A Round Tuit (21)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Once upon a time in Italy, some cruel schoolchildren taunted a handicapped child and recorded their abuse on video. Like countless other people in Italy and around the world, they uploaded a snippet of their video to Google Video (now YouTube), thus comprising a few minutes amongst the twenty or so hours of video uploaded to the site every minute. Some time after these miscreants uploaded evidence of their crime against their helpless schoolmate, the local authorities were alerted to the abuse and someone advised Google about the video. Google promptly removed it from the site.

Notwithstanding their prompt action upon learning of the video's existence, Google found itself facing prosecution in Italy, with several executives charged with violating Italian privacy laws. This week, three of them were convicted and received suspended sentences. From BBC News:

The three employees, Peter Fleischer, David Drummond and George De Los Reyes, received suspended six-month sentences, while a fourth defendant, product manager Arvind Desikan, was acquitted.

David Drummond, chief legal officer at Google and one of those convicted, said he was "outraged" by the decision.

"I intend to vigorously appeal this dangerous ruling. It sets a chilling precedent," he said.

"If individuals like myself and my Google colleagues who had nothing to do with the harassing incident, its filming or its uploading onto Google Video can be held criminally liable solely by virtue of our position at Google, every employee of any internet hosting service faces similar liability," he added.

....

Richard Thomas, the UK's former information commissioner and consultant to privacy law firm Hunton & Williams, said the case was "ridiculous".

"It is like prosecuting the post office for hate mail that is sent in the post," he told BBC News.

"I can't imagine anything similar happening in this country. The case wasn't brought by the Italian equivalent of the information commissioner but by criminal prosecutors and we don't know their motives.

"I find it worrying that the chief privacy officer who had nothing to do with the video has been found guilty. It is unrealistic to expect firms to monitor everything that goes online."

Mike Masnick rightly termed the verdict "downright ridiculous" and pointed out that the video had been instrumental in revealing the children's crime and, presumably, aiding their victim:

[T]he video itself was used as evidence to punish the taunting teens. Now imagine if they hadn't been able to upload the video. Then the kids likely would have gotten away with the taunting, without anyone knowing about it. Why would you ever want to blame Google for providing a tool that allows stupid people to give proof of their own illegal activities? And even then, rather than filing a suit against Google the company, Italian prosecutors chose to file the lawsuit against four execs at the company, most of whom had nothing to do with the company's Italian operations.

On Google's official blog, Matt Sucheman, the company's deputy general counsel for Europe, the Middle East, and Africa, explained the consequences of the Italian ruling and Google's commitment to defending its people and business against such misguided prosecutions:

In essence this ruling means that employees of hosting platforms like Google Video are criminally responsible for content that users upload. We will appeal this astonishing decision because the Google employees on trial had nothing to do with the video in question....

But we are deeply troubled by this conviction for another equally important reason. It attacks the very principles of freedom on which the Internet is built. Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming. European Union law was drafted specifically to give hosting providers a safe harbor from liability so long as they remove illegal content once they are notified of its existence. The belief, rightly in our opinion, was that a notice and take down regime of this kind would help creativity flourish and support free speech while protecting personal privacy. If that principle is swept aside and sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.

These are important points of principle, which is why we and our employees will vigorously appeal this decision.

On his own blog, Peter Fleischer, Google's Global Privacy Counsel and one of the executives convicted by the Italian court, expressed similar sentiments:

If company employees like me can be held criminally liable for any video on a hosting platform, when they had absolutely nothing to do with the video in question, then our liability is unlimited. The decision today therefore raises broader questions like the continued operation of many Internet platforms that are the essential foundations of freedom of expression in the digital age. I recognize that I am just a pawn in a larger battle of forces, but I remain confident that today’s ruling will be over-turned on appeal.

While it is possible that Google's appeals will be successful or that the European Union will intervene (a proposed law would provide stronger "safe harbor" protections to service providers like Google), the short-term consequences for internet companies doing business in Italy are daunting. Jacqui Cheng wrote:

The decision is sure to affect all manner of Internet companies, not just Google. Italian law says that Internet service providers are not liable for content posted by users, but Internet content providers are a different story—they are responsible for the things they "publish." Google had argued that it falls into the former category, but Judge Oscar Magi disagreed.

