Three faculty members of the University of Illinois College of Law will provide commentary for WILL-AM's Legal Issues in the News, airing Monday mornings at 7:35 am.More from Legal Issues in the News »
By: Sean Anderson Recently, I appeared as a contestant on the TV game show Jeopardy. Inspired by that experience, today's category is "game show law," although I'm afraid I don't have any prize money to give away. As a contestant on a game show, your entire experience is surrounded by law. To mention one example, you have to sign documents agreeing to lots of stuff you will and won't do, which brings into play the field of contract law. But I want to focus on a different aspect of game show law: the still-palpable effects of the infamous quiz show scandals that happened almost sixty years ago. Back in the 1950s, it came to light that the producers of several major shows had been coaching contestants in order to create maximum drama and deliver champions they thought would please viewers. Sean Anderson Photo Credit: University of Illinois College of Law When those manipulations became public, the outcry was swift and huge. Ratings for game shows dropped, and most were pulled off the air. Congress got into the act, passing an amendment to the Federal Communications Act that outlawed a range of practices that might predetermine the outcome of a game show, such as supplying contestants with secret assistance or inducing them to "throw" all or part of a game. Based on my Jeopardy experience, I can tell you that the people who produce TV game shows today work very hard to avoid even the appearance that the results of their shows are in any way rigged. Before you go on the show, for example, they ask you multiple times to disclose any relatives or friends who work for the show or related employers, previous contestants you might know, and other connections that might trigger suspicion. Once you arrive to tape the show, you're subject to a whole host of rules designed to avoid even the slightest possibility that anyone could provide you with answers or other help. You have to turn off your cell phone. You're not allowed to talk to, or exchange signals with, anyone in the studio audience. You can't go anywhere at all during the taping day, including lunch, unless you're accompanied by one of the show's staff members. The show also maintains considerable separation between employees who deal with contestants and those who prepare the questions and answers, as well as anyone who, like host Alex Trebek, gets to see those questions and answers ahead of time. And finally, the show doesn't rely entirely on its own employees to maintain all those rules. The show pays an independent company to assign one of its employees to be on the set for each taping day, keeping an eye on the show's compliance with its own procedures and providing an outside hand in some of the key steps for maintaining the show's integrity. As I understand it, what I saw with Jeopardy is pretty typical of U.S. game shows these days. So next time you watch an episode of your favorite one, spare a moment to think of all these procedures, based on both law and the producers' self-interest in avoiding even a hint of anything fishy. And marvel that it all came about because of a scandal that happened six decades ago.
By: Verity Winship Children at risk, lead in the water, an aging infrastructure, deep inequalities, tight budgets - Flint's water crisis has justifiably triggered national attention. In the U.S., litigation is one Verity Winship Photo Credit: University of Illinois College of Law common response to fixing a problem and getting compensation for those who have been harmed. But in the Flint water crisis, most potential defendants are government officials or the state or local government itself. And in certain circumstances, legal rules protect government actors from being sued. This week's radio commentary explores the hurdles to fighting Flint in court.
By: Paul Heald Well, if you've seen them on Facebook or some other fringe media outlet, then you know that monkey selfies are all the rage. That's right, British photographer David Slater handed a camera to a madly grinning macaque in Indonesia and like any other self-absorbed Millennial, it immediately took a series of selfies. Such compelling pictures, in fact, that they've been copied all around the world. Taking umbrage at this exploitation of the macaque, the organization People for the Ethical Treatment of Animals (PETA) has filed a lawsuit in, where else, San Francisco, demending that all proceeds from the distribution of the images be collected for the benefit of the monkey. PETA claims that the monkey is the author and owner of the photo under U.S. copyright law. Now, Congress does have the power to pass laws for the benefit of non-humans, but the judge in a preliminary ruling has held that nothing in the Copyright Act suggest that monkeys can be copyright owners. And the Copyright Office, in a recent regulation, agrees. Well... fair enough, I suppose, but what about the claim of Slater that he, the owner and lender of the camera, is entitled to a copyright in the photos? Paul Heald Photo Credit: University Of Illinois College of Law Here's where things get interesting, and we have to travel back to the very first photograph case considered by the Supreme Court. In the 1880s, Napoleon Sarony staged a famous photo of dramatist and mega-wit Oscar Wilde. Shortly thereafter, he was ripped off by a lithographer who copied the photo. The infringer claimed that Sarony's camera had merely captured a pre-existing reality - Wilde, with a pensive expression, sitting down with a book in his hand. The photo, therefore, was unoriginal and could not be protected. This was an argument against the protectability