Parsing definition of &quot;urgent concern&quot; under 50 U.S.C 3033? Can someone help validating my parsing of a legal definition of "urgent concern" in the cited section. If a complaint is not related to a intelligence activity, does it qualify as an intelligence whistleblower report? In the news are "whistleblower" allegations claiming to be an "urgent matter" under 50 U.S.C. 3033 (k) (5). Included in that section is the following definition appears: (G) In this paragraph, the term “urgent concern” means any of the following: (i) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters. (ii) A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity. (iii)An action, including a personnel action described in section 2302(a)(2)(A) of title 5, constituting reprisal or threat of reprisal prohibited under subsection (g)(3)(B) of this section in response to an employee’s reporting an urgent concern in accordance with this paragraph. The whistle-blower quotes the above definition incompletely. After reading the now-released complaint and related MEMCON, I can't see how it relates to an intelligence activity within the responsibility and authority of the DNI. In fact it seems to me a difference of opinions concerning public policy matters. I have to wonder if the whistle-blower, ICIG and Speaker of the House misjudged the legal protections applicable to this report.
The first paragraph on the nature of the concern in the ICIG letter to McGuire clarifies what the alleged violation of the law is: Here, the Complainant's Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian President Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” U.S. laws and regulations prohibit a foreign national, directly or indirectly, from making a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election. Similarly, U.S. laws and regulations prohibit a person from soliciting, accepting, or receiving such a contribution or donation from a foreign national, directly or indirectly, in connection with a Federal, State, or local election. Further, in the ICIG’s judgment, alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. § 3033(k)(5)(G)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct. That is, it is alleged that it is a violation of federal election law for a foreign national to aid a US election (by providing information, which might be of value). The underlying statute is ambiguous. One reading is that the term refers to a deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information and also A serious or flagrant problem, abuse, violation of law or Executive order The alternative is to take the entire list and limit the scope of the violations etc. to those within the responsibility and authority of the Director of National Intelligence involving classified information The interpretive canon known as the "last antecedent rule" favor the narrowest scope possible the immiidately above phrase. The law does not require a Supreme Court quality analysis of the underlying law: the proper interpretation of that statute is far from obvious, see here. Whether or not the last antecedent rule would be actually invoked in a final appeal is very hard to say, but generally the courts disfavor the supposition that any statute is ever written ambiguously (that still doesn't tell us what the scope of the last phrase is). The wording of the ICIG letter clearly indicates his interpretation of the scope of the DNI phrase, as not being limited to only intelligence activities within the responsibility and authority of the Director of National Intelligence involving classified information. However, the ICIG letter also notes that the Director of National Intelligence has responsibility and authority pursuant to federal law and Executive Orders to administer and operate programs and activities related to potential foreign interference in a United States election Additionally, Executive Order 13848, Imposing Certain Sanctions in the Event of Foreign Influence in a United States Election declares that the ability of persons ... outside the United States to interfere in or undermine public confidence in United States elections... constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States putting the combination of foreign + elections within the scope of the DNI. The ICIG letter also reasons that alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. § 3033(k)(5)(G)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct.
A law has to be "broad" to include a lot of possible crimes and intent of criminals and account for the good faith of non-criminals. "Intentionally access without authorization/exceed" is actually fairly specific; "intent" is the keyword. Someone making a mistake may have intent to login, but no intent to commit a crime. Someone confused by "different pages of demo and live accounts" can easily defend their actions by pointing out that they were confused. It's up to the reasonableness of the pertinent law enforcement and prosecutors to take into account the evidence that reasonable mistakes were made by little old ladies and not charge them with a crime. And for the most part, 98% of the time, law enforcement and prosecutors are reasonable.
