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.

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.