Feb 7, 2013

The Steven Tyler Act: Celebrities Can Collect Damages from Photographers Who Take Pictures “in a manner that is offensive to a reasonable person.”

Steven Tyler, and many other celebrities, are pushing a privacy law law in Hawaii, inauspiciously dubbed (in violation of Ted Frank’s Law) the Steven Tyler Act, that would limit the ability of photographers to record celebrities.

The bill would open up photographers, videographers and distributors to civil lawsuits if they take, sell or disseminate photos or videos of someone during private or family moments “in a manner that is offensive to a reasonable person.”

The bill doesn’t specify whether public places, like Hawaii’s beaches, would be exempt. The bill says it would apply to people who take photos from boats or anywhere else within ocean waters.

How in the world is this Constitutional–especially if the photographs are taken in public? I couldn’t find the text of the bill, but this seems to be quite vague, and conflicts with the First Amendment.

Some serious groups have lined up against it, including the Motion Picture Association of America and the ACLU. I gather Google may be interested, as this would probably render Street View subject to massive liability.

Laurie Temple, an attorney at the American Civil Liberties Union, said the bill would punish freedoms of expression protected by the First Amendment.

She said lawmakers should support better enforcement of current stalking laws rather than passing new legislation.

The National Press Photographers Association said the bill is “well-meaning but ill-conceived” and tramples on constitutional rights.

The New York-based organization represents numerous national media organizations with its letter, including the Society of Professional Journalists, the Associated Press Media Editors and the American Society of News Editors.

The Motion Picture Association of America also opposes the bill.

But, the supporters have Britney Spears. So I guess that is like the ACLU.

More than a dozen celebrities have submitted testimony supporting the bill, including Britney Spears, Avril Lavigne, Neil Diamond, Tommy Lee and the Osborne family. The letters all included the same text.

The stars say paparazzi have made simple activities like cooking with family and sunbathing elusive luxuries and the bill would give them peace of mind.

“Providing a remedy to the often-egregious acts of the paparazzi is a very notable incentive to purchase property or vacation on the islands,” the stars said. “Not only would this help the local economy, but it would also help ensure the safety of the general public, which can be threatened by crowds of cameramen or dangerous high-speed car chases.”

It would seem punishing cameramen who go on high-speed chases would be more narrowly tailored than punishing them for taking photographs.

When I wrote Omniveillance years ago (which is nearing 10,000 downloads over five years), I looked at a lot of the anti-paparazzi laws at the time. Though I haven’t kept up to date, this seems to go far beyond anything other jurisdictions have done.

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Feb 7, 2013

“But those deaths from the sky violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did.”

I bet John Yoo had a lot of fun writing this Op-Ed, where he both faults Obama for hypocrisy on changing his position with respect for the war on terror, and at the same time faults him for giving suspected terrorists too much process.

The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government’s interests, judge an individual’s “imminent” threat of violence, and ponder whether capture is feasible before deciding to strike. Under these provisions, the U.S. military’s speed and decisiveness will suffer, even as the intelligence needed to identify drone targets dries up with the withdrawals from Iraq and now Afghanistan.

The memo even suggests that American al Qaeda leaders such as Anwar al-Awlaki (killed in a 2011 drone strike in Yemen) enjoy due-process rights. But in doing so, it dissipates the rights of the law-abiding at home.

While suggesting that al Qaeda terrorists have constitutional rights, the memo makes no room for judicial review of a strike, as would be required for any actual government deprivation of due process. All we have are scarcely believable accounts that Mr. Obama selects targets from CIA lists with the guidance of St. Thomas Aquinas’s writings on what constitutes a just war.

This approach sets a concerning precedent regarding the government’s respect for due process in future cases involving American citizens and legal residents who actually deserve the right. By including terrorists among those afforded constitutional protections, the president’s policy risks stretching those protections a mile wide and an inch deep—weakening them for all Americans.

Yoo does raise one interesting point–by killing suspected terrorists, Obama can skirt the entire detention issue.

Rather than capture terrorists—which produces the most valuable intelligence on al Qaeda—Mr. Obama has relied almost exclusively on drone attacks, and he has thereby been able to dodge difficult questions over detention. But those deaths from the sky violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did.

