Can Predictive Analytics be Used to Hold Someone as a Danger to Themselves?

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October 6, 2015

Minority Report continues to explore legal issues for a future that is seriously undermining civil liberties for security. Can Hawk-Eye’s predictive analytics be used to hold a person for 48 hours for observation?

In “Hawk-Eye,” the CEO of a company aptly named Narcissus, was put on a 48-hold for observation after purposely driving the wrong direction on the highway at a high rate of speed (reckless driving that would justify an arrest). The Hawk-Eye system cataloged and analyzed his behavior and vitals, thus activating the car’s self-driving mood to return him to home for observation. Other examples included placing a hold on someone exhibiting warning signs of suicide.

Could predictive analytics of data be legally used to show a person is a danger to himself or herself? The answer is maybe.

California allows someone to be placed on a 72-hour hold under the following:

(a) When a person, as a result of a mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, professional person in charge of a facility designated by the county for evaluation and treatment, member of the attending staff, as defined by regulation, of a facility designated by the county for evaluation and treatment, designated members of a mobile crisis team, or professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county for evaluation and treatment and approved by the State Department of Health Care Services. At a minimum, assessment, as defined in Section 5150.4, and evaluation, as defined in subdivision (a) of Section 5008, shall be conducted and provided on an ongoing basis. Crisis intervention, as defined in subdivision (e) of Section 5008, may be provided concurrently with assessment, evaluation, or any other service.

Cal Wel & Inst Code § 5150.

California case law further explains:

“[A] state of facts must be known to the peace officer (or other authorized person) that would lead a person of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person detained is mentally disordered and is a danger to himself or herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion. [Citations.] Each case must be decided on the facts and circumstances presented to the [detaining person] at the time of the detention [citation], and the [detaining person] is justified in taking into account the past conduct, character, and reputation of the detainee. [Citation.]”

Heater v. Southwood Psychiatric Center, 42 Cal. App. 4th 1068, 1080 (Cal. App. 4th Dist. 1996).

Predictive analytics that complies a persons purchases and health data might constitute specific and articulable facts to show a person is a danger to themselves or others. For example, data analytics could cause an alert someone could be considering suicide from the following:

Public cameras shows a person purchasing line, a stool, and steel eyebolts that could support a person’s weight;

Social media posts include statements that they have no reason to live; and

Social media posts expressing rage.

Would that be enough to demonstrate probable cause to justify an observation hold? This person could be venting about home improvement projects or is considering suicide. There is a reason to have someone knock on this person’s door, but a hold might not be supported without more evidence.

The challenge with Hawk-Eye is 1) it is the tool of a police state and 2) the data that would truly show concerning behavior would require a search warrant. For example, police cannot simply monitor bank accounts. Furthermore, law enforcement cannot use technology such as infrared thermal imaging devices on private residences without obtaining a search warrant. There are limits on what law enforcement can use on the pubic, so Hawk-Eye at best would be limited to what is in “plain view.” Even then, the prediction on behavior would need to be validated by more than one data point for analysis.

Will police one day find ways to analyze publicly visible data? Without a doubt. Society must decide what is acceptable, such as whether law enforcement can use drones without search warrants and similar issues created by technology.

Can President Ellis Create the ATCU by Executive Order?

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Josh Gilliland

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September 30, 2015

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The fictional President Matthew Ellis on Agents of SHIELD (plus Iron Man 3 and his voice on Captain American the Winter Soldier) issued an Executive Order creating the Advanced Threat Containment Unit (ATCU). The Government responding to an alien threat, that is both fatal to human beings and mutating others with alien DNA, is the very purpose of government to protect its citizens.

There is one very big problem: 1) President Ellis should be dead politically; and 2) Ellis can issue Executive Orders, but Congress has to fund the project.

A Politically Damaged President

No one thinks of courage when they hear the names James Buchanan or Herbert Hoover. Buchanan was asleep at the helm as the fires of Civil War started to burn and Hoover mishandled the response to the Great Depression.

