Jessica Mederson and Josh Gilliland thank the ABA Journal Editors and everyone who nominated them for the Blawg 100 list. Continue reading
Jessica Mederson and Josh Gilliland thank the ABA Journal Editors and everyone who nominated them for the Blawg 100 list. Continue reading
Almost Human is a great ride in Constitutional criminal procedure. Could a robot be a police officer? Could a robot police officer arrest a human being? How about testify in court? What possible issues could arise from robotic law enforcement?
The most legally helpful comparisons we have are red light cameras and police dogs.
I blogged on hearsay issues over red light cameras on Bow Tie Law with PhotoCop & The Red Light of Admissibility. The California Supreme Court has held that that “our courts have refused to require, as a prerequisite to admission of computer records, testimony on the ‘acceptability, accuracy, maintenance, and reliability of … computer hardware and software.’ ” People v. Goldsmith, 203 Cal. App. 4th 1515, 1523 (Cal. App. 2d Dist. 2012).
What would that mean for a robot? Would any “testimony” from a robot be testimony or merely computer records?
If we are treating robots like “people,” they would be testifying in court. If we are merely processing data from a robot police officer, then the robot police officer could not technically make a statement, because the robot is not a person under the California Evidence Code section 175.
There is a large number of cases focused on police dogs. In one case, the failure to give a verbal warning by police before using a dog trained to bite and hold was sufficient to state a Fourth Amendment claim. Kuha v City of Minnetonka, 328 F.3d 427 (8th Cir., 2003). Other cases address excessive force with untrained police dogs. Campbell v the City of Springboro, 788 F.Supp.2nd 637 (S.D. Ohio, 2011). States also have punishments for harming police dogs. State v. Kisor, 844 P.2d 1038 (Wash.App.Div. 2, 1993), Utah Code Ann. 76-9-306.
The precedents for police dogs ranging from class three felony for intentionally harming a dog to excessive force lawsuits give a preview of how robotic police officers could be viewed by the law. A robot police officer that acts human, works with humans and protects humans, would likely be viewed as a “police officer” under the law. This would include enhanced punishments for destroying a robot police officer and even civil rights violations.
Will we see these issues unfold on Almost Human? I do not know, but would be happy to brainstorm with the writers.
The story is noteworthy because it was the introduction of Colonel (but future Brigadier) Alistair Gordon Lethbridge-Stewart.
The villain was the Great Intelligence, who used robotic Yeti that Professor Travers brought back to England from Tibet in the 1930s in the The Abominable Snowmen. This is the second appearance of the Great Intelligence, who would reappear to battle the Eleventh Doctor in the Snowmen, The Bells of Saint John and The Name of the Doctor.
Most of the story took place in the London Underground. The British Army (not UNIT) fought Yeti and a big white foaming lethal fungus spreading beneath the city controlled by the Great Intelligence.
One “soldier,” purely in the academic sense, was “Driver Evans.” Evans had the unique ability to stay alive, usually by avoiding anything dangerous. This included challenging Colonel Lethbridge-Stewart’s orders with personally less hazardous suggestions. He let others volunteer for dangerous assignments so he would not be in harm’s way. Evans even stood on a chair as a control sphere rolled by so he could have a higher “vantage point.” While Lethbridge-Stewart and the other soldiers were off fighting Yeti with small-arms, grenades and bazookas, Evans was safe and sound.
Evans conduct bordered on desertion and outright cowardice. How would a soldier be court-martialed for such conduct?
It is long stand policy in the US military’s Articles of War, with its British originals, that desertion and cowardice are serious offenses. Swaim v. United States, 28 Ct. Cl. 173, 233 (Ct. Cl. 1893). Moreover, Article of War 61 prescribes that “any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service,” and Article 100, that “when an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name and place of birth of the delinquent shall be published in the newspapers in and about the camp, and in the State from which the offender came, or where he usually resides.” In re Carter, 97 F. 496, at *498 (C.C.D.N.Y. 1899) and Carter v. McClaughry, 183 U.S. 365, 395 (U.S. 1902)
Getting thrown out of the military for cowardice in the late 19th and early 20th Centuries included full on public-coward-shaming.
