After the quarter-century disgrace that is Proposition 65 litigation — run by and for lawyers’ interests, with no discernible benefit to the health of the citizenry — you’d think California voters would have learned a thing or two. But unless poll numbers reverse themselves, they’re on the way to approving this fall’s Proposition 37, ostensibly aimed at requiring labeling of genetically modified food, whose main sponsor just happens to be a Prop 65 lawyer. I explain in a new piece at Daily Caller. More coverage: Western Farm Press; Hank Campbell, Science 2.0; Ronald Bailey, Reason (& Red State).
More: defenders of Prop 37 point to this analysis (PDF) by economist James Cooper, arguing that 37 is drafted more narrowly than 65 in ways that would avert some of the potential for abusive litigation. And from Hans Bader: would the measure be open to challenge as unconstitutional, or as federally preempted?Tweet Tags: California, eat drink and be merry, preemption, Prop 65, WO writings
- Tenaha, Texas traffic-stop forfeiture scandal: town settles with ACLU [Thampy/Agitator; related, Steven Greenhut]
- A complaint about Progressive Insurance’s posture in an uninsured motorist claim goes viral on the Internet, and Ted Frank supplies a contrarian view [Point of Law and commenters, Consumerist]
- ABA again solicits nominations for its annual collection of top 100 law blogs;
- “Psychiatric staff ‘should have’ prevented the Aurora shootings. Thus Southern Poverty Law Center ‘should have’ prevented Oak Creek. Right?” [George Wallace]
- In Google-Oracle case, judge orders that the litigants disclose which private commentators they have financially backed [Paul Alan Levy and Scott Michelman, CLP; Timothy Lee, Ars Technica; Chris O'Brien, Mercury News]
- Suit based on cop allegations says town of Riverdale Park, Md. issued unlawful camera tickets [The Newspaper, Washington Post]
- Priceless: “Some Problems Inherent In Trying to Sell a Counterfeiting Machine” [Lowering the Bar]
- Maybe drive ‘em to polls too? Massachusetts agrees in lawsuit settlement to send dole recipients vote packs [Michael Graham, Boston Herald; Christian Science Monitor]
Some of our readers might be interested in the Anthem Foundation for Objectivist Scholarship. Tom Bowden sends along a bit of info about what they do:
The Anthem Foundation for Objectivist Scholarship is a non-profit that provides grants for the benefit of academic professionals engaged in serious scholarship based on Ayn Rand’s philosophy and writings. The Foundation also provides resources to academics interested in better understanding her ideas. We’re hoping that our newly launched program of outreach to legal academia will raise awareness of the research, publication, and teaching opportunities afforded by Rand’s many essays and commentaries on legal philosophy, particular legal controversies, and Supreme Court cases, all of which stressed the importance of objective law in a constitutional republic.
The Foundation’s resources include financial and intellectual support for research, connections to Rand speakers and scholars, support for conferences and workshops that advance Rand scholarship, review copies and classroom book sets of her works, assistance with reprint permissions, access to archival resources, and more. Our monthly e-newsletter, Ayn Rand in Academia, contains news of current developments (such as how Anthem can assist in obtaining royalty-free access to Rand’s articles for classroom use), calls for papers, and job openings. Visit our website to subscribe or request other resources, including a list of selected readings on law-related topics.
Sixth Circuit Rules That Pinging a Cell Phone to Determine Its Location is Not a Fourth Amendment “Search”
The decision handed down this morning is United States v. Skinner, and it was 2-1 on the Fourth Amendment merits. The defendant used a pre-paid cell phone obtained by providing false identity information (also known as a “burner“) to communicate with co-conspirators as he brought a motor home filled with marijuana from Arizona from Tennessee. Agents learned the cell phone number that the defendant was using and obtained a court order requiring the cell phone company to disclose location information of the phone to the agents. The government used the location information to track the car for three days, eventually catching up to the car ata rest stop in Texas. Local police brought out a dog to sniff for marijuana; the dog alerted for the presence of drugs inside; and the search of the car revealed 1,100 pounds of marijuana inside.
