Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

 At Volokh Conspiracy, Eugene Volokh flags a brief article that he coauthored with Adam Candeub that was recently published in the Journal of Free Speech Law. Here's the abstract:

[Communications Decency Act] Section 230(c)(2) immunizes platforms' decisions to block material that they "consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." The ejusdem generis interpretive canon suggests that "otherwise objectionable" should be read "to embrace only objects similar in nature to those objects enumerated by the preceding specific words."

In this instance, the similarity is that all those words refer to material that was traditionally viewed as regulable in electronic communications media—and was indeed regulated by the Communications Decency Act of 1996, as part of which § 230 was enacted. And restrictions on speech on "the basis of its political or religious content" were not viewed as generally permissible, even in electronic communications.

Candeub and Volokh argue that "otherwise objectionable" material should not be interpreted as a catch all category, but should instead be construed in light of the other terms in Section 230(c)(2)'s list of materials. As a result, they urge that Section 230(c)(2) be read as immunizing Internet companies and websites from restricting "obscene, lewd, lascivious, filthy, excessively violent, or harassing communications," and that the statute not be read to immunize these actors from the removal of content that is objectionable based on its political content.

I think there are several problems with this argument. With the caveats that these are my initial impressions and that it's been a while since I've done intensive research into Section 230, these concerns are listed below. I've tried to list my objections in order of most technical and specific first, followed by broader points.

First, I think the ejusdem generis interpretive canon has less power in the particular context here because Section 230(c)(2) immunizes platforms' decisions to block "otherwise objectionable" content rather than "other objectionable" content. The latter wording would be a clear example of specific terms followed by a general term, and would be in line with most examples in Candeub's and Volokh's article which involve statutes listing examples, followed by "other" things. But the way the statute is actually worded includes the term, "otherwise," which suggests material that is objectionable in ways that are distinct from the preceding examples. Candeub and Volokh do not address this, and their esjudem generis argument therefore seems stronger than the language of the statute warrants, as it implicitly reads the statute as prohibiting "other objectionable" content rather than "otherwise objectionable" content.

Second, this reading takes an overly narrow view of the purpose of the provision it analyzes and the Stratton Oakmont, Inc. v. Prodigy Services Co. case that played a significant role in prompting the inclusion of the provision. In Stratton Oakmont, the plaintiff sued a website message board for defamation based on several allegedly defamatory posts from message board users. The plaintiff alleged that the message board was liable because it exercised editorial control over the message board, noting that the site set forth detailed content guidelines that discourage the posting of "insulting" notes, as well as notes that "harass other members or are deemed to be in bad taste or grossly repugnant to community standards, or are deemed harmful to maintaining a harmonious online community" stating that such content would be removed when brought to the site's attention. The court cited this choice to engage in this editorial control as opening up the site to greater liability than other sites that did not take such measures. 

Congress was aware of this case when it passed Section 230, which Candeub and Volokh recognize. But they only focus on remarks from legislators who cite the blocking of material that is not "family-friendly," which (sort of) lines up with their restrictive reading of the statute. But this narrow focus ignores the extent of editorial restrictions at play in Stratton Oakmont, which included guidelines for the removal of "insulting," [non]-harmonious," and "bad taste" comments. It also suggests a narrow view of "family friendly," content, which may well exclude truthful, politically significant content such as images and discussions of war or terrorism, litigation and legislation over sexual privacy and abortion, and other such political content. Stratton Oakmont illustrated the danger of any sort of editorial policy giving rise to heightened liability, and Section 230(c)(2) was the response. Candeub and Volokh's narrow reading is inconsistent with this broad concern that prompted the immunity provision.

Third, a reading of the statute that removes immunity concerning the removal of political content while immunizing the removal of other content would run into significant First Amendment problems. Those who run websites or forums may have their own political preferences, and may moderate content based on these preferences. Limiting this ability would infringe on those providers' First Amendment rights--an aspect of online content moderation that is often ignored by Section 230 critics (and misinterpreters) who prefer to focus only on the purported rights of users.

To Candeub's and Volokh's credit, they recognize that the First Amendment may be relevant, but set it aside for the purpose of their article. Because of this, though, the article's analysis is in a misleading vacuum.  What is the point of this discussion about ejusdem generis if the First Amendment will ultimately require a different reading? Indeed, the First Amendment may well be relevant to discussions of interpretive canons: to the extent that the narrow reading of "otherwise objectionable" content leads to First Amendment problems, the canon of constitutional avoidance would weigh in favor of an expansive interpretation that avoids this issue.

These are my initial concerns with the conclusions in the article, but I'll be interested in seeing what others have to say--particularly those who are more involved in Section 230 research and litigation than me.

READ MORE - Candeub and Volokh on Section 230 and Removing "Otherwise Objectionable" Content From Websites

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Pennsylvania State Legislator Contemplates Statewide Law Against "Distracted Walking"

A recent editorial from TN Online reports:

State Rep. Karen Boback, a Republican whose district includes parts of Luzerne and Lackawanna counties, says she is going to introduce legislation that provides penalties for walkers who are inattentive while crossing a street or highway.

In a memo to legislative colleagues seeking co-sponsors for her bill, Boback said that distracting walking is a “very real and serious issue.”

Boback is most concerned with pedestrians who are inattentive because they are engrossed in conversations on their cellphones or are listening to music or other programming.

“Technology has invaded our life, and, as a result, people have stopped paying attention to their surroundings,” Boback wrote.

More reporting on this is available at Patch. It isn't clear why Boback is choosing to take a stand against "distracted walking." The TN Online writer notes that fewer pedestrians were killed by drivers in 2020 than in 2019. Of those 145 deaths, there is no indication how many of them, if any, were due to pedestrians who were distracted. 

Seeking to do Boback's job of justifying her proposed policy, the article cites a Governors Highway Safety Association Report which purportedly shows that "texting while walking has taken on a key role in pedestrian death in recent years as communication devices have become more mobile, compact, and numerous." The article fails to link to the report, or provide a year for when it was written. It may be citing this 2016 report which speculates that pedestrian distractions are contributing to pedestrian deaths and injuries, although it explicitly states that it "remains unknown" how many pedestrians killed in crashes with distracted drivers were themselves distracted. The report cites instances and studies suggesting that pedestrian distractions are on the rise, but does not draw a link between such distractions and traffic deaths. Indeed, a New York study specifically investigating whether distracted walking contributed to pedestrian fatalities and injuries found "little concrete evidence" of a connection.

The Pennsylvania law appears to be in its early stages, as it does not appear that a statute has been drafted yet. Hopefully Boback will give the bill some more thought and conclude that it isn't worth it. Indeed, her basis for contemplating the bill appears to be anecdotal notions of technology "invading" people's lives. Reports on her proposal have to do the work themselves to dig up evidence supporting measures restricting texting while walking, and these reports often fail to confirm a link between instances of distracted walking and increased pedestrian deaths. As I have noted before, legislators seeking to prevent traffic deaths, and particularly pedestrian deaths, would do better to focus on infrastructure by making cities and towns safer for pedestrians. This includes increasing the number of crosswalks, ensuring adequate lighting, lowering speed limits, and reducing the width of streets, among other measures. Boback herself appears to have been involved in such infrastructure measures in the recent past, which makes it all the more surprising that she is seeking to put the onus on pedestrians--who are most at risk of death or serious injury. A statewide restriction on distracted walking is a blunt instrument that targets the wrong actors and ignores factors that lead to greater risks of pedestrian death and injury.

In addition to being misguided from a public safety perspective, laws against distracted walking criminalize ubiquitous behavior, which promotes selective enforcement. Many people check their phones while walking, including while crossing the street. As a result, police officers tasked with the enforcing the law will use their discretion to determine who to stop and ticket for these violations, meaning that the brunt of any law will likely fall more heavily on people in poorer neighborhoods and racial minorities.

A few cities and municipalities in the United States and other countries have banned various forms of walking while on the phone or while using other electronic devices. All of these measures target a phenomenon that most have likely observed or experienced, but which has little ultimate impact on pedestrian safety--at least when compared with other measures that legislatures can take to reduce traffic deaths and injuries. This story is notable because it suggests that a statewide ban may be possible. One can only hope that the bill, if it is ever written, will fail to gain the support necessary to become law.

READ MORE - Pennsylvania State Legislator Contemplates Statewide Law Against "Distracted Walking"

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Michigan Court of Appeal Issues Strong Decision Restricting Government Drone Use

I learned from Greg McNeal's Twitter thread (and related blog post) of an interesting opinion issued by the Michigan Court of Appeals last week in which the court found that the use of a drone by a township to take aerial photographs of private property violated the property owners' reasonable expectations of privacy.