Circuit Judge Field summed up the 19th Century view as “desertion is the highest, and with cowardice, the basest of offenses which can be committed by men in the naval service…” Montgomery v. Bevans, 17 F. Cas. 628, 634 (C.C.D. Cal. 1871). For the sake of argument, Judge Field would likely extend that belief to the Army.
So, what do we do about Driver Evans? British Soldiers and members of UNIT seemed to have about as likely a chance to survive on Doctor Who as a Red Shirt on Star Trek.
The fact all the other soldiers get killed EXPECT Evans and the Colonel Lethbridge-Stewart highlighted this point.
Still, that does not excuse avoiding risk or being willing to sell-out others for his own safety.
Even the Doctor jumped on the back of a Yeti in a failed attempt to save a soldier.
Men in bow ties are willing to take such heroic actions.
The fact that Evans’ conduct came close to desertion while discussing escaping with Jamie and leaving the others behind, to avoiding hazardous missions, to an outright willingness to turn the Doctor over to the Great Intelligence, demonstrated cowardice numerous times. Throwing him out of the Army would be a good idea after a court-martial. Those on the front lines need to be willing to actually do their job in defending their country, not seeking self-preservation at the cost of others.
Comic book fans around the world have been geeking out over the preview for Captain America: The Winter Soldier. The movie looks fun.
The Winter Soldier story arc in the Captain America comic was one of the best written. I normally do not care for the resurrection of characters, but this one worked. Ed Brubaker did an amazing job turning Marvel history on its head.
Captain America represents all the positive qualities about the United States. That we are the good guys; that we stand for justice; that we do the right thing.
Cap stands in extreme contrast to Nick Fury’s shades of grey and secret wars. This nobility of purpose gave Steve Rogers the “worthiness” to use Thor’s Hammer in battle in Thor #390 (Besides Beta Ray Bill and a teenager named Dargo in story that took place in 2587 in Thor #384).
I am expecting that to happen in Avengers 3.
Since It Is a Comic…
When Captain America joined the Avengers in the 1960s, his sidekick Bucky had been killed trying to stop a drone with a warhead on it in the final days of World War II. Captain America fell into the icy waters to be frozen for decades until the Sub-Mariner threw the block of ice with Cap into the ocean to be found by the Avengers in the 1960s (which tends to get updated every 20 years, so our heroes are not in their 70s to 90s). Bucky did not let go did not let go of the drone and was killed.
Winter Soldier re-wrote what was established comic book history.
Lukin ran a global company named Kronas Corporation as a front for his plans of domination by killing the Red Skull whose spirit was in a clone of Steve Rogers to get an artificial Cosmic Cube.
Lukin was a boy during World War II in the Russian town of Kronas. The town was destroyed in a battle between the Red Skull and the Invaders. Lukin was rescued by Vasily Karpov, who ran Soviet assassinations with advanced weapons during the Cold War.
Karpov was in a stealth Soviet submarine when Cap and Bucky were “killed.” Karpov recovered Bucky’s heavily injured frozen body missing his left arm.
The Soviets kept Bucky in suspended animation and added a bionic left arm. The Soviets would awaken Bucky over 60 years, and due to memory loss from his injuries, reprogram him with orders to kill political targets. Bucky killed the following under the code name Winter Soldier:
November 5, 1954: Three US soldiers in Berlin as a field test;
January 11, 1955: Entire UN Diplomatic Negotiation Team in Cairo;
May 14, 1955: NATO General James Keller;
January 1, 1956: British Ambassador Dalton Graines in Madripoor;
April 1, 1956: French Defense Minister Jacques Dupuy;
May 12, 1956: Algerian Peace Conference Envoy in Paris;
February 17, 1957: US Colonel Jefferson Hart in Mexico City; and
March 12, 1973: US Senator Harry Baxtor
Cap’s morality is highlighted in Winter Soldier. Instead of thinking he had to kill the Winter Soldier, the issue was how to rescue Bucky from being the Winter Soldier.
