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Friday, February 28, 2014

Bad Titles: South Carolina Legislature Edition

At Lowering the Bar, Kevin Underhill posts about South Carolina's Omnibus Crime Reduction and Sentencing Reform Act of 2010. He notes that the title of the bill is over 2,000 words, possibly due to a provision in the state constitution that requires the legislature to include the subject of any act in the act's title.

The bill can be downloaded from the government's website here (it's an 85-page word document, with the text of the bill starting on page 10). Underhill quotes a portion of the title, but redacts part of it to save space. I am going to save space on my blog by reproducing the title after the break, but I'm going to include the entire thing so that you can get a sense of the spectacle.

Here it is:

Utah Bill Restricting Law Enforcement Drone Use Moves to State Senate

The Daily Herald reports:

A push to establish limits in Utah on law enforcement's use of unmanned aerial systems is closer to becoming reality after a Senate panel unanimously approved some restrictions on drones Tuesday. 
The Senate Government Operations and Political Subdivisions Committee voted 5-0 to advance the bill, which requires law enforcement to get a warrant to use drones and limits what data can be collected. 
The measure now advances to the full Senate for consideration.
The full text of the bill is available here.

The bill's data retention provisions are a good idea, but they are a little vague -- requiring law enforcement agencies to destroy collected data as soon as is "reasonably possible." A bill that requires elimination of the information after a certain amount of time unless there are exceptional circumstances may be more likely to ensure that law enforcement agencies get rid of that information faster.

More notably, the bill requires law enforcement agencies to obtain a warrant in order to collect information with drones unless that information is collected "in accordance with judicially recognized exceptions to warrant requirements."

If Utah's search and seizure law is similar to federal Fourth Amendment law, then this bill will have virtually no impact on law enforcement's ability to collect information using drones. Under the Fourth Amendment, law enforcement officers can engage in surveillance of people as long as the surveillance practices do not violate reasonable expectations of privacy. Courts have held that this means police officers can fly over people's fenced-in yards in planes or helicopters without a warrant. Law enforcement could presumably do the same thing with a drone and still fall within "judicially recognized exceptions" to the warrant requirement.

This law is admirable for providing guidelines for data retention and police reporting on their use of drones. But the bill does little to limit law enforcement's ability to collect information using drones.

Learning About Funeral Law: Past and Present

I recently ran across The Funeral Law Blog, a fascinating blog that discusses various legal issues relating to burial procedures, cemeteries, and other funeral-related matters. While I confess that I had never thought of this as an existing subject of legal study, the posts at this blog cover some pretty interesting stories and legal issues.

For example, I ran across this post by James Harrell, which discusses the purchase of an old cemetery in Indiana. A farmer purchased the plot of land on which a historical cemetery was located and transferred the land back to the town following the purchase. The farmer owned and farmed land on all sides of the cemetery. His intention here was to preserve the cemetery and to keep it from developers. But his plan may have backfired:

Under William C. Haak Trust v. Willusz, 949 N.E.2d 833, an easement of necessity can arise in Indiana if a piece of land is parceled out and sold, leaving one parcel without access to a public road. One claiming an easement of necessity must prove 1) unity of title at the time of severance, and 2) necessity of the easement. Here, the farmer may have unintentionally created a pathway for future owners to claim an easement of necessity. Prior to the farmer purchasing the cemetery, there was no unity of title between his farm area and the cemetery. Anyone attempting to establish an easement by necessity would have been unable to do so. However, since the farmer purchased the title to the cemetery, he created a unified title between his farm land and the cemetery via the doctrine of merger. Finally, when he parceled out the cemetery and transferred ownership back to the West Creek Township, he inadvertently created the first element needed to prove an easement by necessity.
Harrell points out that the town will hopefully keep the land from further development, but notes that this is a cautionary tale that highlights the importance of hiring lawyers.

On a related note, while paging through some old issues of The Green Bag, I came across Frank W. Grinnell's article, Legal Rights in the Remains of the Dead. Grinnell surveys American and British law on the subject of the dispositions of bodies after death and contrasts the legal systems. British law was especially curious when it came to the subject of cremation:

In England there has been a curious conflict of law between the ecclesiastical and the civil courts as to the right to cremate a body in the absence of the express wish of the deceased. It has been pointed out by Hon. Samuel R. Ruggles, in a well-known report, that the English ecclesiastical courts exercise over the burial of the dead "a legal, secular authority which they had gradually abstracted from the ancient civil courts to which it originally belonged," and that the separate existence and authority of the English ecclesiastical courts, therefore, has helped to prevent the civil courts from developing the law of individual rights in the matter. [Footnote omitted]
The full version of Grinnell's article is available on Hein Online here. At approximately eight pages, it is a surprisingly long article for the Green Bag. The citation is: 17 Green Bag 345 (1905).

All of these findings are a bit dark, but they are part of an interesting and necessary area of the law that has more ties to other subject matter than I initially realized.

Thursday, February 27, 2014

It is Not Illegal to Check Your Phone or Use GPS While Driving in California

So holds the California Court of Appeal in People v. Spriggs, overturning an earlier opinion by the appellate division of the Superior Court that held the contrary.

The statute at issue is section 23123 of the Vehicle Code. The statute provides that:

A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.
From the Court of Appeal's opinion:

While the statute may be interpreted, on its face, as the People assert, we agree with Spriggs that the statute is reasonably construed as only prohibiting engaging in a conversation on a wireless telephone while driving and holding the telephone in one’s hand. This is because the statute specifically states the telephone must be used in a manner that allows for “hands-free listening and talking.” (§ 23123(a).) It does not state that it must be used in a manner that allows for hands-free looking, hands-free operation or hands-free use, or for anything other than listening and talking. Had the Legislature intended to prohibit drivers from holding the telephone and using it for all purposes, it would not have limited the telephone’s required design and configuration to “hands-free listening and talking,” but would have used broader language, such as “hands-free operation” or “hands-free use.” To interpret section 23123(a) as applying to any use of a wireless telephone renders the “listening and talking” element nonsensical, as not all uses of a wireless telephone involve listening and talking, including looking at a map application.
The court goes on to hold that its interpretation is consistent with legislative history and statements by the executive. Moreover, the court states that a contrary reading of the statute would lead to absurd results:

If the phrase “using a wireless telephone” includes all conceivable uses, then it would be a statutory violation for a driver to merely look at the telephone’s display if the telephone was not designed and configured to allow hands-free listening and talking. It would also be a violation to hold the telephone in one’s hand, even if configured for hands-free listening and talking, and look at the time or even merely move it for use as a paperweight.
This is good news for somebody who is still getting used to the landscape of the Los Angeles area. Without the ability to use my phone as a GPS device, I would have ended up stuck in traffic in some unknown part of the city long ago.

H/T Shaun Martin of the California Appellate Report.

UPDATE: The BBC's coverage of the case is available here.

My New Paper on 3D Printed Firearms and the Second Amendment

I've recently written a paper titled, The Second Amendment Implications of Regulating 3D Printed Firearms. I am sending it out into ExpressO this slating cycle to see if anything happens, but in the meantime, you can access it here on SSRN.

Here is the abstract:

3D printed firearms have arrived, and commentators are beginning to ask whether and how this new technology can be regulated. An inevitable question that governments and courts will need to confront when considering restrictions on 3D printed firearms is whether these restrictions violate the Second Amendment. In this paper, I argue that most restrictions on 3D printed firearms would survive Second Amendment challenges. In carrying out this argument, I consider a complete ban on the manufacturing and possession of 3D printed firearms, and conclude that even this complete ban would be likely to survive Second Amendment challenges. Because these particularly restrictive bans are likely to survive, I conclude that most restrictions on 3D printed firearms will survive similar challenges. The main obstacle for governments will not be overcoming Second Amendment arguments against restrictions on 3D printed firearms, but ensuring that these restrictions are effective.
For a deeper introduction to the paper, see my previous post here, which formed the basis for this project. Comments and feedback on the paper are welcome, and make sure to send it to everybody you know who may be interested in the topic.

