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Tuesday, December 23, 2014

Iowa Department of Public Safety Releases Report on Drones

Iowa's Department of Public Safety recently released a report on drones. The full text of the report is available here. A bill passed back in May called for this report, which would survey whether Iowa's laws should be modified to account for drones and to develop guidelines for drone use.

I think that the report's position on private drone use is sensible. The report notes that drone safety regulations are covered by Federal Aviation Administration (FAA) regulations. The report continues, pointing out that existing laws against trespass and invasion of privacy can restrict invasive drone use by private parties. The report also notes that it may be best to restrict drones "as regulation is needed rather than in a preemptive matter." This sort of approach will help drone technology develop without complicated or repetitive laws that may hinder the free use of drone technology.

I do think that the report misstates Iowa's legislative restrictions on government drone use. Iowa's law governing drones is a bit strange, since it is a mix of restriction and deregulation of government drone use. Section 321.492B of the Iowa Code prohibits the government from using drones in "traffic enforcement" situations. As I have previously argued, it is unclear how far this prohibition extends. While officers may not use drones to spot traffic violations, are they prohibited from using drones to document the scene of a traffic collision or hit and run after the collision has taken place?

In non-traffic enforcement situations, agencies can use evidence obtained through drones whenever an exception to the Fourth Amendment search warrant requirement exists. As I have pointed out several times on this blog, this sort of exception essentially permits law enforcement agencies to use drones without any meaningful restrictions, since drones can still be used to observe people's public movements and the exterior of their homes.

The report, however, claims that this law "contemplates that a search warrant must be obtained, or that evidence that the government has gathered with an unmanned aircraft would be suppressed." While Iowa's law calls for a warrant when the government uses drones, the exception to the warrant requirement is so broad that the warrant requirement does not meaningfully restrict government drone use.

The report is worth reading in full, and its discussion of FAA regulations and state trespassing and privacy laws will likely apply to other states that are contemplating drone regulation.

Monday, December 22, 2014

Heien v. North Carolina: Implications for California Law

On December 15, the United States Supreme Court released its opinion in Heien v. North Carolina. The Court held that a police officer's reasonable mistake of law did not render a traffic stop unconstitutional under the Fourth Amendment. The Fourth Amendment permits traffic stops based on a reasonable suspicion that the law has been violated, and as long as the police officer's mistake of law is reasonable, the stop is not rendered unconstitutional. Analysis of the opinion can be found here and here.

Here is the crux of the majority opinion:

Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

. . .
Heien also contends that the reasons the Fourth Amendment allows some errors of fact do not extend to errors of law. Officers in the field must make factual assessments on the fly, Heien notes, and so deserve a margin of error. In Heien's view, no such margin is appropriate for questions of law: The statute here either requires one working brake light or two, and the answer does not turn on anything "an officer might suddenly confront in the field." Brief for Petitioner 21. But Heien's point does not consider the reality that an officer may "suddenly confront" a situation in the field as to which the application of a statute is unclear—however clear it may later become. A law prohibiting "vehicles" in the park either covers Segways or not, see A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 36-38 (2012), but an officer will nevertheless have to make a quick decision on the law the first time one whizzes by. 
Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonablemistakes, and those mistakes—whether of fact or of law— must be objectivelyreasonable. We do not examine the subjective understanding of the particular officer involved. Cf. Whren v. United States, 517 U. S. 806, 813 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce. 
Finally, Heien and amici point to the well-known maxim, "Ignorance of the law is no excuse," and contend that it is fundamentally unfair to let police officers get away with mistakes of law when the citizenry is accorded no such leeway. Though this argument has a certain rhetorical appeal, it misconceives the implication of the maxim. The true symmetry is this: Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And Heien is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.
I blogged about this case back in November, and noted that this case could have significant implications for California's law of search and seizure. At the time, I was posting on the California Court of Appeal's opinion in People v. Campuzano. There, the Court held that a police officer's mistake of law rendered a stop unreasonable when the officer stopped a suspect who was riding his bicycle on the sidewalk. While the officer thought that riding a bicycle on the sidewalk was illegal if it was done in a commercial district, the Court concluded that the bicycle needed to be ridden in front of a business that was operational. Because the defendant in Campuzano was not riding his bicycle in front of an operational business, the officer's conclusion that the defendant had violated the law was mistaken, and the court held that this mistake of law rendered the stop unconstitutional.

