October 2020

Watching an APA Case Gestate Live!

October 25, 2020
Administrative Law, Internet, Social Media

Parker von Sternberg, MJLST Staffer

On October 15^th the FCC published an official Statement of Chairman Pai on Section 230. Few particular statutes have come under greater fire in recent memory than the Protection for “Good Samaritan” Blocking and Screening of Offensive Material and the FCC’s decision to wade into the fray is almost certain to end up causing someone to bring suit regardless of which side of the issue the Commission comes down on.

As a brief introduction, 47 U.S. Code § 230 provides protections from civil suits for providers of Interactive Computer Services, which for our purposes can simply be considered websites. The statute was drafted and passed as a direct response by Congress to a pair of cases, namely Cubby, Inc. v. CompuServe Inc. and Stratton Oakmont, Inc. v. Prodigy Services Co.Cubby, Inc. v. CompuServe Inc., 776 F.Supp. 135 (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995). Cubby held that the defendant, CompuServe, was not responsible for third-party posted content on its message board. The decisive reasoning by the court was that CompuServe was a distributor, not a publisher, and thus “must have knowledge of the contents of a publication before liability can be imposed.”Cubby, Inc. v. CompuServe Inc., 776 F.Supp. 135, 139 (S.D.N.Y. 1991). On the other hand, in Stratton Oakmont, the defendant’s exertion of “editorial control” over a message board otherwise identical to the one in Cubby “opened [them] up to a greater liability than CompuServe and other computer networks that make no such choice.” Stratton Oakmont, 1995 WL 323710 at *5.

Congress thus faced an issue: active moderation of online content, which is generally going to be a good idea, created civil liability where leaving message boards open as a completely lawless zone protects the owner of the board. The answer to this conundrum was § 230 which states, in part:

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability – No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected . . . .

Judicial application of the statute has so far largely read the language expansively. Zeran v. AOL held that “[b]y its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.”Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). The court also declined to recognize a difference between a defendant acting as a publisher versus a distributor. Speaking to Congress’s legislative intent, the court charted a course that aimed to both immunize service providers as well as encourage self-regulation. Id. at 331-334. Zeran has proved immensely influential, having been cited over a hundred times in the ensuing thirteen years.

Today however, the functioning of § 230 has become a lightning rod for the complaints of many on social media. Rather than encouraging interactive computer services to self-regulate, the story goes that it instead protects them despite their “engaging in selective censorship that is harming our national discourse.” Republicans in the Senate have introduced a bill to amend the Communications Decency Act specifically to reestablish liability for website owners in a variety of ways that § 230 currently protects them from. The Supreme Court has also dipped its toes in the turbulent waters of online censorship fights, with Justice Thomas saying that “courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms” and that “[p]aring back the sweeping immunity courts have read into §230 would not necessarily render defendants liable for online misconduct.”

On the other hand, numerous private entities and individuals hold that § 230 forms part of the backbone of the internet as we know it today. Congress and the courts, up until a couple of years ago, stood in agreement that it was vitally important to draw a bright line between the provider of an online service and those that used it. It goes without saying that some of the largest tech companies in the world directly benefit from the protections offered by this law, and it can be argued that the economic impact is not limited to those larger players alone.

What all of this hopefully goes to show is that, no matter what happens to this statute, someone somewhere will be willing to spend the time and the money necessary to litigate over it. The question is what shape that litigation will take. As it currently stands, the new bill in the Senate has little chance of getting through the House of Representatives to the President’s desk. The Supreme Court just recently denied cert to yet another § 230 case, upholding existing precedent. Enter Ajit Pai and the FCC, with their legal authority to interpret 47 U.S. Code § 230. Under the cover of Chevron deference protecting administrative action with regard to interpreting statutes the legislature has empowered them to enforce, the FCC wields massive influence with regard to the meaning of § 230. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

While the FCC’s engagement is currently limited to a statement that it intends to “move forward with rulemaking to clarify [§ 230’s] meaning,” there are points to discuss. What limits are there on the power to alter the statute’s meaning? Based on the Commissioner’s statement, can we tell generally what side they are going to come down on? With regard to the former, as was said above, the limit is set largely by Chevron deference and by § 706 of the APA. The key words here are going to be if whoever ends up unhappy with the FCC’s interpretation can prove that it is “arbitrary and capricious” or goes beyond a “permissible construction of the statute.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

The FCC Chairman’s statement lays out that issues exist surrounding §230 and establishes that the FCC believes the legal authority exists for it to interpret the statute. It finishes by saying “[s]ocial media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.” Based on this statement alone, it certainly sounds like the FCC intends to narrow the protections for interactive computer services providers in some fashion. At the same time, it raises questions. For example, does § 230 provide websites with special forms of free speech that other individuals and groups do not have? The statute does not on its face make anything legal that without it would not be. Rather, it ensures that legal responsibility for speech lies with the speaker, rather than the digital venue in which it is said.