California Mulling Statewide Ban on Plastic Bags

The New York Times has an interesting article about the rise of plastic bag bans and the politics of these bans:

The case against plastic shopping bags is simple and, with more than 150 communities across the country embracing some kind of anti-bag laws, increasingly familiar. Plastic bags are used once or twice but can last up to a millennium. Only a small fraction of the bags are recycled, in large part because they jam sorting machines at recycling plants and so must be separated from other plastics. Many bags end up snagged on trees, stuck in storm drains or sitting in landfills.

. . .

Hilex Poly, one of the nation’s largest manufacturers of plastic bags, single-handedly spent more than $1 million lobbying against a bill to ban plastic in California in 2010. That bill failed, as did another attempt in 2013. Hilex Poly, based in Hartsville, S.C., has made political donations to every Democrat in the California Senate who joined Republicans in voting against last year’s bill. 
. . .

But support has been steadily growing in the California Legislature. The Los Angeles Times endorsed a statewide ban last week, and several senators who voted against the ban last year have come out in support of it this year. Some environmentalists say they now believe they have the momentum to push bans across the country, starting with California.

The article does a compelling job of presenting the environmental impacts of plastic bags and the benefits that follow in the wake of plastic bag bans. Speaking from firsthand experience, I can say that it has not been particularly easy to adjust to the Los Angeles plastic bag ban -- I often forget my reusable bags (or make an impromptu trip to the store from school) which has caused me to wind up with an influx of paper bags. But I will begrudgingly admit that the plastic bag ban is probably the most environmentally friendly approach to this issue.

United Kingdom Spy Agency Intercepted Yahoo Webcam Images

The Guardian reports:

Britain's surveillance agency GCHQ, with aid from the US National Security Agency, intercepted and stored the webcam images of millions of internet users not suspected of wrongdoing, secret documents reveal. 
GCHQ files dating between 2008 and 2010 explicitly state that a surveillance program codenamed Optic Nerve collected still images of Yahoo webcam chats in bulk and saved them to agency databases, regardless of whether individual users were an intelligence target or not. 
In one six-month period in 2008 alone, the agency collected webcam imagery – including substantial quantities of sexually explicit communications – from more than 1.8 million Yahoo user accounts globally.
The BBC's coverage of this story is available here. Yahoo denies knowledge of this program. The agency limited its collection to selected images from webcam chats rather than collecting entire webcam videos. It is not entirely clear why GCHQ sought to collect these images, although the images may have been used to establish a facial identification database.

One of the more disturbing aspects of the story is that GCHQ ended up collecting a large number of explicit images through this program. This unpleasant fact is made all the more upsetting by the agency's apparent surprise at collecting these images:

Sexually explicit webcam material proved to be a particular problem forGCHQ, as one document delicately put it: "Unfortunately … it would appear that a surprising number of people use webcam conversations to show intimate parts of their body to the other person. Also, the fact that the Yahoo software allows more than one person to view a webcam stream without necessarily sending a reciprocal stream means that it appears sometimes to be used for broadcasting pornography." 
The document estimates that between 3% and 11% of the Yahoo webcam imagery harvested by GCHQ contains "undesirable nudity".
The Optic Nerve program seems notably bad because it is so invasive and because the purpose of the program is so unclear. Perhaps the images collected in this program could be cross-referenced to a series of mugshots of known criminals or terrorists and combined with the image metadata to determine a location for that individual. But this program seems so invasive and prone to abuse that these benefits are almost certainly outweighed by the program's costs.

News Agencies Cannot Clearly Cover Whether New York Bans Bottomless Brunches

The New York Post reports:

A little-known New York State law prohibits “selling, serving, delivering or offering to patrons an unlimited number of drinks during any set period of time for a fixed price” according to the State Liquor Authority’s website.
The Post goes on to conclude that restaurants cannot give patrons unlimited alcoholic beverages. For example, "bottomless brunches," where restaurants offer unlimited mimosas for a certain fee with brunch food, are prohibited. Or so the Post claims:
Latin hot spot Calle Ocho on the Upper West Side offers a $15 special that keeps customers swimming in unlimited sangria as long as they have a plate of food sitting in front of them, which is illegal under the SLA law.
Town Hall laments that this is "big government at work." The New Republic tells us that this will prevent people from eating and drinking more than they should. Jezebel warns that serious enforcement is on the way and that "s**t's about to get real."

But wait! Before accepting these conclusions, it might be good to look at the law itself. Here is the relevant provision: N.Y. ABC. LAW § 117-a:

Wednesday, February 26, 2014

Supreme Court Declines to Hear Poker Case

NBC reports:

The US Supreme Court has declined to decide whether poker is a contest of skill or is instead a game of chance covered by a federal law directed at illegal gambling.
That case is DiCristina v. United States, and the Second Circuit's decision on the case is available here.

I blogged about the case recently here, where I discussed some of the recent scholarship that suggests that poker is a game of skill, rather than a game of chance.

I am disappointed that the Court will not review this case because I thought it raised an interesting question, but it is not particularly surprising that the Court denied certiorari. Whether poker is a game of skill or chance is still a matter of debate, and the Court may not be willing to wade into the various studies that purport to answer the question. And the Court declines to grant a vast majority of the petitions it receives, so putting any hope in a particular petition is likely to result in disappointment.

This doesn't mean that there is no chance for the law to change. DiCristina has drawn some media attention, and may prompt more people to question whether poker should really be the subject of laws that outlaw games of chance.

Tuesday, February 25, 2014

Determining the Authors of Unsigned Opinions

At the California Appellate Report, Shaun Martin posts about the recent case, Blixseth v. Yellowstone Mountain Club. Here is the first paragraph of the opinion:

Timothy Blixseth sounds the clarion call of many a disappointed litigant: “It’s not fair!” He insists that the judge who presided over the administration of the Yellowstone Mountain Club ski resort’s bankruptcy was biased against him and should have recused himself. The bankruptcy judge denied the recusal motion and the district court affirmed. Blixseth has now filed a blunderbuss appeal.
Martin writes:
The panel consists of Judges Kozinski, Paez and Berzon. It's a per curiam decision.

Which means, of course, that we can only wonder baselessly about who the actual author of this sharply worded opinion could possibly be.
He then includes a picture of the judge he thinks is the author. I think he's right.

But if we want to be sure, we always check out this recent article by William Li, Pablo Azar, David Larochelle, Phil Hill, James Cox, Robert C. Berwick, and Andrew W. Lo. The title of the article is Using Algorithmic Attribution Techniques to Determine Authorship in Unsigned Judicial Opinions, and the citation is 16 Stan. Tech. L. Rev. 503 (2013). From the abstract:

Our work uses natural language processing to predict authorship of judicial opinions that are unsigned or whose attribution is disputed. Using a dataset of Supreme Court opinions with known authorship, we identify key words and phrases that can, to a high degree of accuracy, predict authorship. Thus, our method makes accessible an important class of cases heretofore inaccessible. For illustrative purposes, we explain our process as applied to the Obamacare decision, in which the authorship of a joint dissent was subject to significant popular speculation. We conclude with a chart predicting the author of every unsigned per curiam opinion during the Roberts Court.
One step that Li et al. took to determine the identity of per curiam opinion authors was to identify particular words that specific justices used uniquely and often. Some judges may be harder to identify than others, but I think that it would be pretty easy to work a judge like Alex Kozinski into the algorithm. For example, I think that the phrase "blunderbuss appeal" would be a solid indicator that Kozinski is writing the appeal.

