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Mattioni Ltd

Newsletter   

Volume 11    
www.mattioni.com     September  2013

 
National Security and the Constitution According to the Courts
By: Michael Mattioni, Esquire and Anna M. Haslinsky
 
While national security has always been a government priority, since 9/11 efforts have increased to monitor the technology communications of foreigners and American citizens. With the recent newsworthy leaks by Bradley Manning, and the latest, Edward Snowden, you are perhaps wondering, is this legal? What rights do a citizen and our government have concerning secret surveillance of internet use and telecommunications? This article will  introduce the legal framework of this hot button issue.

First, the age of social media makes it easier for others, including the government, to track things that we publicly (or what we assume is privately) posted on the internet. Since 9/11, Congress and Presidents Bush and Obama expanded the rights of security agency surveillance through the USA Patriot Act, amendments to the Foreign Intelligence Surveillance Act (FISA), and the newly exposed, top-secret PRISM program. Obviously, national security and terrorism pose compelling reasons for increasing surveillance and searches, especially in light of domestic tragedies like the Boston Marathon bombing. Nevertheless, we still have rights guaranteed by the Constitution. The First Amendment protects our right to free speech, while the Fourth Amendment protects our rights against unreasonable searches by the government. So, how have courts balanced these equally compelling interests?

Several cases were brought questioning the validity of electronic surveillance. FISA provides the process for obtaining a court order authorizing foreign electronic surveillance. Likewise, the Patriot Act expanded the power of federal officials and agencies to conduct surveillance within the U.S. to prevent terrorism. Courts have validated FISA, by noting, first, that it “represents a reasonable balance” between intelligence gathering and the Fourth Amendment, and second, that the standards required for criminal investigations and national intelligence are different. Additionally, a Foreign Intelligence Surveillance Court exists to review warrants regarding national security and has survived several Constitutional challenges.

Of course, it is not easy to challenge these statutes or warrant-less searches due to principles such as standing. Standing limits plaintiffs in any suit to those who can prove either actual or imminent harm. In a 2012 case, human rights, legal, and media organizations challenged the amendments to FISA, which removed the requirement for probable cause when the target is an agent of a foreign power and non-citizen located abroad. The Supreme Court denied standing because the injury was too speculative. Another example concerns a charity, which allegedly supported terrorist activities. In that 2002 lawsuit, the charity sought to bring an injunction, or a court order stopping an activity, against the government regarding a warrant-less search. However, because probable cause was established after the fact, the court denied the injunction. Essentially, many searches are considered valid under the Fourth Amendment so long as the purpose is to obtain foreign intelligence information. In some instances, the warrant does not even have to identify a target or a location.

The statutory language of the acts survived repeated challenges concerning their breadth under the First Amendment and Due Process, which ensures citizens receive fair legal proceedings. Finally, a Ninth Circuit case determined the Attorney General may grant immunity to telecommunications companies that cooperate with warrant-less wiretapping. These are just a few examples of how the courts upheld these rather sweeping provisions granting greater government surveillance power.

So, what does this mean? Regardless of what your stance is on the necessity of such programs as outweighing privacy rights, plenty of people are upset about this type of surveillance. Since the most recent reports leaked to The Guardian and The Washington Post, many citizens and politicians  feel confused and perhaps betrayed concerning the pattern of leaks, denials, and admissions. Several accused social networking internet brands, like Facebook and Google, have tried to protect their image and business by now asking for greater reporting transparency so the public can be aware of their relationships with the National Security Agency. Furthermore, the American Civil Liberties Union filed suit challenging the constitutionality of the policies and subsequent searches. Although the courts supported the controversial policies, it certainly triggers complex questions regarding constitutional rights and the rights of government security agencies and major corporations to disclose information in the name of national security.           