The case is Long Lake Township v. Maxon. A link to the opinion is here, a link to the dissent is here.

Summary of the Case

The township filed a civil action against the property owners, arguing that their property constituted an "illegal salvage or junk yard" in violation of town ordinances. The township relied on aerial photographs of the property taken in 2010, 2016, 2017, and 2018 that purportedly showed an increase in junk stored on the property. The township had used a drone to take the photos.

The property owners moved to suppress the photos, arguing that they had been obtained through an unlawful search in violation of the Fourth Amendment. In response, the township argued that the drone operator it had hired to take the photos had done so in a manner consistent with FAA regulations--noting that they had maintained a consistent line of site with the drone and that it was lower than 400 feet at all times. (A link to the FAA regulations that the township appears to be referencing is here, an FAA summary of the rules is here).

The court recognized that Michigan has a law that restricts individuals from using drones to capture photos, video, or audio recordings of other people in a manner that would invade others' "reasonable expectation of privacy."

The court first noted that in Kyllo v. United States, the United States Supreme Court had found that the use of a thermal imaging device on a home violated the Fourth Amendment. In Kyllo, the Court concluded:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

The Michigan Court of Appeals took pains to note that Kyllo's holding was not premised on whether the technology used was widely available--noting that other language in Kyllo stated that homeowners should not be "at the mercy of advancing technology" that might be able to see through walls.

The court then considered the cases, California v. Ciraolo (no Fourth Amendment violation where police conducted aerial observation of a defendant's yard from 1,000 feet up) and Florida v. Riley (aerial observation of greenhouse from 400 feet up did not constitute a Fourth Amendment violation). The court emphasized Justice O'Connor's concurrence in Riley, where she recognized that the plurality of the Court relied on FAA regulations governing how high the helicopter could fly, and concluded that compliance with FAA regulations alone does not determine compliance with the Fourth Amendment. Instead she found that "considerable public use of airspace at 400 feet and above" meant that Riley did not have a reasonable expectation that the curtilage of his property was protected from naked-eye aerial observation from 400 feet.

The majority of the Michigan Court of Appeals concluded that the use of the drone by the township was closer to the thermal imaging device used in Kyllo than the aircraft overflights in Ciraolo and Riley. The court noted that FAA regulations were relevant in this case because they demonstrated that drones were "qualitatively different from airplanes and helicopters," as they are smaller, more maneuverable, stealthy, and fly at lower heights. 

The court did not reach the determination of whether a drone overflight was trespassory, finding it unnecessary to do so. Instead, the court found that the determination that the drone use violated reasonable expectations of privacy was enough to establish a Fourth Amendment violation. The court also refused to craft a precise altitude test, instead concluding that "persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement."

In a dissenting opinion, Judge Hood took issue with the majority's blanket distinguishing of Ciraolo and Riley. Recognizing that drones are smaller, Judge Hood noted there was no evidence that the photos captured were different than those that could be taken from a plane or helicopter at that altitude. Judge Hood further noted that the drone was flying in airspace in which the public could use drones, and emphasized that Kyllo involved technology that was not in general public use--not the case with drones which are generally available for people to use.

Analysis

Years ago, I wrote an article surveying state laws restricting law enforcement drone use. One of my main conclusions was that state-level litigation governing how law enforcement agencies could use drones and the evidence obtained from these drones, was necessary. Absent specifically-drafted legislating that put meaningful restrictions in place, the government would likely engage in broad drone use in light of Ciraolo and Riley. Such broad use could be restricted by laws, or by courts who could craft exceptions to the existing Fourth Amendment case law.

I concluded that leaving it in the hands of courts to carve out restrictions for government drone use (either through passing no laws or passing laws that simply reaffirm Fourth Amendment protections) was not the best approach, and that both privacy advocates and law enforcement advocates should support legislation. Legislation would permit evidence-based restrictions on particular types of drone use and leave law enforcement open to use drones in a manner that balanced potential privacy intrusions with the utility of new technology. These restrictions could be amended as technology develops. Courts, however, would not be in a position issue such carefully crafted restrictions, and would likely be faced with the options of broadly permitting government drone use, or stretching Fourth Amendment case law to craft restrictions that could not be amended or addressed by state legislatures.

This case is an example of the latter outcome. As far as I can tell, Michigan law does not restrict its law enforcement agencies' use of drones. Instead, the most the court cited was a law restricting private drone use--a law couched in broad language based on the Fourth Amendment concept of "reasonable expectations of privacy." As I argue in my article, laws like this provide no guidance for courts beyond what is already set forth in the case law, and are therefore have little to no practical impact. 

In the face of this dearth of meaningful restrictions, the court decided to craft a broad restriction of its own--a prohibition on all warrantless drone surveillance of private property. Law enforcement agencies in Michigan must now obtain a warrant before using a drone in this manner, or use a helicopter for such surveillance. This case is based on the Fourth Amendment, so the state legislature cannot write any laws to restrict the scope of the opinion. The only thing the government can do to try to undo this outcome is to appeal to the state supreme court.

Privacy advocates may cite this case as an example of why laws restricting government drone use are unnecessary. That would be a mistake. The dissenting opinion illustrates how courts could just as easily reach the opposite conclusion and permit government drone use. FAA regulations (which have developed since I wrote my article) now permit fairly flexible drone use--including altitude restrictions of below 400 feet--which may permit much closer imaging of private property. I suspect that other courts in similar situations may rely on Ciraolo and Riley to permit similar drone use.

In civil cases, a strong sign that you've reached a fair settlement is that both sides are unhappy with the outcome. The same is the case with drone restrictions. Privacy advocates would likely take a strong view of Fourth Amendment protections and would consider a legislative restriction approach to be a needless compromise. Law enforcement advocates would not want their ability to use new technology to be curtailed by laws or regulations. But using legislation to curtail specific restrictions on government drone use is the only way to balance the nuances of new technology with the blunt instrument of Fourth Amendment decision-making. Long Lake Township illustrates how failing to take this approach can come down against law enforcement interests, but its dissent should be just as much of a warning to those concerned with law enforcement overreach.

READ MORE - Michigan Court of Appeal Issues Strong Decision Restricting Government Drone Use

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Has President Trump Already Pardoned Roger Stone?

There are a lot of people out there who generally express reasonable opinions and seem normal, but who nevertheless are willing to entertain the odd outlandish belief. You may get through your workday without incident while believing that the world is flat, that we are living in a computer simulation, or that the spelling of "The Berenstain Bears" is evidence of a parallel universe. Indeed, you may believe all of these things and still get along just fine with your friends and coworkers.

I'm not here to judge you. Instead, desperate for distraction from quarantine and curfews, I've cooked up my own wild theory--a theory that I may have fooled myself into believing is true. Maybe I'm right. Or maybe I've just been stuck inside for too long.

News outlets have reported for some time, with renewed interest today, that President Trump may be about to pardon Roger Stone, who was sentenced to three years in prison back in February after being convicted of lying to authorities, obstructing a congressional investigation, and witness intimidation. My wild theory is that Stone has already been pardoned as a result of Trump's tweets.

From Politico, earlier today:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe. 

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer. 

“This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!” 

Trump went on to share the tweet Thursday morning, writing in his own accompanying message: “No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night!”

Here is the tweet:

No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night! https://t.co/HHg24tcZrx

— Donald J. Trump (@realDonaldTrump) June 4, 2020

This is not the first time Trump has tweeted something like this. Kirk wrote a similar tweet criticizing Stone's conviction back in April, which also prompted a response from Trump:

This is a disgraceful situation! https://t.co/s2qZSrGw6U

— Donald J. Trump (@realDonaldTrump) April 18, 2020

Politico and other outlets are reporting that Trump's tweet today appears to be a promise by Trump to pardon Roger Stone, as his suggestion that Stone "can sleep well at night" strongly suggests that Stone will not end up spending the night in prison (because he will be pardoned).

I'll go a step further and suggest that there's an argument to be made that this tweet itself (and his April tweet) constitute a pardon of Roger Stone. 



The Argument

Trump's tweet is a quote-retweet of Charlie Kirk, an outspoken commentator whose shtick is to appear down with the youths and whose tweets are frequently hyperbolic, misleading, or false. In addition to Kirk's false claim that Stone was sentenced to prison simply because he supports Trump, Kirk's tweet includes this key, final sentence: "RT for a full pardon of Roger Stone!"

