Supreme Court Again Makes It Clear: Companies Can Erode Your Legal Rights Via Mouse Print

from the idiotic-precedent dept

For years, AT&T worked tirelessly to erode its customers' legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators employed by the company unsurprisingly rule in their employer's favor a huge percentage of the time. Initially, the lower courts derided this greasy behavior for what it was: an attempt by AT&T to eliminate customer legal rights and save a buck. And with AT&T's massive history of fraud, you can imagine AT&T was looking to save quite a bit.

But in 2011 the Supreme Court's AT&T Mobility v. Concepcion ruling declared that what AT&T was doing was perfectly ok. While lower courts saw this as an "unconscionable" abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. And again this week, the highest court in the land again proclaimed that this kind of sleazy fine-print is perfectly ok.

For a few years now DirecTV (ironically now owned by AT&T) customers have been trying to sue the satellite provider over its early termination fee (ETF) policies. A California court had invalidated the binding arbitration clause in DirecTV's contract with customers, since DirecTV's contract language stated that such a provision was unenforceable if the "law in your state" contradicted it. Unsurprisingly, this week's 6-3 ruling in DirecTV Inc. v. Imburgia (pdf) reiterated the 2011 federal ruling trumps all:

"No one denies that lower courts must follow this Court’s holding in Concepcion. The fact that Concepcion was a closely divided case, resulting in a decision from which four Justices dissented, has no bearing on that undisputed obligation. Lower court judges are certainly free to note their disagreement with a decision of this Court. But the “Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source."

If you're solely looking at the precedent set by Concepcion, that of course makes legal sense. Breyer (who dissented on the original ruling) is simply telling lower courts they must adhere to the federal ruling, even if they don't agree with it. Of course that doesn't magically make the original ruling good, nor does it obfuscate the fact that the Supreme Court is just as polluted as Congress when it comes to partisan patty cake and corporate influence.

In short, the Supreme Court bought into the myth that arbitration is a hyper-efficient alternative to the greed of class action lawsuits, even though there's an endless ocean of data highlighting how that's simply not the case. Class action lawsuits are indisputably obnoxious for all the usual reasons (I got $1 and the lawyer got a new boat!). But occasionally class actions do benefit consumers and force change (especially on the telecom front), and until the people complaining construct a better mouse trap, class actions are often the best bad idea we've got.

The Supreme Court's alternate-reality belief that arbitration is a sane alternative is notably worse. Since AT&T's original win, countless companies from banks to video game vendors now foist binding arbitration upon consumers, forcing them into a rigged apparatus where consumers lose the vast majority of the time, companies pay smaller amounts then ever before, and there's less meaningful change than ever. Thanks to the Supreme Court, that's something we'll all get to enjoy for many, many years to come.

Filed Under: arbitration, binding arbitration, class action, supreme court
Companies: directv

Supreme Court Examines The Sixth Amendment Ramifications Of Pre-Conviction Asset Seizures

from the and-the-prognosis-for-this-'right'-isn't-exactly-good dept

The Supreme Court is taking a swing at the Sixth Amendment and it looks like it may be worse off by the time the court's finished with it.

At the center of the case is Sila Luis, who was indicted in 2012 of defrauding Medicare to the tune of $45 million. She has yet to be convicted of any crime, but the case has moved all the way to the Supreme Court because of pre-trial actions by the US government.

Apparently, the millions of dollars Luis allegedly siphoned from Medicare is long gone. So, the government has seized her lawfully-acquired assets ahead of the trial in order to guarantee it can collect fines and damages should it secure a conviction.

The problem is obvious: with all of her assets frozen, Luis cannot seek the best representation she can afford. She can only avail herself of legal representation willing to work for free or in hopes of her assets being released to her if she's acquitted.

This is a problem for anyone who's had their assets seized by the government. Challenging a forfeiture is difficult enough without the added hurdle of financing it with restricted means. The government, of course, doesn't see any problem with seizing funds before obtaining a conviction. (Convictions in asset forfeiture cases are somewhat of a rarity, and in almost every state, the lack of a conviction is no impediment to seizing whatever property the government speculates could be tied to illegal activity.)

