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9th Circuit judges skeptical in Idaho NSA surveillance case

A three-judge panel of the 9th Circuit Court of Appeals was highly skeptical this morning of arguments on behalf of a Coeur d’Alene woman that NSA cell phone surveillance violates her constitutional right to privacy; you can read my full story here at spokesman.com. When Coeur d’Alene attorney Peter J. Smith began his arguments, noting that the plaintiff in the case is Anna J. Smith, 9th Circuit Judge Richard Tallman interrupted him, saying, “Who’s your wife.” “That is correct, your honor,” Smith replied. Later, when Smith was arguing that a 1979 U.S. Supreme Court case regarding specific phone surveillance of a criminal suspect for a three-day period, Smith v. Maryland, shouldn’t bar a privacy claim in this case of sweeping, bulk data collection, Smith said he wasn’t asking the judges to overturn Smith v. Maryland. The judges burst out laughing. They said that’s not their place.

In their questioning of attorneys on both sides, the judges, who also included Judges Margaret McKeown and Michael Hawkins, had sharp questions over whether the Coeur d’Alene woman has standing to bring the case. U.S. District Judge Lynn Winmill earlier ruled that she did, but held that she couldn’t prevail under current high-court precedents, including the 1979 case.

“We knew that we’d be faced with a lot of skepticism, and we knew that standing was going to be a big issue,” said Idaho Rep. Luke Malek, R-Coeur d’Alene, who is among Smith’s attorneys in the case. “I think they were intrigued probably by just the way we filed this case, just taking a client who we knew well and would be tolerant of the whole process.” He added, “I’m very excited. This case is a long way from being done, because this issue is a long way from being done. There’s a lot to be decided on privacy in the digital age.”

Thomas Byron, attorney for the U.S. Department of Justice, told the court that Winmill correctly applied the law in his earlier dismissal of the case. When Hawkins asked him, “By an individual popping open their cell phone and typing … that’s voluntarily giving up that information… (and the) expectation of privacy?” Byron responded, “That was the court’s finding in Smith v. Maryland.”

The Idaho case has attracted widespread attention, including friend-of-the-court briefs filed by U.S. Sens. Ron Wyden, Mark Udall and Martin Heinrich, the Center for National Security Studies, the Electronic Privacy Information Center and 33 technical experts and legal scholars, arguing the bulk data collection is unconstitutional. The three senators, all members of the Senate Intelligence Committee, argued that they've seen “no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through means that caused far less harm to the privacy interests of millions of Americans.”

Idaho case challenging NSA cell phone surveillance goes before 9th Circuit today

The 9th Circuit Court of Appeals will hear oral arguments in Seattle this morning in an Idaho case in which a nurse from Coeur d’Alene sued the president and other top national officials over the bulk collection of cell phone data by the National Security Agency.

In legal briefs submitted to the court, attorneys for Anna J. Smith wrote, “To decide the Fourth Amendment issue here, the Court must answer a question that the Supreme Court has never confronted—whether the government’s long-term collection and aggregation of call records invades a reasonable expectation of privacy. … It does.”

U.S. District Judge Lynn Winmill dismissed the case in June, writing that existing U.S. Supreme Court precedents hold that data collection doesn’t violate the U.S. Constitution’s Fourth Amendment, but that the court could – and very likely might – change that precedent. Smith appealed.

“What is novel here is not primarily the nature of the data collected, but the scale of the collection,” wrote her lawyers, who include state Rep. Luke Malek, R-Coeur d’Alene; Coeur d’Alene attorney Peter J. Smith IV, the woman’s husband; and attorneys for the ACLU and the Electronic Frontier Foundation. “Technological advances have vastly augmented the government’s surveillance power and exposed much more personal information to government inspection and intrusive analysis. If courts ignored this reality, the essential privacy long preserved by the Fourth Amendment would be eliminated.”

They argue that years-old court precedents came long before the ubiquitous use of cell phones by Americans. “When collected in bulk, call records reveal religious, familial, political, and intimate relationships; sleeping and work habits; health problems; and business plans,” the lawyers wrote. The government could do targeted surveillance of suspects in terrorism cases without bulk-collecting data from all Americans, they wrote, and still accomplish its goals. “The bulk collection of Americans’ call records is extraordinarily intrusive,” they wrote.