President Ellis would be considered far worse. On his watch, President Ellis was 1) Kidnapped; 2) the Vice President attempted a coup d’etat; 3) SHIELD was compromised by HYDRA in what could have been mass murder of millions; and 4) an Eastern European city was dropped out of the sky by a killer robot made by American scientists, one of whom had been one of the largest weapons manufacturers since World War 2.

Those are political hits that no President could survive. The Ellis Administration would look rotten from his treasonous Vice President and SHIELD being overrun by Neo-Nazis who sought to commit genocide with American-made flying aircraft carriers. Ellis would be mocked domestically as clueless and demonized internationally for threats created by Americans. It is highly unlikely Ellis could run for re-election. It would be politically wise to let his political party nominate another in hopes of retaining the White House.

Lawful Executive Orders

Presidents have issued Executive Orders since the founding of the Republic. However, issuing Executive Orders is not supposed to be an end run around Congress in creating a government agency.

An “Executive Order” is issued based upon Constitutional or statutory authority. Executive Orders are given the same force and effect of law. As Courts have explained:

The use of executive orders may be employed by the President in carrying out his constitutional obligation to see that the laws are faithfully executed and to delegate certain of his duties to other executive branch officials, but an executive order cannot impose legal requirements on the executive branch that are inconsistent with the express will of Congress.

Utah Ass’n of Counties v. Bush (D.Utah 2004) 316 F.Supp.2d 1172, 1184.

Could the President create a new agency to fight aliens?

President Ellis could argue that the ATCU Executive Order was based on the President’s authority under Article 2, Section 2 of the Constitution and likely a combination of Defense Authorization bills for the military and NASA. However, the smarter course of action would be to seek Congressional approval and funding of the agency specifically tasked with planetary defense from aliens and advanced threats. While it is shooting for the Moon, Ellis could be trying to look decisive in the face of alien genocide from the ocean being contaminated by a eugenic weapon. This plan might be the only chance for re-election.

It is not clear what legal authority the ATCU is claiming to arrest Inhumans. While people running around destroying property would justify arresting them, things could get Constitutionally ugly is President Ellis ordered the internment of citizens based on race. If the Government was willing to go that far, what other Constitutionally questionable laws could we see before Captain America Civil War?

Let’s just say it is not a good list legally.

General Pardons for SHIELD Agents?

Director Coulson’s illegal SHIELD organization and ATCU appear to have similar goals. They are facing the same threats. The big difference is how Inhumans are being treated by the ATCU, however, there is a good argument both are falsely imprisoning US Citizens. That being said, both view Lash as the common enemy who is killing people.

It is highly plausible that this commonality of interests for national defense could result in general pardons for the rogue SHIELD Agents. This would also be a great way to make SHIELD legitimate once again, so we are not cheering for characters who should be charged with 1) Terrorism (18 USCS § 2331(5)); 2) Treason (18 USCS § 2381); 3) Rebellion (18 USCS § 2383); 4) Enlistment to Serve Against the United States (18 USCS § 2390); 5) Obstruction of Justice (18 USCS § 2390); and 6) RICO (18 USCS § 1962). The US Government did not fall in Winter Soldier, so it is time the good guys stop being a rogue organization.

Everyone wants a piece of the Batmobile, even judges!

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Josh Gilliland

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September 26, 2015

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These days, everyone’s a geek: fashion designers, TV stars, models, even judges. We’ve covered before the fun judges have had with Star Wars and Star Trek references and apparently the august judges of the 9th Circuit (as federal appellate judges they’re only one step below the United States Supreme Court) have decided it’s time they get in on the fun.

This week, in DC Comics v. Mark Towle, the Ninth Circuit had to decide whether the Batmobile, a fictitious car created seventy four years ago in a comic book, was entitled to copyright protection. As the court explained in the opening paragraph of its decision, it had to decide whether the defendant had infringed DC Comics’ rights when he built and sold replicas of the Batmobile as depicted in the Adam West TV show and in Tim Burton’s movie version. And the court couldn’t help itself, it had to end its opening paragraph with “Holy copyright law, Batman!”