For those who are unfamiliar with Twitter, first let me say good for you! Here's some background: the last sentence in Kirk's tweet is a request for retweets (RTs). Twitter users can hit a "retweet" button that appears below another user's post ("tweet") that shares that tweet with the retweeting user's followers. The typical goal behind retweeting something is that it results in the original tweet being shared with a larger audience. Users have the option of simply retweeting, which shares the tweet (with a little note that the user retweeted it) with that user's followers, or quote-retweeting, where they share the original tweet, plus their own commentary, with their followers. That is what Trump did here.

For members of the general public on Twitter, the statement "RT for a full pardon of Roger Stone!" is similar to a petition, as retweets symbolize agreement with Kirk's sentiment. If I thought that Roger Stone should receive a full pardon, I could retweet Kirk, both to spread the word, and to express my agreement with Kirk. While there are some users who occasionally claim that "retweets are not endorsements," this is generally unconvincing--particularly as users now have the option to make critical quote-retweets of statements with which they disagree. In any event, Trump has no such caveat in his account description.

For nearly all Twitter users, retweeting or quote-retweeting has the effect of spreading the message, expressing agreement, or--in the case of certain quote retweets--expressing criticism. But for the president, retweeting Kirk's particular message may have an additional effect--as he, and only he, has the power to issue the pardon. Kirk's tweet is worded without qualifications--rather than saying "RT if you think Stone should be pardoned!" it asks other users to retweet "for a full pardon."

Indeed, the specific wording of the tweet suggests that it may be aimed at Trump in particular. Stone may argue that if Trump retweets, he is not expressing mere agreement or stating his opinion--he taking an action that, given the context of the original tweet, constitutes a full pardon of Stone.

An analogy would be that Kirk is standing in public, holding out a pardon of Stone for everyone to sign. I could sign it. My friend Max could sign it. This would have no legal effect. Our signing the document could be taken as an expression of agreement that Stone should be pardoned--albeit in a somewhat awkward way. But if Trump happens to sign the pardon, then the legal effect of doing so is that Stone is pardoned. That, Stone can argue, is precisely what Trump has done here. Kirk's tweet indicated that a retweet could constitute a full pardon, Trump retweeted, and the pardon has been effectuated.

Can The President Pardon Someone Via Tweet?

The presidential pardon power is almost entirely a matter of presidential discretion. While the Constitution limits the president from exercising the pardon power in cases of impeachment, it does not set forth specific procedures or requirements that the president must follow when issuing the pardon. And although there are regulations in place governing the procedure for submitting a petition for clemency (see 28 C.F.R. § 1.1, et seq.), these regulations are advisory and do not restrict the president's authority. 28 C.F.R § 1.11.

Some background on the historic exercise of the pardon power is here. And commentary on Trump's particular pardon practices is here.

News outlets and commentators have emphasized the lack of constraints on the pardon power in light of President Trump's use of pardons on political allies. Following the pardon of Joe Arpaio, the BBC speculated that Trump could pardon someone via tweet--suggesting that signing his name at the end of the tweet would be the equivalent to a signature on a pardon. That article cites to this 1929 memorandum by Acting Solicitor General Alfred A. Wheat to the Attorney General, which notes that the Constitution does not prescribe how the president should exercise the clemency power and that it is "wholly a matter for the president to decide, as a practical question of administrative power." Wheat goes on to suggest that the pardoned person should at least have "some token to show that he has been pardoned," such a token need not bear the president's signature. While Wheat cites an 1893 executive order that requires pardons to be countersigned by the Attorney General, the scope of that order is limited to warrants of pardons and commutations "heretofore prepared at the Department of State on the requisition of the Attorney General," and would not apply to a pardon tweet.

As the BBC notes, Wheat could not have contemplated something like Twitter when he wrote his 1929 memo. But the general points Wheat sets forth in his memo confirm the breadth of the president's pardon power, and several of his statements are applicable to Trump's present day practices.

In light of the president's broad pardon power, there is a strong argument that Trump could pardon someone by tweet. The tweet itself could be the "token" showing that a person has been pardoned, and the fact that it comes from Trump's verified account can be treated as the equivalent of a signature. There are responses to both of these arguments--particularly, there may be a factual question as to whether Trump himself wrote the tweet. But courts would likely refuse to second guess a purported pardon-by-tweet, as lack of constitutional and legal procedural requirements would constitute a political question. For more on court's unwillingness to second-guess pardons, see the discussion at the end of this prior post.

Counterarguments

There are many arguments that Trump has not pardoned Stone with his tweet. Some are stronger than others, but all of them have some issues.

One response would be to run with the petition analogy that I used above. Kirk's tweet served no purpose other than a forum in which people could express their agreement that Stone should be pardoned. Trump's quote-retweet was therefore akin to signing a petition that Stone be pardoned rather than signing the pardon itself. This is how media outlets have interpreted the tweet, treating it not as a pardon, but a strong suggestion of an impending pardon.

The absolute nature of Kirk's original tweet undermines this interpretation. Moreover, Trump has previously tweeted suggestions that he will pardon somebody. He did so in mid-March with former national security adviser, Michael Flynn, stating "I am strongly considering a Full Pardon!" Unlike the Roger Stone tweet, that prior tweet was not made in response to a tweet asking for users to "retweet for a full pardon." And the Flynn tweet was qualified with language that Trump was "strongly considering" the pardon. There is no such qualifying language in the present tweet.

Alternatively, one could argue that Trump's quote-retweet of Kirk's original tweet is not an outright retweet, so Trump has not technically "retweeted" Kirk. This argument is weak. Quote-retweeting, as the name suggest, constitutes a retweet with the addition of a comment. Rather than not being a retweet, it is a retweet, plus something else. Sometimes, a tweet may appear to be a quote-retweet because a user has linked to a tweet, rather than quote-retweeting it. But there is no link in the tweet suggesting that Trump copied and pasted the tweet at the end of his comment.

Another argument against the tweet being treated as a pardon is that it is, instead a refusal to pardon Stone, as it begins with "No." A narrow reading suggests that this contradicts the message of the quoted tweet. But this reading is not plausible. An uncomplicated contradiction would be a situation where Trump retweeted Kirk with a comment like, "Stone is a good friend, but his trial was fair and I will not upset the court's ruling." Here, Trump's simple statement of "No," in the context of his full comment, which criticizes Stone's sentence, is much more plausibly read as a reaction to Kirk's statement in the original tweet that "This isn't justice."

A stronger argument against the pardon interpretation is that Trump tweeted this from his personal account. Since he did not use the official presidential twitter account, this is simply Trump expressing his own opinion rather than taking official action. But the personal/official distinction is troublesome as well--particularly in light of case law regarding lawsuits by Twitter users who were blocked by Trump's personal account. Most recently, an en banc Second Circuit refused to review the Second Circuit's ruling that Trump's account "bear[s] all the trappings of an official, state-run account" and that the account is "one of the White House's main vehicles for conducting official business." And, as noted above, Trump's statement and its context was not couched in terms of opinion and contained no qualifiers as to whether Trump was "considering" pardoning Stone.

I have also seen arguments that Trump is prohibited from pardoning Stone, since doing so would be a pardon in a case of impeachment, which the Constitution prohibits. Those arguments are beyond the scope of this post, and do not alter the analysis on whether Trump has pardoned Stone through his retweets.

The sheer number of counterarguments, and the unusual nature of a pardon-by-retweet, appear to be enough to give pause to Stone and commentators from arguing that Trump has already issued a pardon. But if Trump's presidency and 2020 thus far are to be any guide, what may seem outlandish one day may be routine the next.

Conclusion

I don't expect anything to come of Trump's recent Stone tweet, since he tweeted essentially the same thing in April and Stone did not claim that he had been pardoned. I would be surprised to see Stone make such an argument now, as Trump has repeatedly expressed a desire to pardon him. If Stone were to start arguing the aggressive interpretation of Trump's tweets that I set forth above, this could jump the gun on what appears to be an inevitable pardon.

If Trump indeed goes ahead and pardons Stone, the discussion above will be moot for his case. But this phenomenon shouldn't be ignored--as Trump is pretty quick to retweet particular commentators on certain subjects. Charlie Kirk, and others like him, will likely tweet similar statements in the future, and this question will likely come up again. At the very least, the pardon argument and the counterarguments shed light on the flexibility of the pardon power and its application, and how the intricacies of technology relate to the pardon power and presidential actions more generally.

