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Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

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  • Cops Are Indeed, Cops After All

    May 22, 2015
    The Ohio Supreme Court ruled yesterday that police officers employed by private colleges are subject to the Ohio Public Records Act.  Our firm represented Anna Schiffbauer, the student journalist who brought the suit.  Anna worked on the staff of the Tan & Cardinal, the student newspaper at Otterbein University in Westerville, Ohio.  

    Otterbein is a private university, but several years ago, it opted to employ a campus police department made up of officers trained as state police officers.  These cops can carry deadly weapons, search and confiscate property, detain, search and arrest people, and, in this case, pursuant to an agreement between Otterbein and the city of Westerville, make arrests off campus.  An Ohio statute permits this arrangement, and it provides that the campus police have the same authority as municipal police officers or county sheriffs.  

    When Anna asked for incident reports from the Otterbein Police, however, they refused to provide them, contending that Otterbein, a private institution, was not subject to the Ohio Public Records Act. Anna filed a mandamus action in the Ohio Supreme Court to get the records.  

    Just a few basic points here.  Police incident reports are unquestionably public records under Ohio law.  But when an entity won’t comply with their duties under the law, the requesting party may be entitled to initiate a mandamus action in the Ohio Supreme Court to make the entity obey the law. The Supreme Court essentially “mandates” compliance, hence the term “mandamus.”   

    Despite Otterbein’s intense foot dragging and other attempts to delay, the Supreme  Court issued a “peremptory writ” compelling the Otterbein cops to hand over the records.  Interestingly, the Supreme Court ruled before the parties field briefs or presented oral arguments.  The Court grants a peremptory writ only when “the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it.”  It is the Court’s way of saying “duh.”  

    This passage from the Court’s decision gets to the heart of the matter:  “The department is created under a statute for the express purpose of engaging in one of the most fundamental functions of government: the enforcement of criminal laws, which includes power over citizens as necessary for that enforcement.”  That pretty much says it all, doesn’t it?   The power to arrest and kill (that’s why they carry deadly weapons) is the ultimate expression of the state’s power.  Seems reasonable that we citizens who are subject to that power have the right to check up on the actors who exercise it.  Glad to see the Supreme Court get this one right.  

    And hats off to Anna. She stuck with this case even after she graduated.  It was a privilege to represent her.  
    Go comment!
  • Standing a Stumbling Block for Data Breach Cases

    May 13, 2015
    It seems we hear every day about a data breach somewhere.  By now, it’s almost redundant to mention Target, Home Depot and Anthem as poster children for major data breaches.  Here’s a discussion on the subject.  Let me know if you recognize any of the voices.   

    But despite the frequency of the phenomenon, there’s not been as much news about big litigation wins in the area.  And this recent case  involving eBay may help explain why.  The United States District Court for the Eastern District of Louisiana recently dismissed a case against eBay because the plaintiff couldn’t demonstrate any actual harm from the alleged data breach.  As a result the plaintiff lacked “standing” and could not proceed with the class action.  

    According to the court, eBay has 120 million active users.  In its normal course of business, eBay maintains personal information of its users, including: names, encrypted passwords, dates of birth, email addresses, physical addresses, and phone numbers. In February and March 2014, unknown persons accessed eBay's files containing this user information (the "Data Breach").  On May 21, 2014, eBay notified its users of the Data Breach and recommended that users change their passwords.   Although eBay also collects other information, including credit card and bank account information, there was no indication that any financial information was accessed or stolen during the Data Breach.  

    A plaintiff named Collin Green filed a 10-count consumer privacy putative class action against eBay on behalf of himself and all eBay users in the United States whose personal information was accessed during the Data Breach.   Plaintiff alleges that as a direct and proximate result of eBay's conduct, "Plaintiff and the putative class members have suffered economic damages," "actual identity theft, as well as (i) improper disclosures of their personal information; (ii) out-of-pocket expenses incurred to mitigate the increased risk of identity theft and/or identity fraud due to eBay's failures; (iii) the value of their time spent mitigating identity theft and/or identity fraud, and/or the increased risk of identity theft and/or identity fraud; (iv) and deprivation of the value of their personal information."  

    In response, eBay filed a motion to dismiss for the fairly simple reason that Green failed to allege he’d suffered any actual harm.  In eBay’s words:  "[p]laintiff does not allege that he has been injured by misuse of the stolen information[,] . . . that anyone has used his password, or that anyone has even tried to commit identity fraud with his information—let alone that anyone has actually succeeded in doing so—and that he has thereby suffered harm."   Instead, according to eBay, "[p]laintiff relies on vague, speculative assertions of possible future injury—that maybe at some point in the future, he might be harmed. . . . But the speculative possibility of future injury does not constitute injury-in-fact.”  