After Heien, however, the decision in Campuzano is no longer the law in California. Article One, section 28(f)(2) of California's Constitution establishes that rules excluding evidence in criminal cases are to be only as broad as federal constitutional rules. The California Supreme Court affirmed this limitation in In re Lance W. This means that California's constitutional law of search and seizure cannot exclude a broader range of evidence than the United States Constitution.

Accordingly, the blanket statement by the California Court of Appeal in Campuzano that "[a] traffic stop based on a mistake of law is unreasonable and not subject to the good-faith exception," is no longer the law in California. Under Heien, as long as the officer's belief that the defendant has broken some law is reasonable, any ensuing traffic stop is also reasonable.

Questions remain regarding just how much of a mistake of law is permitted under the "reasonable mistake of law" exception. But I would not be surprised if the officer's mistake in Campuzano fell within this exception, and it will be interesting to see how lower courts define the scope of this new facet of Fourth Amendment doctrine.

Thursday, December 11, 2014

How Not to Write a Petition for Certiorari

From Josh Blackman's Blog, I learned about the remarkably terrible petition for certiorari in Sigram Schindler Beteiligungsgesellschaft MPH v. Lee. Blackman notes that the Supreme Court has ordered the attorney for the petitioner to show cause why he should not be sanctioned. Will Baude points out that the petition's indecipherable nature may be due to inadequate supervision by the attorney on the case.

Both Blackman and Baude highlight the petition's mysterious question presented:

“Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112, 
• require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs” – by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework,
or does the US Constitution for such decisions 
• entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require – or meeting its requirements just by some lip-service – and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?”
Most commentators focus only on the first few pages. But the petition's first footnote hints that true incomprehensibility will soon follow:

This petition continues using terminology introduced by SSBG’s preceding petition, e.g. “classical technology / emerging technology claimed invention, CT / ET CI”, “∀…/….s =(for) any/all”. Most of the relevant information only referred to here is available on – often proof read or just with typos removed.

For several pages after that, the petition is awkward, yet mostly written without symbols and somewhat readable. Things don't get truly interesting until page seven:

121S.II/III] tell: “{∀SPL test}≡FSTP-Test”7.a). Thus, familiarity7.b) with the FSTP-Test8) pays. It tests, ∀interpretations/TT.0s of a CI, their inventive concept sets satisfying ∀necessary˄sufficient and precise legal criteria6) for CI’s passing its SPL test.

For SPL testing a CI, the FSTP-Test hence needs ∀TT.0s of CI ∀ their compound inventive concepts and ∀ their elementary inventive concepts – as recognized and input by the user. Its fully automatic guidance greatly sharpens his/her such cognition processes by forcing him/her – by prompting to input blindly trusted answers to ∀ questions of the FSTP-Test as to ∀ TT.0s of a CI – to iteratively identify ●)∀inventive concepts of TT.0 and to check ●) ∀ their necessary ˄ sufficient relations for their holding 6).

ftn 8) is the FSTP-Test from [121 8.b)], fixed 7.c) by test. 9 to model Alice concisely.
What is this FSTP-Test? The petition claims that it's simple to implement ("vastly trivial" to intuitively grasp, according to footnote seven). Footnote eight provides the process for understanding and applying the test:
The FSTP-Test comprises the steps 1)-10):
1) The FSTP-Test prompts the user to input
(a) ∀TT.i ∧ 0≤i≤I=|RS| ∧ 1≤n≤N=N(TT.0): BADi-crCin;
(b) ∀TT.0∧1≤n≤N justof: BAD0-crC0n is definite;
(c) S0::={BED0-crC0nk|1≤k≤K0n, 1≤n≤N}:
BAD0-crC0n=∧1≤k≤K0nBED0-crC0nk ∧ K0::=∑1≤n≤NK0n;
(d) ∀1≤k≤K0n ∧ 1≤n≤N justof: BED0-crC0nk is definite;
2) ∧ ∀ ϵ S0 for justof: their lawful disclosure;
3) ∧ ∀ ϵ S0 for justof: their definiteness under § 112.6;
4) ∧ ∀ ϵ S0 for justof: their joint enablement of TT.0;
5) ∧ ∀ ϵ S0 for justof: their joint independence;
6) ∧ ∀ ϵ S0
for justof: their joint KSR-nonequivalence: BED0*-inCik ∷= N ∀ 1≤k≤K0n ∧ 0≤i≤I; BED0*-inC0k ∷= A if BED0-inC0k ϵKSR posc;BED0*-inCik ∷= A BED0-inCik=KSR BED0-inC0k, 1≤i≤I;
7) ∧ for justof: by NAIO*) S0 is not an abstract idea only;
8) ∧ for justof: S0 contains a patent-eligible BED0-crC0nk;
9) ∧ for justof: S0 is a patent-eligible combination;
10) ∧ for justof: by NANO**) S0 is patentable on S0pat-el ⊆ S0.
*) The "Not Abstract Idea Only, NAIO" test prompts the user
1) for input&justof: the CI specification discloses a problem, P, to be solved by TT.0 of CI;
2) for input&justof: S0 alias TT.0 solves P;
3) for input&justof: P is not solved, if in S0 a BED0-inC0k is relaxed (i.e. the truth set of a BED0 inC0k is enlarged);