The majority opinion by Judge Rogers concludes that the defendant did not have a reasonable expectation of privacy in the location that his cell phone was broadcasting. The court’s opinion relies on several different strands of Fourth Amendment law. Perhaps the major rationale is this: Cell phones work by broadcasting location, and an expectation of privacy based on a misunderstanding of how the technology works cannot be reasonable.
Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.
Justice Alito’s concurring opinion in Jones did not change this because the defendant was monitored for only three days, which was not long enough to implicate the concerns of “comprehensive” monitoring that arose with 28 days of GPS monitoring in Jones.
Judge Donald concurred. She would have found that the monitoring was a search because “”society is prepared to recognize a legitimate expectation of privacy in the GPS data emitted from any cell phone.” Se would have then expanded the scope of the good-faith exception to the exclusionary rule so that suppression was not an available remedy.
A few very quick thoughts on the opinion:
1) Unless I’m just missing something obvious, the opinion seems pretty vague on the technological facts. The majority opinion initially says that the government obtained a court order ordering the cell phone company to release “cell site information, GPS real-time location, and ‘ping’ data” for the phone used by the suspect. It then says that the government tracked the suspect’s location by “pinging” the cell phone over three days. Later on, the majority opinion (and the concurrence) refers to the location information as “GPS location information.” But cell-cite information and GPS information are different, and “pinging” the cell phone could mean actively sending a request for cell-site data, actively sending a request for GPS data, or something else. So I’m a bit murky on the facts of what happened, which makes it hard to know what to make of the court’s analysis.
2) The murkiness of the facts are particularly unfortunate because the reasoning of the majority opinion relies heavily on cell phones broadcasting location information as just part of the way that they work. But if pinging the cell phone means actively sending a request to the phone to return its current GPS location, that’s not just how cell phones work: That’s the product of the cell phone provider setting up a mechanism by which the government can manipulate the phone into revealing its location. That seems to be a very different category of Fourth Amendment problem than a problem of how a technology “naturally” works.
2) I agree with Judge Donald that it was irrelevant that the phone was used in crime, and that it was a pre-paid phone. On the other hand, Judge Donald doesn’t have much in the way of analysis for why she thinks the location information is protected: She just announces her view that “society is prepared” to recognize Fourth Amendment rights in GPS information generally. I don’t think that’s how the reasonable expectation of privacy test works: Whichever model you think applies, getting to the result requires analysis rather than just announcing a result. Plus, her extension of the good-faith exception seems deeply misguided to me. At the same time, I think it shows an interesting pairing of arguments that we’re likely to see more of: The pairing of more rights and fewer remedies. It’s easier to expand Fourth Amendment protections if you’re also willing to say the exclusionary rule doesn’t apply, as the decision amounts to an advisory opinion that the police have to follow next time but that doesn’t lead to a remedy this time.
I’ll be out for most of the rest of the day and may not have a chance to provide updates or respond to comments; my apologies in advance for that. Thanks to many readers who sent on the link to the opinion.
A Very Short Primer on Design Patents and Trade Dress
by Michael Risch
Associate Professor of Law
Villanova University School of Law
Yesterday the House Government Reform and Oversight Committee filed suit against Attorney General Eric Holder over the AG’s refusal to turn over more documents related to the “Fast and Furious” gun-walking scandal. The suit challenges the AG’s assertion of Executive Privilege in refusing to turn over more documents to the committee. Politico reports on the suit here and has posted a copy of the complaint.
Adam Mueller, a police-the-police campaigner, has been convicted and sentenced to three months in jail for recording and posting telephone conversations with a police captain, a high school principal and a school secretary in Manchester, NH. Mueller was calling for comment on a student’s cell phone video allegedly showing a Manchester officer using excessive force. The conviction has led to sympathetic coverage in both the left and right blogospheres.
But one point hasn’t gotten much coverage. It turns out that Mueller was convicted of violating a privacy law.