    And the court agreed.  It found Green not only failed to show actual harm, he failed to produce any evidence that any actual harm was even impending.  According to the court, “[t]he potential injury in this case is far too hypothetical or speculative to meet . . . [the]  certainly impending standard.”  And this ruling is not merely a bump in the road for the plaintiff – it means as a matter of constitutional law, he and the class cannot proceed.   

    The practical lesson from this otherwise academic discussion is this.  If your company gets hit with a data breach, it is in your interest to respond quickly.  To the extent your company is able to contain the breach, and offer identity theft protection promptly, the better chance it has of depriving potential class action plaintiffs of any actual harm.  And that may mean a quick dismissal.  A desirable result under any circumstance.   
    Go comment!
  • FAA Issues Guidelines for Newsgathering by Drones

    May 11, 2015
    I’ve written on this subject before, but it is probably an understatement to say the news media is eagerly anticipating the day it can use drones in newsgathering.  The drone’s ability to go where people can’t and their relatively nominal cost makes them a potentially priceless addition to the newsperson’s arsenal.   

    So this memo from the Federal Aviation Administration is a big deal.  It’s the first word on how the FAA will regulate in this area.  And it might actually raise more questions than it answers.  The memo addresses three issues:
     
    1. Whether members of the media may use unmanned aircraft systems (bureaucrat for “drone”) for newsgathering;   
    2. Whether the media may use pictures, video or other information collected by a person using a UAS;  and   
    3. Whether a person who sells images collected by a UAS would need authorization for his or her operations.  

    The answer to item one is “case by case.”  The memo says “[c]ommercial media may use a UAS for newsgathering if the FAA authorizes the flights.”  The memo, however, provides no guidance on when or how the FAA will authorize the flights.  And that alarms my pro First Amendment mind.  If I am reading this correctly, the government is reserving the right to tell the press whether and how it can gather news using a now fairly common technology.  And the government offers no criteria on how it will grant authorization.  That seems amazingly arbitrary to me.   

    As to item 2, the FAA memo provides that the news media may use pictures and videos obtained from a UAS operated by a third person not affiliated with that media outlet.  And the FAA correctly notes that it does not regulate whether a third party not involved in the operation of an aircraft can receive pictures and video gathered using that aircraft.  That provision is consistent with case law finding the media may use material illegally obtained by a third party so long as the media was not involved in the illegal acquisition.  What is not entirely clear is whether a reporter who obtains pictures from an unauthorized third party UAS operator will be able to assert a privilege against identifying the third party.  

    While 49 states offer some sort of shield law protecting reporters from compelled disclosure of source identity, there is no federal shield law.  So if the FAA wants to find the operator, it may very well subpoena the news outlet that runs the pictures or video.  And that outlet may not be able to quash the subpoena, since federal law would presumably apply.   

    In its response to number 3, the FAA is potentially opening up a rather large loophole.   The FAA permits the use of model aircraft for hobby or recreational purposes, but not for commercial use.  So, what happens if a recreational user sells photos or video captured during the course of the recreational use? The FAA says the issue will come down to the individual’s “true intentions” in operating the device.  Which sounds a bit like the government peering into people’s souls.  And that is never a good thing.  In fact, the memo suggests the issue will depend largely on frequency.  In the memo’s words: “[o]perations that frequently result in pictures, videos . . . sold to a third party may indicate that the operation is in fact commercial in nature notwithstanding the individual’s claim of a hobby or recreational purpose.”  So, the old actions speak louder than words approach seems to be in order.   

    The memo is essentially a first step on what is sure to be a longer journey.  Fasten your seat belts and return your trays to their upright position. This ride may get bumpy.

    Go comment!
  • Grumpy Old Men Part Three

    May 06, 2015
    No, Jack Lemmon and Walter Matthau have not been resurrected.  The headline of this post refers to a recent study of opinions from the United States Supreme Court.  The study used computer analysis of 25,000 Supreme Court opinions from 1791 to 2008 to spot trends.  And they apparently identified three.  

    First, the more recent opinions are longer.  This means more work for Constitutional Law students, but it’s not entirely clear why the opinions have gotten more wordy.  According to the New York Times article on the study, the decision in Brown v. Board of Education was less than 4,000 words – about the length of a long essay.  The decision in Citizens United had about 48,000  words – the length of a short novel.  Perhaps this proves it is harder to justify unlimited corporate spending on political campaigns than desegregating schools.   