In asset forfeiture, it's the property that's considered "guilty." In this particular case, the government doesn't even dispute the legitimacy of the funds it's taken from Luis. Instead, it claims it has the right to seize funds ahead of a conviction as a sort of down payment on expected fines and damages.

The oral arguments in front of the Supreme Court don't bode well for people in Luis's position. This summation of the justices' responses to her legal rep comes from Amy Howe of the renowned SCOTUSblog.

Justices of all ideological stripes appeared unconvinced. Justice Elena Kagan told Srebnick that there is a “powerful intuition” to his argument, but “it seems that the distinction you’re making is one the Court explicitly rejected in” its 1989 ruling. Your case, she continued, “doesn’t seem to present any different circumstances.” Roberts was also skeptical, telling Srebnick that, “if you can freeze tainted assets without running afoul of the Sixth Amendment, I don’t understand why you can’t freeze untainted assets.”

Justice Samuel Alito seemed to agree. He asserted that, “as a matter of economics and common sense,” “money is fungible.” He described a hypothetical in which twin brothers rob a bank and steal $10,000, which they divide between the two of them. They also each receive $5,000 as a birthday present from a rich uncle. The first twin spends all of his money from the robbery but saves the birthday money, while the second one spends all of his birthday money but saves the money from the robbery. Under Luis’s position, Alito emphasized, the first brother could use his money to hire a lawyer, but the second one couldn’t. “What sense does that make?” Alito asked. Justice Anthony Kennedy chimed in, telling Srebnick: “The law that you want this Court to say is ‘spend the bank robbery money first.’”

The Court's fear appears to be that if they agree with Luis's argument, criminals will make sure they divest themselves of their ill-gotten gains before being arraigned. While this might be the case, the Court perhaps gives too much credit to the innate wiliness of criminals. Our nation's prisons are full. Some of that can be traced to overzealous prosecution, the Drug War and a billion pages of obscure federal regulation. But some of that is due to the fact that many criminals are opportunists and, as such, are not particularly good at the whole "delayed gratification" thing.

But that's really neither here nor there. The key to the defense's argument is that the Sixth Amendment supposedly grants Americans the right to the "assistance of counsel." This would include availing themselves of the best representation they can afford. The government stacks the deck by stripping certain defendants of their wealth before pursuing a conviction. But as the justices see it, the alternative is to let criminals spend "bad" money first and work toward beating the rap with their "good" money.

The justices didn't completely side with the government, however. Justice Breyer, in particular, felt the government's angle was just as questionable as Luis's interpretation.

Now let's try it with the facts here. If a defendant has some money, which maybe he will have to pay in a fine, what we'll do is we'll take all his money away before he's been convicted beyond a reasonable doubt. Okay. That's the difference in the propositions.

And I'm saying it's pretty hard for me to think in a country which says that before he's convicted, you have to release him on bail except in unusual circumstances, that nonetheless, you can take all his money away so he can't hire a lawyer.

The government countered Breyer's point by arguing that the specifics of this alleged crime led to a lawful seizure under clearly-defined statutes passed by Congress. Justice Kennedy, however, points out the specifics aren't really all that specific.

But what is it that confines your rationale to a specific area? It seems to me that if the government prevails in this case, every State in the union, every locality could say that in the event of assault and battery, malicious ­ mischief, drunk ­­-- an accident caused by drunk driving, any crime involving a bodily injury, that the government is entitled to restrain disposition of assets that might be used for medical care, for pain and suffering. And this would, in effect, prevent the private bar from --­­ from practicing law unless it did so on a contingent basis.

As the justices remind the government -- and as is pointed out by the defense -- the 1989 Supreme Court decision referenced constantly through the oral arguments (US v. Monsanto [not that one]) clearly specified that the government could seize tainted funds pre-trial. No such permission was given for untainted funds.

While the government has admitted the funds it's seized are untainted, it also argues they are "fungible." The government says it's difficult to separate clean money from dirty money, and even if it could, leaving untainted assets laying around would just encourage defendants to stick it to The Man by loading up on high-priced lawyers.

After all, Justice Breyer, this is basically a zero-­sum game. Either there will be money available at the end of the case for the victims or the money will have been spent on lawyers.

