The Supreme Court’s baffling tech illiteracy is becoming a big problem

The Supreme Court’s baffling tech illiteracy is becoming a big problem

If one thing was clear from decisions handed down this week, it's that SCOTUS is clueless on technology Selina MacLaren
Salon.com

 Jun 28, 2014 

 

...The problem isn’t that the justices are old fogeys. The problem is that the justices were groomed in a field that emphasizes reasoning by analogy. And analogies were critical in these cases: The Aereo decision, for example, hinged on whether the company was more like an equipment provider or a cable company; the Riley and Wurie decisions addressed whether cell phones are sufficiently analogous to wallets. But emerging technology is, by definition, about breaking away from history. Perhaps reason by analogy hamstrings innovation, or perhaps it promotes impartial decision-making. In any event, it helps explain why the justices sometimes say such silly things.

Years of tortured analogies at oral arguments culminated most recently with this week’s cases, but a look back at decisions from years past reveals an abaundance of strained analogizing. In past arguments, computers were analogized to typewriters, phone books and calculators. Video games were compared to films, comic books and Grimm’s fairy tales. Text messages were analogized to letters to the editor. A risk-hedging method was compared to horse-training and the alphabet. EBay was likened to a Ferris wheel, and also to the process of introducing a baker to a grocer. The list goes on.

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“I think there are very, very few things that you cannot find an analogue to in pre-digital age searches,” Justice Breyer said during the Riley oral argument. “And the problem in almost all instances is quantity and how far afield you’re likely to be going.” For the high court, a prior century or two apparently isn’t too far afield.

The justices are tickled by these analogies. Justice Kennedy, for example, appears blissfully unaware of the new definition of “troll,” and covered for his ignorance with a joke during oral argument for eBay v. MercExchange: “Is the troll the scary thing under the bridge, or is it a fishing technique?” This raised eyebrows in the patent industry, where “patent troll” is a stock phrase. Justice Bryer, during the the Riley oral argument, interrupted a discussion about the GPS capabilities of smartphones with another analogy joke: “I don’t want to admit it, but my wife might put a little note [with directions] in my pocket.” (Is the smartphone supposed to be like his wife? Unclear.)

Justice Alito, arguably the most analogy-obsessed of the bunch, best summed up the Court’s historical handicap when he teased Scalia in 2011, saying: “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

But this fixation on technological analogies is more than just an idle curiosity. It has real-world implications that are not to be underestimated. Recent years have borne out that if a technology under scrutiny cannot be analogized to a historically protected invention, it may be doomed. In 2006, for example, Chief Justice Roberts doubted that eBay was an actual invention. He asked the lawyer, Seth Waxman, what the invention of eBay was, and when Waxman explained it as an electronic market, Chief Justice Roberts responded flippantly, saying, “I mean, it’s not like he invented the internal combustion engine or anything. It’s very vague.”...

 

Here is a judge and a case that offers a bit of hope for our legal system

Judge Awards Utah Couple $306,750 in Case Against Retailer That Tried to Impose Fine for Critical Online Review

Statement of Scott Michelman, Attorney, Public Citizen

June 26, 2014

Contact: Angela Bradbery (202) 588-7741
Scott Michelman (617) 899-9076

On Wednesday, Judge Dee Benson of U.S. District Court in Utah awarded Public Citizen clients John and Jen Palmer $306,750 ($102,250 in compensatory damages and $204,500 in punitive damages) against the online retailer KlearGear.com. The company had demanded $3,500 from the Palmers for writing a critical online review of the company, then ruined John’s credit when he refused to pay.

As a result of KlearGear.com’s actions, the Palmers lost credit opportunities; suffered anxiety, fear and humiliation; and spent weeks without heat in their home for themselves and their 3-year-old son when their furnace broke and they were unable to obtain a loan to replace it.

Public Citizen sued KlearGear.com on the Palmers’ behalf in December. When KlearGear.com failed to respond, the court granted a default judgment declaring that John did not owe the $3,500 and setting a hearing, held Wednesday, to determine damages. After an hour-long hearing at which both plaintiffs testified, the judge announced the award from the bench.

We are gratified by Judge Benson’s ruling, which appropriately compensates the Palmers for their ordeal and punishes KlearGear.com for its abuse of the credit reporting system in retaliation for the Palmers’ speech. The court sent a strong message that corporate bullying of consumers would not be tolerated. The Palmers are relieved that John’s credit has been restored and they feel vindicated by today’s award.

More information about the case is available here.

Canadian Judge Says Google Must Remove Links Worldwide

 Is the golden age of the Internet over?  Will we need to go back to the printing press to share information?