As a result, practically any company that's not explicitly an ISP could be held criminally responsible for content uploaded by users, no matter the quickly it is taken down after a complaint. YouTube, MySpace, Facebook, Blogger, the Italian equivalents to Craigslist—the list is long. Many of these companies may instead choose to close up shop in Italy rather than risk their employees' livelihood.

While most observers were shocked by the Italian verdict, Maria Farrell seemed somewhat less surprised; she noted that privacy extremism, if not outright lunacy, is par for the course in Italy:

For years I’ve observed that Italy always pushes for the most extreme EU version of laws about privacy and security and then domestically gold-plates them into laws that would seem more at home in Turkmenistan. It makes other Europeans scratch their heads as the Italians generally aren’t willing or able to enforce their draconian laws. Several years ago over a pint in Brussels, an exasperated UK official told me ‘the Italians have no intention of ever implementing this stuff, but we’re a common law country and if it’s on the books, we actually have to do it’.

For years, the Italians have chipped away domestically at essential principles of European Internet law such as ‘mere conduit’ – the idea that a postal service or telco isn’t responsible for the content of communications it carries – and ‘no prior authorisation’, the ban on requiring websites or other information society service providers to somehow register with the government before they launch. This seems like a particular instance of the more general ills of Berlusconi’s Italy.

....

The odd thing about the Italians in Brussels is that they seemed always to propose quite extreme privacy protections at the same time as draconian measures of state surveillance and intervention. Until today, I’d long thought Italy mostly likes to keep lots of potentially invasive and contradictory privacy and surveillance laws on the books but only threaten to implement them. The inscrutable power plays that motivate Italy’s murky judicial system mean we can only speculate about why a prosecution was taken against Google just now for what is, sadly, an every day occurrence.

Today’s ruling reminds me that Italy’s elite has an utterly different conception of when and how the state should act. More than most other laws, privacy laws define the relationship between the individual and the state. Not only is it difficult or impossible to reach European agreement on privacy laws and how they should be used; the very act of trying exposes a deep, strange gulf of difference.

It's often said that the law lags behind developments in the real world and nowhere is this more true than when the law attempts to address the rapid developments associated with internet technologies and uses. For Milton Mueller, the Google decision was not just a misguided prosecution by Italian authorities; the ruling reveals tensions between internet technologies and European laws:

[T]here is more to this case than meets the eye. US news coverage, which concentrates solely on Google’s outraged claims, fails to take into account three broader issues: 1) the fact that Google itself has undercut its exemption from liability claim by implementing monitoring of copyright; 2) the weakness, vagueness and obsolescence of the EU E-Commerce Directive’s liability protection provisions; 3) the politics and law of privacy law in Europe and the way privacy law can be used – for both legitimate and illegitimate reasons – to attack this large global corporation that threatens the business models of entrenched interests.

....

There is also an important political dimension to this story. Google is being targeted because of its prominence and its threat to traditional media.... Bear in mind that the Italian Prime Minister, Silvio Berlusconi, is a businessman who made his money in traditional broadcasting. Berlusconi has openly called for user-generated videos to be licensed and regulated in a way that could kill user-generated video sites.

Amidst all the doomsaying after the verdict, Tom Krazit advised that the Italian result was most likely an isolated one which will not have a lasting effect on Google or other internet companies:

The potential problem for Google in Europe is that European data-protection laws are more like expressions of principles rather than explicit statutes, said Lisa Sotto, a privacy and data protection lawyer with Hunton & Williams in New York. That means there is room for individual countries to interpret those laws in different ways, with some hewing to the more Internet-company friendly U.S. interpretation and others opting for more along the lines of what Italian prosecutors have pursued.

....

As with Google's dispute in China over search censorship, the Italian case exposes how difficult it can be for Internet companies to operate on a global basis when laws governing these sectors conflict, said Julie Ahrens, associate director of the Fair-Use Project at Stanford University.

U.S. Secretary of State Hillary Clinton, in reacting to the cyberattacks against Google and other U.S. companies that prompted Google's dispute with the Chinese government, declared that it is the policy of the U.S government to support Internet freedom around the world, calling on foreign governments to move away from using the Internet as a repressive tool. In an indirect way, court decisions such as the one in Milan could work against those goals, since companies like Google, Yahoo, Twitter, and Facebook that have been used by those organizing against autocratic governments would likely have to shut down their services if faced with the prohibitive cost of monitoring the content production of each and every user of their services.

