24 February 2010

A Round Tuit (20)

A Round Tuit

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.

Lower Merion School District HAL Shirt

It was revealed late last week that a school district in Pennsylvania had used surveillance software installed on school-issued laptop computers to photograph students at home. After the parents of one of the students filed a class action lawsuit against the district, the condemnation of the school administrators' actions was swift and, for blogospheric commentary, strangely uniform. Usually, one would be hard-pressed to find many controversies wherein everyone seems in general agreement about who's at fault; in this instance, however, you'd need to dig pretty deeply into the discussion to find more than a half-hearted defense of the school district's actions. Ars Technica provided a concise overview of the allegations of the lawsuit:
According to the complaint, the school in question (Harriton High School) had issued laptops equipped with built-in webcams to every student so that they could have "24/7 access to school based resources" and the ability to work seamlessly between school and home when it comes to research and projects. In November of 2009, however, Robbins was disciplined by the Assistant Principal of his school, Lindy Matsko, for engaging in "improper behavior" in his home. At that time, Matsko cited a photograph from the built-in webcam on the laptop.

Robbins' father Michael supposedly confirmed with Matsko that the school has the ability to remotely activate the webcam "at any time it chose to view and capture whatever images were in front of the webcam." Needless to say, Robbins' parents were outraged at this development, as neither the school nor the district had told parents about this capability. As a result, the Robbins have filed a class-action lawsuit against the district, charging it with interception of electronic communications under the ECPA, theft of intellectual property under the CFAA, violations of the Stored Communications Act, violations of the Civil Rights Act, invasions of privacy, and violations of the Pennsylvania wiretapping and electronic surveillance act.
On behalf of the Above the Law blog, Kashmir Hill named Robbins v. Lower Merion School District the "Lawsuit of the Day", noting that "The school district was not just monitoring their webcams — it was allegedly tracking all of their activity on the computers (although the webcam watching is the most disturbing aspect).... Meanwhile, we’re considering a sticker to cover the camera on our own employer-purchased laptop." Eugene Volokh's initial thoughts on the suit's allegations, before further details of the surveillance program surfaced, were typical of many others':
If this was indeed done, and if it was done without adequately notifying the students and their parents, this was clearly tortious, likely a violation of the Fourth Amendment, and possibly a statutory violation as well (though I haven’t looked closely at the statutory details). It is also appalling — school officials spying on children in their parents’ homes without the children’s and parents’ permission. Who thinks up such things?
Orin Kerr also weighed-in with a preliminary assessment. With the plaintiff's and school's conflicting factual allegations, Kerr assumed (for purposes of analysis) that the school's were true; though he dismissed the claims that federal or state wiretap laws had been violated, described the Stored Communications Act cause of action as "frivolous", and suggested that the absence of an economic loss by the student precluded a Computer Fraud and Abuse Act claim, he concluded that a Fourth Amendment claim would stand, albeit not as a class action:
My tentative bottom line: The schools violated the Fourth Amendment rights of students when they actually turned the cameras on when the computers were at home.


The Fourth Amendment issues here... [strike] me as the most serious. Let me break down the issues in two steps:

a) This case is brought as a class action, but the Fourth Amendment issues here don’t work as a class action. Any “search” here didn’t occur until the camera was turned on, which according to the school occurred when the laptop was thought to be lost or stolen. That means no search occurred under the Fourth Amendment for students who had laptops that were not turned on. See United States v. Karo, 468 U.S. 705 (1984) (“The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. . . . It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.”).

b) Taking the photograph inside the home seems pretty clearly to be a search under Karo. The school might try to justify this under the special needs exception: The school issued the laptop and could search it to investigate misconduct under New Jersey v. TLO. The problem with this argument is that the school didn’t search the laptops: They searched the home where the laptop happen to be present.
Also discussing the inapplicability of wiretap laws to the allegations in this matter was Julian Sanchez. Sanchez noted that the case, wherein pictures or video were recorded without sound, highlights a "strange gap" in surveillance laws:
The trouble is that courts considering similar claims in the past have held that federal electronic surveillance law does not cover silent video surveillance—or rather, the criminal wiretap statutes don’t.

