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Keeping Your Kids Safe, the Black Mirror Way

By
Caesar Kalinowski IV
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“[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by this Court.”  

Troxel v. Granville, 530 U.S. 57, 65 (U.S. 2000).

It’s every parent’s worst nightmare: Your child goes missing without a trace. Frantic phone calls. Community searches. A grizzled police detective telling a crying mother that the first 48 hours are the most critical. But what if technology existed to track and protect the more than 400,000 missing children in the United States? What if you could open your cell phone, click on an app, and immediately see what your child is doing, feeling, and where he or she is at? But this app wouldn’t just be useful when your child is lost, you could also review your child’s experiences while you were away with a babysitter, monitor what type of TV the child watched at a friend’s house, or make sure your child is actually doing homework instead of playing on an iPad.

Worried you don’t have eyes on you child 24/7, 365 days a year, in real time? Take a seat right here.

In the second episode of Black Mirror’s latest season, Arkangel, we are confronted with this exact issue. Following a playground scare, single mother and helicopter-parent Marie Sambrell signs up to participate in a limited-release, free trial of Arkangel—a tech-integrated child monitoring system that allows her to monitor her daughter Sara’s location, medical stats, and what she sees. Arkangel also allows Marie to control Sara’s vision when her cortisol levels spike; censoring scary, obscene, or other stressful stimuli with pixelization and audio distortion. As a result of this censorship, Sara grows an isolated and unsocial grade schooler, causing Marie to shut down Arkangel until unwisely reactivating it later when Sara is a teenager.

Under the Fourteenth Amendment’s Due Process Clause, which “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U.S. 702, 720 (1997), parents have the fundamental, substantive right to “bring up children,” Meyer v. Nebraska, 262 U.S. 390, 399 (1923), and “to direct the . . . upbringing of one’s children,” Glucksberg, 521 U.S. at 720. The Supreme Court has repeatedly affirmed this right, stating that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents[.]”  Prince v. Massachusetts, 321 U.S. 158, 166 (1944). And although “these decisions have respected the private realm of family life which the state cannot enter[,] . . . the family itself is not beyond regulation in the public interest[.]” Id.

“[T]o guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control” over their children’s lives in certain ways. Id. “The state’s authority over children’s activities is broader than over like actions of adults,” Prince, 321 U.S. at 168, especially for cases “in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred,” see Wisconsin v. Yoder, 406 U.S. 205, 230 (1972). Accordingly, in the context of parental control and familial association, whether “constitutional rights have been violated must be determined by balancing [a parent’s] liberty interests against the relevant state interests” in the child’s well-being. See Youngberg v. Romeo, 457 U.S. 307, 321 (1982).

Fortunately, Arkangel blocked all of the Avengers: Infinity War spoilers he was talking about.

Here, the right of the parent to implant and utilize the Arkangel device would likely be weighed against (1) the welfare of the child, Hodgson v. Minnesota, 497 U.S. 417, 444 (1990), and (2) the “state interest in protecting a parent’s interest in shaping a child’s values and lifestyle,” id. at 452. But “[s]imply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.” Parham v. J. R., 442 U.S. 584, 603 (1979). Furthermore, “making the ‘private realm of family life’ conform to some state-designed ideal, is not a legitimate state interest at all.” Hodgson v. Minnesota, 497 U.S. at 452.

Based on the device’s use in Arkangel, I can see three ways the government could challenge parents’ strong presumption of control over their children: (1) the implanting of the device itself; (2) monitoring the child’s vision and location; and (3) controlling that vision through pixelation and audio distortion.

I mean, who doesn’t want a complete invasion of their privacy permanently installed in your head?

1. Implanting Arkangel

Cases involving the parents’ right to control the bodily integrity of their children are scant. Reproductive rights, however, have been extended to minors (under consultation with medical professionals) without parental consent limitations. In Planned Parenthood of Cent. Missouri v. Danforth, the Supreme Court held that parents do not have the right to object to their minor’s decision to obtain an abortion. 428 U.S. 52, 75 (1976). Relatedly, the Court has held that a minor has the independent right to obtain contraceptives regardless of a parent’s wishes. Carey v. Population Servs., Int’l, 431 U.S. 678, 694 (1977). Both of these cases, however, address limitations on parents’ control over their child’s choice to obtain medical treatment. Not the government’s choice to control a parent’s right to choose a certain procedure for their child. See B. Jessie Hill, Constituting Children’s Bodily Integrity, 64 Duke L.J. 1295, 1315 (2015) (concluding that “the right of children to bodily integrity is only partially constitutionalized”).

Most often, it appears that the federal government properly leaves that task to the states, who in turn defer to the parents. See, e.g., Ind. Code Ann. § 31-34-1-15 (permitting parents to use “reasonable corporal punishment”); S.D. Codified Laws § 22-18-5 (2006) (permitting “force used is reasonable in manner and moderate in degree”). Reflecting a parent’s control over this or her child’s body, minors often need parental consent when aesthetic or elective medical choices are made. See, e.g., Ariz. Rev. Stat. § 13-3721 (unlawful to implant or tattoo a minor absent parental consent); Ariz. Rev. Stat. § 36-673 (“A minor child shall not be immunized without the informed consent of the parent”). It’s likely a court would view the Arkangel device in this same light.

Because the interest in parents’ intimate associational and control rights of their children will weigh in favor of permitting the implementation, the only countervailing interest appears if the procedure would harm the child physically (the procedure appears painless) or is completely unnecessary in that the implementation furthers no appropriate goals. See Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.). Neither of these seems problematic in our episode, but one could imagine that the process does not always run so smoothly.

Every parent’s second worst nightmare

2. Monitoring Your Child Through Arkangel

        The constitutionality of monitoring a child’s activities and vision through Arkangel presents a much less controversial issue. Parents have long held the right to direct their child’s education, Glucksberg, 521 U.S. at 720, and exposure to the “evils” and “all the diverse influences of the street.” Prince, 321 U.S. at 168. In upholding a statute that denied minors the right to purchase “obscene” magazines (read: porn), the Court recognized that the parents’ and the state have the right to ensure that children are not exposed to explicit adult material. Ginsberg v. State of N. Y., 390 U.S. 629, 639 (1968).

