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 »
Unless you've been living under a rock, you're probably aware that Nintendo just released Pokemon Go for Android and iOS smart phones. Pokemon Go is an augmented reality game that is becoming a sensation. The market value of Nintendo went up by billions of dollars in the first few days following its release. But there are a few things to keep in mind. When you download and install Pokemon Go, you give the app permission to access your phone's camera and GPS, among other things. You set up your avatar and catch your starter pokemon. Then you walk. The game shows your avatar on a cartoonish map using your phone's GPS. A small bar at the bottom right lets you know when there's a pokemon nearby. Once you're close enough, the pokemon will show up on your map, and you can try to catch it. Tapping on the pokemon when it appears will change your screen so that the animated character is laid on top of the camera view. When you rotate your camera, you will eventually see a pokemon sitting on top of something that is really in front of you. And it's not just your phone either. Other nearby players can find the same pokemon in the same spot. Flick your finger to throw a pokeball at it, and if you're lucky, you'll catch it. It's a game that uses the real world, and players have to walk around to play. Your neighborhood park probably has an in-game landmark, called a pokestop, where you can get free pokeballs and other in-game items. There are in-game gyms assigned to real world locations, and by going to a location, you can train your Pokemon or fight a rival faction. It's a brave new world for video games, and the release of Pokemon Go is having unexpected side effects. In the days after its release, bloggers and news agencies have reported on the game's potential benefits for both mental and physical health. Strangers have bonded over Eevees and Onyxes. But there are also some security concerns. One player wrote a blog entry about the disturbingly broad permission settings that some users encountered with the app when they logged in using their Google accounts. That blogger installed the game on iOS, and the app's permissions when he installed it, allowed the app full access to his Google account. Not all iOS users are reporting this, and Google and Nintendo have confirmed that this is a bug that will be fixed. However, even when this bug is fixed, keep in mind that Pokemon Go still collects a lot of information from you. If you are concerned about privacy, you may want to stick to Pokemon games made for Nintendo consoles. Another issue is the potential for crime. One of the items available in Pokemon Go is called Lure. If you activate a Lure at a pokestop, it will draw pokemon to the location. Nearby players will see flower petals on their screen to let them know that this is a good place to look for pokemon. In the game's first weekend, four teenagers allegedly used Lures to attract players and then rob them. Police forces are said to be receiving training about Pokemon Go, probably because of such incidents. Parents are also advised to take precautions to protect their children from predators who might use Lures to attract potential victims. Fortunately, when a Lure is set, the game displays the user name of the player who set it, so Lures are not being used anonymously. On the less harmful side, businesses located near pokestops can use Lures to attract customers. In short, if you play Pokemon Go, do so carefully and pay attention to your surroundings.
The New York Times and CNN recently ran interviews with Justice Ruth Bader Ginsburg where she was outspoken in her opposition to the candidacy of Donald Trump. In her New York Times interview, Ginsburg said that she could not imagine what the country would be like with a Trump presidency and the mere possibility made her want to move to New Zealand. To take partisanship out of it, imagine if the interviews were instead with a conservative Supreme Court justice who remarked that the thought of Hillary Clinton's election made him consider moving to New Zealand. Regardless of the candidate at which they are directed, do we want our Supreme Court justices to publicly comment on candidates for political office? Some have criticized Justice Ginsburg's comments because the federal courts, and especially the Supreme Court, should appear to the public as being above the political fray. Under this reasoning, Justice Ginsburg has undermined confidence in the Supreme Court because she has made it appear more like the other political branches of government. Those arguments have some validity, but they omit an important point. Our judicial officers not only should appear to be above the political fray, they should do their best to actually be above the political fray. My first job out of law school was clerking for a federal appeals court judge. One day we were in chambers working on a case that was before the court, and I started to comment about another judge's likely vote given that he was a conservative. The judge cut me off in mid-sentence, saying "We do not think that way in here." He was right. Judges have the same mental biases and reasoning shortcuts we all have. As humans, we are hard-wired to use these heuristics, and as a novice lawyer that is what I was doing. Because I thought the "conservative" position was preordained in this case, I did not need to reason any further. My vastly more experienced boss was much better at avoiding these logical misfires and therefore much less likely to decide a case based on his subtle and often subconscious biases. I am not suggesting that judges have a super-human ability to completely overcome their political leanings and other preconceptions about the world. Many studies confirm that ideology affects judicial decision making. These studies, however, do not find that ideology explains all of judicial decision making let alone support the idea that judges should just throw up their hands at the futility of trying to overcome ideology. Indeed, there are some studies that suggest that more legal experience leads one to be less likely to be influenced by ideology when doing legal decision-making tasks. When one looks at our sometimes arcane rules for court procedures or even the physical trappings of our court buildings, it is tempting to conclude they are there only for the outsiders – to impress upon the public the majesty and neutrality of the court system. That is only part of the story. They also are there to impress upon the judges that society relies on them to do their best to be rational decision makers, not controlled by their passions. The Judicial Conference of the United States has adopted the Code of Conduct for United States Judges. It states that a judge "should not . . . publicly endorse or oppose a candidate for public office." In making her remarks, Justice Ginsburg did not violate this ethical code because it does not apply to Supreme Court justices. Whether Supreme Court justices should be an exception to a code of ethics that applies to every other federal judge is a subject for another time. But the code does capture our aspirations for our judges – among them a call not just to appear to be above the political fray but to strive to actually do it. In making her remarks, Justice Ginsburg did not live up to that aspiration.