Smith contends that her Verizon cell phone was her primary means of communication with family, friends, her employer, her children’s teacher, her doctor, her lawyer and others, and that her communications were none of the government’s business – and had nothing to do with terrorism. Winmill found that Smith had standing to sue, but couldn’t prevail under current court precedents.

Mom’s Surveillance Fight Gets Boost

The Electronic Frontier Foundation, the American Civil Liberties Union and the American Civil Liberties Union of Idaho have joined Anna Smith’s legal team in her challenge of the government’s bulk collection of the telephone records. Smith, an emergency neonatal nurse and pregnant mother of two, filed her suit against President Barack Obama and several U.S. intelligence agencies shortly after the government confirmed revelations that the National Security Agency was conducting bulk collection of telephone records under a section of the Patriot Act. Smith, a customer of Verizon wireless, one of the companies that was ordered to disclose records to the NSA, argued the program violated her First and Fourth Amendment rights by collecting a wealth of detail about her personal and professional associations. “When I found out that the NSA was collecting records of my phone calls, I was shocked,” said Smith, who is represented by her husband, Coeur d’Alene attorney Peter J. Smith, and Idaho state Rep. Luke Malek, of Coeur d’Alene/David Cole, Coeur d'Alene Press. More here.

Question: Glad to see Rep. Luke Malek involved in this. Thoughts?

Malek decides against run for Secretary of State

Rep. Luke Malek, R-Coeur d'Alene, who had been considering running for Idaho Secretary of State - in part because there's currently no one from North Idaho among the state's top elected officials - has decided against a run. Here's his statement:

After careful consideration over the holidays with my wife and family, I have decided against seeking the office of Secretary of State next year. My passion for serving the State of Idaho is put to best use right now through focusing on my home district and on the issues important to my home, North Idaho. I am honored by the many people who urged me to run, and those who have reached out over the last few weeks with their advice and support. Tara and I want to thank you all.  We hope you had a Merry Christmas and wish you a happy holiday season.

Add Malek to the list: Number of potential GOP candidates for Secretary of State grows

Add another name to the list of those pondering a possible run for Idaho Secretary of State now that longtime Secretary of State Ben Ysursa has announced he’ll retire after his current term: Rep. Luke Malek, R-Coeur d’Alene. “It’s definitely intriguing,” said Malek, a first-term state representative and former deputy Kootenai County prosecutor. He said supporters have been urging him to run, and part of the appeal is the chance to get someone from North Idaho into the ranks of Idaho’s top state elected officials – currently there are none. “It’s an extremely important position, and I do think I would bring a qualified skill set to it as well,” Malek said.

He listed his law degree; his legislative and electoral experience; his work running an urban renewal agency in Post Falls before he went to law school; and his work with corporations as an attorney; Malek also served as North Idaho regional director for then-Gov. Jim Risch. But the 32-year-old also admitted he’s torn. “I do love where I’m at,” he said. “I have the best constituents in the world, and a job I love back in my home district. … I’m watching to see how the candidates shake out.” Malek is currently director of legal affairs for Heritage Health/Dirne Community Health Center in Coeur d’Alene. A newlywed, he holds degrees from the College of Idaho and the University of Idaho College of Law.

Others who already have expressed interest in the 2014 race from the GOP side are former House Speaker Lawerence Denney, R-Midvale, who announced his candidacy even before Ysursa bowed out; former state Sen. Mitch Toryanski, R-Boise; current chief deputy Ada County Clerk Phil McGrane; and current Sen. Marv Hagedorn, R-Meridian. I’ll have a full rundown in my Sunday column this week.

“I expected some folks to enter into it, and it should be a lively primary,” Ysursa said. “Once the whole field is settled, we’ll see. I’m sure the Democrats will try to run some folks too.” Ysursa, the state’s chief elections offer, said with a grin, “I’ll put ‘em all on the ballot.”

