Adventure at The Computer History Museum

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October 27, 2013

What do two geeks do on a Sunday? Go to the Computer History Museum.

The Computer History Museum is geek Heaven. You can walk the halls and see the beginning of the computer revolution, from the Babbage Engine to Apple 1.

I would hold a Legal Geeks conference at the Computer History Museum or The Tech Museum of Innovation if we ever put one together. I always hold those with the skill to design, engineer and turn an idea into a reality in very high regard. Many times those ideas have been drawn on cocktail napkins, but every one of them has involved vision and years of hard work.

The 7th Wonder of the Geek World

I had the good fortune to enjoy the Computer History Museum with Leslie Crystal.

For those who have not met Leslie, she is an IP paralegal, cosplayer and classic geek.

She also plays a mean game of Pong.

In the Valley of Pong

My family owned Rooster T. Feathers Comedy Club in Sunnyvale during the late 1990s. Prior to becoming Roosters, the building was the Country Store; prior to that, it was Andy Capps’ Tavern.

The building holds the honor of being where the first Pong machine was played.

We often had geeks stop by on a pilgrimage to see the spot where the Pong machine was set-up. I am sure whoever lives at 1066 Crist Drive in Los Altos, California has similar experiences with those wanting to see Steve Jobs’ childhood home.

Leslie and I enjoyed the video game section of the Museum. Video games were a happy part of my growing up in the 1980s. That being said, it was emotionally disturbing to see a Colecovision from my childhood as a museum exhibit.

I enjoyed many hours in the garage playing on our Coleco Vision. Yes. I said the garage. My mother’s deterrent to my brother and I playing for too long. That ended after she played Frogger.

Just How Much Litigation Involves Video Games?

Answer: A lot. Lawyers have unlimited lives when it comes to video games and lawsuits.

Pong had seen its share of litigation. Here is how one Court accounted for the creation of the video game industry:

39. Pong was designed and built by Nolan K. Bushnell and Allen Alcorn of Atari.

40. Prior to August 21, 1969, Bushnell had had extensive experience in the field of coin-operated amusement games, had been employed as a television technician, and had had experience in the programming of general purpose, stored program, digital computers and had had experience in the programming of general purpose, stored program, digital computers operated in conjunction with cathode ray tube displays. Prior to this date, he had not invented, designed, built, or constructed any apparatus for playing games using a television type, raster scan display; and he had no knowledge of the existence of any apparatus for playing games using a television type, raster scan display:

41. Prior to August 21, 1969, Bushnell had no knowledge of the existence of any apparatus using a cathode ray tube display for simulating the playing of the game table tennis or ping pong.

42. On May 24, 1972, and while employed by Nutting Associates, Inc., Mountain View, California, Bushnell attended the demonstration of the Magnavox Odyssey television game in Burlingame, California and saw the game played; he had gone to that show for the specific purpose of seeing the Magnavox Odyssey television game. He saw the Odyssey television game in use to play a game simulating ping pong and actually played that game.

43. Some time after June 26, 1972, Allen Alcorn became an employee of Atari and Bushnell assigned Alcorn the task of developing a video game which would simulate a tennis game. [*15] His work resulted in an arcade video game named “Pong”, first manufactured and sold by Atari in 1973.

44. The display of this game, shown on a picture tube screen, included a white rectangular symbol on the right side of the screen representing a first player, a white rectangular symbol on the left side of the screen representing a second player, and a symbol which moved across the screen representing a ball. Player controls were provided so that each human player could move his corresponding player symbol on the face of the screen. Each human player manipulated his corresponding symbol to intercept the path of the ball as it moved across the screen. When the player symbol intercepted the ball symbol, i.e., two symbols appeared to be coincident on the screen, the motion of the ball was changed and, in particular, the horizontal motion of the ball was reversed so that it traveled back toward the other player.

45. Following the commercial introduction of the Atari arcade Pong game, many other manufacturers commercially introduced similar arcade games having a display substantially the same as Pong. Those games included the games TV Ping Pong, TV Tennis, Olympic TV Hockey, and TV Goalee by Chicago Dynamic Industries, Inc., the games Paddle Ball, Pro Hockey, Pro Tennis, and Olympic Tennis by Seeburg Industries, Inc., Paddle Battle and Tennis Tourney by Allied Leisure Industries, Inc., and Winner and Playtime by Midway Mfg. Co.

