The Immigration Non-Cooperative?

USA_passport_with_immigration_stamps_from_Austria,_Germany,_Singapore_and_the_US_-_20120708

By Ari Mead

Local governments across the country fought federal immigration policy under Obama. Under Trump the fight continues. Specifically, the President has directed federal immigration agencies to more aggressively enforce current immigration laws and prevent residents with legal documentation from entering the United States based on country of origin.

But, for the first time, states are adopting state-wide policies that attempt to prevent cooperation with federal immigration policies.

The following is an overview of what’s happening:

CALIFORNIA

Several members of California’s legislature have responded with two proposed bills, which aim to protect immigration status, national origin, and religious belief from getting into the hands of federal officials.

Current California law requires that when state or local law enforcement arrest someone they believe is not a citizen, they must report that individual to the federal government. SB 54 would repeal that provision. In addition, the bill prohibits state and local law enforcement agencies, along with other state agencies – including schools – from using any local resources for immigration enforcement purposes. Sb 54 also directs state agencies to adopt the confidentiality policies that the Attorney General defines.

Another proposed bill in California, SB 31, requires state agencies to secure databases containing names, places of birth, addresses and nation of origin. Additionally, the bill disallows California from creating any databases that compile personal information.

WASHINGTON

On February 23rd, Washington State beat California lawmakers to the punch, as Washington’s Governor Jay Inslee signed an executive order blocking state officials and agencies from cooperating with federal immigration raids, sharing private information in agency databases or creating any religious based databases. Although city level non-cooperation policies have existed for decades, these state-wide non-cooperation policies are the first of their kind.

FEDERALISM CHALLENGES

Meanwhile, city non-cooperation policies have been around and have been tested in court, shedding light on some of the legal issues they pose. City of New York v. United States, from the United States Court of Appeals of the Second Circuit, concerned a provision in The Welfare Reform Act that prevented localities from prohibiting their local law enforcement and other agencies from sharing information with the federal government. The City of New York challenged the provision as violating the Tenth Amendment, and argued that the federal government could not interfere with how it instructed their local employees outside of a federal agency. Ultimately, the Tenth Amendment prevents congress from passing laws requiring states to administer civil immigration law. The Second Circuit decided that in the face of federal policy requesting cooperation, a city policy cannot prevent an official from voluntarily sharing immigration information. At the same time the ruling from the Second Circuit does not discuss whether a federal policy could require a state agency or city official to obtain information to report to the federal government.

Another case that considered the legal issues imbedded in non-cooperation policies was Sturgeon v Bratton. Sturgeon, a Ninth Circuit Court of Appeals case, involved an LAPD policy called S.O. 40, which stated that obtaining immigration information was not a matter for local authorities. A group of citizens challenged the policy as unconstitutional, arguing that that federal immigration law preempted the city policy. The Court of Appeals disagreed and said that the Tenth Amendment “shields state and local governments from the federal government requiring them to administer federal civil immigration law.”

In the months and years to come, more courts will likely have plenty of opportunities to decide whether state non-cooperation policies are also shielded by federalism. Whether states themselves are shielded by federalism depends on the federal government’s actions moving forward. The federal government could limit funds tied to immigration, or test the Tenth Amendment in this area again, challenging state laws that prevent local authorities from acting to enforce immigration laws.

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Who’s Sharing? Why You Can Still Use My Netflix Password

netflixBy Amela Zukic

You can relax for now. Sharing your Netflix password probably won’t get you in trouble anytime soon. Though you may have had some anxiety this past summer following the Ninth Circuit’s decision in United States v. Nosal, in which the appellate court, in a 2-1 decision, held that the sharing of passwords could be found to be a federal crime under the Computer Fraud and Abuse Act (CFAA). Social media went into frenzy over the possible implications of its decision regarding the legality of sharing Netflix passwords. While this decision is unlikely to have an immediate effect on users of streaming services such as Netflix, HBO Go, Hulu, etc., the long-term repercussions remain unclear.