That leads to a strange asymmetry in a couple of different ways. First, intelligence surveillance covered by the Foreign Intelligence Surveillance Act does include silent video monitoring. Second, it seems to provide less protection for a type of monitoring that is arguably still more intrusive. If officials had turned on the laptop’s microphone, that would fall under ECPA’s prohibition on intercepts of “oral communications.” And if the student had been engaged in a video chat using software like Skype, that would clearly constitute an “electronic communication,” even if the audio were not intercepted. But at least in the cases I’m familiar with, the courts have declined to apply that label to surreptitiously recorded silent video—which one might think would be the most invasive of all, given that the target is completely unaware of being observed by anybody.
After the Robbins suit was filed and publicized, the district quickly abandoned the surveillance program and scrambled to defend its actions:
The District is dedicated to protecting and promoting student privacy. The laptops do contain a security feature intended to track lost, stolen and missing laptops. This feature has been deactivated effective today.


• How did the security feature work?

Upon a report of a suspected lost, stolen or missing laptop, the feature was activated by the District's security and technology departments. The tracking-security feature was limited to taking a still image of the operator and the operator's screen. This feature has only been used for the limited purpose of locating a lost, stolen or missing laptop. The District has not used the tracking feature or web cam for any other purpose or in any other manner whatsoever.

• Do you anticipate reactivating the tracking-security feature?

Not without express written notification to all students and families.

We regret if this situation has caused any concern or inconvenience among our students and families. We are reviewing the matter and will provide an additional update as soon as information becomes available.
Mike Masnick provided continuing updates throughout the week as more details of the schools' surveillance program emerged. After it was revealed that the school district had not accessed students' webcams just a few times, but had instead done this forty-two times before the program was abruptly halted in the wake of the civil lawsuit, he reported that the Federal Bureau of Investigation had also become involved to determine whether federal laws had been broken. Subsequently, Masnick reported that the "drugs" which had prompted the district to discipline Robbins (and thereby revealed the surveillance capability) were in fact "Mike and Ike" candies; moreover, informal communications by one of the district's technology staff were uncovered and added gasoline to the fire:
Apparently, in various forums, blog posts and videos, one of the school's techies talked about the technology they were using and how to set it up so that the user would not realize they were being spied on. He also discussed how to prevent a laptop using this software from being "jailbroken," so users couldn't discover that their computers were being used in this manner. Other forum posts from students at the school show that they were told they could not use other computers, could not disable the cameras and could not jailbreak their laptops on the risk of expulsion.
Cory Doctorow, whose Boing Boing blog was among the first to report the surveillance program and lawsuit, confirmed that the program was both mandatory and pervasive:
  • Possession of a monitored Macbook was required for classes
  • Possession of an unmonitored personal computer was forbidden and would be confiscated
  • Disabling the camera was impossible
  • Jailbreaking a school laptop in order to secure it or monitor it against intrusion was an offense which merited expulsion
Brett Trout noted that "'epic' does not quite capture the fail" for the school district:
The Lower Merion School District has more problems on its hands than disgruntled parents and a civil lawsuit. Problems started when the Harriton High School administration remotely activated webcams on students laptop computers to spy on the students at home. The case exploded when hubris-infused Assistant Principal Lindy Matsko apparently used the remote spying scheme to accuse 15 year-old student Blake Robbins of selling drugs. Robbins has since stated the “drugs” were actually Mike & Ike candies. While admittedly not a drug-identification expert, based upon my years of varied candy experience, I feel fairly confident even I would be able to differentiate Mike & Ike candies from drugs.