Even in the broader Arkangel context, parents would absolutely have the right to monitor what a child watches, where a child goes, or how they are treated stemming from their right to oversee the child’s welfare. The only caveat to this statement would involve the rights of other children engaged in (ahem) intimate activities with the parent’s child. Otherwise, absent evidence of some abuse of that capability or unfitness to be a parent, there’s little the government would—or could—do. Helicopter parents around the world rejoice.

She seems super excited about having her Mom know her every move

3. Controlling Your Child Through Arkangel

Marie also has the ability to engage a “filter” function, causing Sara’s vision and audio to distort when her cortisol levels spike in response to negative stimuli. Scary dogs, graphic videos, and even blood drawn on a page are all rendered indistinct and non-threatening. But unlike the passive monitoring capability, the active filtering ability affects Sara’s life in positive and negative ways. She’s not scared but she’s also not able to develop coping mechanisms, or help her grandfather as he has a heart attack.

A couple additional problems arise with filtering. The trigger—cortisol, aka “the stress hormone”—seems too broad. Anything that stresses a child out could potentially be distorted. Even life threatening situations where accurate vision is needed such as a human or animal attack, could leave the child vulnerable to harm. Notwithstanding the Supreme Court’s decision that parents have the ultimate with whom their children interact, see Troxel, 530 U.S. at 70, there are simply too many ways the filtering function could inadvertently harm the child. Maybe that is why Europe banned the tech and the U.S. was soon to follow.

Mom’s gotta go back to her old ways of snooping

4. If Approved, It Still Wouldn’t Be An Absolute Right

The Supreme Court has repeatedly remarked that the parents’ rights, albeit extremely strong, are not absolute. See id. at 88; Parham, 442 U.S. at 604. Even if Arkangel was approved (although likely without the filtering function), there are a number of existing limitations that would apply. If the parents are unfit, abuse their child, or the system, the government would have the ability to turn the system off. Troxel, 530 U.S. at 68–69. If the child expressed a strong desire to not be implanted (assuming it was not done at birth), there is also an argument that the courts may uphold their right to bodily integrity. See generally Bellotti v. Baird, 443 U.S. 622, 647 (1979). If that did not work, then a state law emancipation action would remove the parental rights and provide relief. See H. L. v. Matheson, 450 U.S. 398, 450 (1981). How the courts would find out about the abuse, however, is a whole other can of privacy worms.

5. Conclusion

While parental rights over children are historically strong, there are some limitations. Painlessly implanting the Arkangel device and monitoring a child’s location or medical status would likely be constitutional in the United States. Advanced features including vision monitoring and filtering, much less likely—especially considering the autonomy and privacy modern teenagers expect today. But given the potential lifesaving benefits inherent in the system, it’s hard to say that America would not jump at the chance to save more children.

Random Thoughts:

  • This is one of the few Black Mirror episodes to explicitly take place in the United States. I’m sure it has nothing to do with our penchant for parenting.
  • You have to imagine that the irreversible nature of the procedure would be off-putting and adult implantees would petition hard for a way to remove the device.
  • The tech in Black Mirror’s Entire History of You, which I talk about here, is also used to review what a child saw and experienced during her time with a babysitter.
  • As the old saying goes, “If you’re not paying for the product, you are the product.” The privacy law geek in me cringes at the thought of the Arkangel company’s access to all the data in a child’s feed.
  • Under Justice Thomas’s originalist view, Arkangel would likely be wholly permissible because historically, children were subject to their parents’ control with few limitations. See Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 821-39 (2011) (THOMAS, J., dissenting).
  • Like always, I’m so glad that this tech is only sci-fi and not a totally real and inevitable addition to parenting.

How to Prosecute Thanos for Killing Half of All Life?

By
Josh Gilliland
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Thanos The Mad Titan is the most dangerous environmentalist war criminal in pop culture. In the comics, Thanos was a literal lover of Death. In Avengers Infinity War, Thanos is more complex. He wants to kill half of all life in the universe in order to sustain life. In Thanos’ twisted reality, eliminating half of all living beings would preserve natural resources allowing life to flourish. In Thanos’ mind, he is the hero.

The slight problem with that fanatical belief? Thanos committed mass genocide to achieve his dream of universal sustainability.

Prosecuting Thanos for the extermination of half of all life at the snap of his figures would cause multiple challenges. No one has been prosecuted for any mass killing of that magnitude before. The closest would be the war crimes trials of the Nazis after World War II. Even then, it was not one person who snapped his fingers to commit mass murder in the blink of an eye.

The Allies after World War II agreed to the procedural rules for prosecuting Axis members for war crimes in the London Charter. 59 Stat. 1544. Article Six of the London Charter defined the jurisdiction of the Nuremberg war crimes trials as follows:

(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.  

There was no defense for war crimes. The trials were heard by a panel of four judges who each had an alternate. The law applied to the trials were either under international law or the laws of war. See, Kiobel v. Royal Dutch Petroleum Co.  621 F.3d 111, 132-134 (2d Cir. 2010) for an overview of the London Charter.

The remaining living half of the universe all rightfully would want to bring Thanos to justice. It is not known how many alien civilizations there are in the Marvel Cinematic Universe, but literally every civilization would have a claim against Thanos for his Mass Extinction Attack (MEA). One option for prosecution Thanos is for “allied” civilizations that work together for his capture to create their own version of the London Charter, whether it is the Hala Charter, the Xandar Conference, or Tarnax II Declaration.

The “Titan Tribunal” would need to have a representative number of judges for the trial of Thanos, but not to the point that a trial would become unmanageable. One option is to look to the major powers of the universe to each send a judge for the proceedings. There would need to be a limit in order to have judicial efficiency, whether the panel has four judges, nine, or ideally not more than twelve. The judicial representatives would elect a “Chief Justice” for case management and evidentiary rulings during testimony. The judges would serve as finders or fact and law in reaching a verdict on the charges against Thanos.

Wakanda should represent Earth in any such proceedings, as Wakanda was location for the battle with Thanos. While the entire population of Earth suffered 50% fatalities, Wakanda has a strong jurisdictional claim as the invaded nation by an alien army. The United States could provide an alternate judge, as New York was invaded once and assaulted before the Battle of Wakanda. 

Charging Thanos for Genocide

The charges against Thanos can be numerous, but there is one overarching crime that cannot be ignored: Genocide.

Genocide is defined (at least in the United States) when someone, “whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such, kills members of that group.” 18 U.S.C. § 1091(a)(1).