46. The Atari arcade Pong game was the first arcade television game to be sold in large quantities. It, and games substantially identical to it, were responsible for the creation of the arcade television game industry.

The Magnavox Company & Sanders Associates, Inc., v Mattel, Inc., et al, 1982 U.S. Dist. LEXIS 13773 at *13-16; 216 U.S.P.Q. (BNA) 28.

Even the Courts Had Pacman Constitutional Fever

There is a certain joy in playing Pacman. Leslie demonstrate her skills playing the 1980s classic. However, she was not the only one who has played Pacman. Many judges and members of Congress have as well.

You know a video game is popular when Congress and the Courts are using it to describe legal theories. Pacman is one such game.

The drafters of the Kastenmeier Amendment somehow convinced the Congress that core judicial power, which in our federal system historically may be exercised only by Article III judges in the adjudication of private rights, may be subordinated constitutionally to core bankruptcy power and disregarded when private rights are adjudicated in an action known as a core bankruptcy proceeding. Perhaps this core-may-eat-core theory of constitutional law was so readily accepted by Congress because we are all enamored of computer games in which it is permissible for a charismatic, electronically-created creature to gobble up every other creature that crosses its path and moreover score points by doing so. Why not introduce such an enigmatic, animated creature into the field of bankruptcy law in the form of a core bankruptcy proceeding and let it feed on private rights. We might denominate this Pacman constitutional law.

///

Simply put, the Supreme Court has rejected the Pacman theory of constitutional law on which the Kastenmeier Amendment is based.

In re L.T. Ruth Coal Co., 66 B.R. 753, 772-774 (Bankr. E.D. Ky. 1986).

LeslieCrystal_3157 — Leslie fighting a case of Pacman fever.

When Geeks Go to Trial Over Computers

Honeywell, Inc. v. Sperry Rand Corp., is arguably the grandfather of eDiscovery cases. The case involved the man who invented the first computer, John V. Atanasoff, who was a professor at Iowa State University from 1937 to 1942. His story even involves a long drive, stopping for a beer and making notes on a napkin.You would think it took place in Silicon Valley, except it was Iowa and a bar at the Illinois border.

Atanasoff and Clifford Berry began building the first computing machine in December 1939. The device was “capable of solving with a high degree of accuracy a system of as many as 29 simultaneous equations having 29 unknowns.” Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, at *74-79 (D. Minn. 1973).

Plaintiff Honeywell had 25,686 trial exhibits; the Defendant 6,968. The Court described the trial exhibits as follows:

Many of the exhibits were extremely voluminous, including both documents of great length and also collections of multiple documents designated as single exhibits. For example, PX-1 is a 496 page book describing the 19th century work of Charles Babbage relating to early digital computing, and DX-2 is a collection of documents relating to the ENIAC patent application, occupying a four-drawer legal filing cabinet; DX-1, the ENIAC patent itself, comprises 91 sheets of drawings and 232 columns of closely printed text.

Honeywell, Inc. v. Sperry Rand Corp., 1973 U.S. Dist. LEXIS 15600, 7-8 (D. Minn. 1973).

The Computer History Museum has replicas of the Babbage Difference Engines 1 and 2. The engine fills a room.

Babbage_8971 — The Babbage Engine is an automatic, mechanical calculator designed to tabulate polynomial functions. It was designed in 1843, has 8,000 parts, 5 tons and 11 feet long. It is hand crank.

The complexity of patent litigation has not decreased with time. One only needs to look at the Apple v Samsung litigation to see that complex lawsuits still have many exhibits. We can just organize them better.

The Game’s Not Over

The Computer History Museum always gives me a sense of Zen about eDiscovery. The exhibits represent lifetimes of extremely hard work and dedication from the 19th and 20th Centuries. I do not see technology as being a source of litigation, but one of wonder. I truly respect those who can dream and create the future.

Skye Fall: Treason on Agents of SHIELD

By

Josh Gilliland

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October 23, 2013

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One may think disloyal thoughts and have his heart on the side of the enemy. Yet if he commits no act giving aid and comfort to the enemy, he is not guilty of treason. He may on the other hand commit acts which do give aid and comfort to the enemy and yet not be guilty of treason, as for example where he acts impulsively with no intent to betray. Two witnesses are required not to the disloyal and treacherous intention but to the same overt act.