READ MORE - Has President Trump Already Pardoned Roger Stone?

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City in Japan Proposes Broad "Distracted Walking" Ordinance

The Independent reports:

Politicians in Yamato, about 25 miles southwest of Tokyo, have put forward a bill that could make it illegal for people to gaze at their devices while walking. 

The bill was submitted to the city’s assembly on 1 June. If passed, the law would come into effect from 1 July.

Officials said that people were unlikely to be punished for flouting the proposed new measures. 

Instead, the law has been designed to keep pedestrians safe when crossing roads, officials added. 

People are being encouraged to use their devices while standing in a spot where they are unlikely to pose a hindrance to others passing by.

The Daily Mail reports on the ordinance as well, claiming that city politicians "allegedly claim there has been an increase in injuries among people walking while distracted by their phones," and that this ordinance, if passed, would be the first such restriction on phone use while walking in Japan.

Both outlets cite various statistics regarding injuries resulting from distracted walking. The Independent cites a study by a Japanese telecom firm which simulated what would happen if 1,500 people crossed the Shibuya pedestrian crossing in Tokyo if all were looking at their smartphones--noting that there would be: "446 collisions, with 103 people getting knocked down while 21 others dropped their phones." The Independent and Daily Mail also refer to this study authored by researchers at the University of Calgary, which reviewed 14 studies and found that mobile phone conversation and text messaging increased rates of hits and close calls in intersections--with texting having a greater impact and resulting in decreased rates of looking left and right prior to crossing the street.

Because I cannot find a full text version of the cited University of Calgary study, it is difficult to evaluate--although the authors note that "a variety of study quality issues limit the interpretation and generalisation of the results." As for the telecom firm simulation, its assumption that absolutely everyone in the intersection would be on their phone is somewhat extreme. Indeed, researchers working for the city observed far lower rates of cell phone use, reporting a 12 percent user rate after observing 6,000 people at two "stations" in Yamato.

This proposed ordinance would be far broader than ordinances in US cities such as Honolulu, Hawaii, and Montclair, California. While those ordinances apply to cell phone use while crossing a street, the proposed Yamato ordinance would apply to "city streets and sidewalks as well as 'shared public spaces' such as plazas outside train stations." While the impact of the statute is offset by its lack of a punishment provision, its application to pedestrians who are not crossing streets is the first such ban of which I am aware.

I generally oppose bans on "distracted walking," as they tend to be based on studies and statistics that are uncertain at best, and because they criminalize common behaviors, which invites selective enforcement of the law. Yamato's ordinance is even broader, as it targets pedestrians both on and off the street. Additionally, the ordinance appears to have little basis in evidence, as most studies warning of potential injuries from pedestrian cell phone use stem from use of phones while crossing the street. Here's hoping that the ordinance fails, as it otherwise may serve as a model for other cities, states, and countries eager to implement their own bans.

READ MORE - City in Japan Proposes Broad "Distracted Walking" Ordinance

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Illinois Supreme Court Rejects First Amendment Challenge to "Revenge Porn" Restriction

In Illinois v. Austin, the Illinois Supreme Court addressed a challenge to the State's prohibition on the non-consensual dissemination of private sexual images (also known as "revenge porn"). The law at issue, 720 ILCS 5/11-23.5(b), states:

A person commits non-consensual dissemination of private sexual images when he or she:
(1) intentionally disseminates an image of another person:
(A) who is at least 18 years of age; and
(B) who is identifiable from the image itself or information displayed in connection with the image; and
(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
(3) knows or should have known that the person in the image has not consented to the dissemination.

The Court's opinion has resulted in criticism from some commentators, and praise from others. While some of the criticism is correct, the Austin Court's recognition that the Illinois law targeted lesser-protected speech and therefore warranted an intermediate level of scrutiny appears to be a correct basis for its conclusion. Critics of the Austin opinion have failed to fully recognize this aspect of the decision by either mischaracterizing it or downplaying its basis in Supreme Court precedent. 

I. Summary of the Opinion

In Austin, the defendant and her fiancé shared an iCloud account, which meant that all text messages that the fiancé sent or received were visible on the defendant's iPad. 3. The fiancé and a neighbor exchanged several text messages, some of which included nude photographs of the neighbor. 4. The defendant and her fiancé then cancelled their wedding plans and broke up. The fiancé began telling people that the relationship ended because the defendant "was crazy and no longer cooked or did household chores." 5. The defendant, in turn, wrote a letter that included several nude photos of the neighbor and sent this letter to the fiancé's cousin. 6. The fiancé called the police, who interviewed the neighbor. The neighbor told them that while she was aware that the fiance and the defendant shared an iCloud account, she thought the account had been deactivated when she sent the nude photos and had intended that only the fiancé see the photos. 7.

The defendant was charged with one count of non consensual dissemination of private sexual images and moved to dismiss the charge, arguing that the statute was a content-based restriction on speech that violated the First Amendment. The lower court agreed with the defendant and held that the law was unconstitutional on its face. 10.

The Illinois Supreme Court disagreed with the lower court and held that the statute did not violate the First Amendment. The Court first stated that it rejected the State's request that it recognize that the dissemination of private sexual images as an unprotected category of speech.  33-36. While some categories of speech, such as incitement, obscenity, defamation, and fighting words are recognized as falling outside of the category of protected speech, the Court stated that it would not add the dissemination of private sexual images to this list absent the Supreme Court addressing the issue.

While the Court refused to recognize the speech as entirely unprotected, it ended up reaching the significant conclusion that the dissemination of private sexual images was subject to a lesser amount of protection than other speech. The Court recognized that content-based restrictions on speech typically require court's to apply strict scrutiny to the restriction, which, in First Amendment cases, almost always results in the restriction being overturned. Here, however, the Court held that only an intermediate level of scrutiny was required, which meant that the law needed to serve "an important or substantial government interest unrelated to the suppression of free speech" and that the law "not burden substantially more speech than necessary to further that interest."  59.

The Court advanced two justifications for its use of intermediate scrutiny. First, the Court claimed that the restriction was not a content-based restriction. While acknowledging that the law only applied to the dissemination of sexual images, the Court noted that the dissemination of this content was only unlawful if it was done so in a situation where the person sharing the content obtains the image under circumstances where a reasonable person knows or should know that the image is to remain private and that the person has not consented to the image's dissemination. The Court therefore concluded that the illegality of the dissemination was not premised on the content of the image, but rather on the manner of the dissemination. The law was therefore a time, place, or manner restriction, which warrants only intermediate scrutiny.  49.

Separately, the Court noted that the law only restricted the dissemination of information that is of purely private concern.  The Austin Court noted that the Supreme Court in Snyder v. Phelps and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. has recognized that restrictions on speech involving "purely private" matters does not threaten "free and robuse debate of public issues" and is less likely to "pose the risk of 'a reaction of self-censorship' on matters of public import." 54. The Court concluded that the defendant's sharing of sexual images did not involve an issue of public concern as they were privately-sent sexual images that did not "relate to any broad issue of interest to society at large." 56. The restriction on the dissemination of these issues therefore warranted intermediate, rather than strict, scrutiny.

The Court concluded that the restriction survived intermediate scrutiny, noting that it served a substantial government interest of protecting individual privacy rights and acknowledging that the dissemination of private sexual images causes "unique and significant harm to victims in several respects." 66. The Court then concluded that the restriction was tailored narrowly enough to survive a First Amendment challenge, as it defined what body parts or activities needed to be included in the prohibited images, required that the person in the image be identifiable from the image or information displayed with the image, required that the image be obtained under circumstances where a reasonable person would know or understand that it was to remain private, required that the person disseminating the image know that there was no consent to share the image, and also required that the person disseminating the images do so intentionally. 79-83. The law also included exemptions to the prohibition that included the dissemination of images for purposes of reporting a crime or for a "lawful public purpose."

II. The Court's First, Mistaken Rationale for Applying Intermediate Scrutiny

The Austin Court's first basis for concluding that the Illinois law was not subject to strict scrutiny was that it was a "time, place, or manner" restriction, rather than a content-based restriction on speech. The Court got to this conclusion by stating that the illegality of the dissemination of the sexual images is premised on the manner of how the images are shared. While sharing sexual images with the consent of the person pictured or in circumstances where the image was not expected to be private is permissible, doing so when there is no consent or where a reasonable person would recognize that the image was intended to remain private is prohibited. 