The CFAA, also known as the “worst law in technology,” renders unauthorized access of computers a federal crime. Under the CFAA, anyone who, “knowingly and with intent to defraud, accesses a protected computer without authorization” can be convicted. Yet, “unauthorized access” is not defined within the scope of the CFAA. This, therefore, leaves judges with the utmost discretion when interpreting the meaning of “unauthorized access.” The CFAA was initially drafted to criminalize the activities of hackers, but it is now increasingly being used to criminalize activities the public would consider normal – such as password sharing.

Continue reading “Who’s Sharing? Why You Can Still Use My Netflix Password”

Jury Finds Facebook’s “Oculus Rift” Runs on Stolen Technology; $500 Million Verdict

By Adam Roberts

oculusOn February 1, 2017, a jury in the Northern District of Texas found that Facebook’s recently acquired virtual reality (“VR”) technology, “Oculus Rift,” infringed on copyrighted source code owned by ZeniMax Media LLC. Resultantly, the jury awarded ZeniMax $500 million in damages. This case comes as a significant blow to Facebook’s recent venture into VR gaming.  And as “Oculus Rift” is being outpaced in sales numbers by Sony’s “PlayStation VR,” and HTC’s “HTC Vive,” it is unclear where the future of the device stands.

But first, how did “Oculus Rift” get to this point? A little history:

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Man or Machine? EU Considering “Rights for Robots”

robotBy Grady Hepworth

Isaac Asimov’s 1942 short story “Runaround” is credited for creating the famous “Three Laws of Robotics.” Asimov’s Laws, although theoretically fictional (and most recently featured in the 2004 motion picture I, Robot), require robots to i) not hurt humans, to ii) obey humans, and to iii) only protect themselves when doing so wouldn’t conflict with the first two rules. However, the European Union (“EU”) made headlines this month when it took steps toward making Asimov’s Laws a reality.
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Journey to the Past?

anastasiaBy Danielle Ollero

Last October, our Blog discussed the legal woes of the hit Broadway musical Hamilton. It may come as no surprise that Hamilton is not the only show plagued by litigation.

Many of us may remember the animated film Anastasia released in 1997, with its melodious songs and heart-warming story of a girl in search of her forgotten family. What girl doesn’t dream of discovering that she is a lost princess? Lucky for us, on June 28, 2016 Playbill made the happy announcement that Tony-winning writer Terrance McNally and composers Lynn Ahrens and Stephen Flaherty were seeking to resurrect this childhood fantasy for live audiences as a new Broadway musical. However, a lawsuit may prevent Anastasia from ever becoming a theatrical reality.

At issue is the way in which McNally, Ahrens and Flaherty  wanted to reimagine the story, unveiling the plot in a manner closer to the historic life of Anastasia rather than the whimsical fantasy depicted in the film. One of the most noticeable changes would be the absence of the film’s villain Rasputin and his humorous talking bat sidekick, Bartok. Instead, new villains would be introduced through characters who represented the Communist Regime. What’s more, the group hoped to have several new songs added to the score. This new version premiered during the spring of 2016 at the Harford Stage in Connecticut.

On December 8, 2016 plaintiff Jean-Etienne de Becdelievre accused the writers of stealing their plot from a play written by playwright Marcelle Maurette in 1952. Becdelievre, heir to Maurette, alleged several copyright law violations in his complaint, and asked that the musical be barred from opening its doors on the planned date of April 24, 2017 at the Broadhurst Theatre. Of mention, he argued that Fox Animation Studies had a license to produce the 1997 film as an adaptation based on Maurette’s play. However, the musical is significantly different from the film version, with “multiple characters, plot lines, and other creative elements that are in the original play” and not in the film. Therefore, the limited film license does not cover the new musical and, arguably, the produces and writers have no license to produce the musical based off of the play.

In response, the producers, including Bill Taylor, called the lawsuit “wholly without merit,” arguing that a license is not necessary because the musical’s story is not taken from the previous play, but from “the historical story or the real-life Anastasia Romanov.” Based on this argument, they filed a motion to dismiss the case.

