Impeachment by Blog Post

From Walter Olson's Overlawyered, I learned about this post by Jim Dedman who writes at the blog, Abnormal Use. Dedman tells a cautionary tail about another lawyer's attempt to respond to Dedman's argument in court with a contradictory prior statement from the Abnormal Use blog.

Sometimes I wonder whether anybody will attempt to contradict an argument I make in court or in a paper by appealing to this blog. It hasn't happened yet, but I continue to hope that the blog will become popular enough that people begin making these impeachment attempts.

If that does end up happening, I suppose that a reasonable reply would be to point out that my thinking sometimes evolves. I welcome criticism and commentary on every post I write, and if I hear a compelling reply to an argument I make, I may well end up changing my view.

On the other hand, a craftier response would be to deny authorship and claim that the post was written by a different Michael Smith. While my common name may occasionally create embarrassing confusion (even with the middle initial listed!), in an impeachment situation, my generic name can be effective form of camouflage.

One might think that the inclusion of a picture in the blog would spell defeat for this ploy. But I don't think that's necessarily the case. I had the fortune of getting my blog's picture from a friend who has an extremely nice camera. In real life, I appear far less artfully focused -- so much so that I should be able to create enough doubt to thwart any impeachment attempts.

India Bans Drones

India Today reports:

India is one the few places on the planet where civilian drones can be legally used. That said, with many commercial organisations planning to use drones, the Directorate General of Civil Aviation (DGCA) has announced that till proper rules and regulations are formulated use of drones in India is illegal . . . .

India Today and BGR are reporting that this ban extends to "civilian drones." But the ban is far broader, according to this public notice from the Director General of Civil Aviation (DGCA). The notice states:

DGCA is in the process of formulating the regulations (and globally harmonize those) for certification & operation for use of [unmanned aircraft systems, or] UAS in the Indian Civil Airspace. Till such regulations are issued, no non government agency, organization, or an individual will launch a UAS in Indian Civil Airspace for any purpose whatsoever.

This prohibition on drones is notably broad -- it restricts hobbyist drones, commercial drones, and government drones.

This spells problems for Amazon, which had been planning to use India's (formerly) permissive regulatory environment to test drone-based package delivery services. I have not seen any reactions by the company to this sudden, universal prohibition of drone use. But I suspect Amazon will be carrying out its drone testing somewhere else in light of this ban.

Drones raise safety and privacy concerns. To an extent, these concerns are warranted, and governments may be correct to impose regulations that address privacy and safety concerns. But effective regulations should allow for the continued use of this developing technology. India's sudden and complete ban on drones is far too broad, and will hinder the development of drone technology and the economic opportunities that this technology can (and was about to) create.

Jimmy John's Requires Noncompete Agreements for Sandwich Makers

From the Huffington Post:

A Jimmy John's employment agreement provided to The Huffington Post includes a "non-competition" clause that's surprising in its breadth. Noncompete agreements are typically reserved for managers or employees who could clearly exploit a business's inside information by jumping to a competitor. But at Jimmy John's, the agreement apparently applies to low-wage sandwich makers and delivery drivers, too. 

By signing the covenant, the worker agrees not to work at one of the sandwich chain's competitors for a period of two years following employment at Jimmy John's. But the company's definition of a "competitor" goes far beyond the Subways and Potbellys of the world. It encompasses any business that's near a Jimmy John's location and that derives a mere 10 percent of its revenue from sandwiches.

The full agreement is available here.

The article points out that there have not been any reported instances of the sandwich company attempting to enforce its noncompete agreement. This seems sensible to me, since the geographic, temporal, and practical breadth of the noncompete provision might give courts pause before enforcing the agreement.

While the law of noncompete agreements varies between states, the Jimmy John's provision would almost certainly be struck down in a California court. As this report from White & Case explains, California is notably hostile towards noncompete claims, and only permits them in narrow circumstances, such as when the a partnership, limited liability, or other ownership share in a business is sold. The departure of a sandwich-making employee to a similar business does not seem to fall into any of the exceptions to California's prohibition on noncompetes.

I have blogged about some of Jimmy John's previous legal travails here. Unlike that prior incident (involving a misguided class action lawsuit brought about by the absence of sprouts), this noncompete situation seems to involve a bit more of a misstep on the company's part.

Sachs on State Drone Regulations

Peter Sachs, a lawyer and notable commentator on drone laws, has posted his testimony (available to download here) where he argues against regulating both government drones and private drones. At this time, I am not sure where he gave this testimony, but based on prior events, I suspect that this may be testimony for the Connecticut state legislature's Judiciary Committee. Sachs has taken a strong position against drone restrictions in prior testimony before that committee.

I do not have much to say about Sachs's points on regulating private drones. I agree that overly restrictive regulation of private drones could hinder the development of this new technology in unpredictable ways. And I think that privacy concerns related to drone use are generally overstated and can be addressed by other laws prohibiting invasion of privacy.

But I take issue with a few of Sachs's arguments against regulating government drones. Sachs argues that there is no logical need for warrants on government drones and points out that high-powered cameras in helicopters can see far more than a government drone can see. I think this fails to address the main concern of privacy advocates, which is that drones can be used for prolonged surveillance of somebody's public movements or of somebody's home.