It then went through the history of the licensing agreements DC Comics made over the years. Then a description of the cars the defendant was making. I thought these cars were just little models but they’re not: they’re real cars the defendant was selling for 90 grand apiece!

After setting up the key facts, the court turned to copyright law. Copyright law in the US protects fixed expressions of creative works (e.g., songs, books, movies). As the Ninth Circuit noted, copyright protects not only a work as a whole but also distinctive elements within the work (e.g., Robin, the Joker, etc.). Not all characters get copyright protection, however, they have to be “especially distinctive” and display “consistent, widely identifiable traits.” The characters do not always need to be exactly the same–they can have some changes in appearance so long as its distinctive elements or traits stay the same. (By the way, the court then discussed what makes James Bond distinctive and it’s pretty entertaining to read the court’s take on what makes Bond distinctive, including his cold-bloodedness, overt sexuality, and love of martinis that are shaken, not stirred).

The court, after analyzing previous decisions in this area, decided that there is a three-part test that must be used: (1) the character must have physical as well as conceptual qualities; (2) the character must be recognizable (i.e., you always know it’s Bond, regardless of whether Pierce Brosnan or Daniel Craig is playing him); and (3) the character must be especially distinctive with unique elements of expression. The court then applied this test to the Batmobile (even quoting cheesy Robin lines from the TV show in footnotes–this is why I love footnotes!) and found that, yes, the Batmobile was an “automative character” that had distinctive elements.

So, while Batman fans already knew this, the Ninth Circuit has now confirmed that the Batmobile is an important and protected part of Batman’s world (bet it doesn’t have to cheat on its emission testing). Guess that means I should no longer refer to my awesome black minivan as the Batmobile! Now I just need the Ninth Circuit to step in and confirm that this guy is Batman:

And this guy is not:

https://www.youtube.com/watch?v=LmP3YFk_YHA

A Minority Report on Criminal Law

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Josh Gilliland

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September 22, 2015

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Minority Report is a wonderful example of a science fiction adventure that embraces the future. The show has a creative vision of the year 2065, where police wear contact lens with virtual reality that can perform computer forensics by looking at a smart phone. There has not been anything this forward-thinking with future law enforcement and technology since Almost Human. I just hope to God it does not get canceled like Almost Human, Firefly, or Terra Nova.

There is no shortage of disturbing legal issues in Minority Report. The first is holding children in a vat of goo for a decade to use their precognitive abilities smacks of slavery. Yes, stopping murders from happening is a noble goal, but exploiting human beings in involuntary servitude is not legal under any circumstances. The “Procogs” violated no crime and there was no reason for them to be held against their will by the Federal Government. There is no way around the fact this would violate the Thirteenth Amendment.

You do not need to have the ability to see the future to know the Precogs would have a fantastic civil rights case against the Federal Government. Best part, they would know which law firm to retain, know the cost to litigate, and the substantial damages award for being held in slavery by the United States government. Truly dream clients.

The second major issue in Minority Report is arresting people BEFORE they commit a crime. This flips criminal law on its head, because a crime requires both Actus Reus, an action to commit a crime, and Mens Rea, the mental intent. Arresting a person before there has been action or intent puts the punishment before the crime. There would be a serious Due Process issue with punishing people who have not committed a crime, thus no probable cause for the arrest.

The legal bombshell was the fact that the Precogs were not always right about the future, because the future is not set. The idea of people being arrested for crimes that they not only had NOT committed, but also were NOT going to commit, adds a huge civil rights violation to arresting people for future crimes.

The actual investigation conducted in the show appeared to comply with our view of the 4^th Amendment and criminal procedure today. Lara based her investigation on Dash’s future premonitions. No one was arrested on Dash’s visions. Moreover, Lara’s actions were consistent with a police investigation to find evidence and stop a crime. Granted, the genesis of the investigation originated with Dash’s visions, but there are cases where police have used psychics to find missing persons. State v. Sugar (N.J. 1987) 527 A.2d 1377, 1386. This appears “legal” by today’s standards.

