Pennsylvania State Legislator Contemplates Statewide Law Against "Distracted Walking"

A recent editorial from TN Online reports:

State Rep. Karen Boback, a Republican whose district includes parts of Luzerne and Lackawanna counties, says she is going to introduce legislation that provides penalties for walkers who are inattentive while crossing a street or highway.

In a memo to legislative colleagues seeking co-sponsors for her bill, Boback said that distracting walking is a “very real and serious issue.”

Boback is most concerned with pedestrians who are inattentive because they are engrossed in conversations on their cellphones or are listening to music or other programming.

“Technology has invaded our life, and, as a result, people have stopped paying attention to their surroundings,” Boback wrote.

More reporting on this is available at Patch. It isn't clear why Boback is choosing to take a stand against "distracted walking." The TN Online writer notes that fewer pedestrians were killed by drivers in 2020 than in 2019. Of those 145 deaths, there is no indication how many of them, if any, were due to pedestrians who were distracted. 

Seeking to do Boback's job of justifying her proposed policy, the article cites a Governors Highway Safety Association Report which purportedly shows that "texting while walking has taken on a key role in pedestrian death in recent years as communication devices have become more mobile, compact, and numerous." The article fails to link to the report, or provide a year for when it was written. It may be citing this 2016 report which speculates that pedestrian distractions are contributing to pedestrian deaths and injuries, although it explicitly states that it "remains unknown" how many pedestrians killed in crashes with distracted drivers were themselves distracted. The report cites instances and studies suggesting that pedestrian distractions are on the rise, but does not draw a link between such distractions and traffic deaths. Indeed, a New York study specifically investigating whether distracted walking contributed to pedestrian fatalities and injuries found "little concrete evidence" of a connection.

The Pennsylvania law appears to be in its early stages, as it does not appear that a statute has been drafted yet. Hopefully Boback will give the bill some more thought and conclude that it isn't worth it. Indeed, her basis for contemplating the bill appears to be anecdotal notions of technology "invading" people's lives. Reports on her proposal have to do the work themselves to dig up evidence supporting measures restricting texting while walking, and these reports often fail to confirm a link between instances of distracted walking and increased pedestrian deaths. As I have noted before, legislators seeking to prevent traffic deaths, and particularly pedestrian deaths, would do better to focus on infrastructure by making cities and towns safer for pedestrians. This includes increasing the number of crosswalks, ensuring adequate lighting, lowering speed limits, and reducing the width of streets, among other measures. Boback herself appears to have been involved in such infrastructure measures in the recent past, which makes it all the more surprising that she is seeking to put the onus on pedestrians--who are most at risk of death or serious injury. A statewide restriction on distracted walking is a blunt instrument that targets the wrong actors and ignores factors that lead to greater risks of pedestrian death and injury.

In addition to being misguided from a public safety perspective, laws against distracted walking criminalize ubiquitous behavior, which promotes selective enforcement. Many people check their phones while walking, including while crossing the street. As a result, police officers tasked with the enforcing the law will use their discretion to determine who to stop and ticket for these violations, meaning that the brunt of any law will likely fall more heavily on people in poorer neighborhoods and racial minorities.

A few cities and municipalities in the United States and other countries have banned various forms of walking while on the phone or while using other electronic devices. All of these measures target a phenomenon that most have likely observed or experienced, but which has little ultimate impact on pedestrian safety--at least when compared with other measures that legislatures can take to reduce traffic deaths and injuries. This story is notable because it suggests that a statewide ban may be possible. One can only hope that the bill, if it is ever written, will fail to gain the support necessary to become law.

North Carolina Students Use 26th Amendment to Challenge Voter ID Law

I recently heard about this story in the New York Times detailing a lawsuit challenging North Carolina's statute requiring people to provide photo identification when voting. The Times describes North Carolina's law:

Under the North Carolina law passed last year, the period for early voting was shortened and same-day registration was eliminated. Beginning in 2016, voters will need to show photo identification, and student ID cards, including those issued by state universities, will not be acceptable. In most instances, neither will an out-of-state driver’s license. 