of photography in general, the Court rejected it, noting the orginial choices made by Sarony in setting the lunch background scene, posing Wilde, and lighting the set, it found the photo orginial and protected. Interestingly, the Court refused to hold that all photos are necessarily protected. The "ordinary" production of a photo might not pass the orginality test. So, we must consider whether David Slater made significant original choices in staging the monkey selfie. The facts surrounding the now-famous photo are a bit slim, but if he merely handed his camera over to the macaque and encouraged him to go at it, he probably cannot claim to have made an original contribution. I don't think that we can predict future courts would adopt a total copyright ban on animal camera handlers, however. One could imagine a moviemaker creating a highly original set, purposefully lighting it, and then strapping a carefully-calibrated camera on the back of a dog or cat. That might be enough original input from the movie maker to secure him or her a copyright in the resulting product. Interestingly, Slater claims that his English copyright has already been secured, and this rings true, given that the UK originality requirement is so low as to be merely a ban on plagiarism. The telephone white pages, for example, are sufficiently original to be protected by IK copyright, while here the Supreme Court has declared they are not. I'll conclude by noting that differences in the protection of fact-based works like the phone book between here and Europe are non-trivial. Here, facts are unprotected. A fact is not original and anyone can appropriate it. The EU has special protection for databases that can extend to facts. In the US, for expample, I can scour the web pages of local newspapers and establish a useful movie times web site because the fact of when a movie start time is not original. If I do the same in the EU, I'm a law breaker. Hmmm ... I think we can guess now why the macaque was grinning so crazily.
Does Law Enforcement Need a Warrant to Obtain Cell-Site Location Data? (Rebroadcast)
When you make or receive a phone call or text message with your cellular phone, your service provider stores information about which cell tower transmitted this signal, thus revealing the general area where you were located when the transmission occurred. The U.S. Court of Appeals for the Fourth Circuit ruled earlier this month that law enforcement authorities need a warrant to obtain this cell site location data. Other courts of appeal have disagreed. They have concluded that since the user voluntarily conveyed this information to a third party, the Fourth Amendment's ban on unreasonable searches does not protect this information. The Fourth Circuit does not apply the third party doctrine to this information because, in their view, data is being collected even when the user receives a call or text, and here, the user is clearly not making a voluntary disclosure. This creates a split among the federal appellate courts, making it likely that the Supreme Court will soon consider if the Fourth Amendment requires a warrant to obtain cell site location data. The Stored Communications Act, the SCA, is the federal statute that Congress enacted in 1986 to address new digital data problems where the Fourth Amendment's protections may be unclear. Today, cases involving stored location metadata raise questions about whether the SCA gives enough protection, or if police should be required to show probable cause and get a warrant to access your cell site location data. The Fourth Circuit applies a mosaic theory of the Fourth Amendment, which considers how much more information can be collected over time by observing patterns of behavior, compared to the information available from short-term surveillance. Applying this theory, individual activities that are not searches under the Fourth Amendment can become searches when considered in aggregate. Cell site location data does not reveal much in a single call, but if you examine enough phone records of an individual, then you can easily create a general picture of that person's movements and routines. Having learned of the routine, investigators can spot departures from the suspect's routine that lead to breakthroughs in an investigation, like when Sherlock Holmes made specific note of the dog that didn't bark on the night of the crime. The question that courts are currently grappling with concerns whether police should obtain a warrant in order to get this historical information which can reveal much more than surveillance of a single incident. If the Supreme Court decides to hear this case, how the Court rules could have significant implications for investigations and individual privacy rights. On one hand, requiring a warrant for cell site location data could make investigations more costly and difficult. But on the other hand, if the Supreme Court holds that collecting historic cell site location data is not a search, then law enforcement will not need to show probable cause before examining historic cell site location data. The mosaic theory tries to strike a balance by urging that if law enforcement collects too much data, it becomes a Fourth Amendment search that must be supported by a warrant. However, the courts have refused to define how much is too much, making this theory uncertain and unreliable. Should the Supreme Court consider the case, it should err on the side of caution and require a warrant. Although the data is not that accurate and can save a lot of resources, requiring a warrant will incentivize law enforcement to stay within the law and preserve individual privacy. In a time when Americans are distrustful of government surveillance and the police, this would be seen favorably. I'm Jay Kesan.