If 1)-3) apply, then <CI,S0> is “not an abstract idea only”. 
**) The "Not Anticipated And Not Obvious, NANO" test checks
of RS all its “anticipation combinations, AC0s” as to S0 [5,6]: 
1) It starts from the ‘anticipation(A0)/non-anticipation(N0)” matrix of FSTP-test.6, any one of the I+1 lines of which shows, by its K0 column entries, for i = 1,2,...,I, which of the peer TT.0 entries is anticipated/non-anticipated by a former one, and for i=0 is anted/non-anted by posc. 
2) It automatically derives from the AN0 matrix the set of
all {AC0} with the minimal number, Qplcs/0, of “N” entries.

Of course! Although I'm still not quite sure what "FSTP" stands for.

It should be noted that all of this seems to be the petitioner's legal argument. This is not a description of the "method for transmitting data in a telecommunications network and switch for implementing said method" (page 4 of the opinion below) that is the subject matter of the patent dispute, but it is the petitioner's suggested process for reasoning through patent disputes. The petitioner thinks that this process is so noteworthy that the entire petition seems devoted to discussing the process and urging the Supreme Court to adopt it.

Friday, December 5, 2014

Robinson on the Rise and Degradation of Criminal Codes

From the CrimProf Blog, I learned about Paul Robinson's essay, The Rise and Fall and Resurrection of American Criminal Codes. Here is the abstract:

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

The essay is a transcript of Robinson's keynote address at the Third Annual Forum on Criminal Law Reform that was held in Louisville, Kentucky. Because of the location of the address, many of the examples discussed in the essay are specific to Kentucky, but the essay itself applies to many jurisdictions, including California.

Take, for example, this portion of Robinson's essay:

Another problem comes from the conflicts between statutes, and the ambiguities that can result. What is a court to do when statutory terms are defined differently in different places? Or if the same conduct is graded differently in different statutes? And one may wonder why should we be empowering courts to get back into the criminalization business to make such legislative decisions forced upon them by such statutory conflicts and ambiguities? How can a code be principled if different provisions provide different definitions of the same criminal harm, or provide different offense grades to the same conduct? In other words, the proliferation problem undermines not only the criminal law’s orderliness, but also its principled nature and its reservation of the criminalization power to the legislature.

These problems often result because new legislation is not written to integrate into the code but rather to layer on top of it, without regard to what went before. And of course layering produces a vicious cycle. The messier the code gets, the less able or inclined legislators are, to integrate new legislation into the existing code. The more new legislation that is layered on rather than integrated in, the more future legislation will layer rather than integrate, until dozens if not hundreds of overlapping layers have been created. If you imagine the original criminal code of 1974 as being the trim hull of a fast boat, the addition of hundreds of independent and overlapping patches can, over forty years, completely obscure the original design, turning it into an irregular blob.
. . .
What drives this degradation of existing criminal law? The underlying causes of degradation are found primarily in the inherent nature of the legislative process. Many amendments and new offenses are enacted for purely political purposes: politicians propose a bill to show concern regarding an issue that their constituents are concerned about. We cannot be too critical here. They are simply trying to be responsive to their community - normally something we see as a good thing, a basic feature of democracy in action. They may be responding to an especially grim case in the headlines, or a case where an offender seemed to have received too little punishment.