While a case of a school employee spying on children is not unheard of, this is the first case I have run across where the perpetrator did not apparently appreciate the wrongness of such spying. Most surreptitious spys of underage victims at least make an attempt to keep such activity hidden from the public. In its defense, the School District is now back-pedaling wildly, denying any wrongdoing and arguing that the school official was merely trying to be “supportive.” Detectives from Montgomery County, the Montgomery County district attorney and the FBI do not seem to be buying that story. All are now investigating the matter.
Ken of the Popehat blog suggested that the Lower Merion School District matter provides us a Heinleinesque reminder that there ain't no such thing as a free lunch:
Now, we don’t have the response of the school or the district yet. But if Blake’s allegations are true — that school administrators were activating webcams remotely to observe students without their knowledge or consent, or the knowledge or consent of their parents — then the district, and some of its administrators, are in a world of hurt. In addition to the civil violations set forth in Blake’s complaint, such conduct is almost certainly criminal. Hopefully Blake’s family will refer the matter to the U.S. Attorney’s Office for their district. If school administrators sent home laptops and then spied on kids, someone — probably several people — should be going to jail. If they captured or observed kids in any state of undress, some of them need to wind up as registered sex offenders.

If this went down the way Blake claims, the stupidity of the Lower Merion School District officials is breathtaking. That they thought they could do this legally – and that they thought it was a good idea to blithely begin to discipline kids for conduct observed secretly in their homes — speaks volumes of the entrenched cretinism in modern American academia. But the entitlement isn’t breathtaking. It’s perfectly ordinary. When the government and its officials give you something, they always expect something in return. Sometimes that something is your privacy. That’s the way it works.
Dave Wieneke offered his thoughts on a broader question about the Robbins suit — whether a civil lawsuit, which ould effectively punish the taxpayers of the locality, is a productive method for redressing these kinds of violations:
The civil courts are like an emergency break through which the people can directly access the courts, when local or distant law officials are slow to act. Some people may complain about lawsuits, but civil justice is an override that protects the people from an non-responsive state.

Law enforcement officials could have stepped forward based on potential violations of state or federal law. In fact, because of the lawsuit, the FBI is now investigating to see if a federal crime was committed.

Now that the FBI is involved, perhaps the threat of the lawsuit has done all the good it can. Not necessarily. Criminal courts often have a higher standard for conviction than a civil ruling.

But more important, criminal courts are more likely to focus on individual actors unless there was a broad criminal conspiracy. In contrast, the civil suits are more likely to focus on Lower Merion School District, which perhaps should have better considered the privacy concerns of putting webcams in homes, or better supervised their staff.

I think the civil case focuses properly on the Lower Merion School District, not individual staff. Yes, the court could find the district is liable for a widespread spying on children and their families, and the community could suffer higher taxes. That seems just. When public officials mess up, there is a public cost.


Sorry tax payers, like it or not, you also own a government.

The Who - The Kids Are Alright

Are the kids alright? Opinions varied this week, as these usually do. The generation gap broadened a bit, there was a bit of love for at least one member of the younger generation of lawyers, and juveniles' treatment by the laws and the courts was rightly questioned.

Scott Greenfield's frequently provocative writing at his Simple Justice blog generates a substantial comments traffic. Some subjects are more provocative to his commentariat than others, and his criticisms of online behavior by the "slackoisie" are particularly likely to generate some heated responses. After advice columnist Amy Alkon somehow ran afoul of a blogger (to whom Greenfield refers as the "Lord of the Flies") and his audience, she found the Amazon reviews for her latest book suddenly inundated with single-star reviews and negative, even abusive, comments. Greenfield was unimpressed with the negative campaign:
I haven't read Amy's new book. I'm still waiting for her to send me a review copy. I'm patient. But this attack by the Lord of the Flies is not merely a disgrace, but an affront to anyone who believes that ideas, people who espouse ideas and people who write them down so that they end up in a book, should be subject to the revenge of the playground when the children don't like her.

....[T]o engage in this smear campaign against Amy because they disagree with her views, and to do so in such an overt (and childish) manner for the purpose of harming her financially by faking negative reviews, rather than challenging her ideas, is total garbage.
Whether commenter "worldruler" was the Lord or one of his Flies is unclear, but he took Greenfield to task for his failure to understand "the culture of the Internet", "our customs", and "our most sacred taboos". Greenfield considered whether that was so and replied:
[The slackoisie] believe they already own the world. They have their own customs. They have their own sacred taboos. What they are doing is educating us, the dinosaurs who still stumble around until we finally collapse and die, about how they will change everything once they seize control. They, we are told, come from the culture of the internet. We are history.

