Blog Jay Leiderman Law

Monday, August 19, 2013

Remarks Made at the Jeremy Hammond / Barrett Brown Fundraiser 19 August 2013 New York

We live in times where our liberties are ever threatened.  Where the individual is presumed to yield to the state.

Things that should not have ever been forgotten have, until recently, seemingly been lost to history. Things that should be said and known every day as we Americans decide how we allow ourselves to be governed are no longer spoken except by an outlawed few.  Our privacy, the very gift that gives us our spirit of independence has become threatened.  Where the masses have forgotten, a new breed of patriot, the hacktivist, remembers. Words that have, over the years, lost their meaning have suddenly gained meaning anew. There is a war on information, but that is not a war that the government will win. The people will prevail. As the people must prevail.

Jeremy Hammond

Jay leiderman addresses a crowd at a protest after celebrated hacktivist Jeremy Hammond was sentenced

I want to read to you a bit:

THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. We know how to put a proper price upon goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated. 

Thomas Paine, The American Crisis, Winter 1776.  It is as appropriate now as it was at Valley Forge.  It shouldn’t be, but it is.

Let us not forget the principles upon which this country was born. As we look to our seemingly forgotten past we must embrace the fantastic promise of the digital revolution. It is our future.

The world is changing at a faster pace than it ever has before.  One person with the courage to come forward can change the world in ways they never could before.  But we must be mindful of the world as it is so that we can act to change it in ways that will benefit the future.

Money

Power

Sex

Drugs

Rock and roll

These things have become passé

Information is the new currency

Information is the new aphrodisiac

Information is the new high.

He who controls the information controls your world.

And your government knows it.

But we’re starting to know it too, thanks at least in part to the groundbreaking work of Jeremy Hammond and Barrett Brown, two of the first prophets of the digital age.

Barrett Brown

Political Prisoner Barrett Brown

Educate and inform the whole mass of the people… They are the only sure reliance for the preservation of our liberty, said Thomas Jefferson. But our government would likely seek to classify our founding fathers as terrorists if they dared seek to turn their rhetoric to reality today. How far we have drifted from the American ideals. What dangerous times are these.

Likewise, predictably lurking about Jeremy and Barrett are prosecutors and judges who want to turn these prophets into martyrs. Our aim is to see that they fail miserably in these endeavors.

At issue in the cases of both Hammond and Brown is the principle that people are entitled to privacy while the state must be transparent. Syllogistically, a good result in The United States v Hammond and The United States v. Brown translates into a good result for freedom, freedom for us all. At the same time, we must also recognize that what is good for freedom is antithetical to the emerging omnipresent surveillance state.

Jeremy is accused of hacking Strategic Forecasting Inc., commonly known as Stratfor.  Stratfor was thought of as a private CIA.  He has admitted to passing over 5 million emails to Wikileaks for publication.  He has pled guilty and faces a possible 10 years in federal prison.  Those emails gave us a glimpse of the evil and inappropriate relationship between the government and the private spy network, the so called private intelligence community.  Among the disclosures of the Stratfor emails shed light upon was something called trapwire – facial recognition software already in place in major American cities that can track you as you go about your daily routine.

Jeremy Hammond Barrett Brown

Jay Leiderman addresses the crowd at a fundraiser for journalist Barrett Brown and hacktivist Jeremy Hammond in New York City

Trapwire was one of the many items that journalist Barrett Brown was investigating at the time of his arrest.  Barrett pends trial on charges that could add up to over 100 years of custody time.  Principal among the charges he faces are allegations that he shared a link to the Stratfotr hack wherein there were credit card numbers.  Assuming arguendo he did so, he shared a link to a newsworthy event.  He did something journalists do every day all day long.  But because of his investigations into these private intelligence firms, including Booz Allen Hamilton, the company in the news because they were the NSA contractor who employed NSA whistleblower Edward Snowden, Barrett was charged and stands to lose his freedom for all of his days.  He’s 32 and they could give him 100 years.  It’s obscene.