When Obama took office, and promised to close Guantanmo, I wondered whether this would simply increase extraordinary rendition (the process of sending suspected terrorists to secret prisons) as to avoid judicial process. Nah, just kill them from the sky.

I wonder if any future Republican Administrations will be willing to release Obama’s OLC memos, in the same fashion that Yoo’s memos were released.

On the topic of water-boarding, today Senator Burr made a water-boarding joke during John Brennan’s CIA confirmation hearing.

“I’ll be brief,” Burr said at the start of his second-round question for Brennan.

“You’re on your fourth glass of water and I don’t want to be accused of waterboarding you.”

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Feb 7, 2013

Regulating the Second Amendment Through The Treaty Power

U.C. Irvine Professor Joseph DiMento writes in the Daily Journal (a large legal news paper in California) that the President “can achieve gun control through a treaty.”

The president, through the treaty power of the U.S., can enter into an international agreement, say with Canada and Mexico, to (a) meet the objective of decreasing gun related violence in the contracting states and (b) commit to doing so through banning automatic assault weapons and high capacity magazines.

DiMento acknowledges that such a move would frustrate the separation of powers by cutting the House, and maybe even the Senate, out of the picture. Though he is not too concerned.

The approach that the president employs, if stymied under the advice and consent provision for treaty making, might be a congressional-executive agreement, such as was undertaken in other controversial international arenas including our entry into NAFTA and the WTO. Here he can act without the need of a super majority of the Senate – or of either House. Or he can even act alone through executive agreement. Entering international agreements by himself or with the Congress historically has been by far much more common than the process for treaty making using the “advice and consent” approach (involving two-thirds of the Senate).

I’m not sure if Congress would be totally cut out of the picture. This only holds true if the treaty is in fact self-executing (I’m not sure what a self-enforcing executive agreement in this context would look like). If the treaty is not self-executing, Congress (both houses) would still need to enact implementing legislation–legislation, I am sure that would have just as hard of a time passing if the President went through normal political process.

However, if the statutes are passed pursuant to the treaty power, there is an interesting wrinkle–could Congress pass a law that would otherwise violate the Second Amendment (let’s assume that the laws in question are in fact constitutional)?

I have previously blogged about whether this expanded power can be used to pass a law that would otherwise violate a constitutional right–such as the Second Amendment?  This is a key element of the recent debates between Nick Rosenkranz and Rick Pildes, and others on Voolokh about Missouri v. Holland and the upcoming case of United States v. Bond. Nick addressed this dynamic in a recent post about the interplay between Missouri v. Holland and Reid v. Covert. Eugene Kontorovich wrote about it here.

DiMento addressed Holland, and Reid v. Covert, but seems to assume that the Second Amendment could be restricted under this power. He cites to Holmes’s broad dicta, and concludes, “A power to protect endangered animals (birds were being decimated for both hunting and fashion at the time) certainly is not greater than one to protect our citizens, including our children.”

I don’t see such a treaty going anywhere, though it would make for a perfect test of how the President’s treaty power comports with Congress’s ability to pass laws that restrict constitutional rights.

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Feb 7, 2013

The Top 10 Excuses For Why The U.S. Courts Will Not Open PACER

At the Freedom to Tinker Blog, Steven Schultze (who has posted a draft bill to make court records freely available), lists the top ten excuses the courts offer to justify the confiscatory fees charged on PACER. Here are some excerpts:

Excuse #1: “PACER is cheap”
Whether or not PACER is subjectively inexpensive is immaterial. The law says that the fees can only reimburse for the expense of the service, and the courts are charging more than that. End of story.

Excuse #2: “Fee waivers are available”
So, if you are willing to give the courts your credit card, file a formal application to all of the courts for which you seek access, if the courts like the “purpose” that you state, and if they don’t arbitrarily decide to revoke your waiver, you can download (but not share) documents. What happens when a watchdog organization applies for and receives a fee waiver? Evidently they receive it, only to have it revoked shortly thereafter. Likewise, if you’re an academic, don’t criticize the court that gave you the waiver, because they may not renew it next time

Excuse #3: “You won’t be charged for fees under $15 per quarter”

Excuse #4: “Congress said that we’re allowed to spend PACER funds on other things”
This is false. It’s shameful that the US Courts are mis-representing the law. They should know better. Their excuse here is that the appropriators have indicated in a series of committee reports and letters that they have no problem with the courts expanding PACER fee use to other areas. The appropriators have a vested interest, which is of course to appropriate less. That being said, they have not made any changes to the law

Excuse #5: “We are making opinions available for free via the GPO”
The metadata isn’t as complete as what’s on PACER, and it’s hard to monitor for updates. More fundamentally, the archive omits everything other than final opinions (and it relies on judges to appropriately flag what is an opinion and what is not, which they have had trouble doing in the past). It is useless for following ongoing cases or for many types of research, but it’s better than nothing.