Canadian Judge Says Google Must Remove Links Worldwide

By IAN AUSTEN

New York Times

June 19, 2014 

 

Google has argued that following a global order by a Canadian court to remove specific search results could put in into conflict with laws of other countries.

OTTAWA — Google will appeal a decision by a court in British Columbia that requires the company to remove specific search results worldwide. While the case stems from an intellectual property dispute between two small industrial equipment companies, some legal experts say that if the decision is upheld it could have far-reaching consequences for the Internet.

The temporary order, granted last Friday by the Supreme Court of British Columbia, emerged from protracted litigation between two companies which were once both closely connected. Equustek Solutions makes a device that allows industrial machines made by different manufacturers and that use different software to communicate with each other. Those products were marketed by another company, Datalink, which sold them under its name.

While the two companies almost merged at one point, relations soured in the middle of the last decade and they split. One result of that was the court finding that Datalink’s stole Equustek’s designs and engineering to create its own device, which it largely sells through the Internet.

Trying to block the sales of Datalink’s product, however, has not been easy despite a court order banning online sales in December 2012. Datalink’s owners appear to have left Canada and the location of its Web-based operation is unclear.

In an earlier court ruling, the court ruled in favor of Equustek Solutions and its principals. After that ruling, Google Canada began to voluntarily remove the Web address related to Datalink from searches made through Google.ca. But in last week’s decision, Justice Lauri Ann Fenlon found that Datalink swiftly set up new websites with slightly different addresses every time it was blocked from search results in Canada by Google.

“Websites can be generated automatically, resulting in an endless game of ‘whac-a-mole’ with the plaintiffs identifying new URLs and Google deleting them,” she wrote.

Her solution, unprecedented for Canada, was the interim injunction requiring Google to kill all Datalink search results worldwide.

If upheld and then emulated by courts in other countries, said Michael Geist, a law professor at the University of Ottawa, the Internet could go from being perceived as a lawless place to “one where all courts apply” setting up conflicts between nations on several issues, particularly freedom of expression.

“The judge recognizes that there is this global impact but doesn’t really want to deal with it,” said Professor Geist, who holds the Canada Research Chair in Internet law. “Where this decision goes off the rails is when the court decides its order making power is limitless.”

Google Canada declined to comment beyond a short statement: “We’re disappointed in this ruling and will appeal this decision to the British Columbia Court of Appeals, B.C.’s highest court.”

Professor Geist said he was puzzled that the order involves Google and no other web search provider, like Bing, making the information still easily available.

And while he agreed that the court could, and probably should have, ordered these search results struck in Canada, he said that it overreached with its global order. It would have been more appropriate, Professor Geist said, if Equustek sought similar orders in each of the countries where Datalink does business. They are not likely very numerous. Court filings indicate that at its peak in 2005, Equustek only sold 672,000 of its devices.

For Professor Geist, the decision is troubling in two different respects. If the order stands, it would most likely put Google in the position of deciding itself which court orders it obeys and where it honors them.

At the same time, he asked how Canadians would feel if “the European Court of Justice looked to extend the right to be forgotten not just to Europe but to the rest of the world?” That ruling, released last month, requires all search providers’ European operations to remove links that people believe violate their online privacy.

In its court submissions, Google argued that following a global order by a Canadian court could put in into conflict with laws of other countries. It cited a case where a French anti-racism group said that Yahoo had broken French law by allowing users to sell Nazi artifacts through its websites. A French court ordered Yahoo to block all access from France to Nazi artifact postings stored on its servers in the United States and fined the company about $15 million.

Yahoo voluntarily removed the material and then turned around and sued the anti-racism group in California, arguing that its First Amendment Rights to free expression had been violated. A federal judge sided with Yahoo in 2002. But that was set aside by an appeals court in 2006, which did not address the question of whether American Internet companies must honor rulings by foreign courts related to postings that are unlawful overseas but not in the United States.

Professor Geist said that Google would most likely ask the appeals court to put the injunction on hold until it reaches its decision, a process that could be lengthy. It is also possible that Google will be supported in its appeal by other Internet search companies.

Based on earlier Canadian cross border Internet cases, Professor Geist said he expected that the global order would be struck down.

“This judge has decided that she’s going to decide for the rest of the world,” he said, adding that it appears that the judge, seeing the size and power of Google, may have decided that “judges need powers that are equally large if they’re going to deal with it.”

CA Supreme Court Won't Publish Opinion that Former UCLA Basketball Player’s Defamation Lawsuit May Go Forward

Metropolitan News-Enterprise

June 12, 2014

Supreme Court Denies Request to Publish Ruling in Former UCLA Basketball Player’s Defamation Lawsuit

By a MetNews Staff Writer

The California Supreme Court yesterday declined to order publication of a Court of Appeal ruling that allows a former UCLA basketball player to sue Time Inc. over a critical story that appeared in Sports Illustrated.