Sean Anderson University of Illinois College of Law 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. 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: Paul Heald Paul Heald University Of Illinois College of Law 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, demanding 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? 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 orginal choices made by Sarony in setting the launch background scene, posing Wilde, and lighting the set, it found the photo orginal 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 UK 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 example, 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.
What if the phone company charged you for your phone calls based on who you were or what you were talking about? It sounds absurd in the telephone context, but that type of practice is at the heart of the modern net neutrality debate. For the last several years, broadband providers have been pondering the idea of creating a fast lane for Internet content. As a user, you wouldn't pay more, but the people who produce the content that you access may have to pay more if they want their stuff to get to you faster. If your favorite show was on both Netflix and Hulu, and your service provider had a fast lane agreement with Netflix, it would probably be more pleasant to watch the show on Netflix, instead of Hulu. But that doesn't have anything to do with the actual quality of the video streaming provided by Netflix or Hulu, just how much either of them is willing to pay for preferential treatment by your ISP. The federal court of appeals in the DC Circuit recently made its third ruling about net neutrality in the last seven years. The court defines net neutrality as "the principle that broadband providers must treat all Internet traffic the same, regardless of source." That case, United States Telecom Association v. FCC, resulted in this court upholding the FCC's 2015 Open internet Order. There are five open Internet rules in the Open Internet Order. The first three rules are bright line rules: No blocking content, no throttling traffic, and no paid prioritization of one type of traffic over others. The fourth rule is a general conduct rule and prohibits broadband providers from unreasonably interfering with users' choices or the service offerings of third party service providers like Netflix and Google. The fifth rule addresses transparency concerns. The recent ruling is the most recent step in protecting net neutrality, and its significance will be more easily understood with a brief history lesson. In 2007, Comcast was caught interfering with Internet traffic that used a specific peer-to-peer file transferring method, the bittorrent protocol. The FCC took administrative action against Comcast over this, but the DC Circuit Court of Appeals held that the FCC had not established that the agency had adequate authority under the law to require Comcast to follow open internet rules. That was Comcast v. FCC, decided in 2010. The FCC went back and identified a statutory source of authority for open Internet rules in its 2010 Open Internet Order. The rule was challenged by Verizon, and the DC Circuit heard arguments again. This time, the court agreed with the FCC that the agency has the statutory authority to enact open Internet rules – BUT the rules were still no good, because based on earlier cases, broadband providers were not telecommunication services, so the FCC had less authority to regulate their behavior compared to, say, AT&T's home phone service. That was Verizon v. FCC in 2014. This is where the 2015 Open Internet Order comes into play. The FCC reclassified wired and mobile broadband Internet access services as telecommunications services in its 2015 Open Internet Order that was just upheld by the federal appeals court in DC. The open nature of the Internet is important to preserve. It helps keep the playing field even, and supports new Internet startups that would not be able to pay extra for premium fast lane treatment. The fight for a free and open Internet may not be over yet, but open Internet activists have achieved a significant victory with this recent case.
Global Soccer, Corruption, and FIFA As a Victim of Crime (ReBroadcast)
FIFA – the organization that governs soccer worldwide – had much of its leadership indicted in 2015. Indictments pointed to corruption, misappropriation, embezzlement, kickbacks and bribes. Some FIFA officials pled guilty, promising to forfeit millions of dollars to the US criminal authorities. In March 2016, FIFA came forward to claim some of that money. It filed a "victim statement," explaining how it was harmed and why it should get its money back. This radio commentary looks at FIFA's role as a victim of crime.