Excuse #6: “You can always go to the courthouse”
This is a good one. The Administrative Office will tell you that you can go to your local courthouse to access PACER records for free. Well, maybe not “local”, but you can go to the district, bankruptcy, or circuit courthouse and access PACER. Of course, you can only access records for that particular court. You can’t access other PACER records. You also can’t download the records. You can only view them. If you want to print them, that will be 10 cents per page. That’s not lega

Excuse #7: “The heaviest users are rich”

Excuse #8: “There is a high cost to providing electronic public access”
Here is how the PACER system architecture works: every court runs its own local PACER server, with local support staff and a private leased network link to Washington, DC. Are you a system administrator? Are you an average citizen who has heard the word “cloud” in the past five years? Does this system architecture seem insane? It is. It is even more offensive in light of the fact that the GSA has had, for years, a streamlined government procurement system for cloud hosting. This system is certified at FISMA level 2 security, and is hosted in a “private cloud” for the government, which is good enough for the Department of Homeland Security. It is provided by companies like Amazon, at only a fraction higher cost than their commercial offerings. The courts could host all of the PACER services in the cloud–tomorrow–for under a $1 million per year. They could allow all of these local system administrators to control their own PACER installations. They could obtain greater cost savings (and security) by further consolidating PACER hosting and system administration. Of course, they feel no pressure to do so when they interpret the law to allow them to charge whatever they deem necessary.

Excuse #9: “The Judiciary does not charge for access to judicial opinions”
At some point, PACER added the option for judges to specify that a particular document was an “opinion.” When users download these documents, they are not charged. But what is an opinion? There have been years of hand-wringing over this question. Courts have been wildly inconsistent in their rate of accurately flagging opinions. The Administrative Office commissioned an expensive study. This is all ridiculous, because the law makes no distinction between fees for opinions versus other records. What’s more, in order to find the opinions in the first place, the average user has to search for them (and pay) and view the docket (and pay).

Excuse #10: “PACER users are happy”

I have written at some length how PACER not only thwarts access to Court documents, but inhibits the study of law as data. I am very eager to see where this proposal goes.

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Feb 7, 2013

An Eye-Popping Mistrial!

columbo2This is only slightly disturbing:

A court hearing in Philadelphia took an unforeseen turn when a witness, testifying about the consequences of losing his left eye in an alleged assault, began crying and his prosthetic eyeball popped out of its socket and into his hand, unsettling the jury and resulting in a mistrial, according to attorneys involved.

“He was crying, and when it came out, he caught in his hand and just held it there,” said defense attorney Eileen J. Hurley, “It was a shocking event to witness.”

“Two jurors visibly gasped and jumped up like they were getting out of their seats,” Hurley said.

“The judge had to call recess and let everyone take a breath,” Gilson added.

Hurley said after the recess, she felt the trial couldn’t go on because the event could generate extra sympathy for Huttick, prejudicing the jury against Brunelli.

“A bell like that can’t be unrung,” Hurley said.

Judge Robert P. Coleman granted Hurley’s request for a mistrial.

I wonder if this ever happened to Colombo, as portrayed by Peter Falk.

Falk’s right eye was surgically removed when he was three because of a retinoblastoma; he wore a glass eye for most of his life. Despite this, Falk participated in team sports, mainly baseball and basketball, as a boy. In a 1997 interview in Cigar Aficionadomagazine with Arthur Marx, Falk said, “I remember once in high school the umpire called me out at third base when I was sure I was safe. I got so mad I took out my glass eye, handed it to him and said, ‘Try this.’ I got such a laugh you wouldn’t believe.”

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Feb 7, 2013

May The LegalForce Be With You

Accessing legal services is often a difficult, expensive, and time-consuming endeavor for most people. Raj Abhyanker is looking to change that.