But in many of these cases, “the problem” has little to do with a flaw in an existing criminal law rule. Not every problem can be fixed with a criminal code amendment. People will continue to commit outrageous crimes; judges will continue to make what are seen as sentencing errors, and so on. Yet, legislators often feel a need to do something to show that they are sensitive to their constituents’ concerns. And there a few “somethings” that they can do. Changing or adding to the criminal law is one of those few things. But when crime legislation is simply a vehicle for expressing concern, drafters have little reason to take account of existing law. They aren’t really fixing a code problem but rather using their bill as a vehicle to send an empathetic message of concern to their constituents. We should not be surprised by overlaps and inconsistencies because there is little motivation to integrate; overlayering is always easier and faster and often sends a clearer and more dramatic message.
Robinson effectively points out how and why criminal statutes tend to become overly complicated as time goes on. California is one state where this happens quite a bit -- most recently with the passage of Proposition 47. The primary, stated goal of Prop 47 was to reduce sentences for misdemeanors.

Prop 47's changes to the criminal code may indeed achieve this goal. But when it comes to the law of theft, Prop 47 achieves its goal of reducing sentences by adding new laws rather than altering existing provisions. Rather than altering the crime of commercial burglary so that it is a misdemeanor unless the crime is committed outside of regular business hours, Prop 47 went ahead and created the perplexing new crime of shoplifting. Rather than eliminating or simplifying the myriad of statutes defining grand theft, Prop 47 simply added Penal Code section 492 which effectively reduces the punishment of all grand theft offenses to the level of petty theft when the amount of property stolen is less than $950.

California's Penal Code is a cautionary tale of just how complicated a state's criminal code can become as layer after layer of laws are added. Robinson notes that legislators tend to be reluctant to integrate laws into existing criminal code frameworks. I suspect that the direct-vote proposition process is even more likely to result in new layers of complexity.

Njal's Saga Available Online

I'm a big fan of Njal's Saga, which I read during my second year in law school after learning about it through a remedies course taught by Professor Samuel Bray. I just discovered that the entire saga is available online here as part of the Icelandic Saga Database. The language of this 1861 translation is a bit cumbersome compared to the Magnus Magnusson and Hermann Palsson translation that I'm familiar with, but it's still worth checking out.

The saga tells the story of Njal, a lawyer and warrior who lived in 11th Century Iceland, and his friend Gunnar -- a warrior of unparalleled strength and prowess in battle. The saga includes a wide array of additional characters and spans a significant time period. The saga centers around battles, murders, and rivalries, but it devotes an almost equal amount of time to discussing the legal ramifications of the characters' violent actions -- and often rapidly pivots between violence and legal proceedings. Since disputes were occasionally settled by resorting to single combat between the parties, violence and legal proceedings are sometimes one and the same.

Njal's Saga is of interest for law students and others interested in law because it illustrates several themes that are recognizable in today's legal world. The saga addresses the mechanics of translating wrongful death into monetary compensation (and how a person's status may lead to increased or decreased valuation). It provides examples of how one may triumph in a seemingly hopeless legal dispute through a superior knowledge of procedure. Additionally, Njal's Saga contains an account of the possible origin of the term, "gunner."

Wednesday, December 3, 2014

The First Conviction Under California's Revenge Porn Law

The Los Angeles City Attorney announced that it has secured a conviction against Noe Iniguez, who posted nude photographs of his ex-girlfriend online. The Huffington Post and Mashable have reports on the story as well.

California's law against revenge porn was enacted in October 2013 and is currently codified at Penal Code 647(j)(4)(A). Originally, the law prohibited certain instances of distributing photos that one had taken of another person. It therefore did not apply to photographs that a victim would take of himself or herself. An amendment that will expand the law to apply to selfies was approved by the governor in September, 2014, and it is my understanding that this change will take effect in 2015.

Here is the current version of the law:
Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress and the depicted person suffers serious emotional distress.
The City Attorney's announcement describes Iniguez's conduct, which seems to be a pretty clear violation of the law:

In December 2013, Iniguez, using an alias, allegedly began posting derogatory comments about his ex-girlfriend on her employer’s Facebook page. In March, 2014 Iniguez allegedly posted a topless photograph of the victim on her employer’s Facebook page which was accompanied by a message that called the victim a “drunk” and a “slut” and encouraged her firing from the company. The victim had previously secured a restraining order against Iniguez in November 2011 after receiving several harassing text messages following the breakup of their four year relationship.
I have noted before that revenge porn laws tend to draw criticism from commentators who argue that these laws violate the First Amendment. Indeed, Mike Masnick at Techdirt raises this point against the California law (though he makes sure to note that Iniguez does indeed sound "horrible").