Global Soccer, Corruption, and FIFA As a Victim of Crime (ReBroadcast)
According to Illinois Comptroller Leslie Munger, the state of Illinois has a backlog of unpaid bills of just over $7 billion. Revenue projections suggest Illinois is not likely to climb out of this financial hole anytime soon. When the debt of private companies overwhelms their revenues, these companies often file bankruptcy. If bankruptcy was good for General Motors, why isn't it also good for the state of Illinois? The short answer is that a state cannot file bankruptcy. All bankruptcy law is federal law. Although federal law says that people and corporations can file bankruptcy, no federal law says that a state can file bankruptcy. Federal law does say that, if state law allows it, municipalities and other local governmental bodies can file under chapter 9 of the Bankruptcy Code. Thus, the city of Detroit could file a chapter 9 bankruptcy but not the state of Michigan. States, of course, can make their own laws, but the U.S. Constitution forbids from simply passing its own bankruptcy law. At the time of the Constitution's drafting, states sometimes tried to abandon valid debts owed by the state or one of its citizens. A New York creditor might find try to enforce a debt in Georgia only to find that a Georgia state law had nullified the debt. One of the ways the U.S. Constitution tried to solve this problem was to prevent any state from "impairing the obligation of contracts." Known as the Contract Clause, this language prohibits a state bankruptcy law. If I borrow $100 from you and agree to pay you back with interest, we have a contract. If the state passes a law that says you cannot collect the full amount, it is has "impaired" my contractual obligation to you. Many state constitutions, including Illinois, also have a similar rule that is applied in much the same way as the Contract Clause in the U.S. Constitution. These general state constitutional protections for contracts are in addition to specific protections for special state obligations like state employee pensions. The Contract Clause only applies to the states. This explains why Congress pass a bankruptcy law, but the states cannot. So far, we have discussed why a state cannot file bankruptcy in a legal sense, but could a state become "bankrupt" in the more ordinary sense of the word by just not paying its bills? The Contract Clause prohibits states not only from passing laws impairing the obligations of its citizens' contracts but also prohibits states from passing laws impairing the obligation of its own contracts. A state cannot declare it will never pay its bills – that would be a clear impairment of its contracts. A state might attempt a less drastic solution, such as announcing a temporary moratorium on debt repayment. The state might argue that is has not impaired the essential obligation of the contract. The money will be paid, just at a later time. The case law is not very clear about what would happen in such a circumstance. In past cases, the courts have been willing to tolerate some state changes to contracts during a financial emergency, for example when states were acting to alleviate their citizens' financial woes in the Great Depression. The type of contract also matters. The alteration of a pension contract will receive more court scrutiny than a state supply contract. Finally, a more severe change is less likely to be okay – a one- or two-year debt moratorium may be okay where a five-year moratorium will not. Because the states have limited tools to deal with their financial distress, there have been proposals for Congress to pass a law allowing a state to file bankruptcy. Some have raised constitutional objections to a bankruptcy law for states, but the chief hurdles seem to be practical and political. It is not likely that Congress will pass a bankruptcy law for states anytime soon. States like Illinois will have to find their own financial and political solutions to their debt problems.