Justice William Douglas

Kawakita v. United States, 343 U.S. 717 (U.S. 1952)

We knew it would happen: Is Skye a traitor? Does Skye’s communications with Miles of the Rising Tide in episode five of Agents of SHIELD “Girl in the Flower Dress” amount to treason?

Let’s first review the crime of treason to understand whether or not Skye is a traitor. Acts of Treason

The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

Two World War II era cases are very helpful in understanding what is “treason.”

Meeting for a Beer is Not Treason

In Cramer v. United States, the Defendant was a naturalized US citizen who had immigrated from Germany after the first World War. He was convicted of treason because of his actions with two other Germans who had enter the country via submarine to cause acts of sabotage. Cramer v. United States, 325 U.S. 1 (U.S. 1945).

Justice Jackson wrote the Supreme Court opinion overturning Cramer’s conviction.

Justice Jackson had a masterful prose in his opinions. He would also prosecute Nazi war criminals at Nuremberg. His opening statement in the prosecution of those Nazi monsters should be required reading in every world history class.

Cramer’s innocence turned on the fact his actions did not amount to treason under the law. He did not know the purpose of the Germans who had entered the country, but suspected his friend had returned by submarine. Cramer’s actions included the following:

1) Responding to an unsigned note on his door to meet;

2) Meeting his former friend for drinks;

3) Getting in touch with the German’s girlfriend; and

4) Putting money in a safe deposit box for the German.

The trial judge at the time of sentencing said:

“I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was aware that Thiel and Kerling were in possession of explosives or other means for destroying factories and property in the United States or planned to do that.

“From the evidence it appears that Cramer had no more guilty knowledge of any subversive purposes on the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-German propaganda and agitation. If there were any proof that they had confided in him what their real purposes were, or that he knew or believed what they really were, I should not hesitate to impose the death penalty.”

Cramer, at *5-6.

The Supreme Court reversed the conviction, on the grounds the overt acts were not sufficiently proven. Justice Jackson stated for the Court:

It is not difficult to find grounds upon which to quarrel with this constitutional provision. Perhaps the framers placed rather more reliance on direct testimony than modern researches in psychology warrant. Or it may be considered that such a quantitative measure of proof, such a mechanical calibration of evidence is a crude device at best or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional Convention was warned by James Wilson that “Treason may sometimes be practiced in such a manner, as to render proof extremely difficult — as in a traitorous correspondence with an Enemy.” The provision was adopted not merely in spite of the difficulties it put in the way of prosecution but because of them. And it was not by whim or by accident, but because one of the most venerated of that venerated group considered that “prosecutions for treason were generally virulent.” Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim that “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.” We still put trust in it.

Cramer v. United States, 325 U.S. 1, at *12-48 (U.S. 1945).

The American Student in Japan Who Tortured POWs Was a Traitor

A first generation Japanese-American was found guilty of committing treason during World War II. The Defendant had traveled to Japan on a US Passport in 1939. The Defendant started college in Japan in the March of 1941. The Defendant had renewed his US Passport twice and was registered with the Japanese police as an alien while in college. The Defendant did not finish school until 1943. Kawakita v. United States, 343 U.S. 717, 720-721 (U.S. 1952).

The Defendant was employed by the Oeyama Nickel Industry Co., Ltd. during the war as an interpreter. He never joined the Japanese Army. Id.

American POW’s who survived the Bataan Death March were used by Oeyama Nickel Industry Co., Ltd. for slave labor in a mine to process 200 carloads of ore a day. They were beyond sick and unhealthy. The Defendant did not simply act as a translator towards the POW’s. His actions included, “swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.” Kawakita, at *737.

The Defendant would have only been on trial as a war criminal if he had lost his US citizenship. However, the Supreme Court held the Defendant never lost his US citizenship during the war.

Justice Douglas stated:

There were two overt acts in this category. Overt act (a) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner kicked a prisoner named Toland who was ill, because he slowed down in lifting pieces of ore rocks from the tracks at the factory to keep the tracks clear. Toland had suffered a dizzy spell and slowed down. Petitioner told him to get to work and thereupon kicked him, causing him to fall flat and to cut his face and hand. Another prisoner wanted to pick Toland up; but petitioner would not let him. Overt act (j) as alleged in the indictment and developed at the trial was that in May, 1945, petitioner struck a prisoner named Armellino, who was weak and emaciated, in order to make him carry more lead. Armellino had been carrying only one bucket of lead. Petitioner thereupon struck him, causing him to fall. When he got up, petitioner forced him to carry two buckets, pushing him along.