    Second, and this is good news I think, more modern opinions employ a less formal style.  So, while modern opinions are longer, they are at least easier to understand.  This seems like a worthwhile tradeoff.  I remember struggling through some old opinions as a law student. It was easy to get lost in the whereases and heretofores.   

    Third, and perhaps most interesting, the justices seem grumpier these days. The study checked on how often opinions used “positive” and “negative” words to gauge this trend.  The folks behind the study admit this is an imprecise measure, since in the legal world, a seemingly positive word may actually connote a negative sentiment.   The New York Times article, for example, notes that calling a justice “adventurous” may not be a compliment. But in any event, five current justices -- Samuel A. Alito Jr., Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas – claimed spots in the top ten all time grumpy list.  Considering this study goes back to 1791, and therefore includes the Civil War, the Great Depression, World War Two and Vietnam, this is a noteworthy achievement.  Apparently, Ruth Bader Ginsburg is in the middle of the pack.  Which I find surprising based on this performance:



    But I found the study fascinating.  I’m not sure how practioners might use it, other than to gird up for a fight when preparing for oral argument. There is a high grumpiness factor awaiting.    
    Go comment!
  • Gronking A Persona? Is That Frowned On?

    May 01, 2015
    I was on WCPO Channel 9 News last night talking about “A Gronking to Remember.”  “Gronking” is an erotic novella that features a housewife’s obsession with the Patriots’ tight end.  According to one review, “[s]he’d never given a second thought to football, but now the primal power of the Gronk Spike, and this raw monster of a man, Rob Gronkowski, is all that she wants, and she’ll stop at nothing until the romance of a lifetime is hers!”  According to another review, “[t]here are no words for how bad this book is.”  But I was not on the news to discuss the book’s literary merits. 

    I was talking about the lawsuit that the book’s cover has spawned.  The book’s cover features an embracing  couple in the foreground,  with a photo of Gronkowski in the background.  The problem is, apparently no one asked permission to use the photo of the couple.  It appears the photo was taken off the Internet and plopped on the front of the book. And the couple, who identify themselves as “John and Jane Roe” have filed a complaint seeking damages for the unauthorized use and invasion of privacy.  

    The lawsuit says the photo “was taken as part of their engagement journey leading toward their wedding.”  Suffice it to say, they did not expect a detour on that journey that would lead to the cover of an erotic novel.  So they are understandably upset, but does that mean they have a viable lawsuit?  Well, let’s think about the claims they DON’T have.  There’s no libel claim – the book is clearly fiction, and so no one would understand it to convey any verifiable facts.  The couple doesn’t have a copyright claim. That belongs to the person who snapped the photo. And given that the couple’s arms are busy embracing, it doesn’t look like a selfie.   

    So, that pretty much leaves them with a “right of publicity” claim. Ohio provides a statutory remedy – R.C. 2741.02.  Very simply, the statute prohibits anyone from using another person’s “persona” for a commercial purpose without permission.  So, the “Roes” would seem to have a pretty good case, right?  

    Well . . . maybe not.  The defendants – Amazon, Apple and Barnes & Noble – have asserted defenses.  Chief among them is that the Ohio Statute, at  2741.09(A)(1)(a) exempts “literary works” from its coverage.  And a work is literary even if it is the worst book ever.  So, does this exception make it a slam dunk for the defendants?  Maybe not.  The point of the exception, I think, is to avoid giving famous people a veto power over writings about them.  Absent that exception, celebrities, politicians, sports figures, etc. could limit what’s written about them to puff pieces.   

    But given that the photo is simply used as cover art, and the Roes are in no way mentioned in the book, does the exception apply?  Aren’t they simply used to draw attention to the cover, so people may buy the book? And doesn’t that sound like a commercial use?  

    Of course those questions lead to a whole separate defense – that even if the statute applies, the Roes’ persona has no commercial value. It’s not like Heidi Klum is the book’s cover girl. In that case, less evolved men than me may be drawn to the book and buy it in hopes of some additional photos/descriptions of the supermodel.  The Roes presumably don’t have that drawing power. And their anonymity may work to the defendants’ benefit.     