The law also eliminated a program in which teenagers filled out their voter-registration forms early and were automatically registered when they turned 18.

The link to the story contained the words in the subtitle: "College Students Claim Voter ID Laws Discriminate Based on Age." I was initially skeptical, since age is not a suspect classification and laws that discriminate based on age are not likely to be overturned for being discriminatory.

But my skepticism was based on doctrine that stems from the Fourteenth Amendment's Equal Protection Clause. While the plaintiffs challenging North Carolina's Voter ID law are arguing that the law violates the Equal Protection Clause, they are also taking a novel approach based on the 26th Amendment. From the Times:

[L]awyers for seven college students and three voter-registration advocates are making the novel constitutional argument that the law violates the 26th Amendment, which lowered the voting age to 18 from 21. The amendment also declares that the right to vote “shall not be denied or abridged by the United States or any state on account of age.” 

There has never been a case like it, and if the students succeed, it will open another front in what has become a highly partisan battle over voting rights.

I'm not sure whether the students will succeed with this argument. Given the lack of established case law or standards governing 26th Amendment lawsuits, I don't think anybody knows how the court will treat this theory. It will be interesting to see how the court handles the argument, and whether similar lawsuits will be filed in other states.

Also, Ann Coulter isn't going to be happy about this.

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.

Criminal Records and Reentry, and the Importance of Civil Reform

Via the CrimProf Blog, I learned about a recent article by Michael Pinard entitled, Criminal Records, Race and Redemption. The citation is 16 N.Y.U. J. L. & Pub. Pol. 963 (2013).  Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

I have not had very much time to read through the paper in depth, but from what I have read, Pinard seems to be presenting and addressing an extremely important issue facing the criminal justice system. Speaking from my own experience volunteering at a reentry clinic for a few years, I can say that (1) Pinard's arguments that criminal records make finding jobs and housing difficult are spot on, and (2) that I am relieved to be working at a clinic in California rather than Maryland, where expungement rules seem to be far more restricted.

Pinard also seems to offer some strong suggestions for reform. I would add to his conclusions by re-emphasizing the importance of civil remedies against employers who discriminate based on criminal background. I am aware that California has enacted legislation that provides for statutory damages in the event an individual can prove that they were not hired specifically because of their criminal background. And while Pinard correctly points out that this may be difficult to prove, I have nevertheless met numerous people who have heard either explicitly from employers that they were not hired because of their record -- or who had significant circumstantial evidence that this was the case. Legislation providing for substantial statutory damages would provide employees with record with a significant source for redress in the event they are not hired because of their criminal record.

Automated Surveillance and Police Discretion

Cyrus Farivar of Ars Technica writes that the Boston Police Department has suspended their use of license plate readers.  They note that an investigation by the Boston Globe revealed a number of holes in the program, and some strange practices.  For example, the Globe pointed out that there were instances where license plate scanners would send reports of stolen vehicles, but the police would fail to follow up on these reports:

Beyond providing snapshots of where thousands of vehicles were spotted at given moments, the data indicate that Boston police routinely failed to follow up on repeat alarms. 

Nearly 1,700 plates registered five or more scanner hits over the six-month period, most for insurance violations or unpaid traffic fines. The most-scanned plate came back as a hit for lapsed insurance more than 90 times. 

But some repeat alarms were for serious violations. One Harley Davidson motorcycle that had been reported stolen passed license plate scanners a total of 59 times between Oct. 19, 2012, and March 13, 2013. It was often recorded on sequential days or multiple times in a single day, all by the same scanner and almost always within the same half-hour span in the early evening. 

Boston police chief technical officer John Daley indicated that each of these scans prompted an e-mail alert to the department’s Stolen Car Unit, but there is no indication that the motorcycle was ever apprehended or even stopped.

Privacy advocates generally do not favor the use of automated surveillance technologies like automatic license plate scanners.  This technology, they argue, can be used to collect massive amounts of information on large numbers of people that can be stored indefinitely and used to track people's movements.