Some say that this is just typical generational squabbling, as our father said of us and our grandfathers of them. It means nothing, and the children will mature when the responsibility of carrying on is placed in their hands. They will manage, as did we and our fathers before us. This is wrong. The World Ruler is right. The culture of the internet has changed the game.


My child commenter, the World Ruler, is wrong, yet right. There is a culture of which I am not a part. While I may know more about it then most people of a certain age, it moves so quickly and morphs in ways I would never anticipate that it's impossible to stay on top of it while watching from the outside. And I have no delusion that I'm not on the outside.

By denying this is happening, by denying this is a problem, by believing that support, encouragement and acquiescence is enough to overcome the Slackoisie, we do our children a horrible disservice. Life is not limited to what happens on a computer screen. By the time they realize that every problem they face, and they will face as many as we did, does not have a magic bullet solution that can be expressed in 140 characters of less, they will have done themselves grievous harm. We need to stop encouraging this now. It's not just a harmless prank. If we help to perpetuate this immaturity, they will never grow up and take responsibility.
Mark Bennett offered some observations on "worldruler" and his generation's expectations that online, anything goes and goes without consequences:
My own theory of this cultural divide: as we get farther and farther from the Great Depression, America’s young become more and more comfortable that their basic needs will be met without a struggle. This leaves them free to focus on entertaining themselves with anonymous comments and practical jokes.

There are no “sacred taboos” in such a world. Lying is okay in the context of a prank, so the Amazon-bombing of Amy Alkon (who may very well be a repugnant human being) seems to them a perfectly appropriate response. In this new online world, perceived transgressors are not entitled to common decency.


The culture clash is between those who have character in the real world, and expect others to behave with character online; and those who don’t; between those who view near-universal online anonymity as a detriment, and those who view it as a benefit.

Oddly, the same clash could be described as being between those who treat the internet as a serious extension of meatspace, and those who don’t. Everything anonymously written on the internet suddenly makes sense if it’s labeled “for entertainment purposes only.”

That’s why we need have no fear that Scott’s World Ruler and his ilk will ever actually rule the world. No matter how carefully they craft their pseudonymous online personas, those personas will not (except in rare pathological instances) help the people in the real world get elected, hired, or even laid. Should the actual people accidentally reproduce, those personas will not help them feed or protect their offspring or themselves.
Brian Tannebaum has been a regular critic of the younger generation's sense of entitlement, both in their use of social media and in the practice of law. This week, however, he had occasion to praise the efforts of one young attorney, Bret Lusskin, who's taken his professional fate into his own hands and won (at least for now) an impressive victory, successfully challenging the use of red-light cameras by a Florida municipality:
David versus Goliath.

The city will most certainly appeal, and maybe win.

But for today, Brett is the victor, and his victory may affect red light cameras across the country.

Regardless of the final outcome, I trust Brett is in a much better position today than those of you reading this from a couch, or a Starbucks, lamenting why no one thinks you're entitled to a career.
We may take the younger generation to task now and again for the manner in which they've changed — or think they've changed — things online and off in the practice of law. Rick Horowitz has written often about a much more important concern — the mistreatment of the very young by those involved in the "justice" system. This week, he discussed in considerable and compelling detail the shameful practice of his local courts in permitting the unnecessary shackling of juvenile defendants:
Shackles have no place in the courtroom, particularly in the juvenile courtroom. If we paid more than lip service to the law, I would not even need to write this post. For the law clearly states:
No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. (California Penal Code section 688.)
In this situation, it is impossible to argue — with a straight face and an honest heart, anyway — that shackles are “necessary for [the] detention” of any juvenile in the Fresno County Juvenile Court.


[T]he truth of the matter is that the Sheriff’s Department decides who gets shackled and who does not. Any defense attorney — which, right now in Fresno means me — who challenges this decision will find that although everyone knows the reason is “policy,” the court will then give the deputies at least an hour after a challenge to come up with an excuse why “the court deems shackles to be required” in any particular case. Tell me, judge, if the law says that shackling requires a particularized reason and that the court cannot abdicate responsibility for this decision to law enforcement, then why does it take an hour after a challenge to find out the reason for the shackles?