While this is correct, the fact remains that the illegality of sharing the sexual image is also premised on the content of the image. The law is a time, place, and manner restriction on speech, but it also only applies to certain content. Mark Bennett correctly notes that when restrictions have "both content-based and content-neutral elements," they are content-based restrictions that are subject to strict scrutiny. He cites R.A.V. v. City of St. Paul, where the Court addressed a law that prohibited "fighting words" that "insult[ed] or provok[ed] violence on the basis of race, color, creed, religion or gender." R.A.V., at p. 391. While fighting words are an unprotected category of speech, the Supreme Court held that it was unconstitutional to prohibited a content-based subset of that category. Id. at pp. 392, 396.

The approach used in R.A.V. undermines the Austin Court's reasoning. While some elements of the law involve the manner in which sexual images are shared, the law only applies to the sharing of sexual images or images of sexual content -- which is a content-based limitation. The law therefore is content-based, and the Court's attempt to sidestep this is a mistake.

III. The Second Rationale: Lesser Protection for Speech of Purely Private Matters

While the Austin Court's analysis on time, place, or manner restrictions is incorrect, it gave a second, stronger basis for its use of intermediate scrutiny by concluding that the speech at issue was "purely private" speech that was subject to a lower level of scrutiny.

In Dun & Bradstreet, the U.S. Supreme Court upheld a lower court's ruling affirming a jury's award of punitive damages after the defendant credit reporting agency shared a credit report for the plaintiff construction contractor that included false information. Dun & Bradstreet, at pp. 752-53. The Supreme Court noted that while it had previously recognized strong protections for speech on matters of public concern, speech of "purely private concern" warrants "less stringent" protection under the First Amendment. Id. at p. 760. The Court concluded that the credit report was speech of purely private concern, as it was made "solely in the individual interest of the speaker and its specific business audience." Id. at 762. The Court therefore held that permitting recovery of presumed and punitive damages was permitted, even absent a showing of actual malice.  Id. at 762.

The Austin Court uses Dun & Bradstreet and similar language from Snyder v. Phelps to support its conclusion that laws against disseminating private, sexual content are subject to intermediate scrutiny. Scott Greenfield criticizes this move by referring to "purely private speech" as a "non-category category" and accuses the Austin Court of relying solely on dicta from Snyder.  While this criticism is warranted to the extent that Snyder's invocation of lesser protection for purely private speech is dicta, it overlooks the basis for this doctrine in Dun & Bradstreet, which applied that lesser level of protection in upholding presumptive and punitive damages in a defamation case. Admittedly, the context of Dun & Bradstreet was different--as the Supreme Court was not evaluating the constitutionality of a criminal law restricting speech. But the rule set forth in Dun & Bradstreet was broad, and the Court applied that rule favorably in upholding an award of damages in a defamation case. It is neither surprising nor incorrect for a state court to apply this broadly-stated rule to a different set of circumstances, particularly one involving a law that requires the disseminated content to have been initially shared or kept in private circumstances. 

Bennett's criticism is less substantive, as he claims that the Austin Court identifies "speech on purely private matters" as a category of speech that is not subject to the same protection as other speech and that the Supreme Court has never recognized such a category. This misses the mark, as the Supreme Court in both Snyder and Dun & Bradstreet has recognized that speech on matters of purely private concern warrants a lesser level of First Amendment protection. It may not be a category of unprotected speech like defamation, fighting words, or obscenity, but as the Austin opinion demonstrates, the Supreme Court's First Amendment doctrine recognizes that purely private speech is subject to lesser protection, and this reasoning is certain to appear in future cases that involve similar laws against revenge porn. 

Bennett raised this same criticism back in 2014 when Danielle Citron set out proposed language for revenge porn restrictions. At that time, I argued that Bennett's critique of Citron's proposed law was misguided, as it ignored Supreme Court case law on lesser-protected speech of purely private concerns. Bennett dismissed that argument, claiming that the Supreme Court had not considered the "purely private concern" issues in recent cases involving First Amendment challenges to criminal statutes. In light of Austin, it seems that simply dismissing this aspect of First Amendment law is an unwise approach for those who wish to argue that revenge porn laws are unconstitutional. It is also unsurprising that Courts would look to this area of First Amendment law, as revenge porn prohibitions are often drafted to apply only to sexual images and content taken in a private setting and shared in a context where there is an expectation that the images will remain private. (For much more on how technology facilitates invasions of privacy and proposals to address these issues through legal and market efforts, see Citron's article, Sexual Privacy).

As the Cyber Civil Rights Initiative notes, the Illinois law is one of the strongest laws against non-consensual sharing of sexual imagery to survive a First Amendment challenge. Other states are likely to use the reasoning from this case in addressing challenges to their own laws. As other courts address these challenges, they will hopefully use the correct components of Austin's reasoning on lesser-protected speech rather than perpetuate the incorrect analysis on time, place, or manner restrictions.

UPDATE - 10/23/2019

In a measured response here, Bennett takes me to task for not reading extensive briefing that he filed in a separate case in Texas. His post on the Austin case was, after all, simply a "copy-and-paste" version of a brief he filed in the Texas case. My failure to review the briefing on that separate case--which was neither linked to nor referenced in his post on Austin--apparently "annoyed" him.

Bennett's brief from the Texas case, Ex Parte Jones, is included in his response. A link to the Court of Criminal Appeals page for that case where all the briefs can be downloaded is here. I have looked over the brief in Bennett's response and, to his credit, it addresses the private speech issue in far more detail than his original post. Heck, I might even write a separate post in response to those arguments one of these days now that it has been brought to my attention.

READ MORE - Illinois Supreme Court Rejects First Amendment Challenge to "Revenge Porn" Restriction

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New York City Department of Transportation Report Finds "Little Concrete Evidence" That Distracted Walking Contributes to Pedestrian Fatalities and Injuries

Proposals for laws and ordinances that restrict "distracted walking" (walking while texting or using the internet on phones) have been all the rage. Now, however, it appears that governments are finally examining the issue and are (unsurprisingly) finding that the perceived plague of distracted walking is disconnected from reality.

New York City's Department of Transportation has issued this recent report finding "little concrete evidence that device-induced distracted walking contributes significantly to pedestrian fatalities and injuries." Coverage of the report is here, here, and here.

The report surveyed United States cases of pedestrian fatalities between 2010 and 2015 and found that were approximately 38 fatalities "involving pedestrian use of portable electronic devices" out of a total of 28,642 pedestrian fatalities. Additionally, the report surveyed New York City fataility reports from between 2014 and 2017 and found that cell phones were involved in two incidents where pedestrians were killed -- one where a pedestrian was texting, and another where the pedestrian was reaching for a dropped "mobile device." This was out of a total of 856 pedestrian fatality cases with available narratives.

The report included estimates of "cell phone-related injuries" on streets and highways--although most of those injuries involved cases where "a driver, passenger, or cyclist" was using a cell phone rather than the injured pedestrian. Even with this broader categorization, the percentage of injuries involving cell phone use was fairly low, ranging from 2.4 to 5.3 percent of all pedestrian injuries from 2009 to 2015.

While the report acknowledges that cell phones can be distracting, and includes several citations to studies regarding distraction, it notes that drivers remain the most important target for regulation. The report states that "the most significant gains in reducing pedestrian fatalities and severe injuries can be made by continuing to target the most dangerous behaviors -- such as driver speeding and failure-to-yield -- and by implementing street improvement projects that reduce the severity of crashes."

Legislators on the state and local level typically focus on anecdotes or instinct when it comes to passing overly broad restrictions against distracted walking. As I have noted before, these restrictions -- which target commonplace conduct -- will likely result in law enforcement officers having broad discretion in deciding who to cite, a scenario that lends itself to selective enforcement. Hopefully, lawmakers considering these regulations will see the New York City Department of Transportation report and note that their efforts to curtail pedestrian deaths and injuries would be better served by other means.

READ MORE - New York City Department of Transportation Report Finds "Little Concrete Evidence" That Distracted Walking Contributes to Pedestrian Fatalities and Injuries

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City of Baguio To Again Consider Distracted Walking Ordinance

By now, it should be clear to readers of this blog that I have a Google alert set up to notify me of proposed laws or ordinances related to bills restricting "distracted walking," a practice typically defined as walking while looking at a cell phone or other electronic device (almost always while walking across streets).

Yesterday's notification brought me news from the City of Baguio in the Philippines. The City Council has calendared for second reading an ordinance that will restrict pedestrians from walking across streets while distracted. The Philippine News Agency reports:

The city council here is hearing a proposed ordinance, authored by the Councilor Scout Official For a Day (SOFAD), that prohibits and regulates the use of mobile devices and other distractive devices while walking and crossing the streets and sidewalks to ensure public safety.