The Supreme Court, at this point, seems unwilling to call an end to pre-conviction seizures -- even of untainted funds. It apparently realizes the downside of siding with the government: the abuse of pre-trial asset seizures that could result in less-than-effective representation for accused parties. But it appears more inclined to allow the government to deal from the bottom of the deck on occasion, rather than accept the possibility that a few accused criminals may use this Sixth Amendment "loophole" to dodge fines and damages resulting from convictions.

While the Supreme Court has made a few nods towards the Fourth Amendment in recent months, it still has shown quite a bit of deference to the law enforcement point of view. The wins of Riley (warrants for cell phone searches) and Rodriguez (no prolongment of traffic stops for fishing expeditions) must be balanced against Heien (cops can use any "reasonable" justification for a traffic stop, even nonexistent laws) and Mullenix v. Luna (immunity in officer-involved-shooting upheld). Beneath the challenges to the government's arguments, there's a distinct undercurrent that hints at the Supreme Court's willingness to let one innocent person be deprived of their right to counsel, rather than let thousands of criminals use "guilty" money to "purchase" their innocence.

Filed Under: asset seizure, pre-conviction asset seizure, sila luis, sixth amendment, supreme court

Supreme Court Turns Down Opportunity To Straighten Out Cell Site Location Information Mess

from the Third-Party-Doctrine-still-mostly-intact dept

Appeals court rulings on the cell site location information are literally all over the place. (Also figuratively.)

What there isn't is any agreement on whether a warrant should be required to obtain this information. Some courts have come to the conclusion that this information -- broadcast by anyone with a cell phone, whether they realize it or not -- falls under the Third Party Doctrine. Others feel historical data is obtainable without warrants but real-time tracking requires additional paperwork.

The Third Party Doctrine is in play in the US v. Davis case. The 11th Circuit Court of Appeals reached the conclusion that there is no expectation of privacy in data collected by third parties (under the questionable assumption that cell site location info is given up "voluntarily" by cell phone users). The defendant, Quartavious Davis, appealed the appeals court's en banc decision.

Had the Supreme Court picked this up, we might have been looking at a final decision on warrants and cell site location data in the near future. The Supreme Court's Riley decision suggests there's an inherent expectation of privacy in the contents of a cell phone. It's not much of a stretch to believe the Supreme Court might find this expectation carries over to the massive amount of information generated by today's cell phones, despite the final storage location of the auto-generated location data.

Unfortunately, it could now be years before we see this resolved. The Supreme Court has decided to pass on Davis's appeal.

The nine justices turned away an appeal filed by a Florida man named Quartavious Davis, who was convicted of participating in a string of 2010 robberies in the Miami area and was sentenced to 1,941 months, almost 162 years, in prison without possibility of parole.

Davis challenged his convictions in part on the grounds that police did not seek a warrant when they asked his cellphone provider, MetroPCS Communications Inc, for location information that linked him to the seven different crime scenes between August and October 2010.

The likelihood remains that the Supreme Court will have to address this issue in the near future. There are simply too many contradictory opinions among the appeals courts to leave this undecided for much longer. Cases challenging the warrantless seizure of cell location data have been plentiful. And the nation's courts seem more aware of law enforcement's manipulation of outdated statutes and court decisions to dodge warrant requirements.

As has been noted by the Supreme Court itself, the Fourth Amendment is purposefully designed to make law enforcement's job more difficult. It's a check against abuse, not an inconvenience to be routed around whenever possible.

Filed Under: 4th amendment, cell site location info, quartavious davis, supreme court, warrant

Dennys Rodriguez's Supreme Court Win Fails To Help Dennys Rodriguez

from the sorry,-but-that-Fourth-Amendment-is-for-other-people dept

Dennys Rodriguez took his Fourth Amendment case all the way to the Supreme Court and won. Earlier this year, the Supreme Court concluded that a traffic stop cannot be extended to indulge in fishing expeditions. Instead, it ends when the objective is complete. If an officer pulled someone over for speeding, the stop ends when the citation or warning is delivered, no matter how many favors the officer asks after that point ("Mind if we look in the trunk?" "Would you mind waiting for our K9 unit?").

The court declared that anything past this point is an "unreasonable search." It sent the case back to the lower court for reconsideration in light of its ruling. The Eighth Circuit Court of Appeals took another look at its decision… and found a different way to screw Rodriguez out of his Fourth Amendment rights.