Pot Project: Malek 2nd Worst Solon

Idaho State Rep. Luke Malek (R-Couer d'Alene) is ranked second in a list of the country’s “Worst State Legislators of 2013” released Friday by the nation's largest marijuana policy organization, the Marijuana Policy Project (MPP). The seven state representatives and one senator were selected based on their legislative efforts to maintain or expand marijuana prohibition policies, as well as statements they made, during the 2013 legislative sessions. The list includes Rep. Malek because he helped pass a resolution opposing the legalization of marijuana “for any purpose” because he thinks medical marijuana is a “farcical predatory scheme”/Marijuana Policy Project. More here.

Question: Is it a bad thing to be considered 2nd worst legislator in USA by the Marijuana Policy Project?

Attempted Censure Suffers Pratfall

It turns out the Kootenai County Republican Central Committee doesn't have the authority to censure four North Idaho legislators for voting against their wishes. “Sorry I don't have room for discussion on this,” said Chairman Neil Oliver. “I find the motion is out of order.” The central committee spent about an hour Tuesday night wrangling over whether or not to censure four North Idaho legislators for creating a state health-care exchange, only to be stopped dead in its tracks when Committeeman Luke Sommer, an expert in parliamentary procedure, pointed out that the committee could not censure anyone outside the committee itself. “If we can censure someone outside this body we could censure the president of the United States,” he said, adding there is nothing in the committee's bylaws or Robert's Rules of Order that would allow the move. Committeewoman Tina Jacobson (pictured) passionately put forward the resolution to censure Rep. Frank Henderson, Rep. Luke Malek, Sen. John Goedde and Rep. Ed Morse/Jeff Selle, Coeur d'Alene Press. More here.

Question: Are you surprised by the outcome?

Local GOP May Censure 4 Solons

Several Republican state legislators representing Kootenai County districts could receive a public reprimand next week from members of their own political party. When the county's Republican central committee meets on Tuesday, its elected precinct committeemen will consider a resolution that would formally censure Rep. Frank Henderson, Rep. Luke Malek (pictured), Rep. Ed Morse and Sen. John Goedde, because they voted, during the last legislative session, in favor of the creation of a state insurance exchange. “I'm confused as to why they would censure those of us who advocated for and voted for state control,” Malek, of Coeur d'Alene, said Friday to The Press. “If you didn't, you were advocating for a federal exchange, which would be far more harmful to Idaho.” … The Idaho House of Representatives passed the bill to create the exchange in March, by a vote of 41 to 29/Maureen Dolan, Coeur d'Alene Press. More here. (SR file photo)

Question: Izzit just me or does this censure attempt, coming months after the end of the 2013 Legislature, seem silly to you, too? What is the end game of those behind this attempt?

CdA Woman Sues re: Data Collection

A Coeur d’Alene woman has filed a federal lawsuit against President Barack Obama and top national security officials, contending that collection of information about her Verizon cellphone use violates the law and the Constitution. Her attorneys are Idaho state Rep. Luke Malek, R-Coeur d’Alene, a former deputy Kootenai County prosecutor, and Peter J. Smith IV of Lukins and Annis, who is the woman’s husband. Peter Smith said of his wife, Anna J. Smith, “It’s kind of an interesting situation; she has access to resources that a normal person may not, that is legal counsel and knowing that this case probably won’t be dealt with quickly or easily and probably will wind its way through.” The lawsuit is in response to revelations last week that the National Security Agency operates a classified program to monitor millions of Americans’ telephone records/Betsy Russell, Eye on Boise. More here.

Question: Do you support this lawsuit?

Idaho lawsuit challenges tracking of cell phone calls

First-term state Rep. Luke Malek of Coeur d’Alene filed a federal lawsuit against President Obama and top national security officials today on behalf of Coeur d’Alene resident Anna Smith, contending that collection of information about her Verizon cell phone use violates the law and the Constitution. “Plaintiff Anna Smith is a mom and a neonatal intensive care nurse,” the lawsuit states, whose “primary means of communication is with her cell phone.”

