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Category: The law

The law

Uber adds yet another creepy “feature”

My last Uber driver was actually pretty hot.

My last Uber driver was actually pretty hot.

Uber announces plans to use drivers’ GPS and accelerometer data to determine if drivers are speeding. The idea, according to them, is if the trip is too fast or there are sudden braking manuevers, that is something that they should be aware of and take up with drivers. So yet a new way this company is being creepy, evil, and mysterious.

They say this will promote safety. But it’s hypocrisy, because:

  • This is the same Uber that says it doesn’t employ these drivers, they’re just independent contractors. Since they’re independent contractors, why is it Uber’s business how they drive?
  • If you had an accident due to unsafe driving, Uber wouldn’t be there to pay damages. Uber would say, “Hey, sue the 20-year-old kid — we’re just a marketplace.”
  • The post linked above includes vague assurances like “improve safety proactively” and “on the lookout . . . to do better.” But it makes no promises they’ll actually jerk the leash on bad drivers… because if they were to actually promise stuff, then they would become liable.

And do we really need Uber literally tracking our every jerk and twitch? This is the same Uber that invented “God Mode” to track Uber passengers, and whose privacy policy currently says:

If you permit the Uber app to access location services through the permission system used by your mobile operating system (“platform”), [which there is no way not to do, not if you want to be able to get a ride,] we may also collect the precise location of your device when the app is running in the foreground or background.

Yes: Uber sees you when you’re sleeping, and even when you’re not using the Uber app. And you can’t turn it off if you want to use the service. Nothing is to say Uber won’t be following the accelerometer in your phone, too. You can’t trust these people.

The Uber service has changed my world, but the arrogant Silicon Valley technocrats (and their lawyers) are out of control. File this under: dangers of monopoly; the pain of adhesion contracts; the inexorable advance of the security state.

Culture / Law school / Random / The law

One more thing lost

I’m watching The Pelican Brief (and I’m only 20 minutes in).  Two things stand out.  First of all, Cynthia Nixon played one of Julia Roberts’ law student friends, which is kind of hot.  I guess she got her Sex and The City J.D. by having a part in this film.

Second, I loved — as I always do — the library scene where Julia Roberts rifles through countless dusty old law books, trying to figure out who might have killed the Supreme Court justices.  You can feel the drama.  Then I thought about it: in the digital age, there is no dramatic dusty old book scene.  There’s just Julia Roberts, staring slackjawed at shitty old Westlaw.  Hollywood is never going to put together any frantic iPad research sequence.  (“Turn it to portrait orientation!  Hurry!”)  I hate the iPad and all it is doing to the death of print.

The law

Reckless op.

I’ve always enjoyed hearing Justice Stevens’ laconic, flat, Chicago-y accent on the bench and his dry sense of humor at public appearances. But at the ripe old age of four hundred, he is growing ever-crotchetier, and it’s enjoyable to watch. In my mind’s eye, I picture the “Stop it! Stop this jibber-jabber!” judge from Boston Legal. (In sincerity, my affinity for Justice Stevens is real.)

Granholm v. Heald, 544 U.S. 460 (2005), was a case involving the validity of States’ restrictions on wine shipments direct to the consumers in those States, usually over the Internet. Those who wanted the Court to permit out-of-state shipments direct to the consumer argued that the restrictions were an impermissible interference with interstate commerce, and they won the day.

Justice Stevens was among the dissenters. His argument was that section two of the Twenty-First Amendment, which repealed Prohibition in this country, “should be ‘broadly and colloquially interpreted,'” so that States may retain the power to restrict alcohol shipments if they want to. What I remembered about this case was that he referred to “those members of the younger generations,” and pointed out that his position on the amendment was based on his “understanding (and recollection) of the historical context.” In other words, Don’t try to tell me what the Amendment means — I’m the only one here old enough to remember it happening!