It found that the Rodriguez decision (named after the man in front of them for the second time) was all well and good, but existing precedent said the cops could get away with an "unreasonable search" because their actions were "reasonable." Adios, Rodriguez. Hello, Davis.

When Rodriguez’s vehicle was stopped in March 2012, the law of this Circuit provided that a brief delay to employ a drug dog did not constitute an unconstitutional seizure, as long as the traffic stop was not unreasonably prolonged. We thus “repeatedly [had] upheld dog sniffs that were conducted minutes after the traffic stop concluded.”

The magistrate judge, the district court, and this court all determined that the seven- or eight-minute delay in this case constituted a de minimis intrusion on Rodriguez’s personal liberty and that Rodriguez’s seizure was lawful under our then binding precedent. Under Davis, therefore, the exclusionary rule does not apply because the circumstances of Rodriguez’s seizure fell squarely within our case law and the search was conducted in objectively reasonable reliance on our precedent.

No evidence suppression for Rodriguez. The Supreme Court may have found in his favor, but he's going to jail anyway.

Not only has the "good faith" exception swallowed the rule, it has consumed a citizen's Supreme Court victory. Scott Greenfield has penned an imaginary letter from the Supreme Court to one of its unluckiest "winners" that cuts through the legalese to deliver the devastating point of the lower court's ruling on remand.

Now for a little bad news. While you’re going down in history, it’s not really going to do much for you. I know, you stuck it out, made the right, and reached the top of the mountain. Good on you for your tenacity. But as much as you convinced us that your constitutional rights were violated, well, you aren’t going to get the benefit of your hard work.

You see, because you won, and the way cops understood their authority until you won, we give them one free pass on violating your constitutional rights. I know, it sucks, but how would they know you were going to kick butt? I mean, what are the chances, right? So they acted in good faith based on existing law and, since the purpose of suppression is to give them a little smack for being bad boys, there is no deterrence to be gained by punishing them for what they did in good faith.

Rodriguez has won the judicial system lottery: his rights were violated and he's still going to jail, because the police officers who kept him detained past the point of the stop's "objective" were well within the expansive confines of the good faith exception.

The appeals court has "allowed" Rodriguez to "pay it forward." The precedent set by the Supreme Court's decision will (possibly) head off a few unconstitutional searches in the future. But for Dennys Rodriguez, it does nothing. He just had the misfortune of being illegally searched before the Supreme Court decided he'd been illegally searched.

Filed Under: 4th amendment, dennys rodriguez, exclusionary rule, good faith exception, police, search, supreme court

Maryland Court Says It Would Still Be Equating A Smartphone With A 'Crumpled Cigarette Pack' If Not For Riley Decision

from the way-to-adapt-to-the-realities-of-the-new-millenium dept

The Supreme Court's Riley decision said law enforcement officers must obtain warrants to search cell phones incident to an arrest. A recent Maryland Appeals Court decision prevented the suppression of evidence obtained via a warrantless search of a smartphone. Why? Well, for a few reasons, most of which seem convoluted and almost inexplicable considering the context. (via John Wesley Hall of FourthAmendment.com)

The opinion opens with this:

Petitioner appealed the judgment of conviction to the Court of Special Appeals and, while the case was pending in that court, filed a petition for writ of certiorari, which we granted. We then stayed all proceedings in this case until the United States Supreme Court issued its decisions in Riley v. California, cert. granted, 134 S. Ct. 999 (2014), and United States v. Wurie, cert. granted, 134 S. Ct. 999 (2014). On June 25, 2014, the Supreme Court issued a consolidated opinion in those two cases. Riley v. California, 134 S. Ct. 2473 (2014).

Despite staying the case to hear from the Supreme Court on this issue, the Maryland court went in the other direction once that decision had been handed down. Considering the circumstances, this is probably the right decision, but one wonders why they bothered staying the case if it was going to rely on pre-Riley caselaw anyway.

Officers interviewing a suspect about a robbery took a look at his cell phone and found unopened text messages pertaining to the criminal act. The defendant sought suppression of this warrantless search of his phone but the court found that because the search had occurred before the Riley decision, the officers here were covered under the "good faith" exception because no warrant requirement existed at that point.