The suit says Smith “communicates with her family, friends, employer, her children’s teachers, her doctor, her legal counsel, and nearly everyone else by way of her cell phone. None of these communications relate in any way to international terrorism or clandestine intelligence activities. Rather, these communications are being monitored simply because they are occurring.” More here. Betsy Russell, EOB

Wtg Luke Malek! But do you think this lawsuit will prove successful?

Idaho lawsuit challenges government’s tracking of cell phone calls

First-term state Rep. Luke Malek of Coeur d’Alene filed a federal lawsuit against President Obama and top national security officials late yesterday on behalf of Coeur d’Alene resident Anna Smith, contending that collection of information about her Verizon cell phone use violates the law and the Constitution. “Plaintiff Anna Smith is a mom and a neonatal intensive care nurse,” the lawsuit states, whose “primary means of communication is with her cell phone.”

The suit says Smith “communicates with her family, friends, employer, her children’s teachers, her doctor, her legal counsel, and nearly everyone else by way of her cell phone. None of these communications relate in any way to international terrorism or clandestine intelligence activities. Rather, these communications are being monitored simply because they are occurring.” You can read my full story here at spokesman.com.

The lawsuit filed in U.S. District Court asks the court to declare the government’s collection of the data in violation of federal law and the 1st and 4th amendments to the U.S. Constitution; permanently bar it; and order the government to purge all its call records relating to Smith’s communications. Malek’s co-counsel in the case is Peter J. Smith IV of Lukins and Annis, who is married to the plaintiff; you can read the complaint here. Malek is a Republican representative and a former deputy Kootenai County prosecutor.

Peter Smith said of his wife, “It’s kind of an interesting situation; she has access to resources that a normal person may not, that is legal counsel and knowing that this case probably won’t be dealt with quickly or easily and probably will wind its way through.” Smith said he approached Malek to serve as co-counsel on the case.

Malek Addresses Pachyderms

State Rep. Luke Malek, R-Coeur d'Alene, addresses the North Idaho Pachyderm Club at Jonesy's restaurant on Sherman Avenue this morning, discussing the state-run exchange, which has upset some local Republicans who oppose Obamacare entirely. Malek also discussed his bill to protect emergency room doctors, which passed the Idaho House but narrowly failed in the Idaho Senate during the 2013 session. (Photo: Duane Rasmussen)

Question: Do the archconservatives in the local GOP still have Malek targeted for defeat in the 2014 primary — for siding with the guv on a state-run exchange? Anyone?

Nonini-Malek Feud Simmers

From Kestrel West Morning Memo: A defeated measure designed to protect health care workers from assault highlighted a simmering feud. “It sure appears as a conflict that Luke Malek did not disclose that he was doing this as a favor to his father and KMC. Young Luke needs to understand that we expect more transparency in government that Luke is willing to concede,” [Bob Nonini wrote} … Malek said of Nonini, “This isn’t the first time he’s impugned my character … I think what we are seeing in Bob’s case is mostly frustration with an inability, once again, to create any sort of coherent legislative agenda …” Story here.

Thoughts?

Nonini Faults Malek Ethics, Bill Fails

Rep. Luke Malek, R-Coeur d’Alene, a former Kootenai County deputy prosecutor whose first bill as an Idaho state representative was defeated on a tied Senate vote today – a tie that was broken by a no vote from Lt. Gov. Brad Little – said, “I’m disappointed that it was defeated this year, but confident that once we iron out the misconceptions voiced in the floor debate, we will be successful next year.” Malek said Sen. Bob Nonini, R-Coeur d’Alene, was mistaken when he said the bill would make it a felony to just assault a health care worker with words. “There is no such thing as verbal assault,” Malek said. He pointed to Idaho Code 18-901, which includes the “by word or act” phrase to which Nonini referred in the Senate debate/Betsy Russell, Eye on Boise. More here.

Later, Betsy Russell/Eye on Boise reports: Sen. Bob Nonini, R-Coeur d’Alene, declined to respond to questions from a reporter about his debate against HB 292, the health worker assault bill, or his response to Rep. Luke Malek, R-Coeur d’Alene, the bill’s sponsor, who said Nonini questioned his ethics for sponsoring the bill. “I told you ‘no comment,’ and let’s leave it at that,” Nonini said.