He had recorded a conversation “without the consent of all parties to the communication,” a violation of NH 570-A:2. New Hampshire is one of about a dozen “all party consent” states. The federal government and most states are “one party consent” jurisdictions, where recording is legal if one participant agrees to it. All-party consent laws (also known as two-party consent laws) were expressly protected when a federal wiretapping law was adopted, on the theory that states should be free to provide additional protection to conversational privacy. Recently, though, these laws have mainly protected the police, who’ve used the laws to arrest bystanders for making cell phone videos of police conduct.
Judging from the outrage such arrests have sparked, it’s safe to say that protecting police from public scrutiny is an unintended consequence of this privacy law. (As I’ve pointed out recently, that is not the only unintended consequence of all-party consent laws. They’re also bad for computer security. In most states, I can hire someone to screen incoming messages for malware, and as long as I consent to the monitoring there’s no legal problem. In all-party consent states, though, there’s a real risk that I need the consent of the malware sender before someone can screen his incoming message.)
That laws sometimes have unintended consequences is not news. But as a privacy-watcher, I’ve been struck by the sheer number and variety of unintended consequences spawned by privacy laws. I coined the phrase “privacy victim” to describe the many people who’ve been harmed by the unintended consequences of privacy laws. Adam Mueller is a privacy victim. There are millions more.
I don’t think this is an accident. Privacy laws are largely efforts to regulate technology. Some new technology comes along, and we don’t like some of the changes it is likely to bring. The privacy campaigners tell us that we can keep the good parts of the technology and ban the bad. So we adopt a new privacy law based on some principle that sounds good to us at the time. All-party consent laws, for example, responded to cheap taping equipment by adopting the principle that both parties should agree before their conversation is recorded. It sounded good at the time; after all, wouldn’t any other rule encourage treachery? Then, gradually, cheap recording technology spread, and it became easier and easier to violate the law. After a while, the principle that sounded so good a decade or two earlier began to seem a little artificial. Our internal privacy expectations had changed, but the law hadn’t.
Inevitably, violations of the law proliferated, to the point where the violations didn’t feel like wrongdoing. Adam Mueller, remember, posted the evidence that he had committed a felony under New Hampshire law on the Internet. When law-breaking is widespread and unapologetic, the authorities can pick and choose whom they prosecute. Is it any surprise that they choose to prosecute people who inconvenience the authorities? Or that the laws end up being used to bolster the status quo? Ask Adam Mueller.
No, none of this is a surprise. Rather, it is the perfectly predictable consequence of most privacy laws. Regulating technology is a tricky business. Laws adopted when a technology is born don’t usually fit very well when the technology matures. But having laws on the books that are widely violated because they no longer fit our actual sense of right and wrong practically invites abuse by those in power.
That’s what happened to Adam Mueller and other would-be citizen-journalists who’ve been busted for recording the police. A generation ago it happened to Linda Tripp, whose taping of calls with Monica Lewinsky about her affair with President Clinton spurred 49 Democratic Maryland legislators to demand that she be prosecuted for violating that state’s all-party consent law. And it will happen over and over again, usually in service to the establishment, the more privacy laws we adopt in an effort to regulate future selves we don’t really understand.
Adam Mueller is not the first privacy victim. And he won’t be the last.