The current divide on liability for speech and content moderation on the internet draws our attention to issues of power as the internet continues to pervade all aspects of life. When the President of the United States is being publicly fact-checked, people will sit up and take notice. The current Administration, parts of the Supreme Court, some Senators, and now the FCC all appear to feel that legal proceedings are a necessary response to this happening. At the same time, alternative views do exist outside of Washington D.C., and at many points they may be more democratic than those proposed within our own government.

There is a chance that if the FCC takes too long to produce a “clarification” of §230 that Chairman Pai will be replaced after the upcoming Presidential election. Even if this does happen, I feel that the outlining of the basic positions surrounding this statute is nonetheless worthwhile. A change in administrations simply means that the fight will occur via proposed statutory amendments or in the Supreme Court, rather than via the FCC.

The “Circuit Split” That Wasn’t

October 25, 2020
Constitutional Law, Criminal Law, Fourth Amendment, Law Enforecement

Sam Sylvan, MJLST Staffer

Earlier this year, the Fourth Circuit punted on an opportunity to determine the constitutional “boundaries of the private search doctrine in the context of electronic searches.” United States v. Fall, 955 F.3d 363, 371 (4th Cir. 2020). The private search doctrine, crafted by the Supreme Court in the 80’s, falls under the Fourth Amendment’s umbrella. The doctrine makes it lawful for law enforcement to “search” something that was initially “searched” by a private third party, because the Fourth Amendment is “wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.” United States v. Jacobsen, 466 U.S. 109, 113 (1984).

An illustration: Jane stumbles upon incriminating evidence on John’s laptop that implicates John in criminal activity (the “initial private search”), Jane shows the police what she found on the laptop (the “after-occurring” search), and the rest is history for John. But for law enforcement’s after-occurring search to avoid violating the Fourth Amendment, its search must not exceed the scope of the initial private search. “The critical measures [to determine] whether a governmental search exceeds the scope of the private search that preceded it,” United States v. Lichtenberger, 786 F.3d 478, 485 (6th Cir. 2015), include whether “there was a virtual certainty that nothing else of significance was in the [property subjected to the search]” and whether the government’s search “would not tell [law enforcement] anything more than [it] already had been told” or shown by the private searcher. Jacobsen, 466 U.S. at 119.

Of course, the Supreme Court’s holdings from the 80’s that speak to the scope of the Fourth Amendment are often difficult to reconcile with modern-day Fourth Amendment fact patterns that revolve around law enforcement searches of modern electronic devices (laptops; smartphones; etc.). In the key Supreme Court private search doctrine case, Jacobsen (1984), the issue was the constitutionality of a DEA agent’s after-occurring search of a package after a FedEx employee partially opened the package (upon noticing that it was damaged) and saw a white powdery substance.

Since the turn of the millennium, courts of appeals have stretched to apply Jacobsen to rule on the private search doctrine’s application to, and scope of, law enforcement searches of electronics. In 2001, the Fifth Circuit addressed the private search doctrine in a case where the defendant’s estranged wife took a bunch of floppy disks, CDs, and zip disks from the defendant’s property. She and her friend then discovered evidence of defendant’s criminal activity on those disks while searching some of them and turned the collection over to the police, which led to the defendant’s conviction. United States v. Runyan, 275 F.3d 449 (5th Cir. 2001).

There are two crucial holdings in Runyan regarding the private search doctrine. First, the court held that “the police exceeded the scope of the private search when they examined the entire collection of ‘containers’ (i.e., the disks) turned over by the private searchers, rather than confining their [warrantless] search to the selected containers [that were actually] examined by the private searchers.” Id. at 462. Second, the court held that the “police search [did not] exceed[] the scope of the private search when the police examine[d] more items within a particular container [i.e., a particular disk] than did the private searchers” who searched some part of the particular disk but not its entire contents. Id. at 461, 464. Notably absent from this case: a laptop or smartphone.

Eleven years after Runyan, the Seventh Circuit held that the police did not exceed the scope of the private searches conducted by a victim and her mother. Rann v. Atchison, 689 F.3d 832 (7th Cir. 2012) (relying heavily on Runyan). In Rann, the police’s after-occurring search included viewing images (on the one memory card brought to them by the victim and the one zip drive brought to them by the victim’s mother) that the private searchers themselves had not viewed. Id. Likening computer storage disks to containers (as the Runyan court did), the Rann court concluded “that a search of any material on a computer disk is valid if the private [searcher] viewed at least one file on the disk.” Id. at 836 (emphasis added). But notably absent from this case like Runyan: a laptop or smartphone.