"How do you consistently comply with all the laws?" Stanford's Ahrens said. "Complying with Italian law could be a violation of U.S. law."

Should the Italian interpretation of Google's responsibilities catch on, it's not hard to see how Internet companies would have to pull back on their operations for fear of widespread liability. But for the moment, it seems that this case is a one-off example of why data protection laws need to take into account the 21st century notion of the Internet.

One-off this case may well be, but the patchwork nature of national approaches to privacy and other legal issues in an age of global communication will continue to present challenges for service and content providers, users, advocates, and lawmakers alike. The problems associated with the lack of legal uniformity have often been recognized and, in many areas, efforts have been made to harmonize laws to create a predictable, stable legal operating environment for those use and do business on the internet.

While uniformity has clear benefits, the danger has always been that in harmonizing laws, what becomes the settled approach is not the best approach (from either a liberty or business standpoint) but the codification of the least common denominator amongst the various competing national and local laws. In his groundbreaking book Code, Lawrence Lessig noted that the technologies underlying the internet were not inherently good or bad, liberal or conservative, or free or restrictive; instead, these technologies could be coded to enable free online expression or control it. The decision need not be between an "anything goes", lawless, anarchic approach and one akin to the so-called "Great Firewall of China" or the constant technological surveillance of Orwell's 1984 Oceania.

While the need for laws to "keep up" is increasingly urgent in the internet era, we must resist the urge to regulate what need not be controlled and to cater to the most authoritarian regimes which share access to the global network. I'm hopeful that Google and its executives will soon be vindicated in Italy, but I remain mindful that successful or no, their case is but one skirmish in a larger struggle with no foreseeable end.

The Supreme Court recently decided Maryland v. Shatzer. The questions raised in Shatzer were whether a criminal suspect who had once invoked his right to counsel could be questioned after a break in custody without counsel present and, if so, how long an interval was required before the suspect's exercise of his rights "expired". While these certainly seemed like difficult questions, the SCOTUS' answer was somewhat distressing in its simplicity — fourteen days, no more and no less.

Orin Kerr was a bit perplexed by the "legislative" answer Justice Antonin Scalia set forth in his majority opinion:

Two practical points make answering this question unusually hard. Point One is that the police need clear rules that answer the question with certainty. It doesn’t work to give the police complex legal tests to apply on the fly: They need clear rules to know what they can and cannot do. Point Two is that the two obvious candidates for clear rules each create absurd results. If you say that any break in custody, however short, resets the clock, then the protections are meaningless. If a suspect asks to speak to an attorney, the police will just “release” the suspect for 30 seconds, re-arrest him, and then restart the interrogation. That doesn’t work. On the other hand, if you say that the break in custody has no effect at all, then all sorts of strange consequences follow. A request to speak with an attorney in one case will inoculate the suspect from police interrogations for the rest of his life for all of his unrelated crimes. A request to speak to an attorney at the age of 18 in one case would bar questioning a half-century later for something entirely different. That doesn’t work, either.

So what to do? What clear rule on how long the break must be to reset the clock is workable here? Enter the 14-day rule....

....

As a matter of policy, I think that’s a pretty good rule. But why precisely 14 days? That is, 336 hours, or exactly 20,160 minutes? There is no 14-day Clause in the Constitution. (I checked.) Why not 15 days? Or 13.491 days?

As far as I can guess, the only reason 14 days was chosen is that it’s easy to remember and seemed in the right ballpark.... Fourteen days seemed about right, and so the 14-day rule became the law.

Before Shatzer was decided, Scott Greenfield suggested that since there are no expiration dates indicated in the Bill of Rights, none should be established by the Court. While the robes disagreed, Greenfield recognized that a bright line rule, however arbitrary, may have some utility:

On the bright side of this bright line test, at least we can forewarn defendants that their invocation of right to counsel has a shelf-life of 14 days. After that, rinse and repeat. Or, if they prefer not to keep an eye on the calendar, they can always just follow the prime directive. Say the magic words (I want to speak with my lawyer) and then shut up.