Each of these acts was aimed at getting more work out of the prisoners — work that produced munitions of war for the enemy, or so the jury might have concluded. The increased efforts charged in overt acts (a) and (j) were small; the contribution to the war effort of the enemy certainly was minor, not crucial. Harboring the spy in Haupt v. United States, supra, was also insignificant in the total war effort of Germany during the recent war. Yet it was a treasonable act. It is the nature of the act that is important. The act may be unnecessary to a successful completion of the enemy’s project; it may be an abortive attempt; it may in the sum total of the enemy’s effort be a casual and unimportant step. But if it gives aid and comfort to the enemy at the immediate moment of its performance, it qualifies as an overt act within the constitutional standard of treason. Chief Justice Marshall said in Ex parte Bollman, 4 Cranch 75, 126, “If war be actually levied, . . . all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” These two overt acts, if designed to speed up Japan’s war production, plainly gave aid and comfort to the enemy in the constitutional sense.

Kawakita, at *738-739.

There were other overt acts of cruelty to American prisoners of war.

Justice Douglas drove home the ruling with the following:

These were not acts innocent and commonplace in appearance and gaining treasonable significance only by reference to other evidence, as in Cramer v. United States, supra. They were acts which showed more than sympathy with the enemy, more than a lack of zeal in the American cause, more than a breaking of allegiance to the United States. They showed conduct which actually promoted the cause of the enemy. They were acts which tended to strengthen the enemy and advance its interests. These acts in their setting would help make all the prisoners fearful, docile, and subservient. Because of these punishments the prisoners would be less likely to be troublesome; they would need fewer guards; they would require less watching. These acts would tend to give the enemy the “heart and courage to go on with the war.”

Kawakita, at *741-742, quoting Lord Chief Justice Treby in Trial of Captain Vaughan, 13 How. St. Tr. 485, 533.

Skye Fall

Did Skye commit overt acts against the United States? Are there two witnesses to the same overt acts? Did Skye give aid and comfort to the enemy at the immediate moment of its performance?

The question is whether Skye provided aid to the enemy.

Skye’s actions of texting Miles with the Rising Tide are more than meeting someone for a drink or putting money in a safety deposit box like in Cramer v. United States, but not near the actions of the Defendant in Kawakita.

Skye might have had disloyal thoughts towards SHIELD in her belief that information should be free, but that would not make her a traitor.

The question is did she ever communicate anything to The Rising Tide at the moment of its performance (assuming the group is a threat to the United States such as Nazi Germany or a terrorist group)?

That answer might be yes. If Skye actually provided Miles with the information he sold to Centipede, she actively, though unknowingly, aided an international hostile group experimenting on human beings with the intention of giving them powers. Skye would have a weak defense if she claimed she did not know about the sale, only the goal that the information be freely available to all. This is a weak defense because freely available classified information in the hands of a terrorist group that is top secret is just as bad as the terrorists paying for the information. The bad guys still have the information. That means people will die.

However, it does not appear Skye actually gave Miles the information.

Skye claimed she only communicated with Miles, once after she joined SHIELD and before SHIELD’s attempt to arrest him. The direct support to Miles to help him escape arguably was providing aid and comfort to an international state enemy at the moment of his performance to avoid capture. This would definitely be more than an innocent message like Cramer, because Skye knew that Miles had hacked the information that had caused Chan to be captured. Moreover, these actions show Skye’s intent to betray not just SHIELD, but the United States.

Epilog: Thanks for Mentioning the Constitution

It was good to hear Miles say his rights were being violated after being arrested by SHIELD. Skye’s comment that SHIELD did not have time to observe Due Process was an oblique reference to the Public Safety Exception to Miranda Rights. While not a clean explanation, Skye basically justified SHIELD’s actions on the exigency to fly the 8,200 miles from Austin, Texas to Hong Kong to save Chan from Centipede. Time was of the essence to stop greater wrongs from happening.

That being said, SHIELD could still use a lawyer on call to answer these questions (like the ramifications of leaving a prisoner in a foreign country and giving his ill-gotten gains away). Jessica and I are available if the need arises.