A “federal lawsuit filed Wednesday on the 12-year-old’s behalf alleged that the Girl Scouts abruptly disbanded Megan [Runnion's] Schaumburg troop early this year in retaliation for her mother’s efforts to keep the 100-year-old organization paying for the interpreter.” [Chicago Tribune]Tweet Tags: Chicago, disabled rights
I’ve been writing more lately on policy issues arising in my adopted state, such as the boat tax and Baltimore’s fight with liquor stores, and you can keep up by following my local Twitter account @walterolsonmd:
- If you think the current federal crusade on disparate minority school discipline rates is unreasonable, check out the Maryland state board of education’s even loopier plans for racial quotas in discipline [Hans Bader and letter, Roger Clegg/Center for Equal Opportunity]
- After the state’s high court stigmatized pit bulls as distinctively dangerous, the state legislature has (as warned of in this space) reacted by extending liability to owners of all dogs, “first bite” or not [WaPo] “The trial lawyer’s expert just testified he sees dogs as a man or woman’s ego on the end of a leash.” [Mike Smigiel]
- A Washington Post article asks: “Is the ‘nanny state’ in Montgomery working?” (No, but it makes councilors in the affluent liberal redoubt feel good about themselves.) And even in Montgomery, councilman George Leventhal (D-At Large) spots a Laffer Curve [Dan Mitchell, Cato at Liberty]
- Also in Montgomery, county slates vote next month on union-backed bill to require service contractors to take over employment of displaced workers for 90 days [Gazette] Leventhal is caustic: “I do not only work for SEIU 32BJ. My colleagues may feel they do.” [Rachel Baye, Examiner]
- Despite its solicitude for the SEIU, the county’s concern for low-income workers has its limits, as when property owners seek to increase the stock of affordable housing near jobs by dividing one-family residences into two-family [Ben Ross, Greater Greater Washington]
- “Doctors, hospitals concerned about hefty malpractice awards” [Baltimore Sun]
- MD public pension planners whistle through graveyard [Hayley Peterson, Washington Examiner, Tom Coale/HoCoRising, Ivan Osorio, CEI "Open Market"] The state still hasn’t shaken its AAA bond rating, but Annapolis lawmakers are working to change that by unionizing more state workers [Washington Times]
I’ve sang the praises of Verizon, especially relative to Comcast, but now I’m peeved. My two-year service contract for Verizon Triple Play has expired and now I need/want a month-to-month contract. However, I’ve been told that because I’m an existing customer, I’m only eligible for a two year contract. If I were a new customer, I could get a month to month plan. Or, apparently I can cancel my current service and get new month to month service under the name (and credit) of a different household member. This might even work if I just cancel and then call to get new service myself an hour later. I don’t think I need to enumerate all the ways this is idiotic.
UPDATE: It turns out that I can continue my old plan month-to-month at a somewhat higher rate than I had previously. This wouldn’t bother me except that when Verizon asked me online, after I had signed in to my account, whether I wanted to check what plans were available for me, it showed me a plan that was the same as the one I have but twenty dollars a month cheaper and didn’t require a long-term contract. But when I clicked on “order this plan,” the page instead took me to plans that did require two year contracts. I don’t know if this is a bait-and-switch, a hope that folks won’t notice that a different plan comes up than the one they clicked on, or just programming incompetence, but it left my irritated when I inquired why the plan I was shown isn’t actually available to me, and was told that those with prior two-year contracts are not eligible for it.
Boston Red Sox legend Johnny Pesky passed away today. Gordon Edes of ESPN has a good obituary here:
More than anybody else, Johnny Pesky embodied the Red Sox. More than anybody else, Johnny Pesky loved the Red Sox. More than anybody else, Johnny Pesky shared that love with anyone who ever asked for a picture, an autograph, a smile, a story. And often, you didn’t even have to ask.
On Monday, just more than a month before his 93rd birthday, Johnny Pesky died in ... Danvers, Mass....
The Red Sox lost the greatest ambassador they ever had, and a damn good ballplayer too, a shortstop who had 200 hits in each of his first three seasons, a lifetime batting average of .307 and, like [Ted] Williams, might have put up even gaudier numbers if he hadn’t joined the Navy during World War II.
The rest of us lost one of our own, a guy.... who never embraced the notion that playing for the Red Sox entitled him to the prerogatives of royalty.
Pesky worked for the Red Sox for over sixty years and was one of the most important public faces of the franchise long after he retired.
Pesky was one of those players who lost a shot at the Hall of Fame by missing three years of playing time due to World War II. He posted HOF-worthy numbers in his first three seasons (1942, 1946-47), and likely would have done the same in the three years he missed in between. Modern sabermetric analysis strengthens his case somewhat, since his .307 batting average was backed by numerous walks, resulting in a lofty .394 on base percentage ( modern analysts consider OBP the single most important offensive stat).
Red Sox fans everywhere will miss Pesky.