This would be all well and good (if a little bizarre considering the stay issued for the pending, but disregarded, Riley decision) if the court hadn't decided to quote previous Supreme Court decisions so badly outdated they only serve to make the Maryland court look utterly ridiculous.

The suspect here had a smartphone. The Maryland Court exhumes the corpse of the 1973 US v. Robinson decision and applies it to the 2011 search.

The Supreme Court further developed the scope of the search incident to arrest exception in United States v. Robinson, 414 U.S. 218 (1973). Robinson had been arrested for driving on a suspended license. The arresting officer, while conducting a pat down of Robinson, felt an object in his coat pocket that the officer could not identify. The officer removed that object—a crumpled cigarette packet—opened it, and found capsules of heroin inside. Id. at 220-23. The Court upheld the warrantless search as a proper search incident to Robinson’s arrest.

This is a court telling an appellant that -- if Riley had not gone the way it did -- it would still consider a smartphone loaded with personal information and a connection to web-based services offering even more personal information to be roughly equivalent to whatever might fit inside a crumpled cigarette pack.

Now, I have no problem with the court granting the "good faith exception," considering the search occurred pre-Riley, but I do have my concerns about a court that will apparently only consider the implications of technological advances when the Supreme Court basically forces it to.

Attempting to apply a forty-year-old decision involving a small cardboard box to today's smartphones is to indicate the court either has performed no serious independent thinking about the subject, or has somehow managed to escape dealing with relevant cases that might force it confront the fact that a computer that fits in someone's pocket is not even remotely equivalent to the "contents" of said pocket.

To be fair, the DOJ has been equally unwilling to cede ground to logic and has argued for similarly non-comparable items to be deemed comparable by the nation's highest court. But this is to be expected from an entity that acts on behalf of the nation's law enforcement when presenting its arguments in court (despite having the word "Justice" in its name). A state appeals court, on the other hand, is actually supposed to be acting on behalf of the slippery term "justice," and citing outdated caselaw does very little to serve that purpose.

Filed Under: 4th amendment, maryland, mobile phones, privacy, riley, searches, supreme court

Contrary To What You've Heard, TPP Will Undermine US Law -- Including Supreme Court Decisions

from the isn't-this-a-problem? dept

One of the key lines of pure unadulterated bullshit spread by the USTR concerning the Trans Pacific Partnership (TPP) agreement is that it won't lead to significant changes in US law. That's just wrong. As KEI points out, it's pretty clear that the current text would completely undermine key Supreme Court rulings concerning state sovereign immunity from intellectual property disputes. Zack Struver and Tazio De Tomassi created a short video explaining why: The specific issue is that, under the 11th Amendment to the Constitution, state governments are given "sovereign immunity" from most legal issues in federal court. And, when it comes to things like patents, the Supreme Court decided that Congress could not pass a law that takes away such sovereign immunity from the states.

In practice, this means state governments -- including things like research universities -- are able to infringe on patents in the public interest, claiming sovereign immunity in state courts against such claims. We've pointed out in the past how hypocritical it is that state universities frequently use such sovereign immunity claims to avoid lawsuits, while at the same time being some of the most aggressive patent trolls in going after others (with the University of California being a prime example). However, it is the law of the land and in the Constitution that sovereign immunity on things like patents cannot be abridged.

Yet, as the video above notes, the TPP appears to get rid of that, and would open up states, at the very least, to these international corporate sovereignty tribunals (also known as Investor State Dispute Settlement, or ISDS, tribunals).

In other words, the USTR may single-handedly undermine the Constitution's 11th Amendment, overturning Supreme Court precedent on the subject in a deal negotiated entirely in secret, with patent holders (who hate the sovereign immunity protections) as the key advisors. That's not how our government is supposed to work.

The threat here isn't just theoretical. Beyond the various patent cases that universities and state governments have been able to toss out via sovereign immunity, the video mentions the infamous lawsuit against Georgia State University over its e-reserves program. While that case has focused on the fair use questions involved, it's entirely possible that Georgia State could also claim sovereign immunity. And since the plaintiffs suing Georgia State are "foreign" publishers (including Oxford University Press and Cambridge Press), under the ISDS system, rather than going to a US court that would recognize sovereign immunity, they could just go to an ISDS tribunal which wouldn't care about sovereign immunity.