On January 24, 2017 New York Southern District Court Judge Alvin K. Hellerstein denied the motion to dismiss the case. Judge Hellerstein explained that the “motion asks me to dismiss a claim for copyright infringement by comparing the copyrighted work to facts that are alleged to be historical, to another play based on the same facts, and to a current work that is said to be infringed. Defendants’ motion . . . asks me to make this comparison before Answers are filed, and without guidance by experts. I am unable to make such a complicated comparison. In order to do so, I would need to take judicial notice of facts said to be historical—an inappropriate exercise. I would also have to analyze similarities and differences among different literary expressions.”

After Judge Hellerstein’s ruling, the defendants filed an answer to the complaint on February 7, 2017. Their attorneys said that they remained “confident” in their position to prevail on a substantive ruling.  “The works simply are not substantially similar,” said Dale M. Cendali, attorney representing Terrance McNally. “They have different settings, different characters, and different plots.  In fact, none of the dialogue is the same.  Any similarities are due to unprotectable historical facts or ideas.”

However, this ongoing battle probably means that the show is unlikely to meet its opening day, though its website still appears to be selling tickets. It will be fascinating to see the way that this case unfolds in its substantive legal questions, as well as for the life of the show. Perhaps this production team did not journey enough into the past when creating this historic musical.

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Are My Emails Beyond the Grasp of the U.S. Government?

gavelBy Mackenzie Olson

Companies like Microsoft and Google store a lot of customer data in storage centers overseas. As of July 2016, 2nd Circuit precedent indicated that, due to the foreign location of those centers, the U.S. government could not compel these companies to turn over data, even by issue of a search warrant. The case that rendered this decisions was In the Matter of Warrant to Search a Certain E–Mail Account Controlled and Maintained by Microsoft Corporation. (But also take note of the dissent in the denial of en banc review). As the Southern District of New York adjudicated the Warrant case, the Second Circuit Court of Appeals was its final arbiter. Accordingly, the Court of Appeals’ judgment only controlled as precedent in that jurisdiction. And though its opinion has been persuasive elsewhere, at least one judge, based in the Third Circuit, now disagrees with its outcome.

On February 3, 2017, Magistrate Judge Thomas J. Rueter of the Eastern District of Pennsylvania issued an opinion and subsequent orders compelling Google to turn over certain data stored in overseas facilities, per the request of two previously issued search warrants.

In his opinion, Judge Rueter explains that, “the present dispute centers on the nature and reach of the warrants issued pursuant to section 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 (“SCA”).

He frames the relevant issues as follows: “The court must determine whether the [g]overnment may compel Google to produce electronic records relating to user accounts pursuant to search warrants issued under section 2703 of the SCA, or in the alternative, whether Google has provided all records in its possession that the [g]overnment may lawfully compel Google to produce in accordance with the Second Circuit’s ruling.” Rueter ultimately holds that “compelling Google to disclose to the [g]overnment the data that is the subject of the warrants does not constitute an unlawful extraterritorial application of the [SCA].”

In its reporting of the decision, news outlet Reuters particularly emphasizes Judge Rueter’s reasoning that “transferring emails from a foreign server so FBI agents c[an] review them locally as part of a domestic fraud probe d[oes] not qualify as a seizure . . . because there [i]s “no meaningful interference” with the account holder’s “possessory interest” in the data sought . . . [the retrieval] has the potential for an invasion of privacy, [but] the actual infringement of privacy occurs at the time of disclosure in the United States.”

Orin Kerr, law professor at The George Washington University School of Law, notes numerous problems with Judge Rueter’s decision. “The issue in this case is statutory, not constitutional. Even if you accept the (wrong) framing of the issue as being whether the SCA applies outside the United States, the answer has to come from what Congress focused on, not where the constitutional privacy interest may or may not be. Where you place the Fourth Amendment search or seizure strikes me as irrelevant to the extraterritorial focus of the statute.”

