Feb 8, 2013

The Constitutionality of the “Steven Tyler Invasion of Privacy Act: Constructive Invasion of Privacy” and an Alternative

Yesterday I blogged about a pending bill in Hawaii, championed by Steven Tyler and other celebrities, that would limit the ability of people to photograph celebrities.

Here is the bill, which was introduced on January 18, 2013. There are some serious constitutional problems here, not the least of which is that it has no exception for newsworthy materials, and allows courts to restrain the publications of photographs that have already been published. I seriously hope cooler heads prevail here.

Here is the crux of the bill.

“1663- Constructive invasion of privacy; civil cause of action.

(a) This section shall be known and may be cited as the “Steven Tvler Act”.

(b) A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.

I have written in the past about privacy to public, and am generally sympathetic to laws that give private citizens a cause of action against invasions of privacy. However, I think this statute goes to far in several important respects.

First, it offers no exceptions for newsworthy content. It simply assumes that if a person is “engaging in a personal or familial activity with a reasonable expectation of privacy,” any photograph would be illegal. I can imagine the President, or other dignitary  vacationing in Hawaii, would indeed be quite newsworthy. Newspapers covering matters of public affairs (that may be personal or familial) could be snared by this staute.


Second, the statute is quite vague. It offers no guidance of what “personal or familiar activity” means. Would a photograph of the President walking with the First Lady in Hawaii be subject to this statute? If so, most of the White House photo team would be breaking the law with each click of the shutter, as there is no newsworthiness exception. (I’m not sure what the President’s “Reasonable expectation of privacy” would even be).

Third, the statute gives courts the authority to not only stop the initial publication of such a photograph, but allows for issuing restraining orders for future, subsequent reproductions of the same photograph.

In any action pursuant to this section, the court additionally may grant equitable relief, including but not limited to an injunction and restraining order against further violation of this section.

Even after the photograph is released, and is in the public domain, courts would still have power to limit future publications. This is prior restraint, with nary a compelling government interest at stake (sorry Steven Tyler, if the publication of the Pentagon Papers does not warrant prior restraint, then photographs of you on the beach certainly don’t).

Fourth, the penalties are severe, and included compensatory damages, treble punitive damages, and disgorgement of profits!

(d) A person who commits constructive invasion of privacy shall be liable for the following damages proximately caused by a violation of this section: –

( 1 ) General damages ; –

(2) Special damages; and –

(3) Punitive damages up to three times the amount of general and special damages combined.

(e) If the constructive invasion of privacy is committed for a commercial purpose, the person shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this

Such penalties on a vague statute would chill speech. I can’t imagine any photographer would risk violating this statute.

Fifth, this standard applies not only to the person who takes the photograph, but also to everyone who uses the photographs in any capacity, and who  knows this statute was violated.

(g) Any person who transmits, publishes, broadcasts, sells, offers for sale, uses any visual image, sound recording or other physical impression, or who subsequently retransmits, reDublishes, rebroadcasts, resells, reoffers to sell, or reuses any visual image, sound recording, or other physical impression in any form, medium, format, or work of the same visual image, sound recording, or other physical impression that was taken or captured in violation of this section shall constitute a violation of this section if:

(1)  The Person had actual knowledge that the visual image. sound recording, or other physical impression was taken or captured in violation of this section; and

(2)  The person received compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression,

This, I think runs into serious constitutional problems. Anyone who publishes these photographs, knowing that they were taken in violation of this law, can be held liable just the same as the person who took the photograph. Now the statute requires “actual knowledge”–but in truth, this would not be hard to satisfied. Any photograph of a celebrity taken in Hawaii that is in some sort of private state would be good evidence of a violation of this statute, subject only to the “offensive” standard. Any blogger who posts photos from a paparazzo will likely know that this statute was probably violated. Even if a given photograph would plausibly not violate the statute, treble punitive damages on top of disgorgement would serve as a serious deterrent to publishing these photographs.

This is not a hard standard to satisfy here.

In my 2009 article, Omniveillance, I introduced a privacy tort that would provide for a right of privacy in public against unwanted photography. It addresses many of the concerns Hawaii seeks to address, while respect the First Amendment.