Do we really want the USTR completely wiping out part of our Constitution (which has helped enable university research) via a secretive trade agreement with no public accountability?

Filed Under: 11th amendment, copyright, patents, research, sovereign immunity, supreme court, tpp, universities, ustr

Supreme Court Won't Hear Oracle v. Google Case, Leaving APIs Copyrightable And Innovation At Risk

from the dangerous-ruling dept

This is unfortunate, even if it was somewhat expected: the Supreme Court has now rejected Google's request to hear its appeal over the appeals court decision that overturned a lower court ruling on the copyrightability of APIs. The lower court decision, by Judge William Alsup (who learned to code Java to understand the issues), noted that APIs were not copyrightable, as they were mere methods, which are not subject to copyright.

The appeals court ruling, by the Court of Appeals for the Federal Circuit (CAFC) (famous for getting patent cases wrong over and over and over again) didn't just get things wrong, it got things laughably wrong, confusing the difference between APIs and software throughout, and quoting people entirely out of context (including taking things so out of context that it often pitted people on the same side against each other, solely because CAFC misread what they were saying). The case was appealed to the Supreme Court, and we were shocked and dismayed to see the Obama administration further reinforce the errors of the CAFC ruling in telling the Supreme Court not to hear the case. The filing by Solicitor General Donald Verrilli repeatedly confused software with APIs and insisted that there was really no difference between the two. That's just wrong. It's not a matter of debate. It's just wrong.

One would have hoped that with a ton of computer science experts explaining to the Supreme Court how CAFC got things wrong, the Supreme Court might recognize that the Obama administration was confused, but for whatever reason, the Supreme Court has declined to hear the case.

This is dangerous. The world of software and innovation relies on the kind of interoperability and the ability to connect via things like APIs. As we've noted, this is like claiming you can copyright an entire language, rather than the creative works written in those languages. Making APIs proprietary and locked up puts a ton of innovation at risk.

As for Google and Oracle directly, this probably doesn't matter much. They're two giant companies, certainly. And now that the case returns to the lower court, they'll either settle or fight it out over fair use (and hopefully win on that front as well). But saying fair use allows this is very, very different than saying there's no copyright on the API. And for smaller companies this will have a tremendous ripple effect, and will undoubtedly lead to a slower pace of innovation. The kinds of touchstones that people build on will no longer happen. Under this ruling, it basically overrules previous rulings that said pull down menus were not copyrightable. But with this ruling in place, it's hard to see how that's still true. Expect to see a bunch of ridiculous lawsuits over minor copying of functions like that.

While this case may eventually be resolved on fair use grounds (or through settlement), there are still two potential areas of hope. First, the "precedential" power of this ruling is actually somewhat limited. CAFC precedents are more or less meaningless in this context. CAFC handles all patent cases, and the only reason it heard this case was because it started as a patent case, even though those issues were resolved much earlier. So, while CAFC has made this particular ruling, it does not mean that the 9th Circuit, where this case was actually heard has to abide by it. The appeals court for the 9th circuit could rule otherwise (though it is somewhat famous for its own nutty copyright rulings).

Perhaps if this issue returns to another appeals court, and that court gets it right, the issue will return to the Supreme Court with a clear circuit split. And by then, we can hope, the people staffing the Solicitor's General office will finally include at least one person who understands the difference between code and APIs.

The really stunning thing in all of this is just how factually wrong many of the arguments were, and that the CAFC and Obama Administration bought them. These weren't questions of interpretation or opinion. They just flat out got the facts wrong, based on an astounding level of ignorance about a rather basic concept of an API not being software. Just because they both look like "code" does not make them both code. It would be nice if the people actually making these decisions weren't so easily fooled by their own ignorance.