    It may seem a little counter intuitive that the Roes have no remedy.  But that may be the result.  And they may feel gronked indeed before this is all over.
    Go comment!
  • Simple Question/Big Implications

    Apr 29, 2015

    The thing about appellate cases is that they always start with a question.  If you are dissatisfied with a lower court’s decision, you can’t approach the court of appeals with a declarative statement along the lines of “that court got it wrong!”  No, you have to frame the case around a question or set of questions.  The United States Supreme Court recently decided to hear a case that provides a good illustration of this principle.

    The case is Spokeo, Inc. v. Robbins. The petitioner, Spokeo, filed its petition for certiorari on May 1, 2014.  The “cert petition” is the request that the Supreme Court hear the case.  Almost everything that comes before the Supreme Court is a “discretionary appeal” – the Court doesn’t have to hear every case, and in fact, it grants “cert” in a small minority of cases.    But getting back to my original point.  Spokeo’s cert petition poses a simple question:

                                              QUESTION PRESENTED
                             Whether Congress may confer Article III standing
                             upon a plaintiff who suffers no concrete harm,
                             and who therefore could not otherwise invoke 
                             the jurisdiction of a federal court, by authorizing
                             a private right of action based on a bare violation
                             of a federal statute.

    But it is truly loaded.  And of great concern to a host of “Amicus Curiae” who have filed briefs in the case.  In appellate proceedings, “friends of the court” (the English translation of “amicus curiae”) may file briefs in support of one side or the other.  One of the more high profile amicus briefs in the Spokeo case has been filed on behalf of eBay, Facebook,  Google and Yahoo!.  This is like the Marvel Avengers of the online world.



    But I digress. The question here is why do these online behemoths care about this case? It arises, after all under the Fair Credit Reporting Act.  Thomas Robbins alleged that Spokeo violated the act in the process of gathering data as part of its “people search engine” function.  But the issue, like the question presented has implications far beyond the limited set of facts presented.  

    The concern for the amicus parties is that absent some evidence that a plaintiff has suffered some real, concrete injury, any party that collects gazillions of data bytes from millions of users is constantly at risk of some sort of technical statutory violation.  And if that’s all it takes to confer standing, the courthouse gates will be flung wide open.   

    This issue applies to the world of data privacy in a very real way.    Frequently, victims of data breaches are hard pressed to identify any harm.  And several courts have found that the “fear” of identity theft is an insufficient injury to confer standing.  In response, some data breach plaintiffs have sued under state consumer protection statutes – arguing that the data collector violated its promise to protect such data – and sought statutory damages provided by the consumer protection statute in whatever state.   

    That is essentially the issue in Spokeo. The question is simple.  But the answer will have enormous consequences – it will either shut the courthouse to millions of potential plaintiffs or expose any number of defendants to liability.  We will see.     

    Go comment!
  • A Cop Filming Lesson

    Apr 27, 2015
    The recent onslaught of news reports involving police/citizen confrontations, has highlighted the question whether citizens have the right to film police activity.  The short answer is we do.  Here’s a piece on the subject.   Spoiler alert.  Several federal appellate courts have ruled that the First Amendment protects the public’s right to video police activity.  And the obvious reason is that the public has the right to observe and record the state when it is performing arguably its most coercive power.  Seems like a no brainer to me.  And many people will tell you, when it comes to no brains, I know what I’m talking about.  

    So, having established the right, Richard Labunski, a former television reporter turned media law professor, offers some tips on how to best record the action and how to protect your footage.  Good stuff!
    Go comment!
  • Threat/Warning? It's in the Eye of the Plaintiff

    Apr 23, 2015
    I found this post on Techdirt kind of interesting.  Here’s the situation.  A client of a lawyer/psychotherapist named Jose Arcaya posted a negative review of Arcaya on Yelp.  Here’s a sample of what it said:  

    I hired Arcaya to help with a case. I asked him at the outset if he had handled these matters before and he said yes. The ensuing performance suggests otherwise. When I mentioned his truly pitiful performance he implied that it was my fault. When i reminded him that he was the lawyer and hired to do a professional job he made fun of my medical issues. Absolute scum.

    Arcaya sued the reviewer – Zolton Boka – for libel.  And while the decision to sue over a negative review could be the subject of a post itself, that’s not what caught my eye.  There is another defendant in the suit named Scott Greenfield. Greenfield is an attorney who apparently got introduced to Boka.  Greenfield called Arcaya to talk about the situation, and mentioned to Arcaya the “Streisand Effect.”   That is the phenomenon, named after Barbara Streisand, describing the situation where someone demands the removal of online information only to find that the removal demand exponentially increases the attention on the offending information.   