I’ll tell you why: because we’re lying when we say that the real reason for shackles has anything to do with an individualized case-by-case decision of the court.


Shackling our kids teaches them that they are criminals. Don’t be surprised that when they come to see themselves this way, they become harder to rehabilitate. We aren’t just shackling their bodies; we’re shackling their self-image.

Our kids are routinely brought in in shackles because it is the policy of the Sheriff’s Department that they be shackled. No matter how much we — the court, defense attorneys, prosecutors, probation officers — pretend otherwise, it is the Sheriff’s Department which makes the decision. And that decision is based upon policy, although the judges, prosecutors and deputies are quick to collude in the lie that it is not if and when they are challenged. (I’m sorry, judges — especially the one who “inspired” this post — but I’m calling it a lie because a lie is just what it is. And you all know it.)

Off the record and in unguarded moments, this is readily admitted. When I first started objecting, I even got statements about this on the record. The more challenges I bring, though, the more careful everyone becomes with the way they couch their explanations.

Frankly, that’s a further reason the court should be ashamed.
Where Horowitz was particularly concerned with the treatment of juveniles in his local courts, Norm Pattis commented on their treatment by the law more generally, especially the practice of many states to define many typical juvenile behaviors as sex offenses:
The Pew Research Center's Internet & American Life Project reports that 18 percent of 800 youths aged 14-17 with cellphones reported receiving "sexually suggestive" nude or semi-nude images of someone they know. I suspect the number understates the extent of sexually charged horseplay on cell phones among the nation's youth. But tell me, truly, do you really think each and everyone of these kids is a criminal, or even a sex offender?


It's hard to say where law enforcement stands on the issue. West Hartford Police Chief James Strillacci, speaking for the Connecticut Police Chiefs Association, said officers use their discretion in dealing with sexting. Officers are trying to protect children from the unforeseen consequences of their actions, he said.

But it is small comfort to leave discretion about whether to charge a crime, whether felony or misdemeanor, in the hands of a cop. What such discretion typically means is that the cop's kids and his friends get a pass. Those who are unpopular or unconnected stand a greater chance of falling on the wrong side of police discretion.

I don't want to look a gift horse in the mouth, but why stop at lessening the penalties associated with sexting between consenting minors. Why not decriminalize it altoghter. It shouldn't be a crime to be be curious.

Odds n Ends Shop

Lyle Denniston explained that a recent ruling by the Washington Supreme Court has raised the stakes (or at least heightened anticipation) for the U.S. Supreme Court's current-term consideration of the McDonald v. Chicago Second Amendment matter:
Washington’s state supreme court, deciding an issue that the U.S. Supreme Court will soon face, ruled on Thursday that state and local governments must obey the federal Constitution’s Second Amendment — protecting an individual right to have a gun. “This right,” the state Court ruled over two Justices’ protest, ”is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice.”


While the majority said it was not settling on a specific standard for judging the constitutionality of a particular state or local gun control law, it did refuse at this point to embrace the toughest test — that is. finding any such law invalid unless it could satisfy “strict scrutiny.” It adopted a mixed level looking partly to history and tradition as it upheld a state law limiting gun rights of children under age eighteen. The level-of-scrutiny question is one that the Supreme Court may or may not decide when it rules this Term on McDonald v. Chicago (08-1521).

The question of whether the Second Amendment is a restriction on state and local gun control laws is directly at issue in the McDonald case, now set for oral argument before the Supreme Court on March 2. At this point, it is not clear whether the Court, even if it extends the Amendment’s reach, will establish a test for judging when a state or local law violates the personal right to a gun.
Whether Justice Antonin Scalia will participate in that decision was a matter of speculation by a couple of bloggers this week, who considered Scalia's prior comments concerning the applicability of the Second Amendment to the states. Writing at The Wall Street Journal's law blog, Amir Efrati wondered whether Scalia would "flip-flop" on a previous opinion he described in print:
In his 1997 book, “A Matter of Interpretation,” Scalia wrote that he viewed “the Second Amendment as a guarantee that the federal government would not interfere with the right of the people to keep and bear arms.”

Yet, he added, “properly understood, it is no limitation upon arms control by the states.”