The Mindy Project – a Model Show

By

Jessica_alegalgeek

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October 22, 2013

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I’m a big fan of sitcoms – popular ones, hip ones, old-lady ones – and my current favorite (now that 30 Rock is off the air) is The Mindy Project. Amy, Tina, and Mindy – my trifecta of amazing, incredible, funny role models. I adore them all.

Mindy is smart, funny, and very appealing. And the show keeps getting better and better (although they’re clearly strugglingto find the right girlfriend for Mindy). Danny and Mindy are the new Sam and Diane. We know they’re meant for each other but, in the meantime, they bicker while pining over exes. Danny’s ex-wife has been played on the show by the great Chloe Sevigny. As Christina, Chloe plays a photographer. And last week we found out that she took sexy photos of Danny during their brief effort to rekindle their romance.

Danny admitted that he signed a release but then went to a lawyer to see if he could stop Cristina from displaying the photos anyway. But the lawyer wasn’t any help. And that’s because Danny was in a tough spot. A model release is a type of contract, which usually signs over unlimited use of the photographs for lawful uses (display, advertising, etc.) and waives the subject’s right to inspect or approve the finished product. So if the agreement is valid (e.g., Danny understood what he was signing) and the release language is broad enough to cover displaying his image in an art gallery, then he can’t claim that Christina breached the terms of their agreement. And if he wanted to revoke the release (i.e., essentially tear up the release like it never existed), then he would have to claim that Christina fraudulently induced him into signing the agreement. And that’s a tough argument to make.

So Danny couldn’t stop Christina – no matter what he tried. And the office came out to support his Weiner Night. And everybody should take a lesson from this: no matter how much you think you love and trust someone, those dirty pictures are going to turn up somewhere eventually!

Remembering Tom Clancy

By

Josh Gilliland

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October 17, 2013

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I will miss having Tom Clancy in the world. Few people can study up on subject matter to become an amazing writer. Clancy represented what someone could do in their life through hard work and creativity. We should not forget he was an insurance broker before publishing The Hunt for Red October.

I was not the only lawyer to read Tom Clancy novels; many Judges did too.

Here are highlights of Court opinions referencing Tom Clancy:

As anyone familiar with the novels of Tom Clancy will know, a towed sonar array is a listening device dragged behind submarines and surface ships. Silence is essential; a noisy towed array reduces optimal sound detection and increases the possibility that enemy submarines and ships will go undetected.

Martin Marietta Corp. v. Gould, Inc., 70 F.3d 768, 770 (4th Cir. Md. 1995).

We suspect that if the arbitrator had truly wanted to hide bias, he would simply have kept his mouth shut. Tom Clancy novels do not have plots as thick as the one Smothers suggests.

Smothers v. Cigna Health Plans of Cal., 2001 Cal. App. Unpub. LEXIS 1330 (Cal. App. 4th Dist. Nov. 27, 2001).

Certain pro se cases consume more resources than others. Plaintiff’s Complaints, for example, have generated hundreds of pages of motion papers and affidavits from defendants. Were I to address each of plaintiff’s claims individually and each defendant’s corresponding arguments this Opinion would be the length of a Tom Clancy novel. However, the legal issues raised by plaintiff’s claims and defendants’ motions are not terribly complex. Furthermore, many [*6] of the defendants’ motions share common ground. Thus, for efficiency’s sake, I will address plaintiff’s claims and defendants’ motions in appropriate groups.

Jones v. Trump, 1997 U.S. Dist. LEXIS 7324, 5-6 (S.D.N.Y. May 22, 1997).

I’d say any nominees for Secretary of Defense, Secretary of State, Director of the CIA and Homeland Security should be questioned by the Senate on Tom Clancy books. Clancy’s view of what could be a threat often had a real chance of happening. Like how do defend against a plane crashing into the Capital Building during a joint session of Congress.

An interviewer asked Tom Clancy after the collapse of the Soviet Union what he was going to do for “bad guys” in his books.

Clancy’s answer was hauntingly true with, “There will always be bad guys.”

The man understood national defense, had great respect for the military and helped children with cancer. We certainly could use more people like him.