“The said ordinance aims to prohibit pedestrian walkers (from using) any distract(ive) tools that could lead them to an accident," Councilor Peter Fianza, member of the Committee on Public Protection, Safety, Peace and Order, said in an interview Tuesday.
The proposal was calendared for second reading during Monday’s regular council session.

Fianza said once approved, the ordinance requires all pedestrians to be vigilant when they walk on the street and not to use gadgets, such as mobile phones, books and other objects “that distract someone’s line of sight.”

What is this about a Councilor Scout Official For a Day?

The city government has institutionalized the scouting program during October, annually giving boy and girl scouts, from elementary to high school who are enrolled in private or public schools, to sit as officials for a day after a screening process conducted by the Girl and Boy Scouts of the Philippines.

I see. Well, since there is no link to the ordinance, and since the City website's link to the legislative monitoring system appears to be broken, do we know exactly what kind of conduct the ordinance bans, and, in particular, whether the ordinance defines "distractive devices?"

[I'm afraid not. Like nearly all journalists, I refuse to put a link to the text of the ordinance in my story even though this would be very helpful to readers, particularly those who read and apply laws for a living and who may provide more in-depth commentary on the law or case being discussed].

Shoot. Well do we at least know what sort of punishment there would be for a violation of this ordinance? I'd guess that the penalties aren't that high, since comparable laws and proposals in the United States only involve relatively low fines like $20.00 per violation.

Once approved as an ordinance, violators will be meted a penalty of a PHP1,000 fine or render community service for the first offense . . .

Okay, PHP1,000 seems to be about $19.00 in US dollars--

. . . PHP2,000 and community service for the second offense or one to 10 days imprisonment; and PHP2,500 and community service or imprisonment of 11 to 30 days for the third offense.

Ouch! Where would someone get an idea for a law like this in the first place?

Fianza said the concept of the proposed ordinance was based on the anti-distracted walking measure in Honolulu, Hawaii.

As far as I can tell, Honolulu was the first city in the United States to ban "distracted walking" while crossing the street, and it has kicked off a bit of a trend of other cities and at least one state (Connecticut) considering or enacting similar bans. This is the first instance of which I am aware where a city in a different country has proposed a similar ban that is explicitly inspired by Honolulu's ban.

Notably, though, this is not the first time a ban like this has been proposed in Baguio. The Herald Express reported in December 2017 that City Councilor Leandro B. Yangot, Jr. proposed a similar ban, although that report indicated that the measure would prohibit a person from crossing "a street or highway while viewing a mobile electronic device in a manner that averts his or her visual attention to the said device." Again, this is only a quote from the report, as I cannot locate the text of that previous ordinance. The penalties for that 2017 proposed ordinance would have been:

[C]ommunity service of 15 days for the first offense, community service of 30 days for the second offense, and a fine of P5,000 or imprisonment or both, upon the discretion of the court, for the third offense.

Tough, although I presume that this previous ordinance did not pass in light of the recent, similar proposed ordinance. The old proposal was at least a little more narrow, however, as the most recent proposal would ban looking at objects like books in addition to the typical phone or electronic device.

Without the text of the ordinance, there is not much more for me to say other than to repeat my point that such bills are misguided because they ban common practices and will likely lead to selective enforcement. They also will likely not deter people from walking while distracted, because the danger of being struck by a vehicle is apparently not enough of a deterrence. This most recent proposed ordinance is particularly notable as an example of how lawmaking in the United States -- including silly lawmaking -- may have an expansive impact, not only in other American cities and states, but in other parts of the world.

READ MORE - City of Baguio To Again Consider Distracted Walking Ordinance

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Don't Operate Drones While Drunk in New Jersey, and Other Crimes

Through this angrily-titled Reason article, "Good Riddance to Chris Christie," I learned about a recent law in New Jersey that creates several new drone-related crimes. The text of S3370, which Governor Christie signed into law on Monday, is available here.

The bill creates several new drone-related crimes. One of the more widely-reported restrictions is a ban on the operation of drones while under the influence of alcohol, narcotics, hallucinogens, "habit-producing" drugs, or with a blood alcohol level of 0.08% or more. This restriction has led to the publication of several articles that whimsically announce the restriction on "drunk droning" or "drinking and droning." I'm not sure if I'm ready to approve of these publications use of "drone" as a verb, as operating drones does not necessarily involve speaking at length in a boring manner, but the restriction is worth noting.

It's also worth mentioning that federal regulations already place even stricter alcohol-related restrictions on the commercial operation of drones. This concise explainer by Jonathan Rupprecht points out that commercial drone operators can't fly drones within eight hours of consuming alcohol or with a blood alcohol concentration of 0.04% or higher. Rupprecht also notes that hobbyist drone users that operate drones while intoxicated may run afoul of federal regulations if their activity is deemed to "threaten the safety of the national airspace system."

New Jersey bans more than the drunken operation of drones. The law also includes provisions prohibiting people from using drones while hunting, and from using drones to prevent people from hunting. The law also bans the operation of drones in "a manner that endangers the life or property of another," and prohibits people from using drones from conducting surveillance on correctional facilities or "endanger[ing] the safety or security" of these facilities by operating drones on their premises.

But wait, there's more!

The law creates an offense for drone users whose drones interfere with "first responders," (which include law enforcement officers, firefighter, ambulance operators, and others). California has attempted to pass similar legislation that would criminalize operating drones near fires, as this activity has reportedly hindered firefighting efforts. But these crimes have yet to become law in California due to Governor Jerry Brown's reluctance to expand California's bloated Penal Code. Governor Christie, however, appears to have no such qualms.

A final provision of note is a revision to the law governing the penalty of "parole supervision for life" that is imposed on certain sex offenders and those convicted of kidnapping pursuant to N.J.S.A. C.2C:43-6.4. The provision states that the parole supervision for life "may include reasonable conditions prohibiting or restricting the person's operation of an unmanned aircraft system in order to reduce the likelihood of a recurrence of criminal or delinquent behavior." While drones can (and occasionally have) been used to hover creepily outside of people's windows, this is a strangely specific provision to add to the various restrictions that sex offenders face.

I'm generally opposed to imposing restrictions on private drone users, as tortious or invasive behavior with drones could probably be prosecuted or litigated under more general existing laws. I do approve of legislative restrictions on government drone use, but New Jersey appears to have yet to impose such restrictions. The last attempt at doing so failed a year ago when Governor Christie failed to sign off on a bill that would have imposed a warrant restriction (with certain exceptions) on drone use by law enforcement agencies. Perhaps Governor Phil Murphy will act differently should a similar bill make its way through the legislature in the future.

READ MORE - Don't Operate Drones While Drunk in New Jersey, and Other Crimes

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Honolulu Bans Looking at Cell Phones While Crossing The Street

NPR reports here and here on a recent ordinance passed by the City and County of Honolulu that prohibits people from "viewing" "mobile electronic devices" while crossing a street or highway. From NPR:

Police in Honolulu on Wednesday will begin writing tickets for people who get distracted by their cellphones while walking in a crosswalk. Honolulu is the first major city in the country to pass such a law, citing a high rate of pedestrians being hit in crosswalks.

"Starting today, texting while walking in a crosswalk can get you a ticket," Hawaii Public Radio's Bill Dorman reports for our Newscast unit. "In fact, a downward glance at a screen of any kind will cost you — a phone, a tablet, a video game."

Under the new law, the only legal reason for a pedestrian to use a cellphone while crossing a street or highway would be to call 911 to report an emergency.

One of the NPR reports claims that Fort Lee, New Jersey banned texting while crossing the street a few years ago, but its only support for this claim is a link to a story where police say that they are cracking down on pedestrians who are in the road illegally and are also on their phones. There is no indication that looking at a device without engaging in some other illegal activity was banned.

Because this apparently is the first major restriction of crossing the street while looking at devices, this post takes a deep dive into the ordinance. There are some quirks and questions that the ordinance raises, and I lay them out in painstaking detail after the break.

The text of the ordinance is here. Initially I was surprised, as it seems that the new ordinance bans viewing mobile electronic devices while walking but now permits driving while viewing mobile devices (as the prior restriction on driving while using mobile electronic devices is repealed). After a bit more digging, however, it appears that this is not the practical effect, as Hawaii has a statewide ban on driving while using mobile electronic devices. So while Honolulu may no longer have an ordinance banning driving while texting, the practice is still illegal.