Smolen et al. on Cyber Insurance

Miriam Smolen, Adrian Azer, and Katrina Johnson have a helpful article at the National Law Review where they discuss the differences between insurance policies that cover commercial general liability and policies that specifically cover risks of cyber-attack or sabotage. They write:

Most companies typically have traditional insurance policies that may cover cyber risks, including commercial general liability (CGL) coverage. CGL policies generally cover the company against liability for claims alleging “bodily injury” and/or “property damage” and also against liability for claims alleging “personal injury” and/or “advertising liability.” Insurers typically argue that “cyber” risks are not intended to be covered under CGL policies, but insureds have had some success in pursuing coverage for cyber risks. Insurers have begun to constrict CGL policy language in an effort to preclude coverage for losses arising from data breaches. In order to specifically cover the risks associated with cyber breaches, and to protect the company’s balance sheet, companies are looking toward cybersecurity insurance.
Smolen et al. go on to describe the types of coverage that cybersecurity policies typically provide. Policies may cover first party costs of investigating breaches and repairing systems, and there are also third-party policies that can protect companies from the costs of lawsuits due to any breaches that intrude on the private information of third-parties who deal with the insured.

Smolen et al. conclude by urging companies to purchase cyber insurance policies in light of insurance companies' narrowing of their commercial general liability policies. In light of today's increasing number and severity of cyber attacks, and the increasing amount of corporate and customer information that is stored in clouds and computers, companies would do well to heed this advice.

Winkler on Open Carry Laws

In the wake of the Ninth Circuit's recent opinion in Peruta v. City of San Diego, the LA Times has this op-ed by Adam Winkler. In it, he writes:

Lawmakers who support gun control might want to consider another option: Rewrite state law to allow people to carry guns openly.

For many in the gun control community, that will seem like a crazy idea. State law bans ordinary civilians from carrying openly displayed firearms. And gun control advocates don't want to see more gun enthusiasts showing up at Starbucks or the local movie theater with guns hanging on their hips like Gary Cooper in "High Noon." 
Yet if they don't want too many guns in public, open carry may be the answer.

The whole op-ed is pretty short, but it is packed with some pretty interesting arguments on why open carry regulations might be a good approach for those favoring gun control to take. I recommend that you read the whole thing.

De Zwart and Richards on Graduate School Isolation

Melissa De Zwart and Bernadette Richards have recently published an article in the QUT Law Review. The title is, Wi-fi in the Ivory tower: Reducing Isolation of the Law PhD Student Through Social Media Networks. A complete, non-paywalled version of the article can be directly downloaded by clicking on this link. Here is the abstract:

Research students no longer need to spend long hours on campus under the gaze of their supervisors. Ubiquitous access to online databases and communication tools means that many PhD students operate in splendid isolation, away from the bustle and distractions of campus life. But this freedom may also bring with it strong feelings of isolation from academic community and peer support. The authors of this study have commenced an inquiry into whether the connectivity and interactivity of social media can provide a vital social lifeline for research students (particularly law students who work largely independently and are not frequently part of large research teams) in order to address these feelings of isolation. The role of social media in shaping academic identity and voice is also addressed. It considers a number of significant UK studies of higher degree by research students and their relevance for Australia and outlines the results of a small pilot survey conducted in an Australian law school.
My initial response to this abstract was that this article presented a solution to a non-problem. The abstract sets up the problem of isolation as being caused by students opting to stay away from campus due to online resources. My reaction: students can solve this problem of isolation by simply venturing onto campus.

Readers of the article should not be necessarily deterred by this abstract, however, since the authors make a much stronger claim for the problem of isolation as the article unfolds. They note that law PhD students tend to be parts of smaller programs, and therefore may have fewer contacts on campus who can provide in-depth feedback on their work. My thoughts on this would be that students could avoid this isolation by choosing a program that has faculty whose research interests are similar to the student's interests -- but I could see how this could be a problem for a student's whose dissertation subject evolves.

I am not familiar with how law PhD programs operate in Australia, but this article provides an interesting perspective. Law programs in the United States generally seem quite extensive, which I think would safeguard against student isolation, since schools will probably have at least several professors whose interests align with most students' scholarly pursuits.

Then again, students who develop interests in specialized areas of law may find that they are at a law school without sufficient faculty resources. For example, I have heard through anecdotal evidence that while UCLA has notably strong Indian law resources, many other law schools may have one or fewer faculty members specializing in the area. Students at those other schools who wish to produce scholarship on Indian law may find that they are isolated in their interests and may need to seek out an alternate academic community.

For US law students who find themselves pursuing specialized scholarly questions, De Zwart and Richards's advice to Australian PhD students might end up being quite useful.

Monday, February 24, 2014

New York Times Calls for Constraints on Big Data Use and Collection

From the New York Times Editorial Board:

Last month, Mr. Obama tapped his special adviser, John Podesta, to take another look at privacy and big data (the millions of records that businesses are collecting and using to increase sales and improve operations) and produce a fresh report in 90 days. 
With the Internet evolving fast, few consumers can adequately guard against losing control of their personal data. A recent report by the majority staff of the Senate Commerce Committee, for example, found that companies known as data brokers have assembled extensive dossiers on millions of individuals and families. Those files include information like web browsing histories, what consumers bought in physical and online stores, and what medical conditions people have. 
. . . 
The president and the public need from Mr. Podesta and his team not only a thorough description of how businesses are collecting private data but also specific legislative proposals to give consumers more control of that information.
While the editorial's focus is on private collection of data, reforms in the private sector have a corresponding impact on the constitutionality of government data collection. The government argues that widespread data collection from private entities does not violate the Fourth Amendment because individual users voluntarily submit their information to these entities. This is the Third Party Doctrine, and it holds some weight in debates over the constitutionality of government surveillance (See ACLU v. Clapper, holding that the third party doctrine permits mass collection of telephonic metadata; but see Klayman v. Obama, holding the opposite). For more background and discussion on these cases and the third party doctrine, see my posts here and here.

If the courts end up holding that the third party doctrine permits government collection of people's online profiles, the impact on user privacy may be mitigated by laws that lessen the scope of information that companies are permitted to collect. This report is something that people should look out for, given its potentially broad implications for the worlds of both private and governmental data collection.

News from the Iowa Legislature: Marijuana Bills are Dead, Fireworks and Drone Bills Survive (For Now)

The Daily Iowan reports:

A number of bills died in Des Moines late last week as a procedural deadline narrowed the spectrum of topics remaining for the session.

The first “funnel,” a rule that requires a majority of bills to pass subcommittee level approval, ended on Feb. 21 after lawmakers spent the beginning of the week pushing for last-minute approval of key issues.
The Daily Iowan lists a number of bills that died, including bills to legalize medical marijuana and to decriminalize the possession of certain amounts of marijuana. The Des Moines register reports on additional bills that died.

Bills that are still alive include a bill to legalize the use and purchasing of fireworks. The Daily Iowan describes the law:

Iowans would be able to buy and use fireworks for the first time in decades if Senate Study Bill 3182 continues its progress. The bill would allow county supervisors and city councils and the state fire marshal to make their own decisions on the issue even if it is passed. The proposal makes selling or letting anyone under 18 use fireworks a simple misdemeanor — punishable for no more than 30 days in jail and at least a $65 fine but not more than $250.
The Gazette reports that proposed legislation for the regulation of drones (which I blogged about here) managed to survive the funnel:

Sen. Rich Taylor, D-Mount Pleasant, said he was pleased to win passage of a bill regulating drones, but committee chairman Sen. Rob Hogg, D-Cedar Rapids, said the issue stands a good chance of being shot down in its journey to the governor’s desk. 
“I think drone legislation faces a very significant uphill battle to become law,” he said. “It’s so new, it’s novel, there are lots of interest [sic] out there and it’s not like the people are speaking up demanding regulation. I would say the chances are very slim that that will become law, but we’ll see. Things can change in this place.”

Supreme Court Turns Down Second Amendment Challenges to Age-Based Firearms Restrictions

At Scotusblog, Lyle Denniston writes:

The Supreme Court refused on Monday, as it has done repeatedly in recent years, to settle the issue of whether Second Amendment rights to have a gun extend beyond the home. The Court, without comment, denied three new petitions — two filed by the National Rifle Association — seeking clarification on the scope of an individual’s right to have a gun for personal self-defense. In other orders, the Court did not accept any new cases for review, although it did hold over a number of cases it had examined for potential review. 
Since the Court first ruled nearly six years ago that the Second Amendment protects a personal right to have a gun, it has issued only one further ruling — expanding that right so that it applies nationwide, to state and local gun control laws, as well as to federal laws. But, without exception, the Justices have turned aside every potential sequel, essentially leaving it to lower courts to continue to sort out variations on the right.
Two of the cases involved restrictions based on age, with one case challenging an age-based restriction on firearms purchases, and another case challenging an age-based conceal-and-carry restriction. Both laws restricted the right to purchase and carry firearms for people aged 18-20. The Court also turned down a challenge to a law barring the interstate sale of firearms by firearms dealers who do not have federal licenses.