Filed Under: api, apis, cafc, copyright, donald verrilli, scotus, software, supreme court, william alsup
Companies: google, oracle

Supreme Court Says Motel Owners Must Be Allowed To Challenge Warrantless Searches Of Guest Registries

from the that's-kind-of-the-way-the-system-was-supposed-to-work-all-along dept

A smallish victory for Fourth Amendment protections comes today as the Supreme Court has struck down a Los Angeles ordinance that allowed police warrantless, on-demand access to hotel/motel guest records. This win is very limited, and the court's discussion of the issue at hand pertains solely to the Los Angeles statute and doesn't address the potential unconstitutionality of other, similar records sweeps granted by the Third Party Doctrine. Nor does it address the potential Fourth Amendment violations inherent to "pervasive regulation" of certain businesses -- like the records legally required to be collected and handed over on demand to law enforcement by entities like pawn shops, junk yards and firearms dealers.

The 5-4 decision focuses on the specifics of the Los Angeles statute, and it's those specifics that are problematic. The court finds that merely accessing these records without a warrant isn't necessarily unconstitutional, but rather that any demand for records cannot be challenged and that any challenging party can be fined or jailed.

The questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review.

Because there is no reasonable avenue to challenge these searches, business owners are really only given one option: comply. This has the potential to lead to abusive behavior.

A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara, 387 U. S., at 533 (holding that “broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty”). Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril.

In the end, there's no warrant requirement. All that's needed is for the city's statute to provide an avenue for searches to be challenged. The court suggests administrative subpoenas but notes that it could take any form that similarly allows business owners to challenge the records search before the search occurs and helps prevent police from using the statute as a "pretext for harassment."

The dissent, written by Justice Scalia, claims that even this very narrow decision is too expansive. Scalia argues that the new requirement places an undue burden on law enforcement officers by potentially forcing them to obtain ex parte search warrants for every motel they visit, simply because they won't know in advance which owners will challenge the search. In a city with over 2,000 hotels, the dissent sees this as unreasonable and untenable.

The prevailing opinion refers to the dissent's fears as "overblown," stating that a vast majority of businesses will still be compliant with law enforcement requests. In both Scalia's and the government's eyes, any alteration of the existing statute can only lead to a majority of motel owners refusing instant access to registry information, but this narrow view turns rare exceptions into the rule and fails to consider the numerous options still available to law enforcement to perform unchallenged searches.

The decision doesn't demand warrants or subpoenas for every motel registry check. It only orders these measures be in place for when they are needed, giving business owners the chance to challenge warrantless searches without facing jail time or fines. This is more consistent with the Fourth Amendment, and it still provides the LAPD plenty of leeway to perform motel spot checks without worrying about extra paperwork. It's a small, extremely narrow win for the Fourth Amendment rights of Los Angeles motel owners, but beyond that, it's of very limited use elsewhere.

Filed Under: 4th amendment, motel, privacy, records, supreme court, warrantless searches

Supreme Court Quotes Spiderman's 'Great Power, Great Responsibility' Line In Rejecting Royalties On Expired Patent

from the good-news dept

Earlier this year, we noted that the Supreme Court was hearing an important case on the public domain in Kimble v. Marvel, concerning whether or not Marvel/Disney needed to keep paying royalties to the patent holder of an invention to make a Spider-Man toy that could shoot webs. Marvel had purchased the patent from the inventor, with an agreement to pay royalties back to him. After the patent expired, Marvel stopped paying. The inventor argued that the contract had no such stipulation. Marvel/Disney argued that you don't have to pay royalties for something that is in the public domain. Yes, this was a case where Disney was arguing in favor of a stronger public domain, odd as that may be.

The Supreme Court ruled on the case today and did, in fact, protect the public domain, saying that Marvel doesn't need to pay. Specifically, the Court rejected a request to overturn a previous ruling (the "Brulotte" case) that said that you cannot charge royalties on an expired patent. The majority decision was written by Justice Kagan (who has shown, in the past, to understand these issues pretty clearly). It was a 6 to 3 ruling, with Alito, Roberts and Thomas dissenting.

As Kagan notes:

Patents endow their holders with certain superpowers, but only for a limited time. In crafting the patent laws, Congress struck a balance between fostering innovation and ensuring public access to discoveries. While a patent lasts, the patentee possesses exclusive rights to the patented article—rights he may sell or license for royalty payments if he so chooses.... But a patent typically expires 20 years from the day the application for it was filed.... And when the patent expires, the patentee’s prerogatives expire too, and the right to make or use the article, free from all restriction, passes to the public.