The right to your digital identity is violated when an individual or organization records and reproduces an image of another without consent using a visual or auditory enhancing device while (1) the party recorded possessed a reasonable expectation of privacy to not be recorded; (2) the matter recorded would be offensive to a reasonable person; (3) the recording is intentionally widely transferred or disseminated through any electronic medium to any electronic format; and (4) the recording is not newsworthy, where a newsworthy recording (4a) has social value, (4b) minimally intrudes into ostensibly private affairs, and (4c) the party that is recorded voluntarily acceded to the position of public notoriety.

Both the Tyler Bill, and my tort provide for constructive invasions of privacy in public based on a reasonable expectation of privacy (the traditional Restatement standard requires that the recording must be “highly offensive”) and the person possesses a reasonable expectation of privacy (both provide for familial or private affairs).

My proposed tort, however includes a strong exception for newsworthy material, which considers the social value of the recording, whether private affairs are at issue. The Hawaii statute also does not consider the extent to which the recording is disseminated–so a camera phone pic will be treated the same as a paparazzo photo blasted on the cover of the National Enquirer, or the homepage of TMZ.

I am curious to see where this law goes.

In the findings, the bill actually explains why it is being named after Steven Tyler–he bought a house in Maui. Is that all it takes?!

However, a few celebrities are not discouraged from visiting or residing in our beautiful State. For example, Steven Tyler, the lead singer of Aerosmith for over forty years, former “American Idol” judge, and world-renowned celebrity has recently purchased a home on Maui. He will now be sharing his time between Boston, Los Angeles, and his new home on Maui. In honor of Steven Tyler’s contribution to the arts in Hawai’i and throughout the world, this Act shall be known as the Steven Tyler Act

Indeed, in perhaps a first for public choice brazenness, Steven Tyler admitted that his manager wrote the bill and asked a Senator to introduce it! Can you say capture?

Tyler says he had his manager draft the bill and requested that Sen. Kalani English introduce it on his behalf.

I may write something to the Hawaii Senate offering a contrary opinion to this bill, which is blatantly unconstitutional on many grounds.

H/T ThePrez98

Update: Malia Zimmerman, a journalist in Hawaii, wrote this report, and shared a link to testimony provided in support of this bill. What, with letters from the likes of B-listers like Tommy Lee, Kat von D, Mick Fleetwood, Margaret Cho, the entire Osbourne family (Jack, Kelly, Ozzy, and Sharon!), and a few A-listers like Britney Spears, Neil Diamond, and Avril Lavgine, who can oppose this law! There is one memo from the Motion Picture Association fo America opposing this law.

Here is a video of the testimony:

Malia tells me that this bill has legs, will likely clear committee next week, and will go straight through the House to the Governor.

It seems Hawaii has no problem enacting an unconstitutional piece of legislation.

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Feb 8, 2013

How Aaron Swartz Hacked Pacer

Ars Technica has a detailed breakdown of how Swartz was able to remotely access PACER’s servers. I did not know precisely how he did it.

In early September, Swartz e-mailed Malamud to discuss an alternative approach: instead of sending volunteers to libraries, they could crawl PACER directly from Malamud’s server. Malamud was skeptical. “The thumb drive corps is based on going to the library and using their access,” he noted. “Do you have some kind of magic account or something?”

Swartz asked a friend to go to a Sacramento library that was participating in the program. After the librarian logged the friend into the library’s PACER account, the friend extracted an authentication cookie set by the PACER site. Because this cookie wasn’t tied to any specific IP address, it allowed access to the library’s PACER account from anywhere on the Internet. But Swartz admitted to Malamud that he didn’t have the library’s permission to use this cookie for off-site scraping.

“This is not how we do things,” Malamud scolded in a September 4 e-mail. “We don’t cut corners, we belly up to the bar and get permission.”

“Fair enough,” Swartz replied. “Stephen is building a team to go to the library.”

But without telling Malamud or Schultze, Swartz pushed forward with his offsite scraping plan. Rather than using Malamud’s server, he began crawling PACER from Amazon cloud servers.