Now a claim to the contrary—that the Second Amendment does limit arms control by the states—is being decided.

Does Scalia still believe what he wrote? Through a court spokeswoman, Scalia declined to comment to WSJ.
Damon Root felt that Efrati's framing of Scalia's choice was "imprecise":
[W]hat actually matters is Scalia’s view of incorporation under the 14th Amendment. That’s where things get interesting. As the legal scholars Ilya Shapiro and Josh Blackman note... Scalia has yet to vote in favor of incorporating a right against the states via the 14th Amendment’s Due Process Clause. In fact, he’s been a sharp and persistent critic of the Court’s incorporation jurisprudence (so have many other conservative legal theorists and activists).

But does that mean Scalia will have to “flip-flop” in order to apply the Second Amendment to the states? Not if he follows the text and history of the Privileges or Immunities Clause. Although it was notoriously gutted by the Court in the 1873 Slaughterhouse Cases, the Privileges or Immunities Clause was specifically designed to protect individual rights from abusive state and local governments—including the right of armed self-defense.
Justice Scalia's informal views on prospective legal topics enjoyed some widespread discussion recently when Eric Turkewitz published Scalia's response to his brother, a screenwriter, concerning the legality of a hypothetical secession scenario; this week, Turkewitz returned from vacation to see the furor his post has caused and noted that other justices had also responded, although not to the substance of the question. In a follow-on post, Turkewitz highlighted one aspect of Scalia's response — that judicial resolution of the issue was unlikely because "it [is] difficult to envision who the parties to this lawsuit might be" — and suggested a possibility:
Well, let me take a crack at envisioning it: The United States is not party to the action for secession. Rather it is State v. State. Because if one state quits the union the others are saddled with the quitter's share of the national debt. The other states, being unhappy about Maine (or Texas, Vermont, South Carolina, etc.) shirking its obligations, sue the departing state for its share.

And they bring that suit in the Supreme Court since the court has original jurisdiction to hear matters "between two or more states." There isn't any need for years worth of lower court legal wrangling, which is a nice bonus when writing a comedy for the big screen.

In fact, it's this "It's the money, stupid" plot line that my brother was using when he wrote to the justices, presaging the conservative Tea Party movement by three years. The set-up in the story, in a nutshell, has three University of Maine stoners in a midnight stupor in desperate need of a political science paper for the next day. They write up a manifesto on the vast sums of money that Mainers owe due to the rapidly escalating irresponsibility in Washington, and then urge Maine to join Canada. Manifesto, of course, is the charitable word for rant. The rant hits the college rag. The local paper picks it up on a slow news day, it strikes a chord with many and people press their state government to address the issue, which ultimately goes to a state-wide referendum as the political farce takes off.


But wait!, I hear you say regarding the legalities. If a state has left the union then the suit is no longer "between two or more states." An exiting state would most assuredly claim that the high court doesn't have jurisdiction to hear the matter. Lack of jurisdiction is a common defense in suits, and a court must do an analysis to determine its merit when raised.

And therein lies the issue of how secession can land before the Supremes; the court must resolve a jurisdictional issue. In order for the court to resolve the merits of the money suit they must first decide whether or not the exiting state has legally left. If the state has legally left, the court can't hear the case because it is not between "two or more states."
It makes sense to me, but then the silver-tongued Turkewitz could probably sell ice to eskimos or carry coals to Newcastle. He's probably waiting right now for Justice Scalia's response, which should arrive any moment, tied to a brick thrown through Turk's window.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Zazzle.com, TheWho.com, and Paris Odds n Ends Thrift Store.


Eric Turkewitz said...

You know, there have been a bazillion posts, tweets and comments on Scalia's "There is no right to secede" point, but you are the only one to follow up with the jurisdictional question.

I'm surprised the law profs haven't been all over Scalia regarding his inability to see how the matter could reach SCOTUS. I've been waiting for someone to shoot me down on it, because it seems too easy.

Great job, as always.

Unknown said...

Thanks. I'm looking forward to seeing your brother's work on the big screen. Considering the way Hollywood works, however, this clever political farce would probably end up being made as an explosion-fest directed by Michael Bay.