Greg McNeal’s article for Forbes argues that the UAV industry is now squarely in the privacy lobby’s sights. That means that the industry must be demonized and creepified relentlessly until new legal constraints are imposed on public and private use of the technology.
All the signs are there. The left-leaning privacy groups have already recruited Drudge and parts of the right to provide what amounts to political stoop labor for their regulatory agenda. (What do we call this tendency on the right — “Libertarians for More Regulation“?)
The industry, meanwhile, seems to have brought salesmen to a gun fight:
As the legal and policy landscape is changing, so too must the R&D approach of unmanned systems manufacturers who are great at selling the capabilities of their systems, but are not adept at dealing with their products as policy catalysts. They speak about the benefits their systems can provide, great ISR capabilities, portability, ease of use, etc. They make a compelling case, but the problem is they are arguing the merits of their systems. Their opponents in the privacy lobby aren’t interested in the merits, they are interested in stopping the development of these systems out of a fear of some potential government violation of privacy – however that term privacy is to be defined at any given moment. The problem for the industry is that the privacy lobby is much better at this game than industry is, mostly because the industry isn’t giving the privacy lobby’s concerns enough attention. This is a fatal miscalculation, the privacy lobby is extremely adept at demonizing programs and advancements in technology — the unmanned systems industry (not just AUVSI) needs to prepare for the fight.
Read the whole thing.
PHOTO: robertmandel at iStockPhoto
More Comes Exhibits Cast Doubt on Judge Motz's Ruling in Novell v. MS: Could Novell Have Just Used What It Had? ~pj
Was he right?
I want to show you some emails from 1994 and 1998 our volunteers have just transcribed as text, from the collection of PDF exhibits in Comes v. Microsoft. The 1994 internal Microsoft thread includes Jim Allchin saying, in effect, that the company should deliberately make sure competitors' applications don't work as well on Windows as their competing applications do. That is precisely what Novell claims happened with WordPerfect, and in that exact time frame. The Allchin email seems to match Bill Gates' notorious email about deciding to pull back on the API support ("We should wait until we have a way to do a high level of integration that will be harder for the likes of Notes, Wordperfect to achieve, and which will give Office a real advantage."). And then there are a couple of internal Novell emails from 1998 on problems with Microsoft, and finally a Gateway thread from the same general time frame, showing how Microsoft could really mess your business up, if Microsoft Help didn't want to help, which Novell says is what happened right after Microsoft pulled the API support.
Over the last decade, a lot of attention has focused on the Boy Scouts’ policy banning gays and lesbians from participating as Scouts or working for the organization. Most recently, a group of Eagle Scouts have returned their merit badges in protest of the policy. Unfortunately, very few have protested the Boy Scouts’ equally unjustified exclusion of atheists and agnostics.
It would be understandable for the Boy Scouts to exclude atheists if the purpose of the organization was to promote a particular religion, such as Catholicism or Judaism. But in fact that is not their purpose at all. They accept members of any and all religions (including ones with beliefs that most Americans would find highly objectionable) so long as they believe in God. Such an “anyone but atheists and agnostics” policy smacks of bigotry.
The most likely reason for the Boy Scouts’ policy is the belief that you can’t be a moral person without believing in God. As I explain in this article, such beliefs are widespread (shared by about 50% of Americans), but false. One can be an atheist and yet still have strong ethical commitments. And there is no evidence that atheists or agnostics have higher rates of criminal or unethical behavior than religious believers do.
It’s also worth noting that the Girl Scouts have allowed open atheists and agnostics to participate since the early 1990s, allowing members to omit the word “God” from the Girl Scout oath. There is no evidence that this has caused any problems for the organization. The Boy Scouts should follow their example.
Prejudice against atheists is more widespread than hostility towards any other religious or ethnic group, and more common even than homophobia. But the Boy Scouts – and others who aspire to moral leadership – should reject that bigotry rather than promote it.