But I think yesterday’s high-speed car chase case offered Stevens the chance to write an even crankier dissent. In that case, Scott v. Harris, ___ U.S. ___ (2007), Georgia police clocked a driver doing 73 in a 55, and they tried to pull him over. Rather than just pulling over, the driver led the police on a dangerous, nearly ten-mile chase through intersections and a strip mall parking lot at speeds of over 85 mph. When the lead police car finally rammed the driver’s car in an effort to stop him, the 19-year-old driver’s car pitched over an embankment, rendering him paralyzed. He sued the police, claiming that they violated his Fourth Amendment rights against unreasonable seizure.

The decision, which was 8-1, held that the District Court and the Court of Appeals both incorrectly denied the police’s motion for summary judgment, which had the effect of permitting the driver’s case to go to a jury for a determination whether the police actions were “reasonable.” The Supremes, all except Stevens, said that on a motion for summary judgment, the court is supposed to construe the facts in the light most favorable to the non-movant — except when no reasonable jury could believe the non-movant’s version of the facts. Because the lower courts shouldn’t have believed the driver’s explanation of his own conduct, the majority (in an equally amusing opinion by Justice Scalia) held that the lower courts got it wrong. The majority noted that there was a videotape in the record that disputed the driver’s version of the facts. “[R]eading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test[]. . . . The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.” Because the tape depicted a “Hollywood-style car chase of the most frightening sort,” it totally contradicted the facts the driver alleged, and the lower courts should not have adopted them. The Court took the unusual step of posting the video on its web siteand citing the URL in a footnote. You hear the police giving the orders to “take him out.” (Is nothing not on YouTube? Don’t bother with the Court’s link, go here and here.)

Justice Stevens, writing only for himself, dissented. The reason: the tape wasn’t as terrible as the rest of the justices believed, so the reasonableness of the police actions should have gone to a jury. What’s the big deal, he asked, writing that the “13 cars that respondent passed on his side of the road[,] … and both of the cars that he passed on the right[,] … no doubt had already pulled to the side of the road … because they heard the police sirens or saw the flashing lights” before the reckless driver got there. The rest of his opinion is also full of other descriptions that serve to minimize the danger created by the driver who was fleeing the police at 85+ mph. He also gets in a few good slams at the other justices, referring to them as “eight of the jurors on this Court” and “my colleagues on the jury.” But the best part of the opinion has to be footnote 1:

I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways — when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine — they might well have reacted to the videotape more dispassionately.

I do love a good dissent.

Political / The law

Some of my favorite things: debauchery, sterility, and Utahns

I’ve thoroughly enjoyed riling up my friends on the left, Marcus Banks and Venezuelan Army Maj. Marty Stroodler, over the issue of D.C. voting rights.  To Justme, I would retort that holding a sign reading “Will Make Political Commentary for Money,” and actually eating because of it, is a wonderful dream.

Washington, D.C., which the Supreme Court relegated to mere and literal footnote status last week, is clearly a banana republic that should be squelched until it learns its lesson.

Well, I’m kidding somewhat.  In all this debate, I have been disappointed that no one took up for Washington as a normal American city.  When I criticized the city for having no industry to speak of, I was sure I would hear “XM Radio!”  (In truth, I just tried to think of another employer to include here that wasn’t 1) out on I-66 or I-270, 2) government, 3) quasi-government, 4) education, or 5) food, and I couldn’t do it.  Sorry, Lady Columbia.)  The city does have parks, rivers, boats, schools, etc.  It deserves dignity as a regular place to grow up in, that just happens to have the capital.  Tragically, its transient residential status caused the thousands of readers and commenters of our web logs collectively to bypass this aspect of Washington life.