Serious about Sustainability: Philadelphia’s Energy Benchmarking Ordinance

By: Michael Mattioni, Esquire and Anna Halinsky
 
The award for America’s “greenest” cities goes to, Portland, San Francisco… Philadelphia? Well, not quite. According to a 2008 study that weighed factors like public transportation and renewable energy resources, Philadelphia didn’t even make the top-fifty. That same year, Mayor Michael Nutter ambitiously pledged to make Philadelphia the greenest city in America. Since then, he has tried to make good on his promise by opening the Mayor’s Office of Sustainability and drafting Greenworks Philadelphia, a comprehensive report that set fifteen  “sustainability targets” to achieve this lofty goal by 2015. Still, more recent top-ten green city lists rarely, if ever, mention Philadelphia. The 2013 Annual Greenworks Progress Report notes we are on track to achieve many of our goals, such as increasing neighborhood tree coverage and reducing citywide energy consumption. But 2015 is quickly approaching, so what has the City done to achieve these green goals? One recent example, effective this year, requires commercial property owners to report and “benchmark” their energy consumption.

The notion of “going green” is nothing new, and many U.S. cities, including our own, are getting serious about these campaigns and demand commercial property owner cooperation through benchmark legislation. According to the 2012 City Ordinance No. 120428, property owners that use at least 50,000 square feet of building space on their property for commercial purposes are required to report water and energy consumption through the U.S. Environmental Protection Agency’s Energy Star Portfolio Manager website. The website has been around for several years and was initially available for curious property owners who wanted to track and compare their energy efficiency to buildings with similar uses and conditions nationwide.

Today, use of this website is required by Philadelphia and a growing list of cities including New York, San Francisco, and Austin. By loading certain information, such as square footage, number of appliances, and data provided by utility companies, into your personal account customized to the City, the website will “benchmark”, or rate, your building’s performance. The goal is to compile the information for public access so real estate buyers, for example, can see how properties use water and energy.

Philadelphia is so serious in fact, that if a property owner does not comply by October 31, 2013, he or she will face hefty fines- $300 for the first 30 days, and $100 every day after. For the environmentalist or those interested in energy efficiency as a money-saving strategy, this probably sounds great. To encourage cooperation, there are even financial incentives available, such as grants, federal tax breaks and programs from local utility providers. The program and ordinance also promise customers can arrange for the utility to report directly to the system, minimizing the property owners’ efforts. Besides, it is hard to argue against making our city a nicer place to live, work, and breath.

On the other hand, conducting business in the City is difficult. Energy benchmarking may be viewed as another unwarranted intrusion by the City into businesses. While there are energy consultants for hire to help you comply with the requirements, these can be costly.  Some states, like Texas, have laws protecting the privacy of utility customers for the simple reason that people may not want to disclose this information. Furthermore, property owners have received notice of their new requirements, who maybe didn’t know they were considered “commercial.” The EPA Energy Star program rates everything from warehouses to “worship facilities,” so if you received notice, or think this might apply to your building, it may be worth investigating to see if compliance is required. This is also important for landlords and tenants alike. If only one tenant occupies a commercial property, the task may be delegated to the tenant. At the very least, the landlord will need tenants to cooperate to provide certain information required to benchmark.

The City does offer exemption opportunities for property owners who experience hardship, if more than half the property is unoccupied for a significant time, or if benchmarking would not accurately reflect due to high energy usage in an industrial purpose. But, there is no word yet how these exemptions are being granted. This means a property owner may be forced to comply even if they cannot determine whether compliance is required.

Despite these issues, City officials nationwide are implementing benchmarking ordinances. So even if you aren’t serious about going green, Philadelphia is making an effort. At the very least, it hopes that this ordinance will encourage awareness of energy consumption, and incentivize people to take steps to become more energy efficient. For more information on the ordinance and compliance, visit http://mattioni.us5.list-manage1.com/track/click?u=b188fcc7ead506465bf6a0adb&id=3b47b839ae&e=08a192e56f.