Two years after Rann, the Supreme Court decided Riley v. California—a landmark case where the Court unanimously held that the warrantless search of a cellphone during an arrest was unconstitutional. Specific reasoning from the Riley Court is noteworthy insofar as assessing the Fourth Amendment’s (and, in turn, the private search doctrine’s) application to smartphones and laptops. The Court stated:

[W]e generally determine whether to exempt a given type of search from the warrant requirement by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. . . . [Smartphones] are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of [smartphones] is their immense storage capacity.

573 U.S. 373, 385, 393 (2014). Riley makes crystal clear that when the property at issue is a laptop or smartphone, the balance between a person’s privacy interests and the governmental interests tips heavily in favor of the individual’s privacy interests. In simpler terms, law enforcement needs a warrant to search a laptop or smartphone unless it has an extremely compelling reason for failing to comply with the Fourth Amendment’s warrant requirement.

One year after Riley, the Sixth and Eleventh Circuits—armed with Riley’s insights regarding modern electronic devices—decided Lichtenberger and United States v. Sparks, respectively. The two Circuits held that in both cases the police, in conducting their after-occurring warrantless searches of a laptop (Lichtenberger) and a smartphone (Sparks), exceeded the scope of the initial private searches, reaching these conclusions in large part due to Riley. In Lichtenberger, the police exceeded the scope of the initial private search when, without a warrant, they looked at photographs on the laptop that the private searcher had not looked at, despite the private searcher’s initial viewing of other photographs on the laptop. 786 F.3d 478 (6th Cir. 2015). In Sparks, the police exceeded the scope of the initial private search when, without a warrant, they viewed a video within the same album on the smartphone that the private searcher had scrolled through but which the private searcher did not actually view. 806 F.3d 1323 (11th Cir. 2015), overruled on other grounds by United States v. Ross, 963 F.3d 1056 (11th Cir. 2020) (overruling Sparks “to the extent that [Sparks] holds that [property] abandonment implicates Article III standing”).

At first glance, Lichtenberger and Sparks seem irreconcilable with Runyan and Rann, leading many commentators to conclude there is a circuit split regarding the private search doctrine: the “container” approach versus the “file”/“narrow” approach. But I disagree. And there is a rather simple explanation for reaching this conclusion—Riley merely heightened Jacobsen’s “virtual certainty” requirement in determining whether law enforcement exceed the scope of initial private searches of laptops and smartphones. In other words, “virtual certainty” is significantly elevated in the context of smartphones and laptops because of the heightened privacy interests at stake stemming from their immense storage capacities and unique qualities—i.e., they contain information and data about all aspects of our lives to a much greater extent than floppy disks, CDs, zip drives, and camera memory cards. Thus, the only apparent sure way for law enforcement to satisfy the private search doctrine’s “virtual certainty” requirement when a laptop or smartphone is involved (and thereby avoid inviting defendants to invoke the exclusionary rule) is to view exactly what the private searcher viewed.

In contrast, the “virtual certainty” requirement in the context of old school floppy disks, CDs, zip drives, and memory cards is quite simply a lower standard of certainty because the balance between privacy interests and legitimate governmental interests is not tipped heavily in favor of privacy interests.

While floppy disks, CDs, and zip drives somewhat resemble “containers,” such as the package in Jacobsen, smartphones and laptops are entirely different Fourth Amendment beasts. Accordingly, the four cases should all be analyzed through the lens that the particular electronic device at issue in each case is most significant because it guides the determination of whether the after-occurring search fell within the scope of the initial private search. Looking at the case law this way makes it so that it is not the container approach versus the file approach. Rather, it is (justifiably) the container approach for certain older electronic storage devices and the file approach for modern electronic devices that implicate weightier privacy concerns.

Hailstorms in Baltimore: The Fourth Circuit’s Opportunity to Create Oversight and Accountability for a Secretive Police Technology

October 17, 2020
Constitutional Law, Fourth Amendment, Human Rights Law, Law Enforecement

Jordan Hughes, MJLST Staffer

The past several months have once again shone a spotlight on the difficulty of holding police and law enforcement accountable for their actions. The American public has become more aware than ever of the unions and structures in place to shield officers from liability. Despite years of DOJ investigations and investigative reporting into the procedures of departments around the country, many regular police practices remain hidden from the public eye. Including the use of secretive new technologies that allow for unprecedented levels of discretion—and unprecedented potentials for abuse.