By: Sean Anderson Donald Verrilli, the Solicitor General of the United States, is probably accustomed to criticism. When you run the office responsible for representing the U.S. government before the Supreme Court, making everyone happy is just not in the cards. Usually, though, the criticism is limited to a fairly small circle of lawyers, journalists, and others who follow the Supreme Court closely. With a brief filed [late] in December, Verrilli created a different, more public kind of stir, among citizens of Puerto Rico and others concerned with the legal and political status of that island. The brief was part of a case testing whether it violates the Constitution's Double Jeopardy Clause for both the federal government and the government of Puerto Rico to prosecute a criminal defendant for the same conduct. In urging the Court to say that such dual prosecutions do violate the Clause, the Solicitor General argued that Puerto Rico is not a "sovereign." In other words, General Verrilli argued that Puerto Rico is not like the fifty states and more than 500 Native American tribes, which are sovereigns for purposes of the Double Jeopardy Clause. Sean Anderson Photo Credit: University of Illinois College of Law Puerto Rico became a territory of the United States in 1898, when the Treaty of Paris put an official end to the Spanish-American War. The law seems clear that territories, unlike states and tribes, are not sovereigns for purposes of the Double Jeopardy clause. In the wake of World War II, though, with the new United Nations pressing former imperialist powers to shed their foreign colonies, Congress authorized increased self-government for Puerto Rico, and approved a constitution adopted by the people of Puerto Rico in 1952. At the same time, both the federal government and the government of Puerto Rico started referring to the island as a commonwealth, rather than a territory. Many in Puerto Rico have maintained that those changes made the island something more than a mere territory. In addition, many have taken the position that any future changes to Puerto Rico's powers of self-rule would require the consent of the Puerto Rican government. Solicitor General Verrilli's recent brief to the Supreme Court argued, on the other hand, that Puerto Rico is still a territory, albeit one with significant powers of self-government. A necessary implication of that position is that the U.S. Congress could unilaterally revoke some or all of that self-government, although Verrilli hastened to point out that there's no reason to think Congress would do so. The arguments in the brief quickly became fodder for ongoing political battles in Puerto Rico. As you might already know, public opinion there is divided among those who favor statehood, those who prefer continuing something like the status quo, and a few who want the island to be independent. Puerto Rico's governor, who favors the current commonwealth status, accused Verrilli of repudiating promises the federal government had been making ever since the 1952 constitution. The governor's political opponents, including Puerto Rico's non-voting delegate to Congress, pointed to the brief as evidence that Puerto Rico holds a "second-class" position in the U.S. and needs to push for statehood. This particular firestorm will probably die out quickly, but the question of Puerto Rico's status will certainly come up again.
Money Can't Buy You Love: The Story of Gravity Payments (rebroadcast)
Does money buy happiness? The experience of one company suggests that "No" is the answer. In April 2015, the CEO of Gravity Payments announced that all employees would receive a minimum salary of $70,000 a year. This experiment with narrowing the income gap within one company triggered employee discord. It also be came part of a court battle between the company's co-founders, the Price brothers. What went wrong? Find out in this week's radio commentary.
The Affordable Care Act and The Origination Clause
Forgive me if I'm starting to sound like a broken record, but the Supreme Court is being asked to hear yet another challenge to Obamacare. The Court has already decided three cases challenging aspects of the landmark healthcare law, and it will hear argument in a fourth next year. Now, the Court faces a new challenge, this one attacking the process by which Obamacare was adopted. The Justices are waiting for responses before deciding whether to hear the new case. This latest challenge revolves around a provision in the Constitution called the Origination Clause, which reads, in its entirety: "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." When a federal court of appeals decided the case, a majority of the judges said Obamacare was not a bill for raising revenue, and so was not subject to the Origination Clause. Several judges disagreed, but they said Obamacare complied with the Origination Clause by originating in the House of Representatives. The challengers, of course, say Obamacare was a bill for raising revenue and did not originate in the House. Sean Anderson Photo Credit: University of Illinois college of Law Those seem like easy questions, so how could there be so much disagreement? First, the Supreme Court has decided a few cases under the Origination Clause, and those decisions make clear that not every bill that raises some revenue counts as a "Bill for raising Revenue." Some bills, the Court has said, primarily accomplish other goals, such that raising revenue is in some sense subordinate. So one part of the fight in the new case is about how and where to draw that line. Obamacare includes tax provisions that stand to raise a lot of revenue—recall that the Court upheld Obamacare's individual mandate as an exercise of Congress's taxing power. But the court of appeals said it's really a law about reforming health care insurance and financing, so that the revenue provisions don't subject it to the Origination Clause. Second, Obamacare did technically originate in the House of Representatives. The Senate took an unrelated House bill, deleted everything of substance, and replaced it with the then-current version of Obamacare. So the second part of the case is about whether that "gut and replace" procedure complies with the constitutional language allowing the Senate to propose amendments to revenue bills that must originate in the House. The challengers say allowing such a transparent procedural workaround would rob the Origination Clause of any real effect. The fact that all the court of appeals judges agreed that Obamacare complied with the Origination Clause should make it harder for the challengers to convince the Supreme Court to hear the case. Often the Court waits to hear an issue until there are conflicting decisions in the courts of appeals. But some members of the Court might want to weigh in to clear up the conflicting reasoning in the lower court opinions. Add to that the big-ticket political overlay of Obamacare, and I wouldn't bet a lot of money against the Court's taking the case.