“I thought at the time he was actually in the libraries” downloading the documents that were accumulating on his server, Malamud told Ars in a phone interview. In reality, Swartz merely had to dispatch a volunteer to the library once a week to get a fresh authentication cookie. Swartz could do the rest of the work from the comfort of his apartment.

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Feb 8, 2013

All Dogs Go To That Big Cloud In The Sky

No, I’m not talking about All Dogs Go To Heaven. I’m talking about the virtual cloud in the sky.

In the UK, by 2016, all dogs will be required to be microchipped!

Dog owners who refuse to fit Fido with a microchip may someday find themselves fetching a hefty fine, the British government said Wednesday.

All dogs in England will have to be fitted with microchips by 2016, authorities said, meaning that canines across the country will be chasing cars with a tiny circuit embedded in the back of their necks.

Britain’s Environment Department said that the chips would help reunite owners with lost or stolen pets, promote animal welfare and take the pressure off animal shelters.

Big Rover is Barking. Or something like that.


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Feb 8, 2013

ExpressO is now Free For Editors

ExpressO must be feeling the heat from more journals joining Scholastica.

I received this email from Expresso:

 We have a new vision for ExpressO to address these concerns. Our goal is to make the dance between authors and editors more efficient and speedier so that articles get the attention that they deserve.

With this vision in mind, we streamlined the submission process and developed new author and editor submission management tools that work together to simplify communications while keeping information up-to-date. We also made our service free to use for editors, who represent over 750 law reviews that take submissions through ExpressO.

So far the responses from law reviews are extremely positive. We hope you will also love the new ExpressO experience. We welcome all feedback, so please let us know what you think.

Competition is a good thing!

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Feb 8, 2013

Third Circuit Split Over Whether Corporations Can Bring Suit Under RFRA

We now have a border-line split between the 3rd and the 7th with respect to whether corporations can bring suit under RFRA. To SCOTUS we go.

Judge Rendell’s “majority” opinion would choose not to reach these issues at this stage. The concurring opinion by Judge Garth in Conestoga Wood v. Sect’y Dept. HHS adopts the position of Judge Rovner’s dissent in the Grote case, and the reasoning of the Hobby Lobby case. Notably, the majority fails to even engage with the majority opinion in Grote.

I write separately in order to highlight what I have found to be particularly persuasive reasoning advanced both by District Court Judge Goldberg’s thorough and comprehensive opinion in this case 2 and by our sister Circuits, most notably the Tenth Circuit in Hobby Lobby Stores, Inc. v. Sebelius, 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012). 3 I have also found the opinion of Judge Judge Ilana Rovner of the Seventh Circuit, writing in dissent in Grote v. Sebelius, 13-1077, 2013 WL 362725 at *4- 15 (7th Cir. Jan. 30, 2013), to dispositively answer all of the arguments of Conestoga and Judge Jordan. I conclude, as Judge Rovner’s opinion does, that Conestoga’s complaint is flawed and without the likelihood of success necessary to warrant an injunction.

Garth is very clear that corporations cannot be protected here. Notably, he offers not citations to Citizens United.

As the District Court properly recognized, this argument fails to account for the fact that for-profit corporate entities, unlike religious non-profit organizations, do not— and cannot—legally claim a right to exercise or establish a “corporate” religion under the First Amendment or the RFRA. As the District Court noted, “[g]eneral business corporations … do not pray, worship, observe sacraments or take other religiouslymotivated actions separate and apart from the intention and direction of their individual actors.” Contestoga 2013 WL 140110 at *7 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291 (W.D. Okla. 2012)). Unlike religious non-profit corporations or organizations, the religious liberty relevant in the context of for-profit corporations is the liberty of its individuals, not of a profit-seeking corporate entity. 4

To keep it timely, he cited in a footnote President Obama’s revised contraception mandate policy.

I also note in this connection that President Obama has recently proposed permitting a broad range of religious nonprofit organizations who object to providing contraception coverage to decline to do so. Coverage of Certain Preventive Services Under the Affordable Care Act, http://www.ofr.gov/OFRUpload/OFRData/2013-02420_PI.pdf (proposed Jan. 30, 2013).

Garth concludes that the only purpose of these corporations is to make money, not to advance any religious ideals, like a church would.