A possible silver lining to automatic surveillance practices is that evenly distributed surveillance devices could reduce police abuse of discretion in deciding whether to investigate a vehicle as stolen or in violation of the law.  Police can generally enter in any license plate information they see to their database to determine whether the vehicle they are scanning is stolen or if the registration on the vehicle is expired.

When police make these entries themselves, there is a possibility that they will enter these number in an imbalanced way.  For example, officers may, consciously or unconsciously, run license plate checks on vehicles driven by racial minorities more than they do for vehicles driven by non-minorities.  While these checks minimally intrude on those whose plates are entered into the system, it could result in disproportionate stops and enforcement of criminal laws against racial minorities, since a higher proportion of license plate checks against a certain group will likely lead to a higher proportion of that group being found in violation of the law.

Automatic scanners could partially solve this problem.  By setting up devices that automatically collect license plate information or other information, the decision of whether that information should be collected in the first place is not up to the discretion of a police officer.  While more information on more people will be collected, that information will at least be collected in a consistent manner.  One would hope that the information would be used in a consistent manner -- with uniform practices for following up on violations that are discovered.  This would seem to reduce some of the disproportionate enforcement of laws that could result from police abuse of discretion.

The flaws with the Boston surveillance program that the Globe's investigation revealed show that this hope may be misguided, or at least not guaranteed.  If police choose not to follow up on certain results, then the potential for abuse of police discretion is re-introduced into the system at a higher level.

Boston's program has been suspended for now, but it is likely that automatic surveillance will continue to be employed by more cities and law enforcement agencies.  Going forward, this story should serve as a reminder of the importance of established, consistent practices for investigating and following up on automatic surveillance reports.  And future surveillance programs will hopefully have established investigation procedures in place that will minimize the potential for abuse of discretion.

The Legal Implications of Human Enhancement

Via the CrimProf Blog, I learned about a forthcoming article by Susan Brenner.  The title is, Humans and Humans+: Technological Enhancement and Criminal Responsibility, and the article will appear in Volume 19 of the Boston University Journal of Science and Technology Law.

Here is the abstract:

This article examines the implications our use of technological enhancements to improve our physical and/or cognitive abilities will necessarily have on the processes of imposing criminal responsibility on those who victimize others. It explains that while our use of such enhancements is still in its infancy, it is more than likely that their use will dramatically accelerate over the next century or less.

The articles examines how law has historically approached the concept of a “legal person,” with reference to “normal” humans, “abnormal” humans, animals, objects, supernatural beings and juristic persons. It also reviews how two other authors have analyzed the general legal issues our use of enhancements and other technological advancements are likely to raise.

The primary focus of the article, however, is on analyzing how criminal law will need to adapt once our world is populated by two classes of humans: Standard humans (basic Homo sapiens sapiens) and Enhanced humans (Homo sapiens sapiens whose native abilities have been augmented beyond the range of possibilities for their Standard brethren). I assume this very basic divergence between humans because it suffices for my analyses, and because I assume that creating a new species or subspecies of Homo sapiens sapiens is likely to be difficult and will therefore not eventuate in the near future. 

I use various scenarios, e.g., Standard perpetrator-Enhanced victim, Enhanced-perpetrator and Standard victim, to analyze how criminal law can, and should, adapt to a world in which all humans are not equal. I use statutory rape statutes as an example of law that is designed to protect a distinct and vulnerable class of humans, and speculate as to whether this approach could be extrapolated to Standard humans. I also explore the viability of extrapolating other, similar principles, such as vulnerable victims, into this context. And I briefly analyze the possibility that future law might address this situation by implementing a caste system to “protect” Standard humans from their superior counterparts. My goal is not to predict how future criminal law should deal with human enhancement but to note the likelihood that it will have to do so.

I've been interested in the legal implications of human enhancement since I ran across this BBC article on a joint report by the Academy of Medical Sciences, the British Academy, the Royal Academy of Engineering, and the Royal Society.  The report detailed medical and technological developments that would allow people to vastly improve their cognitive and physical capabilities in the future, and noted the need for discussion on the legal implications of these developments.  I am particularly interested in the concern that people who choose not to enhance themselves will be pressured to do so, or discriminated against in the employment context.