“Retrocession,” or as I call it, “digestion by Maryland,” would degrade this unique character.  I oppose it.  Those who say it would free Washington of certain burdens, such as having to run a DMV, miss the point.  This would strip Washington of its dignity as a special city.  Further, it is impossible.  The point of creating a “non-residential ‘federal quarter’” is to solve the voting problem by putting its population into a jurisdiction that has Congressional votes (Maryland) while leaving the part of the city that belongs to all America under federal control.  The problem is that such a zone, at the minimum, would have to be a triangle containing the Jefferson Memorial, the White House, and the Supreme Court, and there are a lot of people living within that triangle.  Either there would have to be forced evacuations for the purpose of creating a sterile zone, or those people would have to be left out of the plan to give voting rights to all citizens.  Moreover, a sterile non-residential zone goes against principles of good city planning (Jacobs) and further debauches a grand old lady.

It seems unlikely that Washington will ever have the population to support two representatives.  The city is atrophying and has lost about 40% of its population in the last fifty years; at the same time, the number of people supporting a single House seat grows ever higher.  In 2010, the number of people needed for a State to claim two seats will exceed one million — five hundred thousand more than Washington has.  Washington’s House delegation, if awarded proportionally to the other States, would never exceed one.

Senate representation is a great question.  Logically, if the basis for granting a House seat is that people deserve an equal voice in Congress, then there is no reason not to grant a “full” two seats’ Senate representation.  Otherwise, we’ll still have the “second-class status” argument hanging out there.  (It was amusing to see Stroodler willing to bargain down to a single seat.  Washington been down so long, it don’t know what up is.)  But while the great constitutional compromise between the large and small States was to create two bodies, the House for the people and the Senate for the States, it does not justify granting Washington two Senate seats for the simple reason that Washington is not a State.  (And we all agreed to leave at least part of Washington a “local government” rather than a State.)

I also find it interesting that in all this, nobody advanced the legal argument that the “District Clause” of the Constitution, art. I, cl. 17 (go here and search for “District”; also read interesting annotations), which provides that the Congress has broad powers to control affairs relating to the District, gives Congress the power to add a seat without a constitutional amendment.  But I think this is a bad argument; it’s clear that the clause provides the power to control land use, building restrictions, police authority, and those kinds of things; it doesn’t let Congress restructure the Congress by changing its membership.  I think it’s sad that some, including the Utahns colluding with the Democrats to add the seat, want to justify the change on this weak ground, rather than embarking on the lengthy moral crusade of amendment.  By granting D.C. electoral votes, the American people have already demonstrated that if the cause is just, they will amend the Constitution even at the expense of their own interests.  That is the surest route to solving this problem, whatever the solution may be.

Culture / Technology / The law

More on Google Book Search

I couldn’t help writing a rejoinder to those defenders of Google Book Search and, of course, good old Banks.  Because everyone should have the right to own their own content, however, I’ve posted it here on Before.  Why should World get all the good material?  For those who haven’t been following this storyline, start at Marcus’ original post on Google Book Search, then read my comment, followed by his “redux” second posting.

I’m still troubled by some of the arguments advanced in Google’s favor.  However nice or wonderful it would be to have every book in the world instantly searchable on the Internet, we cannot ignore the steady policy and laws of all the world’s democratic governments just because somebody would like to have that index.

Marcus claims that because some of the books have “absolutely no commercial significance to the publishers” somehow immunizes Google from abridging the copyright of the publisher or author.  Unfortunately, our laws don’t permit an infringer to make their own assessment of a work’s commercial significance and, if they find it to be zero, to use with impunity.  Further, I think the fact that the books are scanned shows they do have some commercial significance to Google.  And perhaps many of these titles have been out of print for years: as Google clearly plans to demonstrate, these old books have a value that can be unlocked by the technologies of scanning and indexing.

And, since each book does have indisputable value, why should Google be the one to profit from the unlocking of that value?  They’re not the author who wrote the book.  They’re not the publishers who took a chance and made an investment in the book.  They’re not even the libraries who shelled out a few bucks to buy the book.  They have no stake in the business of writing books at all.  So why should they benefit to the exclusion of the authors and publishers who do?  It’s argued that our copyright laws are out of date, so there should be some special exception for the Googles of the world.  But inventing a new technology is not some magic wand or shield that, when produced, defeats all claims held by the original creator and owner of a work.  The MP3 pirates learned that the hard way.