The justices, at their weekly conference in San Francisco, voted unanimously to deny the request by attorneys for Reeves Nelson. While court rules allow the Supreme Court to order publication of Court of Appeal opinions where the panel has denied certification, such requests are rarely granted.

Div. Four ruled March 11 that Nelson had established a prima facie case of defamation and false-light invasion of privacy, and that Los Angeles Superior Court Judge Mary Ann Murphy erred in granting the defendant’s anti-SLAPP motion.

The story by George Dohrmann appeared in March 2012. It said that Nelson, who had been dismissed from the team, was the “ringleader” of a band of undisciplined freshman athletes whom coach Ben Howland couldn’t or wouldn’t control, leading to a failed season.

—AP UCLA coach Ben Howland and Reeves Nelson are pictured during a UCLA basketball game.

After leaving UCLA, Nelson played for a pro team in Lithuania for five weeks, returning to await the results of the 2012 NBA draft. When no team selected him, he tried unsuccessfully to catch on with the Los Angeles Lakers, then played in the NBA Development League.

The website LatinBasket reported that he played this year for a team in Nogales, Mexico.

The story claimed Nelson had been involved in numerous incidents in which teammates were physically attacked or otherwise demeaned. He supposedly deliberately injured teammates during practice; urinated on a fellow player’s bed; pulled on a player’s arm, reinjuring the man’s surgically repaired shoulder; knocked another teammate to the ground from behind, injuring his back; and injured another player by elbowing him in the ribs, all of which he denied.

Nelson further denied Dohrmann’s assertion that he had admitted those allegations and apologized for them when he said:

“On all that stuff, I have no trouble admitting that I lost control of my emotions sometimes. I take responsibility for my actions. I’m really just trying to learn from the mistakes I made on all levels.”

Dohrmann and his editor both filed declarations insisting that the story had been carefully and accurately sourced.

Los Angeles Superior Court Judge Lee Edmon, writing for the Court of Appeal while sitting on assignment, agreed with the trial judge that the plaintiff was a limited purpose public figure who must prove actual malice in order to prevail. But Edmon also concluded that Nelson had a prima facie case because if he can prove that he never admitted to or apologized for the alleged misconduct, he will have established falsity and actual malice.

She cited Masson v. New Yorker Magazine (1991) 501 U.S. 496, in which the high court held that a psychoanalyst who had been interviewed by a reporter regarding his relationship with the Sigmund Freud archives had established a prima facie case of defamation, based on evidence that his remarks had been taken out of context and quotation marks used around comments that he had not made.

Edmon wrote:

“Crediting (as we must for anti-SLAPP purposes) Nelson’s account of the interview, we conclude that Dohrmann’s statement that Nelson confirmed some of the incidents described by the article and expressed regret would support a finding of actual malice. As in Masson, the alleged falsity is not the words spoken by Nelson, but the context in which the words are placed. As reported by Dohrmann, Nelson appears to be admitting and apologizing for each of the incidents described in the article. But Nelson says these incidents never happened and more significantly for our analysis that Dohrmann never asked him about them. Although Nelson concedes he made the quoted statement, he says it was in response to Dohrmann’s inquiry as to how he felt about his suspension and expulsion from the team, not an inquiry about the particular incidents described in the article. This difference is material because it significantly changes the meaning of Nelson’s admission and apology. As such, it would support a finding of actual malice.”

The case is Nelson v. Time, Inc., B245412.

The new debtors prisons: Pennsylvania mother dies while jailed for truancy fines

Laura Clawson

Daily Kos staff

Jun 12, 2014

The new debtors prisons: Pennsylvania mother dies while jailed for truancy fines

If you thought debtors prison was something straight out of Charles Dickens—and something long ago left behind us—think again. Debtors prison is becoming very much a part of the American prison-industrial complex, and on Saturday, a Pennsylvania mother of seven died there:

Eileen DiNino, 55, of Reading, was found dead in a jail cell Saturday, halfway through a 48-hour sentence that would have erased about $2,000 in fines and court costs. The debt had accrued since 1999, and involved several of her seven children, most recently her boys at a vocational high school. "Did something happen? Was she scared to death?" said District Judge Dean R. Patton, who reluctantly sent DiNino to the Berks County jail Friday after she failed to pay the debt for four years.