Let me read some Jefferson once more to buttress the historic importance of these acts:

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.  I do not add ‘within the limits of the law’ because law is often the tyrants will, and always so when it violates the rights of the individual. 

Indeed, Jefferson would be in the lockup today, perhaps sharing a cell with Jeremy or Barrett.  What dangerous times are these indeed when personal liberty is constantly under threat of incarceration.

Jeremy and Barrett acted not for fame or for financial gain.  They didn’t think that one day we would gather together like this to support them and their actions.  They did what they did because of their unyielding principles.  Because they understood that freedom, liberty and independence come from that simple concept; privacy for the individual and transparency for the state.  Based upon that, they have acted heroically.

They remembered the American ideals that were lost to time.  They remembered their past as they forged ahead to make a better future for us all.  These are indeed the times that try man’s souls, but if we follow the lead set by Jeremy and Barrett, I’ve no doubt that it will be the American people that have a glorious triumph over the American government and the corporatocracy’s private surveillance state.

Donating to the causes of Jeremy Hammond and Barrett Brown is important for the foregoing reasons. We ask you to stand up for freedom, to stand against the surveillance state, to stand for the true ideals of the American experiment and help us protect and fight for these prophets of the digital age.

Jeremy and Barrett put themselves on the line for your freedom. Please help secure theirs. We do not forgive the transgressions of the surveillance state.  We do not forget our heroes.

 

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Why We Can Stop Missiles But Not Hackers

Hackers present both the public and private sector with some very unique challenges. Unlike traditional threats, which are often presented in very black and white terms, hackers are notoriously adaptable to new security measures and tend to discover vulnerabilities as fast as developers can fix them.

Their tools vary; sometimes hackers author malware to commandeer a victim’s system or computer, while other times they brute force their way in by guessing passwords or stealing account information. Other times they exploit users’ trust with phishing; failure to update software is another major cause of a security breach.

Stories about the mock pentagon hacks leave us with the burning question: just how vulnerable are we to hackers?

Hackers

Private Enterprises

Large corporations and small businesses frequently have good door security; they know who’s going in and out of their building and there is usually some kind of monitoring, be it live or recorded.

Private surveillance has made it considerably easier for law enforcement because physical evidence of a crime on tape is subject to less bias and provides a solid narrative of what happened. The threat of surveillance is also a great deterrent to would-be criminals.  In other words, it is considerably more difficult to dispute a criminal charge when one is caught on tape.

But digitally speaking, things are very different. Major data breaches, such as with Seagate and LinkedIn, show us that hackers are undeterred by the private sector’s security advances. They demonstrate that our businesses haven’t made much progress since the Target or Yahoo breaches, that hackers are still finding their way into servers and stealing customer information.

Much of this has to do with human error. Some of the largest hacks, including the iCloud celebrity photo “leaks” of 2014 [note 1] and the Seagate breach of 2016 stem from very basic phishing scams. Thus far, security services offer little in the way of handling scams, focusing mainly on encryption and malware elimination.

That’s not to say that said services aren’t useful; they just can’t stop everything. More often than not, businesses fall victim to internal sabotage or basic scams because that may be the only way for hackers to get in.

Public Services

Thus far, damage from hackers in the public sector appears to be minimal; no bombs have been dropped, no missiles launched, and no secret operations (that we’ve been told about) foiled. But the government has been hacked—and not just once.

no bombs have been dropped, no missiles launched, but the government has been hacked—and not just once.

In 2016, both the Internal Revenue Service and the Federal Bureau of Investigation were hit by hacks, with the former exposing the Social Security numbers and personal information of hundreds of thousands of private parties, and the latter information about public agents in the Department of Homeland Security and the FBI. [Note 2]

While not all details of the hacks have been made public, it is suspected that information gained by hacking private sector businesses led to the IRS hack. Yet these hacks may be the least of our concerns in the public sector.

Between 2015 and 2016, the US government accused both China and later Russia of hacking into public systems. These demonstrations of cyberespionage are evidence that foreign intrusions are evolving into something beyond moving around warships, staging blockades, or declaring no-fly zones. In some ways, they are much more akin to Cold War tactics.