The punishment for having caused death is either death OR imprisonment for life and a fine of not more than $ 1,000,000, or both. 18 U.S.C. § 1091(b).

Every allied civilization should be able to agree to a universal charge of genocide against Thanos. The Mad Titan declared war on life for his reason to kill half of all life in the universe. Thanos had the specific intent to destroy half of ALL national, ethnic, racial, and religious groups in the universe. There usually is a form of discrimination in cases of genocide, with one group seeking the destruction of others. Thanos is unique in that he played God in deciding to “thin the herd” of every life form in creation.

The crime of genocide requires the intentional killing of a “substantial part” of a national group (in this case, a species). This was evident where Thanos had the Zen-Whoberis population divided into two groups and one of them slaughtered. 50% of a population would be a “substantial part” for prosecuting Thanos for genocide.  

Prosecutors could prove a case of genocide against Thanos. The act of reducing half of all life to ash should be universally agreed to by every civilization in the galaxy. While there are likely divergent legal systems across the universe, this is one charge all wronged civilizations can agree to for prosecution.

Crimes Against Peace

Thanos could also be charged with crimes against peace. Thanos and his cult followers planned and initiated a war of aggression against life. This included, but was not limited to, the murder of the half of the Zen-Whoberis population; attack on Luphom; attempted invasion of Earth in the Battle of New York; assault on Xandar to recover an Infinity Stone; massacre of Asgardian refugees; attack on New York to kidnap Dr. Stephen Strange for the Time Stone; and invasion of Wakanda to extract the Mind Stone from the Vision.     

All of these actions were in furtherance of Thanos’ plan to exterminate half of all life in the universe. Prosecutors could argue Thanos had a universal war of aggression, which all of his actions had the end game to commit a Mass Extinction Attack.

Terrorism vs War

It is worth noting that Thanos acted independently of any nation-state. His own home world was lost to an environmental disaster. Those who followed Thanos could be described somewhere between a political and religious movement determined to exterminate half the life in the universe. While the “children” of Thanos followed his orders, this was more in line with executing his will, opposed to carrying out a national policy. This makes them sound more like terrorists and less like uniformed members of a military on behalf of a country. This could play a role in prosecuting Thanos and his followers as terrorists or as war criminals.

Judgment at Titan

The crimes of Thanos transcend crimes against humanity into crimes against life. Thanos did everything from kidnap children after murdering their parents to universal genocide. Prosecuting him would be extremely complex, but that is not a reason to withdraw from the rule of law. In Justice Robert Jackson’s opening statement for the war crimes trial of Nazi leaders, Jackson stated the following on the unprecedented nature of the proceedings:

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have “leave to live by no man’s leave, underneath the law.”

The Avengers have much to avenge after the events of Infinity War. However, a mission to kill Thanos for his crimes would be purely for revenge and not about justice. Holding Thanos accountable for his Mass Extinction Attack with a trial, to expose his twisted beliefs, and convict him for genocide, would send a message to [fictional] genocidal extremists that the rule of law protects life from those who would burn it to ashes.

Royal Captive: The Legality of Princess Leia’s Imprisonment

By
Thomas Harper
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Happy Star Wars Day to all! Today marks the day Star Wars fans are bound by Imperial decree to shove aside all other adult responsibilities to instead focus on the galaxy far, far away. To mark the occasion, we’ll be taking up the case of Princess Leia’s imprisonment in A New Hope.

As the movie begins, we catch up with Princess Leia on her terrible, horrible, no good, very bad day. After narrowly escaping from the Battle of Scarif, Leia’s mission to bring both the Death Star plans and Obi-Wan back to the Rebellion is cut short by her crazed Sith Lord father. After Vader’s Star Destroyer nearly turns her ship into Swiss cheese, Leia is taken captive and imprisoned on the Death Star.

Rebel scum and sympathizers alike have decried Leia’s treatment at the hands of the Empire, but did the Empire really owe her any protections under international law?

Deleted scene dialogue: “Whatever, dad, like I have to listen to anything you say. Bail and Breha said there’s not a snowball’s chance on Mustafar you’re ever getting custody of me, so don’t try to boss me around.”

Leia is often described as being a “prisoner of war,” or POW, while aboard the Death Star. The logic behind it is pretty straightforward: The Rebel Alliance is at war with the Empire; Leia is a part of the Rebel Alliance and gets captured, which means she’s a POW. Easy peasy lemon squeezy, right? Not so fast, flyboy.

“Prisoner of war” isn’t a blanket term used to describe any enemy fighter who gets captured. On real world battlefields, “POW” is a complex designation that carries a lot of legal significance.

Historically, you were in deep bantha poodoo if you got captured during war. Prisoners had no legal protections and became the property of the victor. They could be killed, sold, or even forced to serve drinks on Jabba’s sail barge in humiliating fashion. The progress towards granting legal protections for POWs advanced about as slowly as a rusty Sandcrawler, even in the United States. During the American Civil War, POWs from both sides suffered untold horrors at the hands of their captors, with 26,486 Southerners and 22,576 Notherners dying in POW camps.

Even nearly 80 years later during World War II the law still had not evolved to fully protect POWs. Prisoners of the Japanese were often subjected to infamously heinous treatment. To the Japanese, the concept of humane treatment of POWs was a foreign one, as they viewed surrendering Soldiers as traitors and a disgrace.

I pity the fool who captures Anakin and then tries to tell him that he’s legally a slave again.

It wasn’t until after World War II that international law finally developed a more robust set of protections for POWs. Under the Geneva Conventions of 1949, POWs were entitled to a host of protections, including humane treatment, protection from violence and intimidation, and medical care, to name just a few. Additionally, POWs are generally considered legally immune for their per-capture acts of war (e.g. killing or destroying military equipment). POWs are also protected from torture, coercion, and threats during interrogation.

But those sweeping protections come with a Death Star sized asterisk: They don’t apply to just any ole’ person captured on the battlefield. The POW status is only available to certain persons on the battlefield in certain types of armed conflict. If that sounds like a confusing set of legal hurdles, that’s because it absolutely is. But to make things simple, we’ll presume that it’s possible for Rebels to qualify as POWs.

“But with the blast shield down, I can’t see any of the other potential legal issues!”