Prosecutor Ken Lammers was unimpressed by the arbitrariness of the 14-days limitation, by the majority opinion's "straw man" arguments, and by the Court's muddling of the issues with their nuanced view of Shatzer's detention. Nonetheless, the law's the law and he'll adjust:

Actually, I'm in general agreement with the Court here. There is going to be some point where an original assertion of the right to an attorney no longer applies. For instance, if a suspect asserts his right while being questioned about a mugging, it shouldn't keep the police from questioning him about a totally unrelated murder a week later. On the same charge, I'm a little more leery than the Court. Every 14 days is just setting us up for years of further litigation. Nobody's going to go back every 14 days over a shoplifting, but in important cases that doorbell's going to be rung every 14 days like clockwork. The primary, but unprovable, suspect had best set aside the day every two weeks that officers are going to show up wherever he is. The next fight is going to be over whether 5 straight assertions of the right are enough to make it permanent, or 10, or 25, or . . . ?

If the Court had set this at a year or 6 months it would feel more like a right defended. As it is, it feels like a right begrudged.

And, yes, before anyone asks me, I will tell the officers in my County about the new rule. The courts and legislatures set the rules. We attorneys read and interpret the rules. Police have to live by them. I do my best to let them know what the rules are (even when the line keeps shifting).

Preaching to the Choir's "S" suggested that a suspect's Fifth Amendment right should be considered invoked unless and until it is expressly waived:

Too many of this nation's judges, including several justices on the supreme court, are more concerned with police convenience when fashioning the rules surrounding our constitutional rights. It would make police work too difficult if they had to refrain from interrogating suspects who refuse to talk, so we need to fashion rules that focus on the needs of police to get information out of suspects. What they should be concerned with is giving full force and effect to each individual defendant's individual right against being coerced into incriminating him or herself.

Doesn't it seem a bit much to suggest that we can't read anything into it when a suspect remains silent after being told he has the right to remain silent? Sure, it's a bit simple, a bit on the nose. But considering that we tell every person subjected to custodial interrogation that they have the right to remain silent, it feels disingenuous to respond to silence as if it's ambiguous.

Justice Scalia's proposed rule would require the suspect to engage in a dialogue to invoke his right not to engage in a dialogue. Seems a little backwards to me.

Just to be on the safe side, I'm going to proactively show up at my local police station every thirteen days to tell the officer at the desk that I'm not answering any police questions without my attorney present. They may be a little confused — perhaps even a little suspicious — that someone whom they have no interest in questioning is doing this, but what alternative do I have? Now that it's been established that the Bill of Rights is a limited-time offer, I want to make sure I have my ducks in a row.

"Slackoisie" is a neologism for which regular readers of Scott Greenfield's Simple Justice blog or Dan Hull's What About Clients? blog probably require no definition. For those who do need a definition, the Urban Dictionary again has one available (it had mysteriously disappeared recently, before coming back bigger and better than ever). Ashby Jones highlighted it and asked his audience, of whom a significant portion are of the "Generation Y" and "Milennial" generations, whether the definition fit. At the time I'm writing this, there are nearly thirty comments to that post; mine is not amongst them, since "sadly, yes" is hardly worth adding to the list.

Scott Greenfield, who popularized the term "slackoisie" after it was coined by Dan Hull, offered a "Slackoisie Litmus Test" this week; the test featured an exchange of e-mails between a soon-to-be graduate of NYU's business school and a professor. The student complained about being turned-away from the professor's class after he arrived late. In the course of that "feedback", the student related that he'd started in one class that day, left it in the course of the lecture to arrive late at another class, before leaving that class mid-lecture to arrive at this professor's. In response, the professor advised him to "get [his] shit together":

Getting a good job, working long hours, keeping your skills relevant, navigating the politics of an organization, finding a live/work balance...these are all really hard, xxxx. In contrast, respecting institutions, having manners, demonstrating a level of humility...these are all (relatively) easy. Get the easy stuff right xxxx. In and of themselves they will not make you successful. However, not possessing them will hold you back and you will not achieve your potential which, by virtue of you being admitted to Stern, you must have in spades. It's not too late xxxx...