And I have to disagree that the appropriation of property with no monetary value can’t be “theft” or even just plain wrong.  I myself have been a victim of copyright infringement, so I know what it’s like.  I posted a rather ridiculous video of myself on my web site scaling down the face of an artificial climbing wall.  Months later, I went to the City Center mall and found it was showing on a fifteen-foot-high screen in a continuous loop!  This was part of a video advertising all the fun things that might be found in a great downtown (for the record, the rock-climbing happened at Easton).  Did my video have any monetary value?  No.  Did the company that stole my work and aired it thousands of times in a very public forum derive a commercial benefit?  Yes — else why do it.  Did they have, at the very minimum, the courteous obligation to ask whether they could use it?  I think the answer to that is clear.

Google argues it would be impractical for them to ask the author or publisher of each book for the rights to scan the book before including it in their permanent digital archive.  Therefore, they’re just going to do them all, copyright be damned.  A simple analogy to the physical world points up the absurdity in this logic.  Google’s stance is like my saying I can drive my car across the backyard of every house in the neighborhood, because it would just take too long to get permission from each homeowner.

Our system of copyright could not be more liberal.  In order to claim the copyright on an original work, all the author has to do is put the word “Copyright” and the year on it.  Unlike with patents, there is no central registry that authors have to apply to for permission: we just want to encourage creative endeavors by giving them reassurance that they’ll earn the fruits of their labors without interference.  No high-flying tech company should be permitted to swoop in and take that away.

Culture / The law

Google Book Search

Marcus has written on the legality of the Google Print program, now renamed to Google Book Search.  He cites a six-page Congressional Research Service report that looks at the issue from a lightweight legal perspective.  Partly because of my membership in the Young Conservatives Union, partly because I enjoy taunting the techno-establishment whom I’m supposed to be digitally brainwashed by based on my age and occupation, and partly because I think I’m right, I’ve written a comment digesting the issue and generally opposing the project.  If you’re interested, read all three writings and comment over at Marcus’ World (or here).

The law

Tiptoe through the torts

When the defendant, Clifford Witter, a dance instructor, waltzed out of the employment of the plaintiff, the Arthur Murry Dance Studios of Cleveland, Inc., into the employment of the Fred Astaire Dancing Studios, the plaintiff waltzed Witter into court.  For brevity, the two studios are called ‘Arthur Murray’ and ‘Fred Astaire’.  At the time Witter took his contentious step, Arthur Murray had a string attached to him — a certain contract prohibiting Witter, after working for Arthur Murray no more, from working for a competitor.  That Arthur Murray and Fred Astaire are rivals in dispensing Terpsichorean erudition is not disputed.  Now Arthur Murray wants the court to pull that string and yank Witter out of Fred Astaire’s pedagogical pavilion.

No layman could realize the legal complication involved in Witter’s uncomplicated act.  This is not one of those questions on which the legal researcher cannot find enough to quench his thirst.  To the contrary there is so much authority it drowns him.  It is a sea — vast and vacillating, overlapping and bewildering.  One can fish out of it any kind of strange support for anything, if he lives so long.  This deep and unsettled sea pertaining to an employee’s covenant not to compete with his employer after termination of employment is really Seven Seas; and now that the court has sailed them, perhaps it should record those seas so that the next weary traveler may be saved the terrifying time it takes just to find them.

Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685, 687 (Ohio Com. Pl. 1952).

Political / The law

Look out

The pain from the recent spate of court-related killings won’t be able to heal until some gun nut informs the country that if everyone could carry a firearm inside a courthouse, we wouldn’t have as many crazed defendants grabbing guns and shooting judges.  I do hope this brave truth-teller speaks out soon, because it is high time for there to be more loaded weapons around criminals.  After all, if guns were illegal, then only criminals would be able to shoot innocent court reporters in cold blood.