Notably, none of these cases involve a broad challenge to conceal and carry laws, which was the subject of the Ninth Circuit's recent decision, Peruta v. City of San Diego. There, the Ninth Circuit struck down California's broad restriction on the carrying of firearms. Because Peruta involves a non-age-based attack on a firearm restriction, and because there is a solid split in authority on the extent of an individual right to carry firearms, I think that there may still be a chance that the Supreme Court will take up the question in Peruta, despite its refusal to take up the three cases today.

Peruta involves a broader question about Heller's application beyond the home, and the Ninth Circuit decided the case without resorting to any new scrutiny tests -- relying primarily on Heller's call for historical analysis and its point that a complete restriction on the right to bear arms in self-defense cannot be constitutional. The simple nature of the Peruta question, and the possibility that the Supreme Court may be able to decide the case without being forced to set forth a standard of review, means that the Court may be more likely to take up Peruta despite its refusal to take up other Second Amendment challenges.

Friday, February 21, 2014

Reid on Medieval Analysis of Same-Sex Marriage and Relationships

In his article "May a Man Marry a Man?" Medieval Canon Lawyers Analyze Same-Sex Unions, Charles Reid tracks medieval discussions of same-sex marriages and relationships. Reid's presentation provides a helpful summary of the arguments of the day, the types of authority that canon lawyers relied on, and how those lawyers used the authority to make their own positions more persuasive to their audiences.

Here is the abstract:

This Article has two principal purposes. The first is to examine the logic and limits of a medieval debate over same-sex unions. The medieval lawyers who engaged in this debate were no friends of same-sex unions. The debate, rather, seemed to take the form of an academic exercise by which the lawyers involved defined more rigorously the boundaries of what counted as marriage and also imported into the jurisprudence of marriage a deeply-hostile homophobia. I do not assert that same-sex marriage was an actual social reality in the Middle Ages. The existence of this debate, however, is quite remarkable in its own right. The Article’s second major purpose, then, is to reconsider the origins of homophobia. By connecting the canon law of marriage with homophobic rhetoric, the medieval lawyers reinterpreted marriage as an institution that not only served certain ends in its own right but existed to defeat the perceived threat of same-sex relations. This linkage, first articulated in the thirteenth century, unfortunately remains a feature of the contemporary debate over same-sex unions.
The article discusses three primary figures who took part in the medieval debate: Hostiensis, Antoninus of Florence, and Johannes Brunellus. The discussion of Brunellus is a bit abbreviated since Brunellus's main significance was that he continued and combined the previous arguments that Hostiensis and Antonius had propounded.

Reid's article is particularly interesting because of it's treatment of the authority that these various figures used. While Reid's summary of the authority is sometimes a bit difficult to separate from the views of the person relying on the authority, a careful reading of Reid's presentation reveals a detailed picture of the thinking of the time. Reid also does a good job of drawing parallels between modern opposition to same-sex marriage and the arguments made in the medieval era. While those parallels are depressing to see, highlighting the extreme nature of past arguments is an interesting way to undermine the current versions of the arguments.

Reid notes throughout the article that same-sex marriage was not "an actual social reality in the Middle Ages." It should be noted (contrary to what Reid has implied elsewhere) that Reid does not present much of a "debate" over the permissibility of same-sex marriage or relationships -- canon lawyers in the middle ages held the unified, unsurprising view that same-sex marriage and relationships were sinful and warranted severe punishment.

In summary, Reid's article is an illuminating piece that concisely summarizes a wide breadth of medieval discussion of same-sex marriage and relationships. While readers might find the constant re-iterations of the evils of homosexuality exhausting and unpleasant, these arguments are a useful background to the history of religious objections to same-sex relationships.

Proposed Iowa Legislation for Regulating Drone Use

Continuing my trend of commenting on state legislation regulating drone use (see here for my discussion of Wisconsin's proposed legislation and here for Washington's law and Hawaii's proposed law), I have found that Iowa is another state that has recently proposed legislation to regulate the use of drones.

The Des Moines Register reports:

Senate File 2157 would allow Iowa law enforcement agencies to use drones to collect evidence, providing they have a warrant. It would also allow others to use drones equipped with cameras and video recording equipment to conduct surveillance, providing permission was granted from the property owner, said Sen. Rich Taylor, D-Mount Pleasant.
The full text of the bill is available here.

While Senator Taylor's interpretation of the bill is positive, the bill is notable in the behavior it restricts. Similar to legislation that recently passed in Wisconsin's senate, the Iowa bill would restrict police use of drones for surveillance, which would restrict them from carrying out activities that they would probably be permitted to otherwise conduct with the use of a helicopter or plane. Police officers can typically use planes or helicopters to gather photographic evidence from the ground, or information on whether a vehicle is speeding, but using similar evidence obtained by drones would be prohibited by this bill.

Moreover, the bill prohibits the private use of drones to "conduct surveillance" of other parties without the consent of those parties. The bill does not define what "surveillance" means. While use of a drone to maliciously spy on a neighbor or a stranger should be restricted, drones may be equipped with cameras to take high quality video from the air (see, for example, this recently-posted video of whales -- taken with a drone). Here in Los Angeles, personal drones are a common sight. I would not be surprised if people flying their drones on UCLA's campus had cameras attached to their drones.

Would it be prohibited surveillance to fly a drone with an attached camera, and to incidentally shoot video of other, non-consenting people in the process? A restrictive interpretation of "surveillance" may prevent incidental recording activity from being criminalized. But the language of the law is open, and that restrictive interpretation is certainly not the only interpretation available. More preferable would be language similar to Wisconsin's bill, which would criminalize taking images or video of people using a drone when those other people do not have a reasonable expectation of privacy.

The Register notes that the law faces an uphill battle due to a lack of strong public opinion on the matter. It will be interesting to see if it gets any more attention. If the bill ends up getting passed, I hope that it first undergoes some revision that makes its scope more reasonable.

UPDATE - 2/26/2014

The bill has passed in the Iowa House with overwhelming support (87-12). It moves on to the Senate with lawmakers stressing that changes to the bill are likely before it becomes law.

A Lie Detector for Social Media? Thoughts From a Defamation Perspective

The BBC reports:

A lie detector for social media is being built to try to verify online rumours. 
The system will analyse, in real time, whether a posting online is true. 
. . . 
The system will categorise the sources of information to assess their authority. Categories include news outlets, journalists, experts, eye witnesses, members of the public and bots - accounts that automatically generate social media posts. 
It will also examine accounts for a history or background to try to identify whether the account has been created just to spread rumours. 
Conversations on social networks will be studied to see how they evolve and sources will be checked to see if information can be confirmed or denied.
The article concludes that the system will hopefully be available to journalists after a period of testing.

It would be interesting to see how this would affect defamation lawsuits. Journalists and others who post things on the internet may copy from a source without verifying whether it is reliable. There is a lot of unreliable content out there (for example, I've heard rumors of blogs started by law students), and copying from these sources is as easy as hitting a couple of buttons.

Will journalists and other online writers be held to higher standards in defamation lawsuits if this sort of technology becomes widely available? Under New York Times v. Sullivan, suits arising from statements about public figures will still be subject to an actual malice - or reckless disregard for the truth - standard. This means that plaintiffs need to prove that the defendant published a false statement knowing that the statement was false, or had reason to doubt the statement was false, but published it anyway. In these cases, the lie detector technology may help defendants. If defendants use a social media lie detecting system before making their statements, they may disprove the plaintiff's claims that the defendants doubted the truth of what they were saying.

