- The two new heads of the judiciary committees in the Pennsylvania legislature are nonlawyers, and the legal community appears to be fine with that [Max Mitchell, Legal Intelligencer]
- Long after his downfall in one of the worst U.S. legal scandals in years, Stan Chesley was still listed as holding an honored position at a major charity until a reporter started calling [Josh Nathan-Kazis, Forward, I’m quoted; update (Chesley’s name removed)]
- National security restrictions form an important part of regulatory practice these days for international business, discussed at a Federalist Society National Lawyers Convention panel with William J. Haynes II, Timothy Keeler, Randal Milch, Donald Rosenberg, and moderator Eric J. Kadel, Jr.;
- How seeking government intervention backfired on Silicon Valley [Drew Clark, Cato Policy Report]
- Are Baltimore schools underfunded? tales of the gun buyback, local adoption of Daubert, and more in my latest Maryland policy roundup [Free State Notes; plus redistricting updates]
- “Despite Losing Its Copyright Case, The State Of Georgia Still Trying To Stop Carl Malamud From Posting Its Laws” [Mike Masnick, TechDirt, earlier]
Eric Goldman, “A Privacy Bomb Is About to Be Dropped on the California Economy and the Global Internet”:
By tomorrow, the California legislature likely will pass a sweeping, lengthy, overly-complicated, and poorly-constructed privacy law that will have ripple effects throughout the world. While not quite as comprehensive as the GDPR, it copies some aspects of the GDPR and will squarely impact every Internet service in California (some of whom may be not currently be complying GDPR due to their US-only operations). The GDPR took 4 years to develop; in contrast, the California legislature will spend a grand total of 7 days working on this major bill. It’s such a short turnaround that most stakeholders won’t have a chance to participate in the legislative proceedings. So the Internet is likely to change radically tomorrow, and most people have no clue what’s coming or any voice in the process.
As bad as this sounds, the legislature’s passage of the bill is likely the GOOD outcome in this scenario. What could be worse?
Read on in the post for a discussion of the peculiar dangers of the contemporary California initiative process. And as predicted, the bill did pass, unanimously [Issie Lapowsky, Wired]
Data portability mandates on tech companies like Facebook are sometimes conceived as a way to bring about more competitive market structures pleasing to antitrust enforcers by engineering a less “sticky” consumer experience. But is it really much of a solution to anything? [Alex Tabarrok citing Will Rinehart, American Action Forum; more, Tyler Cowen]
The lead anecdote in a Bloomberg story on the evils of tech fine print is on PayPal deleting the accounts of persons who joined before age 18. Yet on its own internal evidence, this seemingly irrational action is pretty clearly a response to the risk of liability/regulatory exposures rather than some act of random malice. How many more instances of pointless runaround or “impenetrable legalese” are going to be occasioned by the ongoing push to regulate and assign new liability to data-intensive businesses? [Nate Lanxon, Bloomberg]
- Antitrust crackdown on Big Tech based on predictions of where markets may head in future? Just don’t [Alan Reynolds in part three of series; parts one and two]
- Copyright holder sends mass demands to IP address holders, but for lower amounts and as “fines” rather than settlements. A move away from troll model, or refinement of it? [Timothy Geigner, TechDirt]
- Among the many issues far afield from Bill of Rights that ACLU is up to lately: defending drive-by ADA filing operations against remedial legislation [ACLU, earlier on its drift from civil liberties mission]
- Texas AG sues arguing unconstitutionality of Indian Child Welfare Act (ICWA); case involves blocking of “adoption [that] has the support of the boy’s biological parents and grandmother, Paxton said.” [Texas Tribune] More: Timothy Sandefur, NR;
- More local and personal than my usual fare, I ramble about my education and upbringing, why I live where I live, as well as some policy matters [Frederick News-Post “Frederick Uncut” local-newsmaker podcast with Colin McGuire and Danielle Gaines]
- “What’s the Difference between ‘Major,’ ‘Significant,’ and All Those Other Federal Rule Categories?” [Clyde Wayne Crews, Jr., CEI]
The Silicon Valley figure, known for an unsuccessful sex discrimination suit against Kleiner Perkins, basks in largely favorable press as well as the praise of figures like Hillary Clinton and Sheryl Sandburg. Naomi Schaefer Riley, however, takes a contrary view [Commentary, I’m quoted] Even as Pao writes pieces in the popular press encouraging techies to turn their discontents into legal claims against their employers, she urges the services of her Project Include on the same employers:
Much of the evidence suggests that sensitivity training does little good. And in some cases, talking to employees about negative stereotyping of women or racial minorities might actually spur employees to think negatively about their colleagues in ways they hadn’t considered before.
Which brings us back to the threat of litigation. Thanks to Pao’s case, companies are not only quivering over multimillion-dollar lawsuits, they are also considering ways to mitigate the possibility. And that means working with people like Pao to provide cover. While they may not be able to, or even care to, control the behavior of individual employees, they’d at least like to avoid the accusation of a “hostile workplace,” which could cost considerably more in court. Working with Pao and her colleagues won’t automatically ensure that lawsuits against them get thrown out, but signing on to Project Include will go a long way toward protecting them.
- Newspaper execs who faked circulation numbers ended up copping pleas. Law deans who fudged employment stats don’t need to worry, do they? [Morgan Cloud and George Shepherd via Paul Caron]
- Back in The Excuse Factory I wrote about the unplanned consequences of age discrimination law and the prohibition of automatic retirement ages and it’s nice to see a wider consensus forming even if nothing, absolutely nothing, ever gets done to fix it [Saul Levmore and Martha Nussbaum, WSJ]
- Fair use: “Man who sued over Facebook childbirth livestream slapped with $120k in fees” [Joe Mullin, Ars Technica]
- “Stop Faking Service Dogs: Loving your pet too much is putting people with real disabilities at risk” [Wes Siler, Outside, our tag on service animals] More: Michael Ollove, Stateline;
- Fifth Circuit reverses $663 million Eastern District of Texas False Claims Act award over sale of guardrails to highway authorities [U.S. ex rel. Harman v. Trinity Industries, Mark Curriden/Texas Lawbook, our earlier critical commentary]
- “Why Conservatives Should not Sic Antitrust on Silicon Valley” [John McGinnis, Liberty and Law]
Can the feds make conspiracy/aiding and abetting charges stick against software maker Taylor Huddleston, creator of a software tool that can be used by both bad and good players? “Because NanoCore has both legal and illegal uses, establishing that Huddleston wrote it for criminals is crucial for prosecutors. ‘It’s a dual-use technology case,’ says [Cornell law prof James] Grimmelman. ‘And you typically don’t get criminal liability in dual-use technology cases unless there’s a pretty clear intent to promote the criminal use instead of the legitimate ones.'” [Kevin Poulsen, The Daily Beast]
Last week’s Ninth Circuit case of Facebook v. Vachani is making many observers uneasy. Orin Kerr writes:
For those of us worried about broad readings of the Computer Fraud and Abuse Act, the decision is quite troubling. Its reasoning appears to be very broad. If I’m reading it correctly, it says that if you tell people not to visit your website, and they do it anyway knowing you disapprove, they’re committing a federal crime of accessing your computer without authorization. … This was a civil dispute, but the CFAA is also criminal statute.
It’s possible that the Circuit might clarify the ruling should it grant en banc review.