Eyes on Agents of SHIELD

By

Josh Gilliland

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October 16, 2013

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The fourth episode of Agents of SHIELD “Eye Spy” presented several legal issues for criminal activity in foreign countries. How exactly would former Agent Akela Amador get a fair trial for the crimes she committed?

I Had a Bomb in My Eye Defense

Agent Amador had been very busy stealing diamonds and Lord knows what other crimes. A defense attorney would be able to look a judge right in the eye and say, “She had a bomb in her head.”

In a blink of an eye, we have the necessity defense.

Everything Amador did was done while she was under the control of whoever was controlling The Englishman, because 1) her controller could see through her right eye; 2) Amador felt pain when she did not comply with orders and 3) the bionic eye contained an explosive device for a fail safe.

Judge Robert Boochever summarized the necessity defense as follows:

Necessity is, essentially, a utilitarian defense. See Note, The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience, 39 Stan. L. Rev. 1173, 1174 (1987). It therefore justifies criminal acts taken to avert a greater harm, maximizing social welfare by allowing a crime to be committed where the social benefits of the crime outweigh the social costs of failing to commit the crime. See, e.g., Dorrell, 758 F.2d at 432 (recognizing that “the policy underlying the necessity defense is the promotion of greater values at the expense of lesser values”) (citation omitted). Pursuant to the defense, prisoners could escape a burning prison, see, e.g., Baender v. Barnett, 255 U.S. 224, 226, 65 L. Ed. 597, 41 S. Ct. 271 (1921); a person lost in the woods could steal food from a cabin to survive, see Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193, 1205 (1985); an embargo could be violated because adverse weather conditions necessitated sale of the cargo at a foreign port, see The William Gray, 29 F. Cas. 1300, 1302 (C.C.D.N.Y. 1810)(No. 17,694); a crew could mutiny where their ship was thought to be unseaworthy, see United States v. Ashton, 2 Sumn. 13, 24 F. Cas. 873, 874 (C.C.D. Mass. 1834)(No. 14,470); and property could be destroyed to prevent the spread of fire, see, e.g., Surocco v. Geary, 3 Cal. 69, 74 (1853).

United States v. Schoon, 971 F.2d 193, 196 (9th Cir. Cal. 1992).

Defendant Amador could point to her eye patch and eye-bomb debris as Exhibits A and B to show she was under duress to commit international crimes. Exhibit C could be the body of The Englishmen to prove what would have happened to her for non-compliance. It would be extremely difficult to rule against Amador for the crimes she committed while being controlled through pain and threat of death.

However, as Amador’s body count goes up (she did after all kill a bunch of guys), her defense would be significantly weakened. Killing innocents out of necessity is something Courts would not give a free pass to a Defendant, no matter how creepy the red masks.

Skye is a Peeping Tom

The final moments of the episode show Skye is not just a hacker, but a Peeping Tom.

Skye “life hacks” Agent Ward’s own vision, which enabled her to see through his eyes. Just to make life interesting, this privacy invasion also includes x-ray vision: Skye could see Ward naked (and anyone else Ward was looking at).

Skye is a very bad girl.

Ward and anyone within his field of vision would have multiple invasion of privacy claims against Skye. HR would also have a field day with the sexual harassment allegations.

Agent Ward could demonstrate that Skye violated his right to privacy by showing the following:

1) Ward had a reasonable expectation of privacy in his own eyes and everything he sees in private, such as himself naked;

2) Skye intentionally intruded into Ward’s vision;

3) Skye’s intrusion would be highly offensive to a reasonable person; and

4) Ward would be harmed if he learned of such invasion, let alone the damage to manager-direct report employment relationship.

See generally, 3-18 California Forms of Jury Instruction 1800.

It is unlikely Ward could prevail on a cyber-stalking claim, because most cyber-stalking statutes require electronic communications. See, Fla. Stat. § 784.048(c), “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose, or Miss. Code Ann. § 97-45-15(a) Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.

Skye was stalking Ward with his own eyes by electronic means, however she was not sending him messages, thus missing an element of the violation.

Finally, while Skye did have a valid HR claim against Agent Ward after being told to use a water bottle for bathroom facilities, “life jacking” Ward’s vision was not the proper response. Go to HR with such claims.

Vice President Howard Stern…Would the FCC Be His First Target?