Since not everyone captured on the battlefield is considered a POW, Leia’s fate hinges on how she is classified. Grand Moff Tarkin would scoff at the very idea of affording any sort of protection to the traitorous Princess of Alderaan. Tarkin would coolly point out that Leia’s thin veneer as an innocent politician hid her true status as a high-ranking Rebel spy.

Under both Article 29 of the Hague Convention and Additional Protocol I to the Geneva Conventions, spies are not entitled to POW status. The Geneva Conventions and the U.S. Army Law of Warfare Field Manual 27-10 define espionage as “acting clandestinely (or on false pretenses) to obtain information for transmission back to friendly territory.”

But on the other side of the scale, Leia’s dual role might serve her well. Under international law, belligerent diplomats are afforded POW protections (that phrase should immediately conjure images of Padme blasting waves of droids on Geonosis). To qualify for the truly awesome title of “belligerent diplomat,” you have to both hold a political office and be a member of an armed force.

At first blush, Leia seems to be the dictionary definition of a belligerent diplomat (AKA an aggressive negotiator). After all, she’s the youngest elected Imperial Senator and a rising political star in the galaxy. Leia has also been intimately involved with the Rebellion since its earliest days. Even though she is careful to hide her involvement with the group, there is little doubt that Leia is a member of the Rebel Alliance’s armed forces by the time of A New Hope, having just accompanied the Rebel fleet to Scarif in its single largest military strike.

Nothing to see here. Just a diplomatic ship flying casually over the bustling metropolis of Tatooine. We definitely weren’t the same ship you saw blasting away from Scarif 30 minutes ago.

Given how Rogue One ended, Leia’s claim that she was on a diplomatic mission to Alderaan might seem like a ridiculous lie born of pure desperation. However, Leia is no fool. While her lie might have been a long shot, her words were carefully chosen and incredibly selfless given their legal significance.

As stormtroopers marched her in front of Vader, Leia faced a terrible choice. On one hand, she could admit to being part of the Rebel Alliance. She could have then demanded POW status as a belligerent diplomat. She would have still been imprisoned, but her personal safety would have been guaranteed under the legal protections afforded to POWs.

But Leia fully realized that securing her own safety would in turn risk the lives of countless others. Had she openly admitted to being a Rebel, the Empire would have had damning proof that Alderaan was intertwined with the Rebellion at the highest levels of its government. If Leia–a member of House Organa and the daughter of two of Alderaan’s highest officials–admitted to being a Rebel, the Emperor could easily declare the entire planet as traitors to the Empire. Leia knew that if she handed Palpatine that kind of smoking gun, he could justify any number of hostile actions against Alderaan, from a blockade to a full occupation force.

Instead, Leia chose to gamble with her own life. By playing up the thin façade that she was an innocent diplomat, Leia risked being branded as a spy. In the real world, the Geneva Conventions offer no protection for acts of espionage and spies may be tried under the laws of the capturing nation. Given the Empire’s distaste for Rebels, that likely meant a swift execution. Leia absolutely knew that risk as she stepped in front of Vader.

Leia also undoubtedly realized that getting caught ferrying the Death Star plans under the cover of a diplomatic mission would be the literal textbook definition of espionage. As Leia sent R2-D2 off to the escape pods, Leia had no illusions about her fate. She made no plea for Obi-Wan to come rescue her and had no plans to avail herself of POW protections, given the dear price Alderaan would likely pay as a result.

Leia therefore lied to Vader’s face not because she honestly thought he would buy it, but because it was part of her last full measure to protect her people and the Rebellion.

In the end, Leia didn’t peddle some silly pointless lie after being captured; her words were carefully chosen and had serious legal significance and consequence for her. While Vader and the rest of the Imperials were playing checkers, Leia was playing chess (or Dejarik, if we’re staying in-universe with all references) by using the law of war to protect the Alderaanian people and to help the Rebellion fight another day.

Westworld, Android Hosts, and Identity Theft

By
Caesar Kalinowski IV
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“Evolution forged the entirety of sentient life on this planet using only one tool: the mistake.”

If you’re like me (and 3 million other viewers), you tuned in last week for HBO’s season premiere of Westworld, a classic American science fiction western thriller if there ever was one. The show, which takes place in a technologically advanced Wild-West themed amusement park populated by android “hosts,” takes a look at the darkest parts of human nature. If you could do anything you wanted to others and laws of man or nature don’t apply to you, how would you act?

The technology in Westworld, albeit not new, certainly brings up a lot of legal issues. Human androids—made to look and feel and bleed just like real humans—are effectively treated as computers with advanced artificial intelligence and have no “rights” to speak of. But as the show progresses, we see that the hosts are not satisfied with simply existing to serve as shooting targets for rich human guests. (Psh, anyone who has seen Blade Runner could have told you that.) So how would the government regulate the park to ensure human safety? How would liability attach for those injured by hosts or by fellow guests? Would the law require fail safe switches or certain code to prevent a host uprising? Could the government use forfeiture laws to seize hosts? Are hosts property, even if they grow to have their own personality and are self-aware? All apt questions.

Ford is so lonely he had to invent friends.

After watching this week’s episode, “Reunion,” I was struck by a different question: How would the law address the possibility of creating hosts that look, sound, and act exactly the same as real humans already in existence? In last season’s ninth episode, “The Well-Tempered Clavier,” we learned that one of the main characters, Bernard, is actually a host remade in the image one of the park’s deceased co-founders. Because no one in the park’s staff, save the host’s creator, is aware that the character is a host and not a real person, Bernard is used to perpetrate all sort of fraud (and even murder). Given the potential for widespread abuse, the law would likely need to be updated to protect against this ultimate form of impersonation.

3D printing a copy of what I can only assume is a host copy of Channing Tatum.

1. Fraud and Identity Theft

Identity theft, whether to steal a person’s money, a company’s proprietary tech, or obtain access to a facility, seems to be the most obvious misuse of host technology. “Identity theft” is defined as “[t]he unlawful taking and use of another person’s identifying information for fraudulent purposes.” Black’s Law Dictionary 863 (10th ed. 2014). Under federal law identity theft is a crime, and any person who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” during or in relation to another enumerated (generally fraud-related) felony, receives an additional two-year sentence. 18 U.S.C.A. § 1028A(a)(1).