On the other hand, social media lie detection technology may harm defendants who make statements about private-figure plaintiffs. Under Gertz v. Robert Welch, Inc., the standard for proving defamation in these cases may be as low as negligence (although plaintiffs would only be able to recover actual damages if successful). Under a negligence standard, defendants' failure to use lie detector software may open them up to liability if that software is readily available. Using this type of technology to verify the truth of a story may become an expected step in publishing information online, and if lie detection software ends up being effective, cheap, and widely available, this could change the dynamic of online defamation cases involving private-figure plaintiffs.

The technology is still in its development, and will be in the testing phase over the next three years, but it is an important piece of technology to watch.

Thursday, February 20, 2014

Wisconsin Senate Passes Bill Restricting Private and Government Drone Use

The Associated Press reports that a Wisconsin bill restricting the use of drones was passed by the state senate on Tuesday. The full text of the bill appears here. Here is the analysis of the bill by the Wisconsin Legislative Reference bureau:

This bill restricts the use of drones. The bill defines a drone as a powered, aerial vehicle that does not carry a human operator, uses aerodynamic vehicle lift, and can fly autonomously or be piloted remotely.
Under the bill, no law enforcement agency may use a drone that is equipped with video or audio recording equipment to collect evidence or information in a criminal investigation without first obtaining a search warrant. The bill allows a law enforcement agency to use a drone without a search warrant if it is necessary to do so for certain emergency purposes, including to locate an escaped prisoner, to aid in a search and rescue mission, or to prevent imminent harm to a person or the imminent destruction of evidence. Under the bill, evidence obtained by a drone in violation of the law is not admissible in a criminal proceeding. 
Under the bill, a person who sells, possesses, or uses a weaponized drone is guilty of a Class H felony, and may be fined up to $10,000, imprisoned for up to six years, or both. The bill prohibits a person, except a law enforcement officer who has a search warrant or is acting for a permissible emergency purpose, from using a drone that is equipped with video or audio recording equipment to photograph, record, or otherwise observe another individual in a place where the individual has a reasonable expectation of privacy. Anyone who does so is guilty of a Class A misdemeanor, and may be fined up to $10,000, imprisoned for up to nine months, or both.
You can compare this bill to Washington's laws restricting drone use and Hawaii's proposed bill on the subject which I discuss here.

The bill is particularly interesting to me because of the portion that restricts the use of drones by law enforcement. The Supreme Court has held that it is not a search for police to observe somebody's yard by taking photographs from a plane in permitted airspace. The Wisconsin law would not only prohibit similar observations by drones, but would also seem to ban the use of drones to carry out observations in more public areas. Any information collected by drones designed to detect speeding vehicles or monitor violent protests would be inadmissible in court if there is no warrant.

One potential shortcoming of the bill is its failure to define what a "weaponized" drone is. Many drones can cause injuries if they are not used properly -- they could fall on people, and at least one person has been killed by a crashed remote-control helicopter. Is a drone weaponized because it has spinning blades? Do these blades need to be configured in a way that is particularly likely to injure people? These are questions the bill leaves unanswered.

(H/T: The Drone Times)

Wednesday, February 19, 2014

Karmakar and Tormala on Certainty and Persuasion

I'm no expert on psychology or source certainty. But I am certain that this article by Uma Karmarkar and Zakary Tormala is worth looking at. The title is, Believe Me, I Have No Idea What I Am Talking About: The Effects of Source Certainty on Consumer Involvement and Persuasion, and the citation is Journal of Consumer Research 36, no. 6 (2010): 1033–1049. (I got the information on the full citation here.)

Here is the abstract:

This research explores the effect of source certainty-that is, the level of certainty expressed by a message source-on persuasion. The authors propose an incongruity hypothesis, suggesting that source certainty effects depend on perceived source expertise. In three experiments, consumers receive persuasive messages from sources of varying expertise and certainty. Across studies, low expertise sources violate expectancies, stimulate involvement, and promote persuasion when they express certainty, whereas high expertise sources violate expectancies, stimulate involvement, and promote persuasion when they express uncertainty. Thus, nonexpert (expert) sources can gain interest and influence by expressing certainty (uncertainty).
I wonder if law students with blogs would be able to express certainty for persuasion's sake without running up against rules prohibiting the unauthorized practice of law. While I have my disclaimers page here that warns readers that nothing I say is advice, I wonder if too-certain statements elsewhere in the blog would negate my warnings. This is inconvenient from a persuasion perspective, since the disclaimer page probably establishes I am a non-expert.

Rogers on Historic Legal Treatment of Hair

I came across an article entitled, Hair, by R. Vashon Rogers in The Green Bag. The citation is 16 Green Bag 326 (1904). I am unfortunately unable to find a publicly accessible version of this article, but here is a link to the Heinonline version.

In this article, Rogers surveys a broad range of historical treatment of hair. He discusses the taxation of beards in both England and Russia, noting that the English laws on taxing hair fell out of fashion and were ultimately deemed "too absurd to be enforced."

Offenses against others' hair could be the basis for civil liability. Rogers writes:

In Ireland, by the Brehon law, a heavy fine had to be paid by any one who maliciously shaved the false locks of a poet or of a scholar, or of a show girl, or who cut off the eye lashes, or the hair of the brow, or the beard or whiskers of a man.
Robbing a man of his beard, among the Saxons, according to Alfred's laws, was punishable by a fine of twenty shillings; he who shaved a priest against his will was mulcted in thirty shillings; while binding the ecclesiastic, as well as shaving him, raised the penalty to two pounds.

Rogers doesn't stop there. He goes on to summarize the importance of horses' hair, noting that the cutting of a horse's mane or tail would require compensation as well as the provision of a substitute animal while the injured horse was kept in hiding. The church took mixed positions on the length of women's hair, with some members of the clergy encouraging the cutting of hair as a symbol of chastity, and others criticizing Joan of Arc's choice to wear short hair as blasphemy.

Rogers concludes with an anecdote about Lord Mansfield:

Lord Mansfield tried a man for assault, he was convicted; the Court thought imprisonment an unsuitable punishment under the circumstances; an affidavit was produced in which the offender stated he was wholly unable to pay a pecuniary fine. While this was being read the man stood proudly erect, his face adorned with enormous whiskers and moustaches, the pride of his heart, his boast in his cups. Mr. Dunning, for the prosecution, suggested to the judge that "as the prisoner had very fine moustachios and whiskers, perhaps his lordship would take the punishment out of these, and order him at once to be shaved."

For a modern perspective on a different, hair-related legal issue, I would recommend Paul C. Giannelli's, Microscopic Hair Comparisons: A Cautionary Tale, 46 Crim. L. Bull. 7 (2010). From the abstract:

This article examines the judicial history of microscopic hair analysis, including its role in several wrongful convictions. It discusses the misuse and the abuse of hair evidence, and the failure to establish an empirical basis for the technique. In sum, hair evidence provides a cautionary tale for other forensic techniques.

Tuesday, February 18, 2014

Is Poker a Game of Chance? Let's Hope the Supreme Court Tells Us

The Atlanta Journal-Constitution reports:

Fifty-five million Americans play poker, but now the Supreme Court could weigh in on whether your basement poker game is a federal crime. 
Under Georgia law, betting on hands of poker, even around your kitchen table with friends, is illegal.

. . .

But the Supreme Court could soon step in. The feds busted and convicted a New York man for running a poker game in the back of his bicycle shop. He's now appealed to the nation's highest court.

. . .

The bike shop owner's attorneys claim poker shouldn’t be classified as illegal gambling because it's a game of skill. 
“The only way you can consistently win money is by skill,” Costner said.

But Justice Department lawyers don't buy that argument, saying in their brief to the Supreme Court, "Courts have long held that poker contains a sufficient element of chance to constitute gambling."
The case the article refers to is DiCristina v. United States. The Scotusblog page for the case is here. The Second Circuit's opinion is available here.

It always a long shot to predict whether the Supreme Court will take up a case. In addition to the question of whether poker is a prohibited game of chance, the DiCristina petition for certiorari asks a question of statutory interpretation over which the federal circuits seem deeply split. This extra question may make the case more appealing, though there is the possibility that the appeal may be limited to the non-poker question.