The United States Government and Zero Day Vulnerabilities
In May, Secretary of Defense Ashton Carter addressed reporters at a news conference in California, where he talked about technology and cyber defense. Carter spoke about the United States' use of electronic attack methods to disrupt the activities of ISIS. But, he warned, we are not the only country with those types of capabilities. Technology is an equalizer. This has pretty much always been true. A lot of technology allows us to do old tasks in new ways to get things done faster, and this is also true for military technology. Considerable time and resources are required for an airstrike or an espionage operation. It takes much less effort to develop and deploy an electronic weapon that could have similar effects. Experts estimate that Stuxnet, the infamous worm that destroyed hundreds of nuclear centrifuges in Iran, cost a million dollars to develop. That sounds like a lot to you and me, but keep in mind that Congress budgets hundreds of billions of dollars for the Department of Defense every year. Stuxnet's development costs are within the reach of a small country, or even a very determined group of individuals. This is why Defense Secretary Carter was in California with other high-ranking policy officials to meet with technology companies. Relationships between technology companies and the government have been strained lately, as law enforcement calls for breakable encryption. But, the encryption controversy aside, cooperation between technology experts and the government is essential for national security. The government needs the technology expertise of the private sector, and vice versa. Cyber defense, however, requires innovative thought, not just money. A major obstacle to effective cyber defense is the unpredictability of zero day vulnerabilities. Zero days are security holes that are unknown and unpatched before an attacker uses them. Security researchers around the world identify zero days, and some of these zero days are sold on the open market. One of the purchasers in the market for zero day vulnerabilities is the U.S. government. Zero day vulnerabilities give our military and intelligence communities an edge as they develop cyber weapons and surveillance tools. But these security holes are discovered, not made. If we can find it and figure out how to use it against people who want to hurt us, there is also nothing stopping those people from using the same security holes against the U.S. military, U.S. infrastructure, and U.S. citizens. This should concern the technology companies—the software vendors—that are being asked to collaborate with the government on cyber defense. Our critical infrastructure has to be protected and civilians have to be protected too. But by supporting the market for zero day vulnerabilities and exploits, the U.S. government is tacitly condoning everyone else's efforts to develop cyber weapons, regardless of whether this is in the best interest of the public. Even if the U.S. government moves all zero day research in-house (in other words, the government agencies look for the zero day vulnerabilities themselves, instead of buying them from others), anyone else could find the same vulnerabilities with enough resources and time. Offense and defense may be more closely related in cyber conflict than in any other context. Cyber defense isn't just about building a better wall to keep out better weapons. The "better wall" has to be designed with specific weapons in mind, and the technologies of these weapons need to be integrated into this wall to some degree. Only by giving cyber defense at least as much emphasis as cyber offense will we be able to mitigate threats to our society and our way of life.
The United States Government and Zero Day Vulnerabilities
A federal judge in Texas has ordered the U.S. Department of Justice to send a lot of its lawyers back to school--to remedial classes in legal ethics, that is. The Justice Department, meanwhile, says the judge's order was based on a misunderstanding, rather than an ethical failure. The backdrop is a lawsuit challenging the Obama Administration's decision in 2014 to expand dramatically the number of undocumented immigrants who would receive temporary deferrals to stay in the United States. Twenty-six states challenged the expansion, and the case is currently before the Supreme Court. The ethics dispute, though, is separate from the merits of the case. It involves one of the most basic rules of legal ethics: don't lie to the court. The judge says government lawyers told him several times, in late 2014 and early 2015, that the new policy would not be implemented until mid-February. As it turned out, though, the government had already begun implementing one aspect of the new policy with respect to over 100,000 immigrants, and at least some of the lawyers in the case knew it. When I describe it that way, you can probably see why the judge thinks the lawyers misled him. If I tell you the government's side of the story, though, it sounds very different. You see, the government already had a policy in place that allowed some undocumented immigrants to get deferrals. The deferrals were good for two years, and if an immigrant continued to meet the criteria, he or she could renew the deferral for additional two-year periods. One piece of the new 2014 policy was to change the two-year period to three years. So, in late 2014 and early 2015, the government had begun granting three-year deferrals to immigrants who were already eligible under the existing policy. But the government had not implemented the parts of the policy that would expand the pool of immigrants eligible for deferrals—expand it by something like four million people. And those are the parts of the policy that were driving the plaintiffs' challenge; the twenty-six states that sued claimed the expansion would require them to provide services to lots of additional immigrants. So, according to the government, when its lawyers told the court the policy wouldn't be implemented until February 2015, they were only thinking of the controversial part—the expansion. It's hard to say who's right or wrong in a situation like this, especially from the outside. As an experienced litigator, I can tell you that the government's account seems plausible to me: the lawyers simply saw the three-year deferral period as separate from the issues at stake in the case, so it never occurred to them that they might be misleading the judge. Maybe it should have occurred to them, but it's plausible it didn't. But the judge didn't buy it, and he's the one who has been living with the case for a year and a half. His order requires three hours of ethics training each year for every Justice Department lawyer stationed in Washington, D.C., who appears in court in any of the twenty-six states involved in the lawsuit. Unless the order is reversed on appeal, that will add up to a lot of training!
Do you have a bank account? Credit card? Cell phone? Internet? If you answered yes to any of these questions, then this radio commentary is for you. Deep in the small print of your service agreement is likely a paragraph that says that any disputes you have with that company must be brought outside of court. In arbitration. And these clauses often say that you are on your own – you cannot sue as a group. A federal agency, the CFPB, proposed a rule in May 2016 that would prevent credit card companies and other financial services from blocking consumer class actions. Lawyers and politicians and companies are having their say. But you are also in this fight, whether you knew it or not. What this fight is really about is the subject of this radio commentary.