This article provides basic information about energy benchmarking. It does not provide advice about how to comply or specific requirements of the program. Anyone with questions is asked to contact the appropriate professional.

Social Host Liability

By Michael Mattioni, Esquire and Josh Kobylarz

Peer pressure and kids drinking; a challenging combination that goes back many generations.  It’s no different today. This is especially true for those in high school who face intense peer pressure from their friends, which can lead to the decision to try drinking for the first time.  As parents, this is difficult to address.  It’s almost impossible to prevent or stop it.  And, if your children are drinking, you want to know they are not getting themselves into any other mischief, like getting behind the wheel of car.  So, for some parents, the best idea is allowing it under your supervision.  In fact, many studies show minors often get alcohol from their parents, many times with permission and sometimes without.  But what many parents do not realize is the liability that accompanies allowing this activity in your home.
 
In an effort to reduce underage drinking that is sponsored by, or at least not reprimanded by, parents, many states enacted Social Host Laws.  Generally, Social Host Laws hold people liable for consequences resulting from serving alcohol to others in their homes.  While some states hold social hosts liable for the actions of everyone—those over and under 21—Pennsylvania does not hold social hosts liable for the actions of those over 21.  However,  Pennsylvania’s Social Host Laws do hold adults liable for underage drinking that takes place in their home.  Allowing minors to drink in your home can result in both criminal and civil penalties.  Criminal penalties can be anything from fines to spending time in jail.  One Pennsylvania parent received 1-4.5 years in prison after three minors died in a drunk driving accident following a party thrown by the parent.  Determining civil penalties is a bit trickier.
 
Civil penalties for allowing minors to drink in your home typically result from two occurrences: the intoxicated minor injures him/herself or the intoxicated minor injures others.  Social hosts can be liable for both the accident itself—i.e. a drunk driving accident caused by an intoxicated minor—as well as injuries to the intoxicated minor and any third parties.  In both instances, the social host must either have been aware, or should have been aware, that the minor who caused the injury or damage was drunk.  If the injury and/or damage is a result of an intoxicated minor getting behind the wheel, it is required that the social host (1) be aware, or should have been aware, that that the minor was intoxicated and (2) that the host knew the intoxicated minor would be driving after they left the party.  But what exactly does it mean that an adult be aware or that an adult should have been aware minors were drinking in their home?
 
One Pennsylvania case held that parents were not liable for keeping their alcohol in an unlocked area even though they knew that minors would be in that area and it was possible that they could access the alcohol.  Similarly, the Pennsylvania Supreme Court held that neither a university nor fraternity organization, which did not plan an event nor served, purchased, or supplied the alcohol for the event, were not liable for the resulting consequences.  Lastly, parents are likely interested in the consequences that may result from their minor child furnishing alcohol to other minors.  Unlike adults who furnish alcohol to minors, minors who furnish alcohol to other minors cannot be held liable for injuries to third parties.  Naturally, these laws can always be changed and, under the right set of circumstances, a court can change its mind, too.  So, the next time you consider throwing a party or allowing minors to drink under your supervision, think twice about the potential consequences.  Not only can people be injured or worse, but you, as a host, can be held liable.
 
This article provides general information regarding the potential liability for social hosts where minors may be present. This article does not provide legal advice. Every situation is different and anyone considering hosting an event or with questions regarding social host liability should contact an appropriate professional.

Mr. Mattioni is the President of the law firm Mattioni, Ltd., where he practices in the tax, business, real estate development, land use and zoning areas of law.  Anna M. Haslinsky is a law clerk  in her second year at Villanova University Law School. Josh Kobylarz is a law clerk in his third year at Temple University’s Beasley Law School, where he has served on  the Temple Law Review.

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Disclaimer

The content of this Newsletter has been prepared by Mattioni, Ltd. for informational purposes only and should not be construed as legal advice.  The material in this Newsletter is not intended to create and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel. 


 
Copyright © 2013 Mattioni, Ltd., All rights reserved.
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