To avoid misunderstanding, I should emphasize that I do not want the government to forbid the Boy Scouts from excluding either gays or atheists. Private organizations like the Scouts have a right of freedom of association; I agree with the Supreme Court’s decision in Boy Scouts v. Dale. But other private parties have a right to criticize the way the Scouts use that freedom.
UPDATE: As co-blogger Dale Carpenter reminded me, the Girl Scouts also allow lesbians to become scouts and both gays and lesbians to work as employees of the organization. That, like their nondiscrimination policy towards atheists, hasn’t hurt the organization in any way. The Boy Scouts can and should learn from that experience.
“Legal commentator Walter Olson sounded the battle cry in his recent post: ‘Abolish the Law Reviews!,’ arguing that most exist so students can edit them, rather than to be read by lawyers and judges.” (more)
More reactions: Scott Pryor, Faculty Lounge; Kevin O’Keefe, Real Lawyers Have Blogs (“Blogs and social media to replace law reviews? Seems likely”); more, Deborah Hackerson, Legal Skills Prof Blog; “Something tells me this would not make Walter Olson reconsider his belief in irrelevance of law reviews.” [Jacob Laksin] Earlier here, here, here, etc. Related: Dave Hoffman on what would happen if we freed up 2 million law student hours a year [ConcurOp]; Ross Davies/Journal of Law, PDF, via Bainbridge on when legal scholarship helps judges. (& Mitchell Rubinstein, Adjunct Law Prof)Tweet Tags: law schools, legal blogs
Buckyballs are highly popular supermagnetic desktop toys for adults and labeled against use by kids. Nonetheless, some kids obtain the tiny balls and swallow them, with harmful or even lethal results. The Consumer Product Safety Commission has responded with an unusually aggressive show of legal muscle to force the product off the market: while suing the manufacturer, it strong-armed retailers into suspending Buckyball sales, thus cutting off the manufacturer’s revenue while a court decides whether the commission had an adequate basis in law and fact for its action. [Nick Farr, Abnormal Use; manufacturer statement; Time; ABA Journal; Michelle Malkin; Point of Law]
More: “CPSC wants to put a child-proof cap on your life.” [@radleybalko]Tweet Tags: CPSC, safety
“After achieving a university entry rank of 99.95, winning fifth place in the state for chemistry and a place at the University of Sydney studying medicine, the former Abbotsleigh student Sarah Hui Xin Wong believed she could have done better in the [Higher School Certificate].” A New South Wales administrative tribunal has now turned down her complaint that she suffered disability discrimination by not being allowed further accommodations on the test, specifically a computer and extra time. But Australia does have loser-pays: “Ms. Wong has been ordered to pay some of the Board of Studies’ costs, including a proportion of the fees of the leading Sydney barrister Chris Ronalds, SC.” [Sydney Morning Herald]
In other Australia schools litigation news, a “former student who is suing Geelong Grammar School says she decided to seek damages after she failed to qualify for her preferred university course. Rose Ashton-Weir, 18, alleges Geelong Grammar gave her inadequate academic support, particularly in maths.” [Melbourne Age] More in update at The Age (“was perpetually disorganised and failed to attend classes, a tribunal has heard.”)Tweet Tags: Australia, disability & schools, loser pays
- “Targeting the red plastic gas can”: how product liability bankrupted Oklahoma manufacturer Blitz [editorial, earlier]
- Summers v. Tice, the famous “which hunter shot him?” California tort case, re-examined [Kyle Graham, Green Bag/SSRN]
- Paul Taylor of House Judiciary makes a case for the constitutionality of broad federal tort reform [Suffolk University Law Review via Point of Law]
- New Ken Feinberg book on compensation plans in lieu of litigation [Scheuerman, TortsProf]
- Hot propaganda: filmmaker Susan Saladoff faces off against Victor Schwartz on “Hot Coffee” [TortsProf]
- Studies of tort reform’s effects underestimate effects of durable reforms by mixing them in with the many that are struck down by hostile courts [Martin Grace and Tyler Leverty, SSRN via Robinette, TortsProf]
- Membership in AAJ, the trial lawyers’ lobby, said to be on the decline [Carter Wood, PoL]