Drones require less fuel to operate, can be launched more conveniently, and are easier to fly than a helicopter, meaning that law enforcement officers may use this technology for continuous surveillance. The fear is not that drones will necessarily see more detail than helicopters, but that they can observe somebody's home or movements for a much longer time. Sachs needs to address this particular concern in order to meet the arguments of privacy advocates.

Sachs also argues that "there is no legal need" to require law enforcement agencies to obtain warrants before using drones, Sachs is probably (though not certainly) correct that the Fourth Amendment's prohibition on unreasonable searches does not apply to aerial observations of one's property, and cites case law supporting that conclusion.

But just because continuous observation by government drones does not violate the Fourth Amendment doesn't mean that governments should not place regulations that go beyond existing constitutional protections. In fact, the Fourth Amendment's inability to regulate government drones is what motivates privacy advocates to argue for legislative restrictions in the first place. State legislatures are free to enact laws that restrict government searches beyond the restrictions of the federal constitution. And as I argue elsewhere, the interests of both privacy advocates and law enforcement would be best served if legislatures, rather than courts, were tasked with restricting government drone use.

Sachs raises some good points about government regulation of drones. But his arguments fail to address privacy advocates' concerns that government drones may be used for continuous surveillance.

Obama Teams Up With Zombies, Torts Ensue

Geoffrey Rapp has the scoop over at PrawfsBlawg.

Bennett's Flawed Criticism of Citron's Proposed Revenge Porn Restrictions

Over at Slate, Danielle Citron has this article excerpting her recent book, Hate Crimes in Cyberspace. In the article, Citron argues for laws that would criminalize revenge porn -- the nonconsensual sharing of another person's nude images online. Citron points out that these restrictions should only apply in particular circumstances:

Revenge porn laws should apply only if a defendant disclosed another person’s nude image knowing that person expected the image to be kept private and had not consented to the disclosure. By clarifying the mental state in this way, legislation would punish only knowing betrayals of someone’s privacy. Carelessly or foolishly posting someone’s nude image would not constitute criminal behavior. It would not be a crime, for instance, to repost a stranger’s nude photos having no idea that person intended them to be kept private.

Citron continues, providing language for a revenge porn restriction and confronting objections. One possible objection she notes is that there may be First Amendment challenges to the law. Citron argues that these challenges are unlikely to succeed:

My proposed revenge porn statute would withstand constitutional challenge. Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Over at his blog, Defending People, Mark Bennett responds to Citron's article, arguing that she is wrong to dismiss the First Amendment challenges. Here is Bennett's unpleasantly dismissive reply to Citron's argument that revenge porn restrictions will survive First Amendment scrutiny:

Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law: 

               1.      Speech is presumptively protected.

               2.      Content-based restrictions on speech are presumptively void.

               3.      For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:

a.       Advocacy intended, and likely, to incite imminent lawless action;

b.      Obscenity;

c.       Defamation;

d.      Speech integral to criminal conduct;

e.       So-called “fighting words”;

f.       Child pornography;

g.      Fraud;

h.      True threats; and

i.        Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”

Those are the categories of speech that the Supreme Court has recognized as unprotected. So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category. (Footnote omitted)

Bennett's statement of First Amendment doctrine is a concise outline of some of the law, but it is misleadingly incomplete. While Bennett has accurately described categories of speech that the Supreme Court has deemed "unprotected," there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.

The Supreme Court has also recognized that "speech on matters of purely private concern" receives "less stringent" protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks's article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.

Bennett's criticism misses the mark because he assumes that Citron bears the burden of arguing that revenge porn is unprotected speech. Instead, Citron is arguing is that revenge porn is simply a lesser-protected form of speech. From what I have read in the article (and hope to read in the book), it looks like Citron makes a fairly strong argument that revenge porn fits into the category of speech on matters of purely private concern, and her proposed revenge porn restriction may indeed stand up to First Amendment scrutiny as a result.

A Public Domain Version of the Bluebook?

I came across this fascinating letter by Christopher Jon Sprigman to Peter Brody, the lawyer for the Harvard Law Review Association. Sprigman informs Brody that the Bluebook -- a 500+ page tome of meticulous rules for legal citations -- is arguably not protected by copyright.

Sprigman points out that the copyright for the 10th edition of the Bluebook (now in its 19th edition) has expired. He goes on to argue that much of the 19th edition is indistinguishable, and that courts' requiring lawyers to use Bluebook citations transforms the Bluebook's rules from copyrightable material into "government edicts."

From the later paragraphs of the letter:

Based on what we’ve learned, we have embarked on a joint project with Public Resource to create and publish a public domain version of The Bluebook – a project we refer to as Baby Blue. Our project will mix public domain portions of the 19th edition with newly-created material that implements the Bluebook’s system of citation in a fully usable form.

In short, The Bluebook will soon face a public domain competitor. And when Baby Blue comes to market, The Harvard Law Review Association is likely to face questions regarding why the public – including pro se and indigent litigants – are obliged to pay for access to a resource that is indispensable to all those who seek justice from our courts. The Harvard Law Review Association is likely also to face questions regarding the financial transparency of the current structure.

I'm no expert in copyright law, so I'm not sure how far Sprigman's arguments will go. But I can't help but hope that Sprigman's Baby Blue project will succeed. Until then, however, I will get by with my hard copy of the Bluebook (and the publicly-available California Style Manual).