Conestoga further claims that it should be construed as holding the religious beliefs of its owners. This claim is belied by the fact that, as the District Court correctly noted, “‘[i]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs’ . . . . It would be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.” Contestoga, 2013 WL 140110 at *8 (quoting Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001)). As Judge Rovner put it in Grote, “the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere. In short, the only religious freedoms at issue in this appeal are those of the Grotes, not the companies they own.” Grote, 13-1077, 2013 WL 362725 at *5. Similarly, the purpose—and only purpose—of the plaintiff Conestoga is to make money! Despite Judge Jordan’s objection to this statement (see Diss. Op. at n. 8), the record clearly reveals that Conestoga Wood Specialties Corporation is no more than a for-profit corporation designed for commercial success and is without membership in any church, synagogue, or mosque and without religious convictions. 

Judge Jordan in dissent disagreed with Judge Garth and said corporations could bring these suits.

And corporations have been held to have free speech rights, see generally Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), including the right to frame their own message where abortion is concerned. See Greater Balt. Ctr for Pregnancy Concerns, Inc. v. Mayor of Balt., 683 F.3d 539, 554 (4th Cir. 2012) (holding that the plaintiff “pregnancy centers are not engaged in commercial speech and that their speech cannot be denied the full protection of strict scrutiny”). Ironically (given the character of the constitutional and statutory claims being made here), many an abortion rights case has been brought by corporations like Planned Parenthood and has resulted in the granting of preliminary injunctive relief. See Planned Parenthood of Ind., Inc. v. Comm’r of Ind. Dept. of Health, 699 F.3d 962, 968 (7th Cir. 2012) (affirming grant of preliminary injunction to prevent enforcement of a state statute prohibiting a medical provider (a corporation) that also performed abortions from receiving any state-administered funding, because the state law required the provider to choose between providing abortion services and receiving public money for other services besides abortions); Planned Parenthood of S.E. Pa. v. Casey, 686 F. Supp. 1089, 1137-38 (E.D. Pa. 1988) (granting preliminary injunction to several corporations, both for-profit and not-for-profit, and an individual to enjoin state law requiring, inter alia, unduly burdensome record keeping and reporting requirements that were determined to be likely to result in an unconstitutional impediment to a woman’s right to have an abortion). There is thus ample precedent indicating that the corporate form itself does not prevent a corporation from asserting constitutional rights, including First Amendment rights.

Jordan’s point about Planned Parenthood is similar to Justice Alito’s point about the New York Times bringing First Amendment suits–we never thought about the simple fact that corporations can sue to vindicate constitutional rights. However Planned Parenthood, unlike the New York Times, cannot avail itself of the Press Clause (like the plaintiff this term in  Agency for International Development v. Alliance for Open Society International, Inc., a corporation suing to fight for First Amendment rights).

Judge Jordan responds to Judge Garth’s point about the fact that these religious-corporations do make a profit.

Judge Garth asserts that “the purpose – and only purpose – of the plaintiff Conestoga is to make money!” (Concurrence at 4.) That assumes the answer to the question the Hahns have posed. As a factual matter, it is unrebutted that Conestoga does not exist solely to make money. This is a closely held corporation which is operated to accomplish the specific vision of its deeply religious owners, and, while making money is part of that, it has been effectively conceded that they have a great deal more than profit on their minds. To say that religiously inclined people will have to forego their rights of conscience and focus solely on profit, if they choose to adopt a corporate form to conduct their business, is a controversial position and certainly not one already established in law.

I think this will continue to be an issue of growing importance as federal mandates creep further and further into areas once reserved for individual choices.

All of my posts on this topic are collected here. By the time I collect 5 or more posts, I usually have enough for the basis of an article.

I think I’ll write a short piece, maybe titled “Corporate Prayer: Religious Freedom for Corporations under RFRA” or “Religious Freedom for Corporations.”

H/T How Appealing

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Feb 8, 2013

Video: Michael Krauss on Atticus Finch and Legal Ethics

I was honored to welcome my former Professor and friend Michael Krauss to speak at the South Texas Federalist Society Chapter on Atticus Finch and Legal Ethics. It was a treat for everyone in attendance.

Here was the advertisement for the event.


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