While dying in jail over truancy fees may be rare, going to jail over truancy fees is all too common, and it disproportionately hits women: "More than 1,600 people have been jailed in Berks County alone—two-thirds of them women—over truancy fines since 2000, the Reading Eagle reported Wednesday." Of course it goes without saying that people who go to jail over $2,000 in fines accumulated over years are not wealthy. Increasing court fees get added to fines—DiNino owed money for things like postage and a "judicial computer project"—often creating a cycle of debt owed to the state that it's almost impossible for low-income people to escape, no matter how hard they work to avoid incurring further debt. Somehow the answer our criminal system has arrived at is to spend money jailing people because they owe the system money they cannot afford to pay. And that's why Eileen DiNino died in jail.

Billionaire Gets Four Months for Sexual Assault of a 12-Year-Old Girl

Ironically, this case seems to indicate that girls in wealthy families receive less protection from the justice system than girls in poor families because rich stepfathers must be protected from jail time.

Are you hearing this, women of wealth?  Are your daughters fair game for sexual predators with money? 

It looks like the victim in this case may have been paid not to testify.  Maybe it's time to put some protection for stepdaughters in prenups. 

Mr. Johnson's company owns Windex, Pledge, and Ziplock. 
SC Johnson and Son says it's "goal is to make homes better 
for families."

Billionaire Gets Four Months for Sexual Assault of a 12-Year-Old Girl

by Richard Riis 

Richard Riis

Daily Kos

Jun 08, 2014

 

“Affluenza” has struck again.
Samuel Curtis “S. C.” Johnson III, the 59-year-old billionaire heir to the S. C. Johnson & Sons (formerly Johnson’s Wax) fortune, who confessed to repeatedly sexually assaulting his teenage stepdaughter, has received an prison sentence of only four months from Racine County Circuit Justice Eugene Gasiorkiewicz, citing the Johnson family’s importance in the community.
Johnson pled guilty to mere misdemeanor charges of fourth-degree sexual assault and disorderly conduct instead of felony sexual assault on a minor child. The victim told police Johnson was “a sex addict” and touched her inappropriately 15 to 20 times beginning when she was 12 years old. The stepdaughter has since moved to North Carolina and was unwilling to return to Wisconsin to testify in the case.
Johnson’s attorney, Michael F. Hart, that the maximum prison term for his client was not fair and should be reserved for “maximum defendants,” people unlike his client (read: not billionaires), who has no prior record and who leads a “productive life.”

 [Maura Larkins' comment:  a "productive life"?  Really?  What does Mr. Johnson produce?  Doesn't the lawyer really mean that Mr. Johnson enjoys his life more than other men who rape their step-daughters?  

Isn't he saying that people who are fortunate should be punished less than the average guy?  

Ironically, this case also seems to say that girls in wealthy families deserve less protection than girls in poor families.  Are you hearing this, women of wealth?]

Judge Gasiorkiewicz agreed and gave Johnson a fine of $6,000 and four months in prison. The judge ruled that he must serve at least 60 days of the sentence before he will be eligible for release.
This decision comes fast on the heels of several other high-profile cases in which justice has been perverted in favor of the very wealthy.
It was the case of Ethan Couch that gave us the “affluenza” defense. Couch, the son of a wealthy Texas businessman, fled the scene after he killed four people in a drunk driving accident and received only ten years’ probation from Judge Jean Boyd, thanks to his attorney’s argument that the teen suffered from “affluenza” and failed to grasp the consequences of his actions. Couch is now attending a very expensive, very prestigious rehab center, paid for not by his multi-millionaire parents but by the taxpayers of Texas.
Last month, a Washington state judge failed to sentence wealthy businessman Joshua Shaun Goodman, arrested for his seventh DUI and for leading police on a 100 mph chase through Olympia, that ended when he crashed into a home, to any jail time. The reason? According to Judge James Dixon, giving Goodman jail time “wouldn’t be fair for him.” The judge even gave Goodman permission to travel to New York and attend the Super Bowl while his case was being adjudicated.
Du Pont heir Robert H. Richards IV, had his sentence of eight years in prison for raping his daughter repeatedly between the ages of 3 and 5 as well as molesting his son starting at the age of 19 months, suspended by Delaware Superior Court Judge Jan Jurden. Why? Jurden thought the rapist “would not fare well” in prison. In 2009 Richards was placed on eight years' probation and ordered to attend an inpatient psychiatric program at MacLean Hospital in Massachusetts. As of April 2014 court records show that Richards has yet to appear for treatment.
While it is still a sad fact that justice in America is unequal for black and white, the color the system increasingly panders to most outrageously is green.

Originally posted to Richard Riis on Sun Jun 08, 2014 at 05:23 AM PDT.

Also republished by Badger State Progressive and This Week in the War on Women.