Kerr further contends that, “Even accepting the court’s framing, I don’t think it’s right that no seizure occurred abroad. As I see it, copying Fourth Amendment-protected files seizes them under the Fourth Amendment ‘when copying occurs without human observation and interrupts the stream of possession or transmission’. . . . That test is satisfied here when the information was copied. The court suggests that bringing a file back to the United States is not a seizure because Google moves data around all the time and ‘this interference is de minimis and temporary.’ I don’t think that works. Google is a private company not regulated by the Fourth Amendment, so whether it moves around data is irrelevant.”

It will come as no surprise that Google plans to appeal the Third Circuit decision. Likely a slough of other tech and media companies that previously filed amicus curie briefs in the Microsoft case will file briefs again, such as Apple, Amazon, AT&T, eBay, and Verizon.

Key questions that remain, then, are what will the Third Circuit decide on review?

Will the court follow the precedent set by the Second Circuit in Warrant?

Will it adopt the reasoning of the dissenters in the denial of Warrant‘s en banc review?

Will it follow Judge Rueter’s reasoning in the case at bar?

Or will it render an entirely novel opinion?

And though we can be sure that the losing party will petition the Supreme Court, one also must consider whether a final player emerge, in the form of Congress directly intervening? After all, the SCA was enacted in 1986, and many consider it not only out of date, but also relatively unworkable for modern technological issues. The time certainly seems ripe for a statutory update.

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Two Copywrongs Make A Copyright: Archiving Environmental Protection Agency Data Against the Trump Administration’s Demands

powerplantBy Gwen Wei

Five days after the inauguration of President Donald J. Trump, his administration officially instructed the Environmental Protection Agency (“EPA”) to delete all references to climate change from the agency’s website.

The demand generated an instant outcry: from the media, members of the scientific community, and believers in global warming at large. Continue reading “Two Copywrongs Make A Copyright: Archiving Environmental Protection Agency Data Against the Trump Administration’s Demands”

Supreme Court Hears Oral Arguments for Lee v. Tam

lee-v-tam-picBy Kiran Jassal

The Supreme Court of the United States recently heard oral arguments for Lee v. Tam to decide whether the disparagement provision of the Lanham Act is facially invalid under the First Amendment. The disparagement provision resides in Section 2(a) of the Lanham Act and states that a trademark which “[c]onsists of…matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…” may not be registered.

In 2011, Simon Shiao Tam filed a trademark application for his band name, “The Slants.”

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Public Records in the Age of Trump

twitterBy Jeff Bess

It is  more than cliché to observe that the advent and evolution of the internet has deeply transformed modern society in many ways, both micro and macro. Indeed, not a clearer example exists than the role social media played in the 2016 presidential election. With over twenty million followers on Twitter and nearly 35,000 tweets, Donald Trump leaned into this direct line to the masses to set a new high water mark for social media ubiquity in pursuit of the White House.

Though derided by many as misguided or un-presidential, it is undeniable that Trump’s avid use of Twitter has been and continues to be effective. Indeed his prolific social media presence was a key source of the estimated $2 billion in earned media that greatly contributed to his success. And now that he is president, do his characteristic early morning, sometimes scattershot flurries of 140-character missives count as official government records? In other words, are they subject to federal document retention laws?

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They Are Listening and It CAN Come Back to Haunt You

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Amazon Echo

By Tyler Quillin

 

How many smart devices with voice-activation capabilities surround you at any given moment? How many times have you thought about whether they are listening to everything you’re saying, just waiting for the word “Alexa” to wake them up from their idle eavesdropping? Well, some of your concerns may soon be answered by a court in Arkansas.

In late 2016, Bentonville Police Department of Arkansas obtained a search warrant for the recordings produce through Amazon’s “Echo” device pertaining to a bath tub murder. Echo is aptly described as an “always on” device. It continuously listens, waiting to hear the term “Alexa,” which “wakes” it up. Once awoken, Alexa will perform various tasks upon verbal request. She does everything from checking the weather or traffic, to answering trivia, to playing music through a Bluetooth connection.

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