Question: What do you make of Nonini questioning Malek's ethics?

Letter: Don’t Demonize Luke Malek

In this file photo by Duane Rasmussen, Betty Henderson, wife of state Rep. Frank Henderson and Luke Malek huddle early in Luke's successful campaign for the Idaho House of Representatives. Judging from the letter to the Coeur d'Alene Press this morning, Mrs. Henderson remains a fan of the young legislator.

Kudos to Mike Patrick and his editorial staff in reference to the editorial in The Press on March 1. The question was: Is it that legislators who don’t take a hard line, fist-clenching, spittle-spewing stance on one emotional issue deserve zero support from their party? If you want to disagree with freshman Rep. Luke Malek on the health care exchange or any other issue, first, don’t demonize him or any of the other freshmen because they dared to think independently and offer a way for Idaho to move forward with an unsavory mandate. Difference over policy is a good thing, but anger is no substitute for debate/Betty Ann Henderson, Post Falls, Coeur d'Alene Press letter to the editor. More here.

Question: I find it refreshing that a Seasoned Citizen in the local GOP is standing up to the cranky party codgers who gave Luke a bad time for supporting a state-run health exchange. How about you?

Flyer Conjures CdA Recall Attempt

I had the strangest flyer taped to my front window this morning. Maybe someone taped it there Sunday. But I didn't see it until this morning. It focused on the county and legislative candidates in Coeur d'Alene who did or did not support RecallCDA. No organization was listed as responsible for the flyer. It seemed to focus on Republican Luke Malek (pictured), who, according to the flyer “declined to sign and placed his campaign signs on properties owned by people opposing the recall.” Also, the flyer noted, that Democrat Janet Callen, Luke's opponent, also did not sign the petitions. But “Constitution Party candidate for that seat, Ray Writz, proudly signed the recall petitions.” The flyer didn't say whether its backers supported or opposed the recall. But I'd guess that the backers supported the recall and Writz. (See attached flyer).

Question: Would the recall attempt earlier this year influence your vote for or against a candidate?

School reforms draw candidates in North Idaho legislative district

Two decades ago, Coeur d'Alene's delegation to the state Legislature was all-Democrat, like most of the North Idaho Panhandle back then. Now, it's all-Republican, but District 4, which takes in the city, was the last Panhandle district to send a Democrat to Boise - and Democratic Rep. George Sayler's fourth term just ended two years ago. Now a new crop of Democrats, all first-time candidates and opponents of Idaho's controversial school reform laws, is trying to retake the district's seats. You can read my full story here on the district's races this fall.

AM: Malek Announces For Legislature

It appears Deputy Prosecutor Luke Malek and Reagan Republicans leader Jeff Ward are having an intense conversation after Malek's announcement that he will seek retiring Rep. Marge Chadderdon's House District 4A seat. HucksOnline story here. And: CdA Press story here.

Question: You be the fly on the wall. What is Jeff saying to Luke? Or vice versa?

Malek to run for Chadderdon’s House seat, with her endorsement

Luke Malek, former North Idaho regional director for then-Gov. Jim Risch and currently a Kootenai County deputy prosecutor, has announced he's running for the seat being vacated next year by four-term state Rep. Marge Chadderdon, R-Coeur d'Alene; Chadderdon has endorsed Malek, a Republican and Kootenai County native who bills himself as a “conservative leader who understands the importance of economic growth, increased job opportunities and smaller government.”

Malek To Seek Chadderdon’s 4A Seat

Luke Malek announced today that he will be running for the Idaho State House of Representatives, Legislative District 4A.  Luke Malek is a Kootenai County native, and an active member of the community. Malek says his focus will be to usher economic prosperity by limiting government and promoting local control.  “Government has decided that it needs to try and muscle its way into every aspect of our lives, and that needs to change,” he said.  “It will be the hard-working people of Idaho and our businesses that bring jobs back to our state, but the government needs to step out of the way and allow that to happen.” Marge Chadderdon, who currently holds seat 4A and is retiring after the 2012 session, is endorsing Malek/Luke Malek press release. More here.