Most outlets reporting on the ordinance state that it bans texting while crossing the street. It does, but the scope of the ordinance is broader than that. The ordinance applies not only to cell phones, but to any electronic device that either: (1) is capable of providing wireless or electronic communication between two or more people; or (2) is capable of "providing amusement."  The ban includes but is not limited to cell phones, pagers, PDAs, laptops, video games, and digital cameras. The ordinance also states that it does not include "audio equipment." 

This definition of "mobile electronic device" is of particular interest and concern to me, as I am one of the seven or eight remaining people in the country who does not use a smartphone to listen to music while walking. Instead, I use an iPod Nano -- and before you ask, yes, that's what I used before Baby Driver made listening to those devices cool again. The iPod Nano has a screen that displays information about each song, and that you can use to scroll through to select songs. iPods are not included on the list of banned devices - although the list is not exclusive, and the iPod has a screen and buttons that mirror some functions of smartphones. But, there is a strong argument that the iPod is "audio equipment," as its primary function is to play music.

The undefined "audio equipment" term is a holdover from the prior version of the ordinance which banned using electronic devices in vehicles. There, the term's application made a bit more sense -- you wouldn't be violating the ordinance if you were adjusting the volume of the radio in your car, for instance. But now that the ordinance has been reworked to apply only to viewing devices while walking, the scope of "audio equipment" is less clear.

The current ordinance's origin as a ban on devices in cars also raises some interesting questions about the how to interpret the terms of the ordinance. Under the original ban on devices in vehicles, the argument that the ban applies to looking at iPod screens seems more compelling in light of the "audio equipment" that already exists in nearly all vehicles, making it less likely that the "audio equipment" term applied to an iPod that one might bring into the car. Could this argument apply to the current version of the ordinance, which keeps the same "audio equipment" term, but repeals the various references to vehicles, or does the "audio equipment" term need to be reinterpreted in light of the rewording of the ordinance? I wouldn't be surprised to see this ordinance generate innumerable articles and books in which legal scholars do battle over the meaning of "audio equipment," and whether Michael Smith could be arrested for scrolling through his "Trial" playlist while jogging across the street (by no coincidence, my "Trial" playlist doubles as an excellent soundtrack for a run). To any law review editors in my audience who may receive these articles, please make sure that they cite to this blog post.

Another important term in the ordinance is "viewing," which the ordinance defines as "looking in the direction of the screen of a mobile electronic device." This means that speaking on a cell phone held to one's ear while crossing a street does not violate the ordinance. It would also apply to pedestrians who look at the back of their phones while crossing the street, in the event that anyone is interested in engaging in a particularly petty and pointless form of civil disobedience.

My issues with wording aside, there are arguments both for and against passing ordinances like this. On one hand, I understand the urge to cull the hordes of smartphone zombies that crowd city streets. People staring at phones run into objects and people, fail to cross streets in a timely manner, and may end up walking into the path of oncoming traffic in extreme circumstances. And putting down the phone for the several seconds it takes to cross a street is not a particularly heavy burden on pedestrians. On the other hand, the law may strike some as paternalistic and overreaching, and pedestrians may argue that they can remain alert to their surroundings while texting or emailing. And if pedestrians are injured in a traffic collision while on their phones, the doctrine of comparative negligence will likely reduce the damages that they can claim from the driver who injured them, as there is a strong argument that they should have been paying more attention.

Ultimately (again, problems with the language aside), the ordinance seems fine to me, as long as it remains limited to instances of pedestrians crossing the street and looking at screens on devices. This narrow set of circumstances should be easy enough for pedestrians to understand, and limited enough to avoid selective (and often biased) enforcement of the law. And as someone who wants to get as much money as possible from the driver who may one day crash into me in the madhouse that is downtown Los Angeles, I already model my own behavior after Honolulu's ordinance so that I may avoid a reduction of my potential damages due to a comparative negligence defense.

READ MORE - Honolulu Bans Looking at Cell Phones While Crossing The Street

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Build Your Own Lawsuit With A "Lawgo" Set

I only just learned of this (nearly one year old) article at Legal Cheek, but I thought it was worth sharing. Legal Cheek reports:

A Canadian law firm has taken the fun and exciting world of Lego and made it more tedious — by producing a civil litigation version of the hit toy. 

In what appears to be a marketing stunt — or is it a new line of business? — Jensen Shawa Solomon Duguid Hawkes LPP, or JSS Barristers for short, has created a Lego-themed “Litigation Action Pack” called ‘Lawgo’ (pictured above). 

The boutique civil litigation firm, based in the Canadian city of Calgary, has even produced a toy barrister with accompanying robes and a court bench. The figures are recommended for those between 18 and 99 years of age.

A picture of the Lawgo set is available at Legal Cheek's website.

Interestingly, the Lawgo set is recommended for people between 18-99 years old, suggesting that the toy is meant as a gag gift for lawyers or those about to practice law. This is a shame, since it would be nice to see younger children inspired to join a profession that is even more admirable than the Jedi Order.

Legal Cheek hopes that the law firm marketing the Lawgo set obtained permission from Lego, as otherwise the Lawgo set will run into trademark problems, particularly as a result of its logo. On the other hand, even if the firm did not obtain permission, Lego may be too afraid to sue a firm that is so obsessed with the law that they created such a product in the first place. Since I could not locate news of any lawsuits against the firm marketing the Lawgo set in the year since the product was released, I will assume that one of the theories above is true. On the other hand, I could not find any links to purchase Lawgos on the firm's website, so maybe things did not go as smoothly as hoped.

Finally, while I generally approve of products that make the practice of law more approachable or even whimsical, I am also concerned that the Lawgo product could increase negative attitudes towards lawyers. In particular, there are few feelings that are more unpleasant than stepping on a Lego (see, e.g.: this), and I worry that stepping on a similar law-themed object may compound negative feelings toward attorneys. Hopefully, people unfortunate enough to step on a Lawgo will keep their negative feelings confined to the universe of small plastic objects rather than letting their feelings spill over to the legal community.

READ MORE - Build Your Own Lawsuit With A "Lawgo" Set

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Sweden Effectively Bans Drones with Cameras

From The Verge:

The Supreme Administrative Court of Sweden just ruled that camera drones qualify as surveillance cameras and require a permit under Sweden's camera surveillance laws. The ruling requires owners to cough up a sizable fee in order to get their equipment off the ground, and paying to start the process is no guarantee a citizen will be granted the right to fly. County administrators will have to consider whether use of a "surveillance camera" overrides the public's right to privacy on a case-by-case basis.

. . .

The ruling targets recreational and commercial users alike, and makes zero exceptions for journalists. Sweden's leading drone company Unmanned Aerial System (UAS) said up to 3,000 people may lose their jobs as a result of the court's decision.

Engadget suggests that even if people manage to pay the application fee, most applications will be denied as surveillance cameras are only permitted to prevent crime or accidents, and most people use drones with cameras for different purposes. ABC also reports that this is the case.

This is not the most extreme instance of countrywide drone restrictions. I previously blogged about India's ban on drones -- a ban that is still in place. While the Swedish Supreme Administrative Court's ruling is limited to the use of cameras attached to drones, the ruling will likely restrict a great deal of drone use.

Normally I would not place this much faith in secondary sources reporting on a ruling, but language barriers prevent me from investigating further. I think that the opinion is here, and any readers out their who know Swedish can feel free to flag any mistakes I have made in this post.

READ MORE - Sweden Effectively Bans Drones with Cameras

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Oakland's Resistance to Mass Surveillance: Would it Play Out the Same Way Today?

The BBC has this interesting article on an attempt by the City of Oakland, California to adopt a wide-ranging surveillance system, and the resistance to the city's efforts. From the article:

Most cities, including Oakland, have cameras monitoring traffic intersections and public areas. But a Domain Awareness Centre, or DAC, is far more sophisticated. It is still based around a bank of screens, but the camera feeds are augmented by data from weather reports, shipping movements, social media chatter, email records, emergency calls and other data sources. 

The port of Oakland had been given federal funds in 2008 to build a DAC as part of a post-9/11 push to protect critical infrastructure from terrorist attack. 

At some point, the city council decided to extend the system to cover the whole of Oakland and its population of 400,000 people. 

. . .

Hundreds of new cameras would be installed across the city and data would be incorporated from from licence plate readers, gunshot-detection microphones, social media, and, in later phases, facial recognition software and programmes that can recognise people from the way they walk. 