What does the future hold for Minority Report? I suspect the Hawkeye System will be extremely Orwellian predictive analytics that conducts unlawful searches, but until then, keep those smart glasses that act as a teleprompter. That would be super handy for giving eDiscovery presentations.

Comic Book Law with Sheafe Walker and Thomas Crowell

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Josh Gilliland

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September 21, 2015

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It’s a Legal Geek Cross-Over Special with Sheafe Walker and Thomas Crowell, author of The Pocket Lawyer for Comic Book Creators.

Sheafe and Thomas share who are their favorite comic book characters and some of their past adventures at New York Comic Con.

Thomas and Sheafe discuss tips and tricks for comic book creators negotiating deals, advice for crowdfunding campaigns, and the basics of copyright protection.

Join for us to hear about The Pocket Lawyer for Comic Book Creators and what to expect at New York Comic Con 2015.

About Sheafe Walker:

Sheafe worked as a sound engineer and sound designer prior to becoming an attorney. He engineered and designed on Broadway, Off-Broadway, and at regional theaters in the United States; including STOMP at the Orpheum Theater in New York and Jackie: An American Life at the Belasco Theatre. Mr. Walker worked in production and post-production sound for films and videos at LollyGag Productions Project Studio in New York from 1990-1995.

Mr. Walker has presented lectures on copyright and contract issues faced by artists, creators and publishers at the New York Comic Con, the School of Visual Arts, the Graphic Artists Guild and the Benjamin N. Cardozo School of Law.

Mr. Walker counsels clients on a wide range of entertainment law and intellectual property rights issues, including: television and motion picture agreements, theater agreements, comic book publishing agreements, artist-dealer agreements, music publishing, copyright and licensing.

About Thomas Crowell:

Thomas earned a living as both a television producer. Most notably, he was the head of development for the Science Technology Network. His children’s home video series, Professor Potto’s Videolabs, was awarded a National Parenting Center Seal of Approval. Mr. Crowell received his Juris Doctor degree from the Benjamin N. Cardozo School of Law, where he graduated cum laude and was awarded membership in the Order of the Coif, the national legal honors society. Mr. Crowell earned his Bachelor of Fine Arts degree from New York University’s Tisch School of the Arts in Film and Television Production. He is admitted to the bars of New York, New Jersey, and the U.S. Supreme Court.

Mr. Crowell counsels clients on a wide range of entertainment law and intellectual property rights issues, in practice areas that range from comic book publishing, film, television, music, and the graphic arts.

He has taught courses in film and media law at Cardozo Law School, Seton Hall, and the School of Visual Arts. A frequent lecturer on entertainment law topics, Mr. Crowell has taught legal seminars to comic book professionals at New York Comic Con since 2007. In 2011, he became the Director from Practice of Cardozo Law School’s “Indie Film Clinic.” He is the Executive Director emeritus of the New Jersey Volunteer Lawyers for the Arts and an honorary member of the Graphic Artists Guild.

We The People: Thoughts on Constitution Day

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Josh Gilliland

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September 17, 2015

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“We The People.” Three bold words that declared the foundation of our country to ensure freedom. For Constitution Day, let’s remember the purpose of our Government:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I have always been proud of the fact I was born on Constitution Day. Granted, my mother enjoyed reminding I was three weeks late. I apparently was waiting.

I believe in “We The People.” I believe in a “more perfect union.” I believe in establishing justice and securing liberty. I also remember gas lines as a child and a sense that our best days were behind us. However, I remember how things turned around when we began to believe in ourselves once again. We need to believe in ourselves once again.

There are those who understandably have a hard time believing in ourselves. High school freshmen should not be arrested for building a clock. Such ingenuity should be rewarded with a job, not a handcuffs. It is difficult to imagine the ability to be a clocksmith to somehow be probable cause for arrest.