There is actually more than one law covering whistleblowers, so the other answer is only partially correct. According to the NYT, the case in question here is also covered by the Inspector General Act of 1978 Do whistle-blowers have a right to remain anonymous? Only in a limited way. Another part of the Inspector General Act says that agency watchdogs “shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the inspector general determines such disclosure is unavoidable.” In line with that law, the inspector general for the intelligence community, Michael Atkinson, did not include the whistle-blower’s name in his report to the acting director of national intelligence, Joseph Maguire. Mr. Maguire testified last week that he did not know the name of the person [...] But the legal prohibition on disclosing the official’s name applies only to Mr. Atkinson. It does not bar Mr. Trump and his allies from trying to identify him or disclosing his name if they figure it out. (It would be illegal under the Intelligence Identities Protection Act for any official to disclose his name if he is a covert agent, but no one has suggested that he is.) The same information can be found in an OIG FAQ Q: Will OIG reveal employee identities or the fact that they cooperated? A: OIG investigators will respect the confidentiality of Department employees as provided by law. Section 7 of the Inspector General Act states that “[t]he Inspector General shall not, after receipt of a complaint or information from an employee, disclose the identity of the employee without the consent of the employee, unless the Inspector General determines such disclosure is unavoidable during the course of the investigation.” During the course of some investigations, it may be unavoidable that the identities of individuals involved will become known. However, OIG strives to protect the confidentiality of Department employees who provide OIG with information. In addition, employees should be aware that reprisal against any employee for cooperating with OIG is forbidden by the Inspector General Act and DAO 207-10, Section 4. Further, OIG takes whistleblower protection very seriously and, along with the U.S. Office of Special Counsel, investigates alleged reprisals against employees for making protected disclosures to OIG. So Paul's spokesperson seems to be correct.
Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector. In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual. However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk. Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements. For more on this, check this legal blog. There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time. It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired..
Without commenting on the relatively strange situation itself, it is still useful to actually read what was actually said than what was described in a letter from a third person, even if the relayed information is technically true. The supposed basis for the claim of a zero salary is from an email allegedly sent by the department head (appendix 15): In short, you are not teaching in 2022/2023 and you have not submitted the required outline of your research or other engagement. I am very sorry that we cannot establish that you will be doing any work expected of a faculty member. Thus we cannot pay you. Starting with the Fall semester, your pay will be reduced to zero and you will be placed on unpaid personal leave. Essentially, the professor is being put on an unpaid leave because allegedly he is not doing any work. Consequently, minimum wage laws are not engaged even if the professor is not exempt as teachers since he is not being required to do any work. In the U.S., employers generally can do this (unless a work contract provides otherwise); in many circumstances, it is called being laid off (though the term has attracted a permanent connotation in parts of North America) or being suspended. An indefinite unpaid leave can be considered constructive dismissal if the employer does not reasonably allow the employee to return to work. It may not be constructive dismissal if the unpaid leave is prescribed by binding employer policies or because the employee refuses to work (and the employer allows the employment relationship to continue). Even if it is constructive dismissal, it is not automatically wrongful.
It ultimately depends on what Congress said when the relevant law was passed pertaining to that form of discrimination, how the enforcing agency has written the regulations, orders that have been issued, and how the courts have interpreted the law and regulations. EEOC Notice 915.002 states that Under the Americans with Disabilities Act of 1990 (the "ADA"), an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer. Such questions must be "job-related and consistent with business necessity". There is a statutory underpinning to this declaration, 42 USC 12112(d) that The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries and Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. except that A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions. EEOC also says that In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers should not request information that discloses or tends to disclose an applicant's race unless it has a legitimate business need for such information. Such inquiries are illegal in the sense that the EEOC "prohibits" it, and in the case of disability there is a direct statutory mandate to prohibit it. There is a legal principle, "Chevron deference", that says that the courts should defer to an agency's interpretation as long as Congress hasn't directly addressed the question and the interpretation is not unreasonable. Title 29(A)(35)(B) states the standards for detecting age discrimination for entities receiving federal funds, and while age discrimination is illegal, asking a person's age is not prohibited by specific regulation. The EEOC provides this manual regarding general race and color discrimination, and the section on "Evaluating employment decisions", where they say determining whether race played a role in the decisionmaking requires examination of all of the surrounding facts and circumstances. The presence or absence of any one piece of evidence often will not be determinative. So asking a person's race is not per se a violation of the law, but it is an act interpreted by the EEOC to be evidence of race discrimination. On the other hand, asking about disability is totally illegal so there's no "totality of evidence" to the process. The footnotes in the manual point to relevant case law: there is no case law that says "asking a questions about a protected category is per se proof of discrimination", but it can be used as part of a pattern of evidence.
