great judges, its that its not set up to increase the odds. I don't recall a single Federal Court clerk, law professor, or big firm partner seeking to be elected judge in Brooklyn during my tenure, although these backgrounds are typical of Federal judges. Gardiner's point is that Court of Appeals judges are now mostly drawn from the more limited background state judge pool.

Recently, I was appointed to the Association of the Bar's Judiciary Committee, which evaluates candidates for both elected and appointed positions.

Tip of the hat to Rick Hasen for posting the Gardiner article.

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DEM AG II: Legal Issues

As previously reported, we attended the Crain’s debate yesterday featuring the five Democratic candidates for NYS Attorney General (if you go to that post, clicking on any of the candidate’s names the first time they are mentioned will take you to their campaign web sites). Some of the issues discussed deserve further attention.

First, the dog that didn’t bite. In addition to having jurisdiction to regulate certain industries (such and coop and condo plans and charities) and to bring certain types of enforcement actions, the Attorney General is also head of the Law Department, providing the attorneys who defend state agencies in Court and who defends the constitutionality of state laws and actions. This is a major part of the office’s work, but it didn’t get a single mention from any candidate or from the reporters, possibly because the Attorney General has limited discretion on which cases to handle or what to do with them, and he rarely makes news in this capacity. However, the work done is critical to government’s functioning and the candidates ought to be talking about whether they think the quality of the lawyering could be improved. While the AG can’t make policy, like any lawyer he can advise his clients when to settle and when to fight, giving them standing, in the campaign at least, to talk publicly about whether they think any agency has been out of line.

Some of the discussion at the forum was whether Rockefeller Drug Laws reform is still an issue or whether it is just being used today as a political talking point. So too NYPD’s stop and frisk policies. All of the candidates supported the recent data base purge law although Kathleen Rice seemed least enthusiastic about it.

The most interesting insight into the candidates thinking process was a question about expanding the Martin Act. This is a powerful statue giving the Attorney General both criminal and civil jurisdiction over “deceptive trade practices.” Prior to Eliot Spitzer, it was used primarily to regulate condo and coop plans. His deputy, now candidate Eric Dinallo, dusted it off to go after Wall Street houses and others, greatly expanding Spitzer’s reach.

Eric Scheiderman and Richard Brodsky both support expanding the law to allow institutional investors to be able to sue under the law. They pointed to both Wall Street shenanigans as well as crooks like Bernie Madoff and felt that institutional investors like pension funds should not have to depend on government to go after wrongdoers. As legislators, they want to be proactive, so they propose passing a law.

Interestingly, both Sean Coffey and Eric Dinallo-who actually have direct experience with these large fraud cases-were opposed. Coffey has earned millions of dollars bringing claims under the federal securities laws and Dinallo, as noted above, drove the Spitzer use of the Martin Act. Their opposition stemmed from analysis as lawyers of the implications of such an expansion. Both felt that federal law and New York common law were strong enough tools. Coffey worried that court decisions in private cases could undercut the Attorney General’s position and Dinallo observed that the law imposes strict liability; intent to break the law is not required and such a statute could be unfairly deployed if allowed in private lawsuits. I thought their answers were thoughtful and sounded right to me. More important, I thought they approached it in a careful way that you would want an Attorney General to use. Ms. Rice basically ducked on the issue.