LegalForce BookFlip is a brick-and-mortar legal services store in the the heart of downtown Palo Alto. In addition to selling legal self-help books and other tech products, like tablets, LegalForce allows people to schedule to consult attorneys. It is very similar to scheduling an appointment with a Genius at an Apple Store. A 15-minute consultation is a flat-fee of $45, and you can meet in person, on the phone, or over Skype. LegalForce conducts a conflicts check before consulting with before providing services.

The store is centrally located in the heart of Silicon Valley. I can envision Stanford students and graduates, and other Techies, who need legal advice on patents, trademarks, or start-up issues, who cannot afford a retainer at a big firm, trying this service.

This provides an easy way to get simple questions answered. If the questions are more complicated, I’m sure Raj’s firm will be ideally suited to continue the representation. Unlike LegalZoom or RocketLawyer, which are impersonal, and cannot provide actual legal services, Raj’s shop offers people direct access to licensed attorneys.

I could not attend the big grand opening last night (coverage in TechCruncheLawyeringBlog, and MyShingle) though Raj gave me a tour of the store a few months ago before it opened, and it was very impressive endeavor.

I look forward to seeing how this business model develops.

Update: Here is a video of Raj’s talk.

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Feb 7, 2013

A “New Front” For Corporate Personhood: The Free Exercise Clause

A very interesting post from Tamara Piety about her new book Brandishing the First Amendment about the implications of the Hobby Lobby case and other RFRA challenges that have allowed corporations to bring free exercise claims.

The Hobby Lobby case is actually one of many cases brought on behalf of many companies and individuals seeking to undermine the Health Care Act on religious grounds. The ones brought on behalf of corporations open up a new front – the free exercise clause – on what I have described in my book Brandishing the First Amendment, as an agressive use of the First Amendment to repel legislation aimed at regulating business. However, with this new free exercise claim, proponents may have  have exceeded the bounds of what the public thinks is reasonable when it comes to anthropomorphizing the corporate “person.”

Whatever one thinks about the sincerity of the objections raised in these law suits, one thing that is notable is that they seek to elevate the free exercise claim of the corporate entity over constitutional and statutory rights of employees, many, if not most of whom may not share their employers’ interpretation of what their faith requires of them.

My previous thoughts on this topic are here, here, and here.

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Feb 7, 2013

Fiddling While San Francisco and New York Burn

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Feb 7, 2013

Prop2 Class 8 – Recording Systems

The lecture notes are here. The live chat is here.

Here is a photo of a tract index–the books are huge.


This is what a grantee index would look like (not that the grantee is in the left-most column).

Grantee index - part 1

Here is what a tract index would look like.

Grantee index - part 2

Texas is a notice jurisdiction (see 12.003).

Sec. 12.003.  INSTRUMENT IN GENERAL LAND OFFICE OR ARCHIVES. (a) If written evidence of title to land has been filed according to law in the General Land Office or is in the public archives, a copy of the written evidence may be recorded if:

(1)  the original was properly executed under the law in effect at the time of execution; and

(2)  the copy is certified by the officer having custody of the original and attested with the seal of the General Land Office.

(b)  A court may not admit a title to land that was filed in the General Land Office as evidence of superior title against a location or survey of the same land that was made under a valid land warrant or certificate prior to the filing of the title in the General Land Office unless prior to the location or survey:

(1)  the older title had been recorded with the county clerk of the county in which the land is located; or

(2)  the person who had the location or survey made had actual notice of the older title.

Remember the Old Mother Hubbard Nursery Rhyme?

Old Mother Hubbard
Went to the cupboard,
To give the poor dog a bone;
When she came there,
The cupboard was bare,
And so the poor dog had none.



This is the Grantor index in Luthi v. Evans.



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Feb 7, 2013

Prop1 Class 8 – Acquisition by Gift

The class notes are here. The live chat is here.

If you don’t know why I am posting pictures of Britney Spears and Kim Kardashian, you didn’t read the notes closely enough 🙂


kris humphries watch 171111

The is Joseph F. Van Pelt, the intestate in Newman v. Bost.


Here is the Van Pelt house.


Here is his grave. His obituary is here.


This is the Klimt painting at issue in Gruen v. Gruen.


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