The report raises and addresses this concern:

Some commentators have pointed out that individuals who wish to enhance often do so primarily out of an intrinsic desire to enhance; any motivation to derive a positional advantage is secondary. However, Professor Brownsword noted that the nature of work means that any decision to enhance, whether by the employer or the employee, is made in an inherently competitive context; the competitive advantage gained is inescapable. Thus, work might be considered to be a unique or, at the least exceptional, context.  

This view gains further strength when we consider that employees are in a vulnerable position. . . . [T]here is a risk that enhancement technologies could be used as a substitute for improved working conditions to offset a very challenging working environment. Even if enhancement is not formally required, in particularly target-driven situations that look to maximise productivity, if an employer’s expectations are based on the performance of those using enhancers, then employee choice could be compromised. And if we extrapolate further, is it possible that those not using enhancers might eventually be considered ‘disabled’ in some way? There is an established view that a labour contract is different from other types of contract because of the relations of power and authority embedded in it.123 In addition, most employees are unlikely to be in a position where they can select a job and employer based on their rules about enhancement. It is likely that any such rules need to be accepted along with any other terms of employment. (p. 51).

This report and Brenner's article both highlight problems that can arise in very different areas of laws as a result of human enhancement.  I think that both areas are worth studying further, and I think that broader questions of equal protection in a world of human enhancements underlie both discussions, and raise some complicated legal concerns.

Mug Shots and Online Reputation

The New York Times has an interesting story about websites that publish mugshots, the business practices of these sites, and the impact that they have on people's lives.  Describing the case of Maxwell Birnbaum, who was arrested in 2012 for possession of drugs, the Times reports:

[T]he mug shot from his arrest is posted on a handful of for-profit Web sites, with names like Mugshots, BustedMugshots and JustMugshots. These companies routinely show up high in Google searches; a week ago, the top four results for “Maxwell Birnbaum” were mug-shot sites. 

The ostensible point of these sites is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else. That sounds civic-minded, until you consider one way most of these sites make money: by charging a fee to remove the image. That fee can be anywhere from $30 to $400, or even higher. Pay up, in other words, and the picture is deleted, at least from the site that was paid. 

To Mr. Birnbaum, and millions of other Americans now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage

The Times reports that these websites are the object of a class action suit, with plaintiffs claiming that these sites violate their right to publicity and that they cause reputational damage.  Legislators have also considered bills that limit the publication of these images.

The biggest problem with these countermeasures, the Times notes, is that the publication of public records is typically protected by the First Amendment.  There is nothing false about the records, and the images are publicly available before the mugshot websites post them, as the images are typically obtained from sheriffs' websites.  And as the Times admits, mugshots do not mean that somebody has been convicted of a crime -- it is simply evidence that somebody has been arrested.

With that in mind, the fact remains that while mugshots do not prove somebody is guilty of a crime, they still have a very negative reputational impact.  People tend see arrest records and mugshots of an individual and assume that the individual is guilty of something.  Moreover, people of color -- or at least, those with names that indicate minority status -- are more likely to be burdened by the reputational impact of these websites, according to this report by Latanya Sweeney (a summary of the report is available here).

The solution to this problem seems to lie in private, rather than government, action.  As the Times describes near the end of the article, making the existence and practices of mugshot websites known to the public has caused the sites to face substantial obstacles due to the reactions of private parties.  The sites now face challenges on the financial front, with entities like MasterCard refusing to do business with mugshot websites.  Google has also begun to de-prioritize these sites' images in its search results, making it less likely that those searching for individuals' names will come across mugshots.

It will be interesting to see if public attention to these practices has any impact on these sites' practices or prominence.  If it does, this would be an interesting example of private governance in the internet domain.  I have my doubts that this problem will go away entirely, however.  Especially when it comes to online advertisements, the parties involved all have a great deal of financial interest in the matter.  Search engines want the income they obtain from ad space they can sell to mugshot websites, and those websites want the prominence that search engines give them.

In the meantime, the only thing that people can do to avoid reputational damage might be to have a name as obscure as "Michael Smith."