While it is unlikely that the Supreme Court will take up any given case, I hope they take up the question of whether poker is a game of chance. I am particularly interested in this case because of some recent scholarship on the issue. In their article, Is Texas Hold 'Em a Game of Chance? A Legal and Economic Analysis, Steven Levitt, Thomas, Miles, and Andrew Rosenfield confront this question in the online context and conclude that skill plays a substantial role. The citation for the article is 101 Georgetown L. J. 581 (2013). Here is the abstract:
In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA), prohibiting the knowing receipt of funds for the purpose of unlawful gambling. The principal consequence of the UIGEA was the shutdown of the burgeoning online poker industry in the United States. Courts determine whether a game is prohibited gambling by asking whether skill or luck is the “dominant factor” in the game. We argue that courts’ conception of a dominant factor— whether chance swamps the effect of skill in playing a single hand of poker—is unduly narrow. We develop four alternative tests to distinguish the impact of skill and luck, and we test these predictions against a unique data set of thousands of hands of Texas Hold ‘Em poker played for sizable stakes online before the passage of the UIGEA. The results of each test indicate that skill is an important influence in determining outcomes in poker. Our tests provide a better framework for how courts should analyze the importance of skill in games, and our results suggest that courts should reconsider the legal status of poker.
Readers who are interested in further arguments along the same line should also check out this article by Rogier J.D. Potter van Loon, Martijn J. Van den Assen, and Dennie Van Dolder, whose results "suggest that skill is an important factor in online poker."

If there is indeed strong evidence that skill plays a sizable role in online poker, I think it is even more likely that skill plays an even larger role in in-person poker, where analyzing the demeanor of other players is a key part of the game.

One might object to the prospect of Supreme Court review by arguing that if poker is indeed a game of skill, the law should simply be changed to reflect that. This conclusion relies on technical data that courts may lack the expertise to evaluate. But the response to this objection is that the law bans games of chance, and, in absence of further discussion by the legislature, it is the job of the courts to define what "games of chance" entail. If poker is a game of skill, and if lower courts or law enforcement agencies have been enforcing the law as though poker is a game of chance, remedying this error seems to be well within the province of the courts.

(H/T: Howard Bashman of How Appealing)

Restricting Drones' Intrusions on Privacy: Two Possible Approaches

The AP reports (via

Two bills that would restrict the use of drones and government surveillance in Washington state have been passed by the House.

House Bill 2178 passed by a vote of 92-6 Monday. It would ban the unauthorized use of drones, or other unmanned aircraft with sensing devices, in the airspace above private property. Under the measure, drones, which could include those capable of gathering personal information such as photos, could be used on private property if certain conditions were met.
Rising use of drones by private individuals has inspired fears that these drones will end up invading people's privacy. Moreover, there is a danger that airborne drones may end up crashing and injuring people on the ground. This law seems to be a reasonable way of avoiding some of these common concerns. This law is all the more appealing to those concerned with privacy because it is paired with a bill restricting public use of drones.

Compare Washington's law to Hawaii's proposed law (SB 2608) that would limit the use of drones to law enforcement agencies. Hobbyists are concerned that this law would constrain a great deal of harmless drone use.

Drones raise the prospect of privacy invasions by both public and private actors. I think that Washington's approach is a preferable way to meet these concerns rather than Hawaii's overbroad, law enforcement-centered proposal.

(H/T The Drone Times)

It is Not Illegal to be Drunk and Annoying in Indiana

...or at least the law that criminalizes this activity is unconstitutionally vague. From the Wall Street Journal's Law Blog:

Indiana’s public-intoxication law makes a criminal of someone who, while drunk in a public place, “harasses, annoys, or alarms another person.” 
Or at least it did. 
. . . 
On Thursday, the Indiana Court of Appeals sided with [defendant, Rodregus] Morgan and struck down the “annoying” language in the law, knocking the wind out of his public-intoxication conviction. (It upheld his conviction for disorderly conduct, however.) 
The court concluded that the law was in fact too vague because it neither required intent to annoy another person, nor provided an objective standard for judging what makes something annoying.
The full text of the opinion, Morgan v. State, is available here. In concluding that the law was too vague, the court wrote:

Namely, the statute neither requires that a defendant have specifically intended to annoy another, nor does it employ an objective standard to assess whether a defendant’s conduct would be annoying to a reasonable person. Furthermore, the statute does not mandate that the defendant have been first warned that his behavior was considered annoying conduct. Instead, this section of the statute enables arbitrary and discriminatory enforcement because the illegality of any conduct—no matter how trivial or how substantial—is based solely on the subjective feelings of a particular person at any given time.
The court's reasoning seems to imply that the law may be salvaged if an objective standard is added to the existing "annoying" language. This means that if a statute bans conduct that would annoy the reasonable person, the state would have a stronger argument that the statute is not unconstitutionally vague.

All of this raises the question: what annoys the reasonable person? This is an important question that the court leaves unanswered, and should probably be the subject of a student note.

Monday, February 17, 2014

Breaking News: Justice Scalia Rules that Deep Dish Pizza Isn't Really Pizza

So reports NBC Chicago, Lawyerist, Outside the Beltway, and Chicagoist. New York Magazine reports on a separate incident.

Actually, this news isn't very breaking. The first four reports I link to concern one of Scalia's remarks in October 2011. The New York Magazine report covers a remark that Scalia made to California Lawyer in January 2011.

So for everybody who has gotten all worked up over Scalia's recent remarks on deep dish pizza, you are unfortunately a bit behind the times. I'm looking at you, Time, New York Daily News, and Politico.

Is There a First Amendment Right to Collect License Plate Data?

Ars Technica reports on a lawsuit that has been filed based on a recent Utah law that restricts the private collection of license plate reader (LPR) information. LPRs take pictures of license plates, scan them, and check them against a database of plates for stolen cars. This information is typically stored for long periods of time. The text of the law restricting the collection and use of this information is available here.

Utah's restriction on the LPR information collection has not sat well with several private firms that collect this information and relay it to law enforcement agencies:

Two major private LPR firms—Digital Recognition Network and Vigilant Solutions—are suing Utah’s governor and attorney general, arguing that they have a First Amendment right to collect data on license plates, which are displayed in public on open roads.
. . .

The alleged First Amendment violation, the plaintiffs argue, occurs because taking a photograph is constitutionally protected. "The State does not have a substantial interest in preventing persons from viewing or photographing license plates—or from disseminating the information collected when doing so—because license plates contain no private information whatsoever," argue the plaintiffs. "Moreover, the photographic recording of government-mandated public license plates does not infringe any 'privacy' interest that concededly is not infringed when the photographer views the plate. Thus, the State cannot carry its heavy burden to demonstrate that it has a substantial interest that is served by the Act."
Proponents of the law argue that the behavior being restricted is not speech. They also point out that the government has a strong interest in protecting the privacy of its citizens and that LPR technology is intrusive because it can collect plate information at night or in other adverse conditions, and stores this information for long periods of time.

Opponents of the law note that the law specifically restricts the use of LPR technology, and that this is a content-based restriction on speech. Statutes that restrict speech along the lines of the speech's content (say, for example, a statute that restricts protests unless those protests are related to labor disputes) are typically found to violate the First Amendment. Opponents also note that the restriction only applies to certain speakers, which may bolster arguments that the law discriminates against certain types of speech or viewpoints.

I am not sure how this case will turn out, but I think that some of the arguments opposing the law are a bit muddled. For example, there is probably a decent argument that the restrictions on the use of LPR data violate the First Amendment, but it is not clear whether this part of the statute affects private actors like the plaintiffs in this case because those actors are prohibited from collecting the data in the first place. And even if private plaintiffs have the LPR data, all entities that collect this information seem to be equally affected by restrictions on the use of the information.

One particularly interesting dimension of the case is that it "seemingly pits the privacy rights of individuals against the First Amendment rights of corporations to engage in constitutionally protected speech." It would be interesting to see how these two rights would be weighed against each other. The debate may be a bit muddled because people's license plate information is typically displayed to the public. But people may not expect their information to be systematically collected and stored in the way that LPR technology allows.