Now That You’re Rescued…
Bucky’s decades of killings as a Soviet agent raises many legal issues.
Could Bucky be convicted for crimes he committed as the Winter Soldier? This would become a big issue when Bucky as Captain America was put on trial.
As discussed in Skye Fall, treason is 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.
A Prosecutor could argue that Bucky as the Winter Soldier physicalyl did commit acts of treason against the United States. The death toll includes soldiers, allied statesmen, a US Senator and a large number of people in Philadelphia to use death to fuel a Cosmic Cube.
Bucky would have a solid insanity defense against charges of treason and murder. The California Jury Instructions state the following on the determining whether a Defendant is legally insane:
The defendant was legally insane if:
1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;
2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.
None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.
2-3400 CALCRIM 3450.
Bucky’s higher brain functions were destroyed in the closing days of World War II. The Soviets reprogrammed him each time he was awaken from suspended animation. He was literally a blank slate. It was not until Captain America used the Cosmic Cube to restore Bucky’s memory that he remembered who he was. As such, Bucky was incapable of knowing his actions were murderous treason.
Bucky should be able to afford a very good defense team. He would have an excellent argument that he was a POW held by the Soviets since 1945 (or was MIA). As such, he would be entitled to back-pay under the Missing Persons Act, 37 U.S.C. §§ 551-558.
How will the movie Captain America: Winter Soldier play out? I do not know. Let’s wait to April 4, 2014 and enjoy the movie.
What do two geeks do on a Sunday? Go to the Computer History Museum.
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.
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.
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).
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.
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.
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.
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.
Amber Schroader, CEO of Paraben Corporation, sat down with Josh Gilliland to talk about the Paraben Forensic Innovation Conference, eDiscovery, Continue reading
The X Files. A show that first aired on September 10, 1993. It defined the end of high school, college, law school and the beginning of my practice.
Caitlin Murphy, Director of Legal Marketing at Access Data Group, and I attended UC Davis together. We were in the same dorm in the Fall of 1996. Along with many of our classmates, the world shut down on Sundays at 900 pm as college students gathered in groups to watch Mulder and Scully face aliens, black oil, government conspiracies and some outright creepy cases.
Caitlin and I sat down to discuss three classic X-File episodes and the different legal issues presented in each one.
The Law is Out There.
Olivia Youngers is one of the most dynamic individuals I have had the pleasure of meeting. Olivia has been a reader of The Legal Geeks since nearly the beginning of our blog. She contacted me after The Geekie Awards saying, “I was there too, wish I’d known you were there I would have told you I love the Legal Geeks!”
Olivia was on stage twice in an amazing dress to help presenters with the awards.
Olivia is a scientist, cancer researcher, chef, cosplayer, actress, geek and a fellow UC Davis alumni. We met to record three video podcasts. She actually baked me a torte, as we discussed torts. That was her wickedly creative idea.
I was in awe of her attention to detail, whether it was in recording a video on how to bake a torte, discussing Star Trek or describing what exactly are genetically modified foods.
I hope you enjoy our video podcasts. We discussed comic books, science fiction and torts vs tortes.
Defending The New Dark Knight
Way Beyond Easy Bake Ovens
Olivia’s blog is Rollings Reliable. Be sure to check out her musings on cooking, geeks and science.
And yes, the torte was very good.
Leslie Crystal joined Josh to talk about The Geekie Awards. Leslie works in IP Litigation, has been to San Diego Comic Con, and is also known as the twins Lara & Tara on The Guild. Both discuss the show, Stan Lee singing and their favorite moments from The Geekie Awards. Don’t worry, neither discuss document review or discovery requests.