Probable cause is not required to issue a subpoena. But, a recipient of a subpoena (or a party to a case in which a subpoena is issued, or a person whose records a subpoenaed), may file a motion to quash the subpoena in the court that issued it, before the information is disclosed pursuant to the subpoena. A claim that the subpoenaed material is privileged is always a legitimate reason to quash a subpoena. A subpoena can also be quashed on the grounds that the materials sought are unrelated to the matter for which it is issued, or that it is unduly burdensome in a manner unrelated to a legitimate interest in obtaining the information sought (this list of objections is not exhaustive). You can see an example of a motion to quash a subpoena duces tecum from a federal grand jury, together with the subpoena itself attached to the motion at the end of the linked file as an exhibit, at this link. The federal court rule governing subpoenas in federal criminal cases is Federal Rule of Criminal Procedure 17. In federal court civil cases, Federal Rule of Civil Procedure 45 applies. Short of actually quashing the subpoena, the court issuing it could also modify the obligation by imposing a protective order on the materials to be disclosed (e.g. trade secrets or private financial information). This would prevent the materials disclosed from being shared with people other than the recipient. Incidentally, the penalty for failing to respond to a subpoena is for the person to whom it is directed to hold the person in contempt of court, punishable by incarceration or a fine (often a fixed amount per day). Often, if testimony is part of what is required, a warrant for the arrest of the person who fails to appear is summarily issued by the court. Footnote regarding terminology Strictly speaking, the word &quot;subpoena&quot; unmodified, refers to a subpoena directing the person to whom it is addressed to testify under oath at a certain place and time, sometimes a grand jury, sometimes a trial in a court, sometimes a deposition, sometimes an arbitration, and sometimes an interview with a government official. When a subpoena is asking for the turnover of records or things or data it is strictly speaking called a &quot;subpoena duces tecum&quot; (from the Latin duces tecum, meaning &quot;you shall bring with you&quot;). Historically, in response to the subpoena duces tecum, the custodian of the records would appear personally at a deposition or grand jury proceeding or trial with the records or things and would testify under oath briefly at that time to authenticate them. These days, the federal rules of evidence and most state rules of evidence provide that the custodian of records can sign an affidavit, or a declaration (i.e. a statement made under penalty of perjury which is not notarized), regarding the authenticity of the records (and their status as &quot;business records&quot; or &quot;public records&quot; where appropriate). Then, this affidavit or declaration is delivered along with the records by a courier or mail, in lieu of actually providing live testimony regarding the authenticity and business records status of the records. Delivery of documents by courier or mail or electronically, accompanied by an affidavit or declaration is what is usually done these days, except in exceptional cases where the authenticity and/or business records status of the records is genuinely in dispute and complicated in some way. For example, in person testimony of the custodian of records might be required in a case where there are allegations of forgery of documents or that digital files were hacked.
As a native English speaker I would read this as requiring the DPO to monitor all the things listed (i.e. you are correct). Furthermore it would be ridiculous for the DPO to be personally responsible for doing all of these things. If you were supposed to perform "assignment of responsibilities" yourself that would pretty much make you the Chief Operations Officer. If you are only required to monitor job assignments for compliance then by the same logic you are only required to monitor training. Having said that, there is an established principle in the safety industry that compliance should have an independent reporting line up to the top management, and I think its the same for financial regulations too. You cannot be an effective DPO if you are just watching from the sidelines. So I would expect a DPO to have: Line responsibility for audits and routine compliance work such as privacy impact assessments, with a dedicated team of people if necessary. This ensures that there is an independent reporting line from everyday work up to the DPO. Do not accept a situation where data protection work is carried out by the project and then handed to you to file once it is complete, because it never will be. Project managers have a lot of competing priorities and they are extremely good at avoiding anything that sits between them and project completion. You MUST have your own people in the project to see what is happening and the power to stop a project if it is not compliant. If they won't give you that, turn down the job. Budget responsibility for training (with the work actually done by specialist contractors or the company in-house training department) Notification of job assignments where data protection is part of the responsibility.