Ars Technica concludes by noting that the ACLU of Utah is working with the bill's author to revise the law, so this lawsuit may fizzle out before any interesting legal conclusions are reached. But it will be interesting to see if this case continues, and how the courts will balance the state's interest in protecting privacy with the plaintiffs' interest in collecting and using LPR data. If the case ends up coming out in the plaintiffs' favor, it could have broad, unsettling implications for legislatures seeking to curtail surveillance practices.

Sunday, February 16, 2014

The Implications of the Vague Revelations of Eavesdropping on Attorney Communications

The New York Times reports:
A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.

The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.
The BBC reports on the story here. The NSA "provided clear guidance," says the Times, but nothing more is specified. Orin Kerr notes that this story does not appear to implicate the NSA in any notably invasive behavior:
As I understand it, the Times story is based on a short entry in an NSA internal bulletin celebrating the liaison office’s accomplishment. It reports that the liaison helped clear up a legal issue, and that it all ended well, as the Australians ended up giving useful intel to the U.S. But because it’s just an internal bulletin, it doesn’t tell us what we want to know: What advice was provided, and whether the intel was related to the legal issue. Without that information, it’s hard to know if there’s a significant story here.

The story is still interesting, given the implications for attorneys who are dealing with foreign clients. The Times reports:

Andrew M. Perlman, a Suffolk University law professor who specializes in legal ethics and technology issues, said the growth of surveillance was troubling for lawyers. He helped create the bar association’s ethics code revisions that require lawyers to try to avoid being overheard by eavesdroppers. 
“You run out of options very quickly to communicate with someone overseas,” he said. “Given the difficulty of finding anything that is 100 percent secure, lawyers are in a difficult spot to ensure that all of the information remains in confidence.”
While the story does not reveal very much about the NSA's role in this chain of events, or the particular information that was being monitored, it is a good reminder that attorneys who are working with foreign clients should be aware that their conversations may not be completely private.

Christopher Soghoian notes that there is something notable in this story, albeit, something that is buried and not necessarily related to invasive NSA behavior:

Here are the last two paragraphs from the Times' story:
The Americans and the Australians secretly share broad access to the Indonesian telecommunications system, the documents show. The N.S.A. has given the Australians access to bulk call data from Indosat, an Indonesian telecommunications provider, according to a 2012 agency document. That includes data on Indonesian government officials in various ministries, the document states. 
The Australians have obtained nearly 1.8 million encrypted master keys, which are used to protect private communications, from the Telkomsel mobile telephone network in Indonesia, and developed a way to decrypt almost all of them, according to a 2013 N.S.A. document.
Soghoian is correct to point out that these final paragraphs indicate that there is a lot going on behind the scenes that this story does not explicitly illustrate. It will be interesting to see if more information is released regarding how the NSA obtained access to the data from Indosat and how the Australians obtained the keys to the Telkomsel network.

Edwards v. Nicolai: A Possible Follow-Up to Iowa's "Firing-For-Attraction" Case

Last year, in Nelson v. Knight, the Iowa Supreme Court ruled that a termination based on the employer's personal attraction to an employee is not unlawful. Ryan Koopmans summarizes the main points of the opinion and the concurrence here. I had blogged about the case here, noting that I hoped that the Court would overturn the original ruling. This hope turned out to be unfounded.

At the National Law Review, James Ehrenberg writes about the Nelson decision:
We were intrigued by the decision – and we discussed it in this blog – because, at first blush, it seems to be counterintuitive. The assistant was only a threat to the dentist’s marriage because of her sex, right? So wasn’t she fired – at least indirectly – because of her sex? That was our thinking. But the Iowa Supreme Court didn’t see it our way, and we wondered if other states would follow its lead. 
One may soon do so. In Edwards v. Nicolai (Case No. 160830/2013), a Manhattan yoga instructor alleges that she was fired by her boss because her boss’s husband found her to be “too cute.” The yoga instructor’s boss and her husband have filed a motion to dismiss which makes the same basic argument that the dentist made in Nelson. Being fired for being “too cute,” they say, is not the same thing as being fired because of your sex.
Ehrenberg points out that the New York trial court has not decided the case yet. But it will be interesting to see how the case turns out. And if the case ends up going the same way as the Nelson case, it will be interesting to see whether the Edwards court looks to Nelson for guidance.

ABA Recommends Dropping Prohibition on Paying Student Externs

From Karen Sloan at the National Law Journal:

An American Bar Association panel has recommended the organization drop its prohibition against law students receiving both academic credit and money for internships and externships. 
The ABA’s Council of the Section of Legal Education and Admissions to the Bar still must approve the idea, but it would represent a significant departure from existing rules that forbid students from receiving monetary payment for field placements.
. . .
The ABA’s Law Student Division has been lobbying for the rule change, enlisting support from student bar associations around the country. The division argued in a letter to the committee that changing economic realities no longer allow students to pass up opportunities to be paid for their work. 
In a survey of students, 95 percent said they would be better encouraged to pursue externships if they could be paid and receive academic credit.
I did not realize that this prohibition existed, and I think that it is an odd restriction to have in place. But I am not sure about whether a lack of payment is a significant hindrance to students who are interested in externships. Externships allow students the opportunity to work in the real world and obtain practical experience and potential connections for future employment. Additionally, externships give students the opportunity to earn academic credit while escaping the homework and exams of traditional academic coursework. Many students I know have jumped at this opportunity, even without the prospects of payment. After all, they are already spending the money to get the academic credit, and an externship does not cost more.

Admittedly, allowing paid externships would probably encourage more students to take this approach. But with many students already using externships to get out of the classroom and obtain practical experience, I wonder whether more externship encouragement is necessary.

Friday, February 14, 2014

Upcoming Legal Writing Competitions Page

Legal writing contests are an excellent opportunity for students to publish the work they do in classes or seminars. Contests may be a particularly good opportunity for students interested in writing because they often offer financial rewards and many contests have submission deadlines that fall outside of law journals' slating seasons -- meaning that students can find publication opportunities even when most journals and law reviews are not accepting submissions.

I sometimes find that it is hard to keep information about these contests straight. Information about contests is spread across a number of websites, and many websites with lists of contests have broken hyperlinks, or list contests whose deadlines have long-since elapsed.

To sort out this confusion, I have decided to make a list of writing competitions whose deadlines have not yet passed. Each entry will include the name of the context, which will be a hyperlink to the contest's submission guidelines. I will do my best to keep this page updated, as I will be checking it often for my own reference.

You can reach the webpage here, or by clicking the page link which will appear under the "Pages" heading to the right of my posts.

Will the Silk Road 2 Bitcoin Hack Give Rise to Negligence Lawsuits and Would this Litigation Succeed?

The BBC reports:

The anonymous online marketplace Silk Road 2 says it has been hacked resulting in the loss of all its customers' bitcoins. 
An administrator for the site said hackers had manipulated computer code enabling them to withdraw $2.7m (£1.6m) worth of the virtual currency.
It follows similar attacks on two exchanges that trade in bitcoins earlier in the week. 
Silk Road 2 is known for selling drugs and other illegal items. 
The site is only accessible through Tor, a network that allows users to browse anonymously online. The virtual currency Bitcoin is often used in transactions as it also grants users a degree of anonymity.
This incident may be particularly interesting to watch because of the notable degree of ineptitude demonstrated by the website's administrator, known (ironically) as Defcon. Defcon should have known that the website was vulnerable to this type of hack because an earlier, similar attack on the Slovenia-based bitcoin exchange firm, Bitstamp, occurred only a few days earlier. That hack made international news, with the BBC reporting about the attack and its underlying mechanics here.