By

Jessica_alegalgeek

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October 14, 2013

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Howard Stern for President! Or Vice President! Jesse Ventura, former governor of my home state (ugh, so embarrassing) was on the Stern Show this week to pitch Howard on being his running mate in 2016. It’s certainly a joke, but if this government shutdown goes on much longer I may have to seriously consider them. And if Howard were to make it to the White House, how much fun would he have messing the FCC?

To those of us of a certain age, Howard Stern’s battles with the FCC are legendary. For a younger generation, they may never have known Stern before he made his move to satellite radio and a world without FCC censorship. He now lives in a world where he can curse with abandon (not that he curses much) and discuss “adult” topics in great detail (he does do that).

Back in the day, on terrestrial radio, Stern was often the focus of the FCC’s crackdowns. Always one to feel persecuted, Stern even released a box set of bits from his radio show that had either been heavily edited because of government regulations or that had actually resulted in FCC fines.

But while Stern was a target of the government’s scrutiny, radio stations in other languages were getting off with barely a glance. For example, during a big crackdown at the beginning of 2004 (spurred on by the Janet Jackson/Justin Timberlake incident at the Superbowl), the FCC levied $1.5 million in fines against English-speaking broadcasters. Meanwhile, some of the Spanish-language stations were going far beyond anything Stern would have dared, yet the FCC wasn’t paying attention.

The FCC’s apparent inability to spot inappropriate words isn’t just limited to Spanish. The brilliant Joss Whedon, in his short-lived Firefly, was able to use some pretty foul language thanks to his incorporation of Mandarin Chinese into his vision of the future. If Howard had said any of these things on terrestrial radio, the FCC would have been all over him. But Firefly got away with it, thanks to its cursing in another language! (By the way, my favorite expression is number 9 on the list.)

The FCC’s ability to regulate radio and television is based on broadcasters’ use of the airwaves to distribute their content. The idea was that the airwaves are a public resource, like a federal forest, and the people were allowing radio and television broadcasters to use them. In exchange, the broadcasters had to agree to abide by certain conditions put forth by the FCC. Cable and satellite providers, on the other hand, don’t use public resources so they don’t have to agree to comply with FCC requirements (although they still have to comply with other state and federal laws, like obscenity laws).

Of course, the broadcasters still challenge how the FCC regulates them. Just last summer, the Supreme Court sided with Fox and ABC against the FCC. The FCC had fined Fox for fleeting expletives and ABC for partial nudity and the Supreme Court ruled on behalf of the networks, but only because they found that the FCC hadn’t provided them with proper notice. The justices ignored the underlying question, however, of how much authority the FCC still has over the broadcast networks.

But if Howard were in office that all could change…he might not be able to get rid of the FCC but he would certainly do his darndest to stop them from patrolling the airwaves. Maybe then he’d even move back to terrestrial radio (given his disputes with his current employer).

Impersonating a State Leader in Doctor Who Enemy of the World

By

Josh Gilliland

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October 11, 2013

0

Raise your sonic screwdrivers and raise them high!

Doctor Who fans around the world are absolutely gleeful to have two classic Second Doctor stories found from the abyss of time. It is literally “new” old Doctor Who.

Enemy of the World takes place before December 31, 2018. The Second Doctor finds out he looks exactly like a would be global dictator named Salamander.

Patrick Troughton showed his acting chops playing both the hero and villain.

The Doctor is asked whether he was a doctor of law after saying he was not a medical doctor. The answer: Which Law?

The story poses a legal issue of the Doctor impersonating Salamander. What happens when someone impersonates a state leader?

As for which laws, I will focus on the United States:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.

18 USCS § 912

Statutes forbidding impersonation may require a showing that someone was deceived into following a “course [of action] he would not have pursued but for the deceitful conduct.” United States v. Alvarez, 132 S. Ct. 2537, 2554 (U.S. 2012), citing United States v. Lepowitch, 318 U.S. 702, 704, 63 S. Ct. 914, 87 L. Ed. 1091 (1943).

In episodes one and two of Enemy of the World, the Doctor impersonates Salamander.

The Doctor was successful in convincing Salamander’s security officer that he was Salamander. But for the Doctor’s conduct, the security officer would have taken a different course of action in carrying out his orders. If Salamander had been a US President, the Doctor would have broken the law.

Luckily, Salamander was not a US official, but a very mean man with dreams of global domination. That being said, I do not recommend ever to impersonate a world leader, especially a crazy one with dreams of conquest.