Although the term “means of identification” seems to imply the use of an ID card, courts have also held that § 1028A(a)(1) “no doubt covers impersonations” and the use of an ID card is not necessary. United States v. Michael, 882 F.3d 624, 627 (6th Cir. 2018) (use of doctor’s name and ID number); United States v. Berroa, 856 F.3d 141, 156 (1st Cir. 2017) (“[W]e read the term ‘use’ to require that the defendant attempt to pass him or herself off as another person or purport to take some other action on another person’s behalf.”); United States v. Medlock, 792 F.3d 700, 712 (6th Cir. 2015) (forging a physician’s signature). Therefore, laws relating to identity theft would likely cover the surreptitious use of a lookalike host to perpetrate a fraud; however, federal laws could need to be updated to explicitly outlaw the use of “a person’s likeness” during fraudulent ventures.

I mean, yea she killed tons of people, but who hasn’t massacred a town of frontier settlers?

2. Criminal Impersonation

Under federal law, it is also illegal to “pretend[] to be an officer or employee acting under the authority of the United States . . ., or in such pretended character demand[] or obtain[] any money, paper, document, or thing of value[.]” 18 U.S.C. § 912. While this statute ostensibly protects against the use of hosts pretending to be federal employees or work for the federal government, it is unclear whether a host could be prosecuted as a non-human or the creator of the host would be subject to indictment. My guess is that (1) the law would be interpreted to necessarily criminalize the indirect use of hosts for such a purpose, (2) Congress would add a law doing so, and (3) prosecutors could bring conspiracy charges against human principal. Problematically, however, this law only extends as far as the authority of the federal government is being “invoked” by the impersonator.

State law, on the other hand, fills that gap. In Washington, for example, it is a felony for a person to do “an act in his or her assumed character with intent to defraud another or for any other unlawful purpose[.]” RCW 9A.60.040(1)(A). See also Cal. Penal Code § 529(a)(3); N.Y. Penal Law § 190.25. And while the human principal may also evade charges directly under these statutes for the host’s actions, many states have criminalized participation in such a fraudulent scheme as well.  See N.Y. Penal Law § 190.60 (“A person is guilty of a scheme to defraud in the second degree when he engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises, and so obtains property from one or more of such persons.”).

Careful what you ask for in terms of relief, Ford’s been trying to unload his wall of creepy heads for a long time.

3. Civil Remedies

While some may take solace in the government clamping down on the use of hosts as lookalikes, the victims of these fraudulent impersonations would also seek a civil remedy. Aside from civil actions stemming from criminal prosecutions of the aforementioned crimes, see Cal. Penal Code § 496(c), and conversion (i.e. civil theft) claims, see Hooten v. State for Use of Cross Cty., 178 S.W. 310, 312 (Ark. 1915) (“Anything which is the subject of property, and is of a personal nature, is the subject of conversion.”), victims of host impersonation could also bring claims for appropriation of likeness under the right of publicity.

To assert such a claim, the plaintiff would have to show “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983) (applying California law). See, e.g., White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1397 (9th Cir. 1992) (“[Defendants] used a robot with mechanical features, and not, for example, a manikin molded to White’s precise features. Without deciding for all purposes when a caricature or impressionistic resemblance might become a ‘likeness,’ we agree with the district court that the robot at issue here was not White’s ‘likeness’ within the meaning of [California law].”). Because state law differs, some statutes may only recognize commercial injury and appropriation, see Nev. Rev. Stat. Ann. § 597.810; Cal. Civ. Code § 3344, but also provide for statutory damages to provide a minimum recovery for non-celebrities and “to discourage such appropriation,” Hetter v. Eighth Judicial Dist. Court of State In & For Cty. of Clark, P.2d 762, 765 (Nev. 1994).

As if pissed off hosts wasn’t enough to deal with.

4. Permissible or Legal Uses

While the skeptic in me automatically assumes these lookalike hosts will be used for the worst, there are many possible uses that the government would want to protect. In the event the human consents to the creation of an identical host, no criminal or civil action would or should lie. Non-fraudulent use as stand-ins for actors in movies would negate sick days or delays in shooting. Dignitaries and heads of state would surely have host lookalikes to act as decoys in high security situations. Rich, unethical fathers may even want an identical host to attend their child’s boring recital, a parent-teacher conference, or his spouse’s favorite ballet. These beneficial uses (in addition to those identified graphically in Westworld), however, assume that consent was obtained.

Unauthorized or unconsented to uses of lookalike hosts also have their place in our hypothetical world. Under the First Amendment, appropriation of a person’s likeness for the purpose of parody is expressly protected. See Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Some states protect the use of a person’s likeness in the context of a dramatic work. See Joplin Enters. v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992) (applying Washington law). Moreover, celebrity impersonations by hosts used in noncommercial speech are protected under the First Amendment unless done with “actual malice.” Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186 (9th Cir. 2001). While the bounds of these uses would have to play out in court, I could imagine that the historical and jurisprudential application of First Amendment protections would apply to irreverent and unauthorized host use as well.

5. Conclusion

While the prospect of perfectly accurate and indistinguishable host lookalikes is terrifying at first glance, it appears the law (as it stands) would protect against malicious use of this technology in fraudulent ways. Federal and state legislatures, however, would definitely look to expand or adjust criminal and civil statutes to address the principal human’s role in any such scheme. Given the close hold that the Delos Corporation (parent corporation and owner of the Westworld park) has over the host technology, when and how the government or victims would become aware of host fraud is another matter entirely. I mean, we’re still waiting for Bernard to fully remember that he is a host and tell someone he isn’t ordered to kill.

Random Thoughts:

  • Considering the complexity of all the host-related issues, I think the U.S. Government would establish an agency to regulate hosts. The “Android Administrative Agency” seems like a perfect name, notwithstanding the inevitable “Triple A/AAA” trademark infringement issue.
  • It appears that hosts are biologically almost identical to humans. We have not seen any technology to verify who is human and who is host. I think that outside of private places (home, amusement park) that hosts may need identifiable markings or means of identification, just like vehicle license plates.
  • Sex plays a big role in Westworld and I can’t even imagine the market for replica celebrity hosts in a brothel. Or maybe celebrities would just cash in and license their rights?
  • I would totally send my identical host to the DMV to wait out the line for me. Criminal charges be damned.
  • Good thing we aren’t super close to realistic human android technology, right?

 

Kong, King of Strict Liability

By
Josh Gilliland
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In the original King Kong, an exuberant Carl Denham captured King Kong and brought Kong back to New York City. The former ruler of Skull Island was reduced to a shackled vaudeville act.