The city said it needed an early warning system to give "first responders" a head start when dealing with emergencies like chemical spills and earthquakes, as well as major crime and terrorist incidents. 

But privacy campaigners in the city were alarmed at the thought of the Oakland Police Department having access to an all-pervasive real-time surveillance network. Particularly one that did not have a policy on what data would be stored and for how long. 

The article goes on to report that the Oakland City Counsel hosted a "marathon" meeting on March 4, 2014 to debate the scope of the DAC. At the meeting, privacy advocates, former "Occupy" protesters, and members of Oakland's African American and Muslim communities spoke out against the DAC, and the proposed surveillance program was ultimately scaled back "dramatically."

I blogged about the federal grant Oakland received back in 2013. In that post, I shared the concern of many of the privacy advocates cited by the article that the widespread surveillance system would be implemented or employed in a manner that would lead to disproportionate surveillance of racial minorities and less-wealthy citizens.

Oakland's attempt at surveillance, and the resistance the attempt inspired, is an interesting case study for the implementation of widespread, automated security measures in urban settings. The BBC suggests that the timing of the Snowden leaks gave momentum to the protest against the proposed surveillance -- as both the content of the Snowden revelations and Oakland's proposals involved the issue of technologically enabled mass surveillance.

I am curious as to whether the same level of resistance would arise in today's political climate, in which most attention seems focused on instances of excessive force employed by police officers and fear of excessive force in personal encounters with officers. These issues seem far-removed from questions of systematic surveillance practices their broader impact on privacy. Indeed, as I discuss at length in this post, today's discussions of policing practices often include calls for body cameras despite warnings from groups like the ACLU that these cameras may lead to systematic privacy violations.

Moreover, those concerned with police excessive force may be tempted to advocate for wider, automated surveillance systems. These systems may appear to enforce the law in a manner that avoids officer discretion, which may arguably reduce the incidence, or opportunities for instances, of excessive force. But as commentators like Elizabeth Joh point out, officers can still exercise discretion with widespread, automatic surveillance systems by focusing those systems on particular people or groups of people.

More cities will likely attempt to adopt wider, more technologically sophisticated surveillance systems as time goes on and as the technology becomes more accessible. I suspect that resistance to these proposals will be less pronounced than in 2014 as notions of mass surveillance become more normalized and as long as protests against law enforcement remain focused on the actions of individual officers rather than on the policies and procedures adopted by departments and municipalities as a whole.

READ MORE - Oakland's Resistance to Mass Surveillance: Would it Play Out the Same Way Today?

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Illinois "Pidgey's Law" an Overly Hasty, Muddled Attempt at Regulating Augmented Reality

Several news outlets have reports on this bill (AB 6601) recently introduced by Illinois State Representative Kelly Cassidy. Nicknamed "Pidgey's Law," the bill was introduced in response to reports that players of the augmented reality game, Pokémon Go, were trampling the habitats of endangered species in a federal park.

From the Chicago Sun Times:

Cassidy introduced “Pidgey’s Law” on Wednesday during a news conference at the Loyola Dunes Restoration Site. Named after one of the game’s bird Pokémon, the bill aims to crack down on location-based game developers to remove problematic gaming sites from their maps.

. . .  

If passed, “Pidgey’s Law” would give game developers up to two days to remove a location-specific site from its game if that site’s property owner, manager or custodian requests its removal. After that, developers would be fined up to $100 each day until the stop is removed. 

The bill is in response to a Pokéstop — real-life locations gamers can visit for in-game perks — that rests at the center of the dune restoration area, which is protected under state and federal law. The stop, based on an art installation that stood there a few years back, sometimes draws players off the designated path into areas where some endangered wildlife lives. 

The hundreds of Pokémon Go players who frequent the area each night have caused increased littering and vandalism as well as occasional trampling of the wildlife when rare Pokémon appear in the augmented reality of the game.

Other news outlets report on the bill here, here, and here. A common theme in all of this reporting is that the purpose of the bill is to remove in-game landmarks (in Pokémon Go these are known as Gyms and PokéStops) from private property or environmentally sensitive areas at the request of property owners or managers.

But is this what the bill actually does? Below are the pertinent sections of the bill. To make efficient use of these extensive quotes, I've emphasized the terms that are either undefined or that cause problems:

Section 10. Site or location removal. 

(a) Within 2 business days of receiving a request from the real property owner, manager, or custodian, the developer of a location-based video game shall remove from its location-based video game an ecologically sensitive site or location, historically significant site or location, site or location on private property, or site or location otherwise deemed as dangerous by the real property owner, manager, or custodian.

(b) In requesting that a site or location be removed from the location-based video game, the requesting property owner, manager, or custodian shall submit a request to the developer of a location-based video game that specifies in sufficient detail the site or location to be removed from the game, and reason for the requested removal. 

Section 15. Removal procedure.  

The developer of a location-based video game shall provide an easily accessible procedure for removal of ecologically sensitive sites or locations, historically significant sites or locations, sites or locations on private property, or sites or locations otherwise deemed as dangerous by the real property owner, manager, or custodian from its location-based video game. 

Section 20. Enforcement.

(a) A real property owner, manager, or custodian may bring a civil action to enforce the provisions of this Act. 

(b) A developer of a location-based video game who knowingly violates this Act is subject to a civil fine of up to $100 for each day of violation.

The bill includes a few definitions, but not enough:

Section 5. Definitions. For the purposes of this Act: 

"Developer of a location-based video game" means any person or business entity which has made or developed and owns the rights to a location-based video game, including any person or business entity which acquires the controlling intellectual property rights to the location-based video game from another person or business entity. 

"Ecologically sensitive site or location" means any area designated by federal, State, or unit of local government for protection from development or damage due to the presence of endangered species or threatened species as defined in Section 2 of the Illinois Endangered Species Protection Act. 

"Historically significant site or location" means any site or location that has been designated by federal, State, or unit of local government for preservation as a landmark, or any other site or location that the federal, State, or unit of local government may designate as historically significant. 

"Location-based video game" means a game primarily played on a mobile device, including, but not limited to, smartphones and tablets, that encourages users to travel to specific real property sites, locations, or coordinates for the purpose of achieving specific goals within the game.

The biggest problem with the bill is that it fails to define "site or location," much less what it means to "remove" a "site or location" from a location-based video game. While the phrase may make sense in the context of the physical world, in the context of an augmented reality game the phrase is fatally unclear. Should the game developer remove a feature from the game's map, such as a PokéStop, Gym, or in-game landmark? Or does the phrase refer to property or coordinates in the physical world -- thereby requiring the developer to remove a set of coordinates or location from the in-game map altogether?

I very much suspect that the bill intends to remove landmarks and features that only exist within the augmented reality of the game. But by failing to write a law that expresses this intent, developers are left with the much more expansive mandate that they modify their games' maps to entirely remove the coordinates and features of locations that fall under the bill's scope, which, I suspect, would be far more difficult than removing in-game features alone.

I also flagged vague language throughout the bill, such as the requirement that a request "specifies in sufficient detail" the location to be removed (sufficient by what measure?); the definition of a location-based video game as a game that "encourages" players to go to locations to achieve "specific goals" (is the random generation of a catchable digital creature on a map "specific" enough?); and a site or location "deemed as dangerous" by a property owner, manager, or custodian (does this mean that the property itself is dangerous, or that the placement of an in-game landmark leads to danger?).

And let's not overlook the bill's muddled and contradictory definition of "Developer of a location-based video game." The definition (initially) purports to cover only those who develop and own the rights to the game, but then goes on to say that this includes those who acquire the ownership rights from another. This second, acquiring class, only has one of the necessary features of the initial definition, but is deemed to be covered by the definition through the use of the term "including." This definition is contradictory and does violence to the term "including," and should therefore be done away with.

Finally, setting aside the muddled text of the bill, there does not seem to be a pressing need for it. Niantic has a system for requesting removal of PokéStops or Gyms from the game. While there appears to have been a breakdown in communication or administration in the case of one park, this hardly warrants the passage of a law mandating a feature that already exists -- albeit now with the inclusion of an arbitrary two-day deadline. 

Representative Cassidy, like Senators Klein and Savino of New York, is proposing an overly broad, overly strict solution to an exaggerated problem. Hopefully, the rest of the Illinois legislature is less-willing to jump on the bandwagon of hastily drafted laws governing augmented reality games.

READ MORE - Illinois "Pidgey's Law" an Overly Hasty, Muddled Attempt at Regulating Augmented Reality

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