But I think that California's law does not raise the same First Amendment problems as, say, Arizona's recently-halted attempt to criminalize revenge porn. The California law specifies that the law is limited to images that are shared in private circumstances, and therefore requires prosecutors to establish that the circumstances in which the image was initially taken or shared were private. Moreover, the law requires the prosecution to prove that the defendant specifically intended to "cause serious emotional distress," and that the victim suffered such distress. All of these parts of the law narrow the scope of the revenge porn prohibition and thereby limit the law's impact on speech.

While this is the first conviction under California's revenge porn law, several other cases are about to get underway -- as the California Attorney General has filed charges against several websites that specialize in sharing revenge porn. I blogged about one of those cases back in December when the case was at the arrest stage.

Those who are interested in revenge porn laws should pay attention to California. The upcoming cases should illustrate whether laws against revenge porn can be a reliable tool for punishing deplorable online behavior. And if any of these cases are appealed, I expect that the California Courts of Appeal will need to address the First Amendment implications of laws against revenge porn.

Monday, December 1, 2014

Some Harsh Words on Dueling

While researching and writing a paper on arbitration by combat and Game of Thrones, I came across the case of Smith v. State, 9 Tenn. 228 (1829). There, Tennessee's Supreme Court of Errors and Appeals evaluated the case of an attorney, Calvin M. Smith (no relation) (hopefully), who had been charged with murder after killing another man in a duel. Smith also faced disbarment for his actions.

The court was not persuaded by Smith's claim that killing another person in a duel was less-deplorable than killing a person in different circumstances:
Taking the petition for true, and how does the case of the defendant stand? By the laws of God, the laws of England from the days of the Edwards; by the laws of Kentucky and Tennessee, and every civilized land, he is declared to have been guilty of wicked and malicious murder, and a felon fled from justice. Is it possible that any well balanced mind can, for a moment, believe that a man whom the law thus condemns, is a fit person to be an aider and adviser in the sanctuaries of justice! 
We are told this is only a kind of honorable homicide! The law knows it as a wicked and wilful murder, and it is our duty to treat it as such. We are placed here firmly and fearlessly to execute the laws of the land, not visionary codes of honor, framed to subserve the purposes of destruction. (237).
The court did not have kind words when describing the various types of people who participate in duels:

It is true, as a part of the history of our species, that many men of strong minds have equally strong passions, which are ill controlled, and subject such men to grosser errors than others with fewer mental advantages; these are the men of worth that fight duels, having no guide but blind and reckless passion when aroused, regardless of their own lives or those of others; hence their conduct furnishes the worst possible evidence upon which to ground a rule for the government of society. This class of duellists are not less wicked than others we will name, but their standing renders it more difficult to punish them. 
Another set of men fight duels (or more generally make a show towards it) to gratify their vanity, by drawing upon themselves a little temporary notice, which their personal worth or good conduct cannot procure. These are always worthless coxcombs, equally destitute of bravery, virtue, or sense, whose feeble nerves would be shattered and prostrated at the sight of an enemy in the field of battle, who are ridiculous in every situation where courage or conduct is required. This class of duellists do little harm other than to disturb the community; they quarrel to make peace; or if officious intermeddlers force them into a fight, are too much alarmed to hit, or perhaps see, their antagonist. The affair is laughed at as a farce, and the parties turned over to the constable. (233).
And recently-admitted attorneys in Tennessee should take note that dueling will most likely have a negative effect on one's ability to practice law:

Let it be once understood that the bar of Tennessee dare not fight, and it will be deemed cowardly to challenge a member of it; and this court solemnly warns every lawyer, that if he violates the laws made to suppress duelling, we will strike him from the rolls of the court, upon the fact being made known to us. The truth is, such men are too often insolent and impudent bullies, who tyrannise over, and impose upon, all orderly men about them; who literally dragoon society, by fear of personal violence, into silence and seeming acquiescence, with respect to their conduct. That such a counsellor is a disgrace, and serious encumbrance to any court where he is permitted to practice, all will admit; those who engage in duels, the statutes deem, and we will treat, as of this description. (234).
Dueling is generally frowned upon in most jurisdictions. Other commentators have noted that dueling convictions have historically led to serious collateral consequences beyond criminal punishment or the ability to practice law. But of the various cases I have read on the subject of dueling, the language in Smith v. State is the most colorful and dramatic that I have been able to find so far.