The box office from the opening night was $10,000 (roughly $189,056.06 adjusted for inflation). It appeared Denham was going to be very commercially successful, however, Denham’s show came to a violent halt after Kong was enraged by flash photography, resulting in a rampage across New York. The mayhem included Kong: dropping a woman out of a window who he mistook for Ann Darrow; picking a man up, biting him, and then dropping the unlucky pedestrian; knocking down the tracks for an elevated train, causing a full train to crash, followed by Kong smashing the train car with the commuters inside; and extensive property damage.

Plus a giant dead gorilla at 350 5th Avenue.

Carl Denham’s Liability

The lessor known 1933 Son of Kong begins with Denham being the defendant in eleven lawsuits and a grand jury about to issue an indictment against him. Denham escapes New York on the SS Venture, trying to avoid liability.

That $10,000 box office would not be enough to pay off all the plaintiffs.

Two observations: First, Song of Kong is absolutely right as a plot device that people would sue Carl Denham for King Kong’s rampage. Secondly, Denham’s escape from New York would not eliminate his liability. The plaintiffs’ could seek default judgments against Denham after they meet the notice requirements for Denham’s failure to defend himself.

Denham would be strictly liable for the damage caused by King Kong. It is well established in New York that “one who keeps wild animals on his premises must see to it at his peril that they do no damage to others.” Stevens v. Hulse, 263 N.Y. 421, 423-24, (1934). Wild animals are presumed to be vicious. Baugh v. Beatty, 91 Cal. App. 2d 786, 791, 205 P.2d 671 (1949). Moreover, a monkey is a wild animal (ferae naturae). Garelli v. Sterling-Alaska Farms, 25 Misc.2d 1032 (Supreme Court, Queens Cty., N.Y. 1960).

A court would find that Denham had a legal duty to protect people from King Kong in the theater. First, there is no question that Kong is a “wild animal” and would be presumed to be vicious as a matter of law. As such, Denham had a duty to keep patrons safe from Kong. The failure of the “chrome chains” to restrain Kong were the reason for the giant ape’s rampage across Manhattan. As such, the following damage from Kong’s escape would fall on Denham for a wild animal causing death and destruction.

Denham might have an argument that if he had secured a charter from the legislature (presumably the state or city) for keeping King Kong for educational and entertainment purposes, then he would not be strictly liable for Kong’s damage, but held to a standard of negligence. Guzzi v. N.Y. Zoological Soc’y, 135 N.E. 897 (N.Y. 1922). Whether or not it was reasonably foreseeable the chains could not restrain Kong, or knowledge of how Kong would respond to flashbulbs, could change the outcome of lawsuits against Denham. However, it is unlikely Carl Denham did any sort of paperwork before King Kong’s Broadway premier.

After the events in Son of Kong, Denham’s treasure would be needed to pay off his default judgments. He likely had his bank accounts garnished and assets seized. If he had any money left over, he would need it for a criminal defense attorney. The case of Gideon v. Wainwright establishing that states had to provide criminal defendants the right to counsel was not until 1963.

King Kong was the Victim

Why do we care about an 85 year old movie about a giant ape? How is it people connect with a “creature” brought to life by stop motion animation?

One answer is King Kong is the victim. Carl Denham had a get rich quick scheme that removed Kong from his home. Kong goes from the apex predator of Skull Island to involuntarily conscripted Broadway act. Moreover, the revolutionary visual effects enabled movie goers to develop an emotional attachment to King Kong from his expressive features. Whether Kong was fighting dinosaurs or rampaging across New York, the audience have a character they can connect with on a human level. What happened to King Kong was not his fault; Kong was the victim of shortsighted greed. That is a timeless injustice that everyone can understand.

Of Monsters, Men, and Competency at San Diego Comic Fest

By
Josh Gilliland
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We strive to do a unique mock trial with law students at San Diego Comic Fest each year. For 2018, we had our most complicated mock hearing to date in honor of the Frankenstein bicentennial. Using the events of the 1931 film as the fact pattern, law students from Golden Gate University and the University of Oregon represented Frankenstein’s Creature and Dr. Henry Frankenstein.

Case Background

In the 1931 film Frankenstein, Dr. Henry Frankenstein and his assistant Fritz exhume one corpse, retrieve the body of an executed prisoner, and steal an abnormal brain from a university. The amalgamation of deceased tissue was brought to life through Dr. Frankenstein’s experiments.

The Creature was kept in darkness for several days and then imprisoned in a cellar. Fritz tortured the Creature with a whip and fire. The Creature killed Fritz to protect itself. Dr. Frankenstein and Dr. Waldman decided to destroy the Creature by conducting a vivisection on him while sedated. The Creature awoke while Dr. Waldman was beginning the procedure, killed him, and escaped.

The Creature befriended a young girl named Maria. Both Maria and the Creature tossed flowers in a lake to watch them float. The Creature tossed Maria in the water, thinking the girl would float like one of the flowers. To the Creature’s horror, Maria drowned.

Was the Creature Legally Competent to Stand Trial? 

Attorneys for the Creature brought a motion that the Creature was not legally competent to stand trial as a minor, because the Creature lacked sufficient present ability to consult with counsel and assist in preparing his defense with a reasonable degree of rational understanding under Cal. Welf. & Inst. Code § 709(a). The Prosecution opposed the motion, challenging the application of the standard for minors, as the Creature was nearly seven feet tall with the body of an adult. The Prosecution argued the Creature was a competent adult with competency needing to be based upon the requirements and procedures outlined in Cal. Penal Code § 1367.

Was Dr. Frankenstein Criminally Responsible for the Creature’s Actions? 

The state charged Dr. Henry Frankenstein with contributing to the delinquency of the Creature under Cal. Penal Code § 272, due to his failure as the Monster’s legal guardian to exercise reasonable care, supervision, protection, and control over the Creature, resulting in the deaths of Little Maria, Fritz, and Dr. Waldman. Dr. Frankenstein was also charged with Murder in the Second Degree pursuant to Cal. Penal Code § 187.