Imagine all Whoville remembered the past. Imagine all Whoville wanted to cast The Who nets way up high in the air And capture the Grinch — with all his green hair. So imagine that townspeople took to the courts. Whoville v. Grinch, a drama of sorts. Pretend that they looked to the courts of this state, Deciding forgiveness just had to wait. Three charges, three big ones, a three-count indictment. And the only defense: a sort of contritement. For all that the Grinch could truly say Was "I'm sorry. Not again," in his change-of-heart way. Defense enough? You have to decide. Hear all the counts with ears open wide And then think: if the jury were you, If they jury were you, what would you do? Count Number One would certainly be — You probably guessed it — Burglary. For the Grinch, he entered a dwelling intending To take all things within, including the mending! Illinois Code Section 19-dash-3 Describes residential burglary. For the Grinch to be guilty of just such a crime, He'd have to have entered with theft on his mind. Did he? Let's look to the Dr. Seuss book. In it, Grinch grabbed Santy-hat from a hook And didn't say much of what he was thinking. But we'll look to his actions . . . and he'll soon be sinking. Count Number Two, a simple one: Theft. For the Grinch came to Whoville and left it bereft Of all the Who's things: the roast beast, the presents, Leaving all Who's less who-like, more like singing peasants. Illinois Code Section 16-dash-1 Tells about theft, doesn't mention by gun. Instead, there's guilt if, by threat or deception, He got things of another, like the stuff I just mentioned. We'll look to the book again for the facts. The Grinch has a witness to his evil acts. Cindy Lou Who watched the tree go and grieved. It's she whom the Grinch meant to deceive. And recall that sad little dog name of Max? We've all heard tale of such horrid attacks On that poor little antlered mutt — no, hairy sweetie. Cruelty to Animals — Count Number Three. The Humane Care for Animals law Seems written to get the Grinch right in the craw. The Grinch wasn't allowed to go where he went; An animal he can't overwork or torment. There's evidence there — nice drawings, in fact: Grinch giving Max horns — a very cruel act. Then overwork? Max pulled a stuffed sled. Torment? Oh, yes. Grinch played games with his head. But, as for witnesses, dogs cannot talk. And so, on this count, Grinch might get to walk. The pictures? They're there, every one, plain as day. But, you guessed it, it's all called hearsay. After his deeds, the Grinch changed his small heart. And put all things back where they'd been at the start. But that, while a very fine act, thing, or gesture, Is not a defense. (More like prison investiture.) A judge, however, could indeed consider such things Mitigation in Grinch's own court sentencing And send Grinch to jail, put him in ties For far less time than he'd face otherwise. So would you convict? Oh, please, please do tell. In the book, there's no trial: All's well that ends well. For me, the case seemed pretty airtight-a. But I'm against crime. My name's Amy Gajda.
Verity Winship Photo Credit: University of Illinois College of Law Usually the Supreme Court is in the news when it decides a case. But sometimes the Court is in the news because it does nothing at all. That is what happened in U.S. v Newman. The Court refused to hear this high-profile insider trading case. Learn why the Supreme Court's silence matters in this week's radio commentary.
Settling With Salaita - What It Means to Settle a Lawsuit
Verity Winship University of Illinois College of Law By: Verity Winship In November 2015, the University of Illinois at Urbana-Champaign announced that it had settled its litigation with Steven Salaita. One question raised in blogs and news media is what to make of this settlement. Did one side win? And what next? Whatever you think about the underlying controversy and the values at stake, understanding the legal aspects of settlement can help you draw your own conclucsions about the take-away. What it measn to settle a lawsuit is the subject of this week's radio commentary.