There is another elephant in the room: those running for President of the United States should focus on how to unit and inspire, not insult and divide.

I believe in the United States, despite our very disappointing moments. Look at the outcry for those who called out injustice and you can see the better angels of our nature. Moreover, the American people rarely reward Nativism with elected office. Abraham Lincoln did not want to lower the bar for the Know-Nothing Party to join the Republicans in 1860. I am confident we will continue the tradition of building a bright future and not demonizing other human beings.

Our Constitution was designed to protect freedom with a working government containing checks and balances to avoid oppression. The Bill of Rights furthered this intent that the People would be free from government infringement, ranging from speech, to quartering of soldiers, to unlawful searches. “We The People” have fought wars, faced fire hoses, and endured tube feedings, for these rights to protected. Those sacrifices have not been forgotten. Every day those rights are vindicated by lawyers and judges across the country.

Every lawyer has taken an oath to uphold and defend the Constitution. So on this day, let us remember that everything who do is to ensure a more perfect union for “We The People.”

I am also hoping for cake, but that’s me.

Could Vanessa Marianna be Convicted for RICO with Kingpin?

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Josh Gilliland

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September 15, 2015

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In Marvel’s Daredevil on Netflix, Vanessa Marianna goes from art dealer to dinner date to girlfriend to fiancé of Wilson Fisk. Vanessa learned of Fisk’s criminal activities from domestic terrorism to killing his father. Could Vanessa also be convicted for Wilson Fisk’s many crimes?

As a preliminary matter, Wilson Fisk could be tried in Federal Court for Racketeering. The Racketeer Influenced and Corrupt Organizations Act (RICO) states, in relevant part:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code [18 USCS § 2], to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

18 USCS § 1962.

Racketeering Activity is a long list of criminal activities, including any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical or any act relating to bribery, mail fraud, and many other crimes. 18 USCS § 1961.

Vanessa was never directly involved in planning drug deals, murders, and illegally evicting tenants from their homes. The closest Vanessa ever comes to outright engaging in an agreeing to a crime was when she was hospitalized. Fisk told her, “I will make them suffer for what they have done,” to which she replied, “I expect nothing less.” This is not exactly a conspiracy and there are no further actions by her.

Did Vanessa Aid and Abet the Kingpin?

Vanessa provides a large amount of emotional support to Wilson Fisk. Could this be considered aiding and abetting Fisk in his crimes?

New York law on aiding and abetting states:

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

NY CLS Penal § 20.00

Would Vanessa providing “emotional support” be considered “intentionally aids such person to engage in such conduct”? Vanessa did stand by Fisk for his big press conference, attended public parties, and knew Fisk engaged in criminal activities. However, she was never actually present at any criminal action. Moreover, she likely had plausible deniability of planning any event, but did have knowledge, such as the bombing of the Russian mobsters.

Case law states that “Silent approbation or pleasure in an assault and battery inflicted by another does not make a person, who has not encouraged or aided the perpetrator, liable in damages therefor.” Duke v. Feldman (1967) 245 Md. 454, 457-458.

In the Duke case, a husband assaulted a victim while the wife was unaware in the family car. The wife drove the husband away after the assault. There was no evidence that the wife in any way aided or abetted in the crime. As the Court explained, there was no evidence that she “assisted, supported, or supplemented her husband’s action or that she instigated, advised, or encouraged the commission of the tort. There was nothing in the evidence which would enable the jury to do more than speculate that her driving her husband away was part of a design to perpetrate the assault.” Duke, at *458.

Vanessa admitted being with Fisk would be “complicated.” The same could be said for prosecuting her. There is a very strong argument that she knew her support of Fisk was intentionally aiding him. However, there is a very strong argument she lacked the required intent for the crimes being committed. Moreover, she appeared to be outside of the planning for criminal activities. This would make prosecuting her a challenge, but probably would not stop charges from being filed. Federal prosecutors would likely charge Vanessa in order to get her cooperation in prosecuting Wilson Fisk.