More importantly, these sorts of hacks are unprecedented. Concerns that Russia may have interfered in the US elections give concerns as to just how safe our public systems really are and if they can be relied upon for accuracy.

You and I

Back at home, individual users face new problems from the hacker menace because our devices carry increasingly valuable information and are often far less secure than larger companies or databases.

Practically speaking, there are a few basic things you can do to keep yourself safe from intrusions. Protecting yourself is valuable both to you and to any companies you associate with, as a single unsafe device can have a cascading effect as companies move towards BYOD (Bring Your Own Device) models.

The standard anti-malware service is a given on any device, mobile or otherwise. What’s less commonly utilized but equally valuable is a Virtual Private Network (VPN) service. It works as a form of private encryption, protecting your internet connection and securing you from hackers, particularly while on public networks. For entry level users, I recommend this guide by Secure Thoughts to learn about the details and if a VPN suits your needs.

password

Change your passwords every six months to ensure continued security

Other useful apps and software include password management services and backup programs. The former can aid in managing the large number of passwords we as private users are required to juggle each day, while the latter can help recover from losses.

Hackers also have a particular affinity for outdated services, so just make sure anything you have installed is running on the most recent version. Old versions often contain security loopholes or bugs that hackers can exploit. It’s one other reason to beware of older programs that are no longer supported by their respective authors.

Looking Forward

Hackers are a serious threat, both public and private, that aren’t likely to go away anytime soon. They may not be as devastating as a single bomb or missile, but they’re considerably more difficult to stop and much more tenacious.

Chances are you or someone you know has already been hacked as a result of so many breaches and may not even know about it. This is the era of eternal vigilance, and if we’re going to keep up with hackers, that means remaining on alert and monitoring our accounts. Keep an eye out for suspicious activity; it’s one of the best ways to prevent damage from getting out of control. And if you don’t, who will?

About the Author: Cassie is a writer and blogger who focuses on internet security and technology. The constant stream of identity theft and public data breaches keeps her very busy writing about how individuals and businesses can be better prepared for future incursions.

Web: www.securethoughts.com
Twitter: @securethoughtsc

[note 1: Jay Leiderman worked on one of these cases but he did not write this post]

[Note 2: Likewise, Jay Leiderman represents a defendant charged in some of these cases]

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22 April 2013

Jay Leiderman on HuffPostLive

Jay Leiderman

AP Story

 Reuters editor charged with hacking: I was fired

A Reuters deputy social media editor accused of conspiring with hackers to deface a story on a news website says he has been fired.

His dismissal came the day before 26-year-old Matthew Keys was scheduled to appear in US federal court for the first time on the felony charges. His attorneys said he plans to plead not guilty.

 Jay Leiderman

US federal prosecutors allege Keys provided the hacking group Anonymous with login information to access the computer system of The Tribune, the parent company of The Los Angeles Times.

According to a federal indictment handed down last month, a hacker identified only as “Sharpie” used information Keys supplied in an internet chat room to alter a headline on a December 2010 Los Angeles Times story to reference another hacking group.

Tribune also owns a Sacramento television station Keys had been fired from months earlier.

Keys has said he did not commit the crimes he’s accused of. He did not immediately respond to a telephone message seeking comment, but he did post several online messages saying Reuters had not fired him as a result of the indictment.

“Just got off the phone. Reuters has fired me, effective today. Our union will be filing a grievance. More soon,” he tweeted to his more than 35,000 followers.

 Jay Leiderman

He later tweeted a copy of a “final written warning” he said he received from Reuters in October, which admonished Keys for mocking a Google executive from a fake Twitter account he had created, saying the action demonstrated a “serious lapse of judgement and professionalism that is unbecoming of a Reuters journalist”.

His attorney Jay Leiderman confirmed the firing, but said he would not comment on it because the Newspaper Guild was representing him on the matter. He added that “there is an appeals process that I will have to let play out”.

The Guild did not immediately return a phone message seeking additional details.

Reuters hired Keys in 2012 and suspended him from his New York social media job on March 14. Thomson Reuters spokesman David Girardin declined to elaborate on why Keys was no longer employed.

