6 notable GCs in the news

General counsel sound off on gay marriage, tracking cookies, NSA surveillance and more

Defense Declined

“[We] are surprised that the Attorney General, contrary to her constitutional duty under the Commonwealth Attorneys Act, has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs.”

--James Schultz, general counsel of the Commonwealth of Pennsylvania

On Thursday, Pennsylvania attorney general Kathleen Kane became the latest state AG to refuse to defend her state’s gay marriage ban against a lawsuit filed by the American Civil Liberties Union (ACLU). The ACLU sued Kane and Pennsylvania Governor Tom Corbett on behalf of 23 state residents whose marriages are not recognized by the state.

Kane, however, told the Washington Post that she cannot ethically defend the ban, which she considers unconstitutional. She also pointed out that Schultz can still defend Corbett, although the general counsel didn’t seem overly pleased with that argument.

Secret Surveillance

"It's a tremendous boon to the rights of millions of ordinary Americans that the court has ruled the government can't summarily kick this question out of the public courts."

--Cindy Cohn, general counsel of the Electronic Frontier Foundation (EFF)

The National Security Agency’s (NSA) far-reaching surveillance program has been making headlines recently, but the agency’s data monitoring is nothing new. Five years ago, the EFF sued the government after whistleblower Mark Klein revealed that the NSA had been tapping into AT&T data.

The Obama administration tried to block the lawsuit by invoking the government’s “state secrets” privilege, which states that disclosing evidence related to Klein’s allegations would compromise national security. But on Monday a district court judge rejected this claim, ruling that government surveillance is no longer a secret, and that a judge can consider any classified evidence privately under the Foreign Intelligence Surveillance Act.

Testing Tussle

“They are clearly using the same processes we are using in our testing.”

--Richard Marsh, general counsel of Myriad Genetics

Myriad Genetics, which just ended a lengthy court battle over two of its patents on human genes, is getting back into the patent litigation ring with lawsuits against two competitors. The Supreme Court in June invalidated the company’s patents on the BRCA1 and BRCA2 genes—which are linked to increased risk of hereditary ovarian and breast cancers—ruling that naturally occurring human genes are not patentable.

But the high court did uphold the company’s patents on certain forms of synthetic DNA. Myriad argues that Ambry Genetics Corp. and Gene by Gene infringed on Myriad’s valid patents when they introduced their own tests for BRCA1 and BRCA2.

Deferred Decision

“It’s disappointing the court had the opportunity today to say definitively that considering race in admissions is not justified.”

--Roger Clegg, general counsel of the Center for Equal Opportunity, a conservative think tank

The Supreme Court was busy this June, handing down verdicts on such controversial subjects as same-sex marriage and gene patentability. But there was one hot-button issue that the court largely declined to address—affirmative action. The court was considering a lawsuit filed by Abigail Fisher, who sued the University of Texas at Austin over its race-conscious admissions policy.

The 5th Circuit had previously ruled that the university’s admissions program was constitutional as long as UT adopted it in “good faith.” But Justice Anthony Kennedy, writing for the 7-1 majority, remanded the case, saying that the appeals court “did not hold the university to the demanding burden of strict scrutiny” mandated by previous affirmative action cases.

Antitrust Allegations

"Our proposals are meaningful and comprehensive, providing additional choice and information while also leaving room for future innovation.”

--Kent Walker, general counsel of Google

Earlier this year, Google attracted the ire of European Union regulators, who accused the tech titan of violating antitrust laws by blocking its competitors in online search results. Google eventually came up with a list of proposed remedies in April, offering to make it easier for advertisers to move to competing platforms and to label its own products in search results.

EU Competition Commissioner Joaquin Almunia told Reuters that Google will likely have to make additional concessions. But Walker maintained on the company’s Europe Blog that Google “thoroughly and thoughtfully” addressed each of the regulators’ complaints.

Browser Battle

"The [Do Not Track] flag has been hijacked. It is flawed as a tool for reflecting consumer choice because it is an open tool that anyone can manipulate.”

--Mike Zaneis, general counsel of the Interactive Advertising Bureau (IAB)

Although several Internet browsers have introduced “Do Not Track” (DNT) options for users who don’t want websites to track their websurfing activities, advertisers haven’t been so quick to accept DNT features. Some advertisers, for instance, have announced that they will not pay attention to Microsoft’s DNT flags—which are activated by default on Internet Explorer 10.

Several advertising groups, including the IAB have now submitted their own proposal to a working group trying to agree on DNT standards for web browsers. The proposal would allow marketers to keep collecting certain “de-identified” data from users.

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