Attorneys for Dr. Frankenstein brought a motion to set aside the indictment under Cal. Penal Code § 995, because the charge was not found, endorsed, and presented as prescribed under the California Penal Code, because the law does not speak to contributory delinquency for reanimated human remains. Cal. Penal Code § 272 applies to children and the Monster is not a child. Moreover, there was no probable cause for charging Dr. Frankenstein for the Monster’s actions resulting in Little Maria’s death. The Prosecution opposed the motion and argued that Dr. Henry Frankenstein’s failure to exercise the reasonable care, supervision, protection, and control over the Monster, resulted in the deaths of three people.

The Mock Hearing

The law students did an incredible job arguing for their clients. Witness examinations were very well done.

The Court ruled that the Creature was a minor, but could be tried as an adult for the death of Little Maria. However, the Creature was not legally competent to stand trial, based on expert testimony on the Creature’s ability to consult with counsel and assist in preparing his defense with a reasonable degree of rational understanding. As such, the Creature was to be sent to a mental health facility for treatment.

Dr. Frankenstein presented the issue of someone whose conduct was morally reprehensible, but not legally responsible for the deaths caused by the Creature. However, there were grounds for Dr. Frankenstein to be tried for contributing to the delinquency of a minor. Moreover, the Court recommended the State add the charge of attempted murder of the Creature with Dr. Waldman against Dr. Henry Frankenstein.

The audio from the mock hearing, including the question and answer session, is available on our podcast channel.

Kaiju Panel

I was invited as a late addition to the Kaiju panel moderated by Beth Accomando, KPBS Cinema Junkie. It was a lot of fun to geek out with Miguel Rodriguez of the Horrible Imaginings Film Festival; artist Hiroshi Kanantani of Monster Attack Team, and Edward L. Holland, editor in chief of Monster Attack Team. We had a rip-roaring good time sharing our knowledge of Kaiju movie history, themes, and thoughts on Godzilla, Gamera, Mothra, and more.

Everything You See, Everyone Else Wants to See Too

By
Caesar Kalinowski IV
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“You know, half the organic memories you have are junk.”

Black Mirror is a technology-based, sci-fi miniseries produced by digital entertainment giant, Netflix. The show, which has been labeled “TV’s Magic 8-Ball,”[1] is a collection of self-contained episodes that tackle totally plausible technological advances and the effect those advances have on our world. While many episodes ostensibly take place in the United Kingdom, I will assume that similar technology exists contemporaneously in the United States and analyze various episodes with an eye towards U.S. law.

Only slightly less objectionable than a Bluetooth earpiece.

In the show’s third episode, “The Entire History of You,” we are introduced to a young lawyer, Liam Foxwell, who reviews a job interview through real time video footage displayed on a retinal screen and ostensibly stored in an implanted “grain” behind his ear. Later in the episode, Liam consents to have his memories screened by security agents at the airport and at home, he uses his grain during arguments with his wife to settle disputes, scrutinize body language, and uncover an affair.In this alternate universe, people can elect to be implanted with a digital recording device known as a “grain,” which allows them to review video and audio playback of every moment they experience. Using a handheld remote, memories are shuffled through like episodes on Netflix; they can be encrypted, deleted, or displayed on TV screens. Grains can also be stolen (a process known as “gouging”), we find out, with the stored memories then sold to voyeuristic “millionaire Chinese pervs.” And because the memory recordings in the gouged grain would be lost, new buyers are given 30 years’ worth of backup space to store memories (ostensibly in the Cloud).

Given this ability to definitively resolve any dispute as to who said what, what someone knew, or where someone was at any given time, the implications of such technology are manifest. Police, insurance agencies, and aggrieved parties would assuredly seek discovery of pertinent recordings; leading to issues regarding privacy, government searches or seizures of an individual’s grain, self-incrimination, and the production of evidence. Due in part to the similarity between the grain’s functions and current cell phone technology (in terms of capability and prevalence), the law as it stands is likely sufficient to address the attendant constitutional and privacy rights of U.S. citizens with grains.

I. An Invasion of Privacy

Consider the tech sophistication, I feel like this user interface hasn’t addressed the whoops-I-accidentally sent a ‘redo’ problem.

In a world where almost everyone is automatically recording everything they do and see, anyone a person interacts with (or views) is being recorded by default and the concept of “privacy” is limited. Unlike in the European Union, the “‘right to be forgotten,’ . . . is not recognized in the United States.” Garcia v. Google, Inc., 786 F.3d 733, 745–46 (9th Cir. 2015) (citing Case C–131/12, Google Spain SL v. Agencia Española de Protección de Datos (AEPD), ECLI:EU:C:2014:616 (May 13, 2014)). Under federal law, “[a]bsent some special circumstance (such as an attorney-client privilege), no right of privacy or other protection attaches to words spoken by one individual to another individual; the speaker assumes the risk that his auditor may repeat the conversation to others.” United States v. Cox, 836 F. Supp. 1189, 1197 (D. Md. 1993). Nor is the government likely to create any. The right to record video or audio, at least “in traditional public fora” is protected under the First Amendment, United States v. Cox, 836 F. Supp. 1189, 1197 (D. Md. 1993), and any attempt by the government to establish content or non-content related restrictions on recording, would be subject to either strict scrutiny or intermediate scrutiny, respectively. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010); United States v. O’Brien, 391 U.S. 367, 377 (1968).

State law, however, often does provide a right to privacy. Several state constitutions explicitly include such a right. See Alaska Const. art. I, § 22; Cal. Const. art. I, § 1; Wash. Const. art. I, § 7. The Restatement (Second) of Torts § 652A(1), which is a relatively authoritative statement of the common law privacy torts having been adopted by most states, also concludes that “[o]ne who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.” Subject to the vagaries of state law, grain recordings of a person’s private life would likely fall under “intrusion upon seclusion” and any post-recording publication of personal, offensive, or misleading recordings could subject the recorder to state law liability.

II. Searches, Seizures, and Arrests

Nothing like having the government look through your entire weekend in Vegas

Next, given the vast amount of illuminating information potentially captured by a grain, the government would surely seek control over grain recordings in criminal prosecutions. For if guilt or innocence could be easily determined by viewing the alleged event unfold in real-time, other evidence would be wholly unnecessary to prosecuting criminals. The Fourth Amendment, however, would still likely provide adequate protections for a person’s grain rights.