Keys is scheduled to be arraigned on Tuesday (US time) in federal court in Sacramento. He is charged with one count each of conspiracy to transmit information to damage a protected computer, as well as transmitting and attempting to transmit that information.

If convicted and sentenced to the maximum for each count, the Secaucus, New Jersey, resident faces a combined 25 years prison and a $US500,000 fine, prosecutors say. But experts say first-time offenders with no criminal history typically spend much less time in prison than the maximum term.

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The United States Supreme Court has held that the Sixth Amendment requires “at a minimum, that criminal defendants have . . . the right to put before a jury evidence that might influence the determination of guilt. [Citations.]” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 56.)  Exclusion of necessary defense evidence is subject to due process protections.  When the defendant’s right to present a defense is at stake, it is an abuse of discretion to exclude probative evidence that meets the minimum statutory standards for admissibility.  (People v. Jackson (1991) 235 Cal.App.3d 1670, 1681; People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599; People v. Taylor (1980) 112 Cal.App.3d 348, 365; see also People v. De Larco (1983) 142 Cal.App.3d 294, 305-308.)

The California Supreme Court has noted that the trial court has discretion in weighing the prejudicial effect of proffered evidence against its probative value.  But the Court has cautioned, “This discretion is not, however, unlimited, especially when its exercise hampers the ability of the defense to present evidence.”  (People v. Cooper (1991) 53 Cal.3d 771, 816.)

evidence

The right to put on defense evidence to support the defendant’s theory of the case is fundamental to hte justice system

“We have recognized, however, that Evidence Code section 352 must yield to a defendant’s due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense. [Citation.]”  (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.)
In People v. Reeder (1978) 82 Cal.App.3d 543, 553, the court held that the rule of excluding evidence as more prejudicial than probative “must be considered in the light of the more fundamental principle that a defendant’s due process right to a fair trial requires that evidence, the probative value of which is stronger than the slight-relevancy category and which tends to establish a defendant’s innocence, cannot be excluded on the theory that such evidence is prejudicial to the prosecution.”  (Id. at 552 [italics in original].)

In People v. Hall (1985) 41 Cal.3d 826, 829, the California Supreme Court stated, “We reaffirm the admissibility of any relevant evidence that raises a reasonable doubt as to a defendant’s guilt.” (Emphasis added.)

We further recognize that a defendant’s right to present his defense theory is a fundamental right and that all of his pertinent evidence should be considered by the trier of fact. (Davis v. Alaska (1974) 415 U.S. 308, 317; People v. Reeder, supra, 82 Cal.App.3d at p. 552.)  . . . .  Accordingly, since the trial court’s discretion should “favor the defendant in cases of doubt” (People v. De Larco (1983) 142 Cal.App.3d 294, 306), the trial court properly should have admitted this evidence.

the admissibility of any relevant evidence that raises a reasonable doubt

(People v. Burrell-Hart, supra (1987) 192 Cal.App.3d 593, 599-600 [emphasis added].)

As the United States Supreme Court has declared, “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” (Chambers v. Mississippi (1973) 410 U.S. 284, 302.)  Indeed, the Court has held that “the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the Due Process Clause of the Fourteenth Amendment.”  (Washington v. Texas (1967) 388 U.S. 14, 17-18.)

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury, so it may decide where the truth lies.  Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.  This right is a fundamental element of due process of law.

 

(Washington v. Texas (1967) 388 U.S. 14, 19.  Emphasis added.)

 

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Jeff Sessions as Attorney General will be a nightmare for legal and medical marijuana freedoms

Jeff Sessions

Anti-drug warrior could be the biggest threat to the evolution of marijuana legalization

How the appointment of Jeff Sessions as Attorney General might affect both legal and medical marijuana in the 29 states that have programs and to what degree will the Federal Government may interfere with state’s rights to enforce the controlled substances act of 1971.