Defcon himself admitted that he should have been taking more precautions:

"I should have taken MtGox and Bitstamp's lead and disabled withdrawals as soon as the malleability issue was reported. I was slow to respond and too sceptical of the possible issue at hand," he said in the forum posting. 
In an article for CoinDesk, a news site for digital currency, Danny Bradbury an expert on Silk Road, said that bitcoin-based sites should put "bitcoins under management in cold storage (ie stored offline) so that they could not be stolen by online attackers." 
Defcon said that all its customers' bitcoins were being stored online because of planned relaunches of some of the site's features. 
"In retrospect this was incredibly foolish, and I take full responsibility for this decision."
Several Silk Road 2 users suspect that Defcon or other website administrators may have been involved in the hack, which Defcon denies.

Even if Defcon was not maliciously involved in the hack, it seems that his administration of the website was notably foolish. The failure to halt withdrawals in light of widespread reports on Bitcoin security breaches and the storing of all customers' Bitcoins online both contributed to the success of this hack. These failures, combined with Defcon's admission that he should have taken additional precautions, set the stage for a substantial negligence lawsuit against Defcon and Silk Road 2.

As far as I am aware, there have not been many similar negligence lawsuits against Bitcoin exchanges. I am aware of one lawsuit that is pending in California against the Bitcoin exchange, Bitcoinica, following the loss of thousands of Bitcoins following a hack on the exchange. The complaint in that case is available here. And at The Verge, Adrianne Jeffries reports on obstacles that case may face here. Jeffries also reports on another lawsuit against Bitcoin exchange Tradehill, but that lawsuit apparently has proceeded to arbitration.

While the Bitcoinica lawsuit is in its early stages, potential problems with that lawsuit highlight issues that may arise in a lawsuit against Silk Road 2. From Jeffries:

The plaintiffs may face some challenges. The question of jurisdiction is not addressed, and although some of the plaintiffs live in San Francisco, Bitcoinica is now based in the UK. The suit also hopes to pull in up to 100 defendants. "Bitcoinica is an entity of unknown form and origin," says the complaint, which names three defendants and "Does 1 through 100." A representative for Intersango declined to comment. The lawyer for the plaintiffs declined to comment because his lead client could not immediately be reached.
Similar problems may arise in a lawsuit against Silk Road 2. Bitcoin exchanges operate in a world of anonymity, and it may be difficult for plaintiffs to determine the true identity and location of website administrators like Defcon.

It will be interesting to see if any lawsuits result from this recent hack. Because the facts are very favorable for a negligence lawsuit, and because millions of dollars were lost as a result of this hack, I think that there is a high possibility of legal action. If lawsuits occur, this will be a good opportunity to see how the plaintiffs and courts address the obstacles of the defendants' anonymity.

Thursday, February 13, 2014

Ninth Circuit Deepens the Federal Circuit Split on the Right to Carry Firearms

The case, striking down California's restrictions on carrying firearms in public, is Peruta v. County of San Diego. The full opinion is available here.

Eugene Volokh analyzes the opinion here. And he discusses what will most likely happen next in the case here. I have blogged previously about the split in authority on laws that restrict the carrying of firearms here, and Peruta deepens this split.

The Ninth Circuit does not resort to a discussion of scrutiny in striking down the ban. Quoting District of Columbia v. Heller, the 2008 Supreme Court case that struck down the District of Columbia's ban on the possession of loaded firearms in the home, the court notes: "A law effecting a “destruction of the right” rather than merely burdening it is, after all, an infringement under any light." And California's restriction is such a law:

In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table. The San Diego County policy specifies that concern for “one’s personal safety alone” does not satisfy the “good cause” requirement for issuance of a permit. Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show “a set of circumstances that distinguish [him] from the mainstream and cause[] him . . . to be placed in harm’s way.” Given this requirement, the “typical” responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his “personal safety”—by definition—cannot “distinguish [himself] from the mainstream.” 
. . . 
It is the rare law that “destroys” the right, requiring Heller-style per se invalidation, but the Court has made perfectly clear that a ban on handguns in the home is not the only act of its kind. We quote the relevant paragraph in full, telling case citations included: 
Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).
Id. at 629. In other words, D.C.’s complete ban on handguns in the home amounted to a destruction of the right precisely because it matched in severity the kinds of complete carry prohibitions confronted (and struck down) in Nunn and Andrews. These, in turn, resemble the severe restrictions in effect in San Diego County, where the open or concealed carriage of a gun, loaded or not, is forbidden. Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly better than a near-total prohibition on bearing them (this case), and vice versa. Both go too far.
Volokh believes that the case will likely make it before the Supreme Court given the "solid split" of authority on this issue. In the meantime, I expect that the Ninth Circuit will rehear the case en banc, and I am not sure that the current ruling will survive that review. But whatever the outcome, this case deepens the split in authority, and I hope that this prompts the Supreme Court to finally take up a case on this issue.

On a doctrinal note, if the Supreme Court were to take up this case and apply the same reasoning as the Ninth Circuit, the case would not do much to clear up a lot of existing confusion on what level of scrutiny courts should apply in cases where the core Second Amendment right to self-defense is not "destroyed." The Ninth Circuit's reasoning is similar to the reasoning in the Heller decision in that it holds that a statute's destruction of core Second Amendment rights warrants per se invalidation. What this would mean for lesser restrictions is still unclear.

[UPDATE - 2/24/2014: I found that my link to the Peruta opinion was broken due to the court's relocation of the case information on the website. I have since updated the link to a working page with the opinion]

[UPDATE - 7-26-2014: The Peruta opinion link was broken again, so I've changed it to Google's page on the case, which will hopefully be more durable than the last two. Additionally, I noticed that I had misstated the name of the case, and have corrected that error by changing "City of San Diego" to "County of San Diego"]

Rand Paul Accused of "Stealing NSA Lawsuit"

The Washington Post reports:

Since December, the libertarian lawmaker, a tea party favorite, had been working with former Reagan administration lawyer Bruce Fein to draft a class-action suit seeking to have the National Security Agency’s surveillance of telephone data declared unconstitutional; the two men appeared together as early as last June to denounce the NSA’s activities.

But when Paul filed his suit at the U.S. District Court in Washington on Wednesday morning, Fein’s name had been replaced with that of Ken Cuccinelli, the failed Republican gubernatorial candidate in Virginia who until last month had been the state’s attorney general. Cuccinelli has never argued a case in that courthouse, and he isn’t even a member of the D.C. bar (he also filed a motion Wednesday seeking an exception to allow him to argue this case in D.C.). But he is, like Paul, a tea party darling.
. . .

The unceremonious jettisoning of a constitutional lawyer in favor of the man best known for his unsuccessful suit to have Obamacare declared unconstitutional suggests that Paul’s legal action has more to do with politics than the law. And there are other clues. In Fein’s version, Sen. Mark Udall (D-Colo.) was listed as a plaintiff along with Paul, but in the final complaint the Democrat was gone and the tea party group FreedomWorks was added in his place. Both suits list as defendants the director of national intelligence, the FBI director and the director of the NSA, but Fein’s version had named the defense secretary and the attorney general. Cuccinelli’s version dropped those two — but added President Obama as a defendant, an incendiary change. 
When a reporter at the courthouse news conference Wednesday mentioned Paul’s presidential aspirations, the senator shut him down. “We’re just going to stick with the court case and not politics today,” he said.
The rest of the article has in-depth discussion on the similarities between the complaint that Fein helped prepare and the complaint that was ultimately filed.

I have blogged previously on my annoyance at the use of lawsuits as a tool for political gain. This case is one such flagrant example, and Paul's insistence that reporters distinguish the court case from politics is hypocritical.

Paul's lawsuit is particularly infuriating because, as a politician, he could introduce legislative safeguards that could undo many of the harms he complains of. Legislation would arguably be a much more effective approach to take than filing a lawsuit. But the legislative process is not particularly exciting, and it does not give Paul very many opportunities to make broad, imprecise, nice-sounding comments on the unconstitutionality of the government's actions.

All of that said, it is nice to see that Paul has gone too far in politicizing this lawsuit. While the entire suit was political from the beginning, Paul's replacement of Fein with Cuccinelli makes the political nature of this case far more obvious. I hope that this issue continues to draw attention, and that this attention drives Paul to focus his efforts on more productive, legislative goals.