    Arcaya considered Greenfield’s advice to be a threat.  I suppose along the lines of “advising” someone that their signature or their brains can be on a contract.   


    But I think there is a difference between how the Corleone family does business and what Greenfield did here. And Arcaya’s overreaction here seems like evidence that the negative review concerning his lawyer skills was spot on.

    Go comment!
  • This One Belongs To ... Who, Exactly?

    Apr 22, 2015
    I am a torn man as I sit here at my keyboard today.  On the one hand, I love the Cincinnati Reds.  I mean, in ways that may not even be healthy.  I know I shouldn’t lose sleep when Jumbo Diaz blows a two run eighth inning lead. But I do.  If I did not know that the Reds chose Chad Mottola over Derek Jeter I would probably have more room in my brain for useful information.  But I am cursed with that knowledge.   

    On the other hand, I love journalism and I respect reporters, especially beat writers like C. Trent Rosecrans, who has to write honestly about the very people he’s forced to live with for 8 months a year.  That can’t be easy.

    And so, given my competing impulses, what to make of Bryan Price’s performance Monday night?  I like Price.  He did a phenomenal job as the Reds pitching coach, and he seems like an even tempered, smart guy.  And I hate to see the national press piling on.  And I suggest you listen to what he said.  Despite many people calling it a “rant” it’s actually pretty measured and he doesn’t shout.  It’s the 77 f-bombs that have caught everyone’s attention.   

    But I don’t like what he did. And I’m not thrilled with his apology.  Because I don’t agree with the content of his message to C. Trent.  And while I understand his frustration, I still think he’s off base.  

    It seems to me that Price had two basic beefs – first, that Rosecrans published information about Devon Mesoraco’s absence from the team, and second, that Rosecrans tweeted that backup catcher Tucker Barnhart was on his way to St. Louis.  The tweet went out before the Reds told Kyle Skipworth – the player Barnhart was replacing – that he was headed back to the minors.  

    In the story about Mesoraco, Rosecrans quoted an unnamed source, presumably someone in the clubhouse, who confirmed that Mesoraco was not in the dugout for the Sunday night game against the Cardinals. That was contrary to Price’s pregame comments that Mesoraco could pinch hit.   Price has a right to be upset about the unnamed source, but he shouldn’t be upset with the reporter.  If he wants to control information, the way to do it is to make sure his team speaks with one voice, and deal with the leaker.  But the reporter has a job to do, and that does not include self-censorship for the good of the Reds.   

    His beef with the Twitter leak is also misplaced.  There is tremendous pressure on the media not only to get it right, but to get it out quickly.  Back in the day, the Barnhart sighting wouldn’t have been much of an issue, because it wouldn’t have run until the next morning’s paper came out. And by then, Skipworth would have known his fate.  But social media creates this scenario.  And it can be heartbreaking.  We had a family friend die in a car accident, and the young man’s brother got a text – “sorry about your brother” – before he’s heard about the accident.  

    The news media tries hard to hold a story on a death until the next of kin are notified, but the fact that a backup catcher is headed back to the minors is not in the same league.  And the media shouldn’t hold off reporting what they observe first hand to make sure the Reds have delivered the news to their player.     There was a time when beat writers were in the team’s pocket – the teams picked up their expenses for crying out loud.  And most writers toed the company line.  The reserve clause was great.  Guys who the owners didn’t like got labeled “trouble makers.”  Thankfully those days are long gone and the game is as popular as it’s ever been.  And sports writers who put out honest, compelling stories are part of the reason for that success.   

    At some point, I hope Price comes to regret the substance of his comments as much as the profanity.
    Go comment!
  • No Comment A "No No"

    Apr 16, 2015
    Here’s a great piece from my friend Nick Vehr at Vehr Communications. It’s 8 tips for Media Spokespersons.  It’s all good stuff.  And the overlap I see between Nick’s world and mine arises pretty frequently.  Trials draw a lot of media attention.  Whether it’s a high profile criminal case involving a bombing at the Boston Marathon or a copyright infringement suit over the rights to “Blurred Lines” – the media is interested.   

    And I run into clients and other lawyers who still think “no comment” is the appropriate response to media inquiries.  I’ve never thought that was a great idea, and in talking to PR folks over the years I’m even more convinced.  That’s not to say clients should spill their guts in response to every question, but they shouldn’t make themselves look like they’re hiding something or otherwise miss the chance to advance their own message.   

    To use a cliché, one size does not fit all.  Picking the right message and the right spokesperson seems like a no brainer.  
    Go comment!
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