President-elect Donald Trump has selected hardline marijuana medication and legalization plan reform adversary Sen. Jeff Sessions (R-Ala.) to be attorney general of the United States, a move that sent mass trepidation through states with any degree of marijuana legalization activity. Sen. Jeff Sessions was an immediately divisive figure when President-elect Donald Trump named him as his next attorney general: conservatives and migrants hardliners accepted the choice, while civil-rights groups and Democrats spent the day fighting the pick, with Sen. Elizabeth Warren saying “there can be no compromise with racism; no negotiation with hate,” and Sen. Cory Booker saying, “I am concerned that he offers philosophies that are incompatible with basic tenets of the Justice Department’s objective.”

medical marijuana

Lawyer and author Jay Leiderman on medical marijuana law

Marijuana remains unlawful as a schedule 1 substance (no medical value) under the Federal Government Controlled Substances Act of 1971, notwithstanding the development of so-called “recreational” or “legal” programs in Washington State, Colorado, Alaska, Oregon, California, Arizona, Massachusetts, Maine and Washington, D.C. (The Region, though, continues to ban sales, compared with state programs.) Four of the aforementioned are new states that accepted legalization on this past Election Day, and 29 states in total have adopted programs for legalized marijuana for healthcare reasons. This activity has only been able to press forward because of Department of Justice guidance encouraging Government prosecutors to avoid focusing on state-legal marijuana operations except in extreme and egregious situations.  The background involves the so-called Cole and Ogden memos.

In an aspect the critics’ focus was on questionable past comments by Sessions, such as allegations that he said the NAACP and United States Liberties Union were “un-American,” and joked that he thought the Ku Klux Klan was “OK until I learned they smoked pot.” But much of the concern is what he’d actually do as Attorney General: that he’d challenge civil rights, take lawful action against more undocumented immigrants and allow organizations to go wild with mergers.

So what could he really do? Some cabinet-level jobs have restricted power to affect the nation, either because of their filter objective or the slow rule-making processes needed to make significant changes in public policy. Not so as that relates to the Attorney General.  Notwithstanding the fact that he would be sitting on top of the vast Department of Justice Bureaucracy, the Attorney General has extensive autonomy to move American policy in large ways just by how he prioritizes its restricted resources—in other words, which the office selects to take lawful action against and which ones it lets go. It runs a multitude of organizations, such as the highly effective FBI, DEA, and the immigration legal courts. And it also, insiders say, the Attorney General’s Office uses its large influence on the White House’s own sense of its power. “At every cabinet meeting, they are the person who everyone goes to and says what varieties of choices are,” said a former Bush administration official. “Being able to cottage or increase all the different choices available to the professional division is an extremely effective capability.”

How could Sessions leave his fingerprints on the country? Here are 5 issues where Sessions could most considerably change public policy:

Marijuana

Since marijuana is still governmentally unlawful under the Controlled Substances Act, the attorney general has the ability to decide whether to implement Federal Government law in states that have accepted medical or recreational marijuana use. Under Obama, the DOJ has taken a hands-off approach and Trump seemed to agree with that plan, saying that marijuana should be left up to the states. But the president-elect has also never shown a deep interest in drug plan while Sessions has been an intense adversary of marijuana legalization, such as saying that “good people don’t smoke marijuana.”

good people don’t smoke marijuana

“Sessions has numerous types of choices when it comes to breaking down if he selects to do so,” said Erik Altieri, the executive director of NORML, a group that facilitates marijuana legalization. “That could vary from basically raiding and closing down state lawful shops; bringing legal charges against the owners of those shops and it could be tossing up hurdles when it comes to the execution of these poll projects.”

States such as Washington and Colorado have served as guinea pigs for the rest of the nation, applying policies around recreational marijuana use, and more states are set to join them after voters passed initiatives in all 9 states that had the issue on the ballot on November 8th. Genuine and lawful businesses are operating freely in the states. Sessions could close down these companies and implement the Federal Government law against marijuana use, pleasing anti-drug advocates—but likely shocking many Americans in a nation that increasingly supports marijuana legalization.  At election time, marijuana legalization in some form was polling nationally at 60% for and 31% against.