In comments, Greenfield explained that "There's no correct answer here. That's what makes it a litmus test. It's all a matter of perspective." There were plenty of perspectives offered in the dozens of comments to his post; Laura McWilliams commented that she "had too much to say for just a comment" and instead wrote a blog post. It's a thoughtful response and worth reading, though I think her focus on the particulars of this exchange between this student and this professor misses the forest for the trees; this "Litmus Test" highlights (as though we needed reminding) that there is a genuine disconnect in outlook and interests between sizable numbers of the Baby Boomers and Generation Xers in our profession and sizable numbers of the Generation Y and Millenial folks just started in or seeking to enter it.

Some, like Holden Oliver, suggest that this is not a division which can be resolved by compromise. In his view, it's not the older generation which needs to meet the younger ones halfway or understand them better; he wrote, "You cannot short-cut or dumb down the process of becoming a quality professional who serves clients, patients, customers or buyers." For his part, Mike Cernovich empathizes with the younger folks; citing the union and legal protections which protect many older workers in shops, in businesses, and in academia, as well as the various social programs which younger workers are obliged to subsidize their elders, he told Baby Boomers that they are the true "entitlement generation":

Listening to oldsters complain about everyone under 30 as "entitled" is getting old. Who caused the current Great Recession/Depression 2.0? Oldsters. Who got the big bailouts? The grey beards. Who sucks up nearly 50% of the federal budget through entitlement programs? It ain't the under-30 set.

If "kids" are unmotivated, who can blame them?

....

How can a young person remain motivated when she sees Social Security taxes taken from his paycheck - knowing g-damned well that she'll never have that money given back to her?

Ilya Shapiro previewed the arguments in McDonald v. Chicago, the Second Amendment case argued before the Supreme Court yesterday:

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights. Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments

It's possible that Mike Sacks missed that preview, as he was camped-out in front of the Court attempting to be the first in line for tickets to the McDonald arguments. Though he lost out on that honor to a couple of folks who'd flown in especially for the event, he nonetheless was amongst the few to make it inside to hear the case presented. If it's any consolation to him, his quest to be the "First One at One First" for each key argument was chronicled by The New York Times, he was named the "Law Student of the Day" by Kashmir Hill of the Above the Law blog, and profiled by Lisa Kennelly. Was McDonald worth the wait for Sacks and his queuemates? Lyle Denniston, as always, provided the earliest and best reporting from the arguments:

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right. The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

Finally this week, I'd like to point out a pair of posts by a good friend, Bay Area attorney Cathy Gellis, who recently returned from a trip to Africa, including a visit to Rwanda. In the first part of her narrative, she discussed Rwanda's past (including its notorious genocide); in the second part, she considered Rwanda's future under current president Paul Kagame and, in particular, his lack of concern to this point for developing the country's legal system along with its technological and economic infrastructure:

[W]hile the situation makes Kagame's reflex to control understandable, what Rwanda needs is the exact opposite. Rwanda needs law that creates a sphere of intellectual liberty necessary to stoke the unshackled creativity of its 10 million souls. Law that presents a healthy outlet for dissent and disapprobation. Rwanda needs law that will be looked upon by society at large as a legitimate force -- indeed, as a legitimate alternative to force.

Here Rwanda faces another unique challenge. Despite a population of 10 million, it has only a few hundred lawyers. And of those, around half are trainees, many of whom want to practice with international commercial transactions, to help broker all these new Rwandan deals because, reasonably, that's where the money is. But that money won't be there if Rwanda is too unstable to justify the investment.

Of course, it's not that more lawyers are called for per se but the role of law itself within Rwandan society. Rwanda needs law that fills the vacuum where violence and hatreds otherwise have reigned. Which doesn't mean just any law: Rwanda needs law that doesn't ban, but rather enables. Law that facilitates freedom, not law that controls. Law that is available to all, equally -- not law that itself continues to inflict the oppression of the past.

More specifically, Rwanda needs greater due process guarantees (e.g., attorney-client privilege should be ensured). It needs greater checks on government power (e.g., the judiciary should be independent of the executive). And it needs law that doesn't stand in the way of Rwanda having the culture of vibrant, free discourse it needs if it is ever to become the vibrant, bustling knowledge economy Kagame intends it to be.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Google Maps (the Palazzo di Giustizia [Hall of Justice] in Rome), nutritioncoursenow.com, and Paris Odds n Ends Thrift Store.