The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court in Katz v. United States, 389 U.S. 347 (1967), created a two-part inquiry to examine if the government must obtain a search warrant before searching or seizing a citizen’s a grain. The individual must manifest “a subjective expectation of privacy in the object of the challenged search,” and society must “willing to recognize that expectation as reasonable.” California v. Ciraolo, 476 U.S. 207, 211 (1986). While the first, subjective inquiry would be case specific, it is easy to deduce that a person with a grain stored in their body, which contains every conceivable piece of private data, would subjectively expect their grain’s contents to be private. Under the second, objective inquiry, we can assume that by virtue of an individual’s private control over their own grain and historical privacy of thought, society has recognized that person’s privacy expectation as reasonable. See Wooley v. Maynard, 430 U.S. 705, 714 (1977); Stanley v. Georgia, 394 U.S. 557, 565 (1969); Cruzan by Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 342 (1990).  In short, because of the internal placement of the grain and the collective magnitude of the information stored on that grain, the Fourth Amendment would require a search warrant for the search or seizure of a grain absent exceptional circumstances.

While many exceptions, such as “exigent circumstances,” are highly fact intensive and cannot be addressed in the abstract, the Search Incident to Arrest (“SITA”) exception can be decided as a matter of law. The Court in Riley v. California134 S. Ct. 2473, 2490 (2014), analyzed the SITA exception to the Fourth Amendment’s warrant requirement in the context of cellular phones. Holding that the exception did not apply, the Court found that cell phones “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse” in that they contain “a digital record of nearly every aspect of [people’s] lives—from the mundane to the intimate.” Id. Looking at grain technology here, the Court would likely find Riley instructive. Like cell phones, grains store an immense treasure trove of personal, intimate information and also, information on grains cannot be used as a weapon that would threaten an arresting officer’s life. Id. at 2485. And while the possibility of remote wiping was not addressed in the episode, I assume that other technological advances will allow police to take control of a person’s remote, block incoming signals, or make a copy of the data to preserve evidence. Simply put, grains, “[w]ith all they contain and all they may reveal, [would] hold for many Americans ‘the privacies of life.’” Id. at 2494–95 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). An important caveat to note, however, is that like Liam’s interaction with the airport security agent, an individual could consent to have their grain recordings reviewed. Pennsylvania v. Muniz, 496 U.S. 582, 594 (1990).

III. Compelling Production by Defendant

MRW I realize the police try to get a copy of my grain

Once a person is arrested and a search warrant is obtained, the next question is whether the police could be forced them to turn over their grain’s recordings. The Self-Incrimination Clause of the Fifth Amendment provides that no “person . . . shall be compelled in any criminal case to be a witness against himself.” This privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761 (1966).

Relevant here, the status of the law with regards to production of physical items that tend to incriminate a person is unclear. Although the Supreme Court has held that forced production of physical evidence does not implicate the Fifth Amendment, see Boyd v. United States, 116 U.S. 616, 634–35 (1886), the Court has also recognized that the act of producing the documents may be testimonial to the extent that the act of production concedes “the existence of the papers demanded and their possession or control by the taxpayer,” or because the production serves to authenticate the materials, Fisher v. United States, 425 U.S. 391, 409–10 (1976).

A grain is definitely in possession of the defendant, located within their body, and contains recordings of what the defendant said and observed. Although the recording and any statements made in the recordings would be considered voluntary (at the time of their creation), the production of those recordings would not be voluntary. In the most literal sense, a defendant compelled to produce the grain recordings of what they said would be forced “to disclose the contents of his own mind,” Curcio v. United States, 354 U.S. 118, 128 (1957), which implicates the Self–Incrimination Clause.

A much closer call occurs in the context of arguably non-testimonial grain recordings, such as video of a crime scene or the dimensions of an instrument. Like producing a shirt for the jury’s consideration, see Holt v. United States, 218 U.S. 245, 252–53 (1910)  the “evidence” contained in the grain’s videos could be viewed as real or physical evidence. In those cases, I believe the Court would still find that the defendant is not required to produce his grain recordings because it would constitute compelling of personal testimony (in the form of what was seen), does not fall neatly into the categorical exception for real or physical evidence because it directly implicates the defendant’s control or knowledge of evidence, and is so connected with the defendant’s personal thoughts and actions as to implicate the self-incrimination concerns inherent in the Fifth Amendment’s protection.

IV. Compelling Production By A Third Party

Nothing like having your grain gouged by a broken glass

But what about compelling the production of third party’s grain recordings? Could the police force a witness to a crime to turn over their internal video feed? The answer is very likely, yes. Couch v. United States, 409 U.S. 322, 328 (1973). The Supreme Court has made clear “that the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial.” United States v. Nobles, 422 U.S. 225, 234 (1975). Police informants or undercover agents may also produce their grain recordings, even those containing the surreptitiously-recorded admissions of a defendant, without violating the Fourth or Fifth Amendment. United States v. White, 401 U.S. 745, 751 (1971).

Under Federal Rule of Criminal Procedure 17(c)(1), the state may use a subpoena to “order the witness to produce” their grain, except under certain circumstances. See United States v. Nixon, 418 U.S. 683, 699–700 (1974). Although not specifically addressed in the episode, it is also reasonable to assume that a grain stores recordings locally and backs up those recordings online in the Cloud. If the recordings are stored on a remote server, the state would likely still be able to gain access to them through the Stored Communications Act. See 18 U.S.C. § 2703(c). And because law enforcement officers may have pertinent grain recordings as well, a defendant may be able to obtain those recordings under state disclosure laws or the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552

V. Conclusion

Grain recordings, which show accurate depictions of an individual’s visual and auditory perceptions, would be invaluable evidence for private litigants, criminal defendants, and the government. Like any technology that makes attaining the actual truth of a matter more easily obtained, however, these recordings would also be protected under the Fourth and Fifth Amendment in criminal proceedings. And while production of grain recordings would likely be routine in civil matters, criminal defendants would still have adequate protections against self-incrimination to limit the government’s ability to obtain those recordings. Good thing you don’t have to worry about this tech, right?

[1] G. Clay Whittaker, ‘Black Mirror’ Is TV’s Magic 8-Ball, The Daily Beast (Feb. 21, 2018 3:07 PM), https://www.thedailybeast.com/black-mirror-is-tvs-magic-8-ball (“It becomes difficult to discuss the impact and predictions of dystopian programs a few years after they’re created. At some point the conversation has to switch from ‘will they be right’ to ‘are they right.’ In many aspects Black Mirror was early in capturing certain aspects of life that have become familiar to us since.”).

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