Immigration

The stakes are high for many undocumented immigrants, mainly those who become caught up in the legal justice system. The Justice Department has two unique sections of power over immigration: defending immigration offenses and providing the migrant’s court processes. It has significant power over the administration of immigration laws and rules, such as unlawful reentry into the United State and immigration scams. The law has always been that “nowhere is Congress’ power more plenary and unqualified than at the borders.”  For example, under Obama, the DOJ worked with the Department of Country Protection on a program called Operation Streamline which charged immigrants caught unlawfully traversing the border, which provides tighter repercussions than if those caught at the border had just been revert back to the other side. This system, widely disliked by immigration activists, was scaled back in the past several years.

plenary and unqualified

A different agency within the Department of Justice arbitrates the petitions of immigration court rulings and its decisions set an example for future situations. Those decisions can often be technical and deal with arcane sections of immigration law but they can often be life-or-death decisions for the appellants, such as in the situations over asylum law. The attorney general can turn around any example decision by assigning it for review, allowing him a significant power to modify immigration plan. “The attorney general has tremendous power over the administration of immigration law,” said David Leopold, immigration attorneys based in Cleveland.

There’s no particular number of undocumented immigrants who may be at risk if Sessions, who is known as a hard-liner on immigration, is verified as attorney general. But it could participate in a wider attack on unlawful immigration, promoting greater fear among undocumented immigrants and which makes it harder for asylum-seekers to stay in the country legally.

Surveillance

The Justice Department is mainly accountable for protecting the Federal Government in all surveillance arguments, such as when the Apple Company declined to help the FBI decrypt the iPhone owned by the assailant in the San Bernardino terrorist attack. It also is mainly accountable for protecting the Federal Government before the Foreign Intelligence Surveillance Court, which manages national security surveillance. Those decisions will now fall to Sessions and people he sets up at DOJ.

Sessions have reinforced allowing law administration extensive variety to access that information, demeaning the Apple Company in the San Bernardino case and warning against any tries to restrict the NSA. The technology industry is already worried about how he will handle surveillance programs. After the Snowden leaking, technical organizations have become more reluctant to work together with the Federal Government and more willing to go to court to prevent law administration organizations from obtaining their customers’ information, such as email, without a guarantee.

NSA

The tin foil age – you are no longer crazy if you think that the government is spying on you. Tin foil hats are needed more now than ever before ;)

A Sessions-run DOJ that takes a harder line against technical organizations could result in much more warmed fights between the Federal Government and industry—and fewer privacy rights for everyday Americans.

Police Misconduct

Under Obama, the Justice Department has made it a priority to break down on cops’ wrong doings. Some of that has come through grants to law enforcement organizations to purchase body cameras and other tools and through a task force to improve policing techniques. But one significant technique to clean up police departments has been through investigations by the DOJ’s Civil Rights Department, either into particular occurrences or wide exams of police departments.

These investigations have exposed clear instances of racist behavior and comments by cops, shining a light on practices in places such as Baltimore and Ferguson, Missouri. Many black and Hispanic Americans in these places saw the cops more as a risk than a power for protection.

Whether a Sessions-run Department of Justice will continue to focus investigations into cops’ wrong doings is uncertain, but unlikely. Many conservatives and police departments have begrudged the investigations and considered them an instance of Government overreach; they will compliment Sessions if he chooses to limit those investigations. But for much of the underprivileged populations, DOJ investigations are often their last chance to modify law administration organizations and receive justice under law.

Other Civil Right Concerns

Beyond cops wrong doings and voting rights, the Justice Department makes sure civil rights laws and rules on a variety number of problems are enforced fairly (or at least they are supposed to). Sessions could roll back rules avoiding schools from not including kids who are undocumented immigrants or maintaining the rights of transgender students. These questionable actions last only as long as the management in the Justice Department is dedicated to them. The same goes for the administration of property laws and rules or marriage equality against LGBT Americans.

For LGBT and community Americans, Obama’s desire to stretch his power under civil rights laws has earned them equal protection previously provided to millions of Americans. But to opponents, it’s been an example of Obama’s neglect for the concept of law and desire to infringe on state’s rights.

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