In the end, the ruling more or less comes down to the fact that the Supreme Court already ruled one way in Brulotte and there is no compelling reason to overturn that ruling. And, more importantly, in the wake of Brulotte, Congress had many opportunities to change the law if it felt the Court got things wrong -- and did not. And that leads to Kagan's closing line, in which she cites Spider-Man itself:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no "special justification" for departing from it, we decline Kimble’s invitation to overrule Brulotte.

Of course, that "great power, great responsibility" argument could also be applied directly to the patent system itself, but so few people actually recognize that. The dissent argument is really kind of bizarre. It argues that the majority is engaging in "policymaking" — but then most of its own argument is entirely in the policy realm, itself. It focuses on the claim that allowing licenses to go beyond patent expiry could be a good thing, since it could lower patent licensing fees by extending them over a longer period of time. That's not really an issue for the Supreme Court to be discussing, though, and is purely a policy question.

Filed Under: brulotte, kimble, patent expiration, patents, public domain, supreme court
Companies: disney, marvel

Supreme Court Completely Punts On First Amendment Question About 'Threatening' Song Lyrics On Facebook

from the we'll-see-you-in-court-again-next-year? dept

Last year, we wrote about a potentially important First Amendment case involving Anthony Elonis, who posted some fairly nasty things online, including some about his ex-wife that some certainly read to be threatening. Elonis insisted that it was just a persona, and what he posted online were merely rap lyrics with no actual threat behind them -- but he still ended up in jail for a few years because of it. And, thus, the Supreme Court heard a case that was supposed to be about the First Amendment and whether threats need to be "true threats" to lead to charges, and what exactly "true threats" mean, and through whose eyes should the statements be seen. But, as has happened all too often with this Supreme Court, it punted on the key issue and chose not to discuss the First Amendment issues at all after realizing it could overturn the case on other grounds.

The Supreme Court thinks it's doing a good thing when it fails to actually address the big question, saying that it's waiting for an appropriate time to do so, but all it really does is keep a bunch of legal uncertainties going, allowing lawyers to rack up huge amounts of billable hours, on questions that the Court could have just settled the first time around. It's no different in this case. Here, the court basically rejects the use of the "reasonable person" test that was used in the original jury instructions (i.e., would a "reasonable person" find Elonis's statements to be "true threats," rather than whether Elonis himself intended them as such). But, the Court notes, that's setting up a negligence standard that is rarely found in criminal law, and certainly not in the relevant statute for this case:

Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.”... Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence,” ... and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes,” ... Under these principles, “what [Elonis] thinks” does matter.

And thus, the Supremes overturn the appeals court's ruling. It also notes that all the tap dancing the DOJ did in trying to insist that this is not a negligence standard fails:

The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant“comprehended [the] contents and context” of the communication.... The Government gives two examples of individuals who, in its view, would lack this necessary mental state—a “foreigner, ignorant of the English language,” who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents.... But the fact that the Government would require a defendant to actually know the words of and circumstances surrounding a communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate “the circumstances known” to a defendant.... Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct.That is precisely the Government’s position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.

Okay. Fair enough. With that, the Court sides with Elonis:

In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”

But then the Court fails to take the next necessary step in handling what standard is appropriate.

There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.... In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient.... Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it... (this Court is “poorly situated” to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in “only the most cursory fashion at oral argument”). Given our disposition, it is not necessary to consider any First Amendment issues.

And then the decision takes an additional page sanctimoniously explaining why it's not necessary to answer this question, even though it's likely to come up again. We've seen this argument before (including in some of the links above). This court hates to go out and actually address such questions, all too frequently saying simply "this rule is the wrong rule" and leaving a massive hurricane mess behind as everyone tries to guess at what the right rule might be. I'm sure, in some sort of "Supreme Court Justice On High" logic this makes sense, but it leads to a dangerous world of uncertainty that seems to only be helpful for the lawyers. Justice Alito made this point in his own addition to the ruling (partial concurrence/partial dissent):

Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.

The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction.... This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.

This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.

So, stay tuned, as we'll likely be back with the Supreme Court having to review this very issue once again within the next few years. And, in the meantime, there will be a huge mess in a variety of courts because no one knows what the proper rules are.

Filed Under: anthony elonis, first amendment, free speech, negligence, rap lyrics, reasonable person, supreme court, true threats