The Hailstorm is one such dragnet-style electronic capturing device that over 85 federal and state enforcement agencies have used largely in secret for more than two decades. This past spring, the 4th Circuit joined the fledgling ranks of federal courts asked to grapple with constitutional questions raised by the elusive technology. Baltimore police used a Hailstorm in 2014 to locate Kerron Andrews, who had an outstanding arrest warrant. Andrews v. Balt. City Police Dep’t, No. CCB-16-2010, 2018 U.S. Dist. LEXIS 129523, at *4 (D. Md. Aug. 1, 2018). The device enabled Baltimore police to pinpoint the apartment building where Andrews was sitting, despite having been unable to find him using standard location information released to them by his phone carrier. The police never disclosed the device during their surveillance, citing instead a “pen register order” as authorization for its use. A Maryland state court held that the government violated Andrews’ Fourth Amendment rights through use of the Hailstorm, and a state appellate court upheld that decision. Andrews then sued the police department in a federal district court, but the federal court considered the search constitutional and granted summary judgment against him. Andrews appealed.

The 4th Circuit, in Andrews v. Balt. City Police Dep’t, No. 18-1953, 2020 U.S. App. LEXIS 9641 (4th Cir. Mar. 27, 2020), both acknowledged the serious constitutional questions at stake and declined to make a ruling on them due to a lack of information. The district court was directed on remand to make findings concerning the Baltimore Police Department’s practice regarding Hailstorm technology, as well as the extent of constitutional intrusions involved in the search. Whatever the outcome, the 4th Circuit is likely to hear this case again. When it finally does, the court will have to decide how to apply the Fourth Amendment to a technology that may be fully incompatible with the freedom from broad and general searches that it typically guarantees.

What is a Hailstorm?

The “Hailstorm” is a model of “cell site simulator” technology sold by Harris Corporation. Other commonly used Harris models include the “StingRay,” “TriggerFish,” and “KingFish.” Generically, these devices are known as international mobile subscriber identity (“IMSI”) catchers.

IMSI catchers essentially mimic a wireless carrier’s base station, causing cell phones to communicate their unique identifiers and location data to the device even when they’re not in use. They function as a dragnet, capturing the unique numerical identifiers of all wireless devices within a particular area. The technology provides both identification and location data for devices. It is precise enough for law enforcement to narrow a device’s location to six feet, and to identify the exact unit a device is in from outside a large apartment complex. IMSI catchers are also capable of capturing the contents of communications, although there has not been a disclosed instance yet of law enforcement using an IMSI catcher in this fashion. IMSI catchers are small, and can easily be handheld or mounted on vehicles or drones.

What is the concern?

The Hailstorm raises a number of concerns under the Fourth Amendment—the constitutional provision meant to protect Americans from unreasonable searches and seizures. The ACLU, in a 2014 guide for defense attorneys, outlined the major Fourth Amendment questions that arise with the use of any IMSI catcher. These include:

Level of scrutiny: IMSI catchers are almost certainly intrusive enough to violate both reasonable expectations of privacy and property interests, thus giving rise to Fourth Amendment scrutiny. When used in connection with a residence, the devices provide critical details about the inside of the property that constitutes a search under any framework. While the Supreme Court has held that there is no reasonable expectation of privacy on outgoing phone numbers voluntarily sent to a third party, that analysis likely cannot extend to data that gets redirected and captured by a Hailstorm without the phone-owner’s knowledge or consent.
General search: There is an argument that any search conducted by an IMSI catcher constitutes a general search, and thus should be categorically barred by the Fourth Amendment. An IMSI catcher indiscriminately gathers all signaling information from a captured phone, seemingly incompatible with a constitutional requirement that surveillance minimize the collection of information unsupported by probable cause. Further, the dragnet functionality conducts this information grab on all devices in a vicinity, including innocent third parties whom the government lacks probable cause to search.
Inaccurate warrants: When law enforcement does apply for a warrant to use an IMSI catcher, those warrants are very likely inaccurate. Warrant applications, driven by federal policies of non-disclosure, typically either (a) omit the fact that the government intends to use an IMSI catcher, (b) mislead the court by saying the government intends to use less intrusive devices (like a pen register) instead, or (c) fail to provide any information on what the technology is and how it operates. In either scenario, the warrant is predicated on a material omission that deprives a court of its constitutional obligation to balance government interests against intrusions into private rights.
Invalid warrants: If a warrant accurately states law enforcement’s intended use of an IMSI catcher, it may be facially invalid due to the necessarily general nature of the search. The entire purpose of the warrant requirement is to require law enforcement to state with particularity the area to be searched and the persons or things to be seized. It remains an open question whether warrant particularity requirements can ever be compatible with intrusive dragnet surveillance technologies.

A separate and perhaps more troubling concern is the extreme lengths, only recently uncovered, that the government has gone to in order to keep this technology a secret. The federal government uses extensive non-disclosure agreements to prevent federal, state, and even local law enforcement from disclosing any details on the capabilities and usage of IMSI catchers. There have been a couple instances where judges demanded police to disclose possible use of an IMSI catcher at trial. Prosecutors in these instances have voluntarily dropped the evidence, offered plea bargains without jail time, or voluntarily dismissed the case altogether rather than disclose the device’s usage. Law enforcement agents have also demonstrated a willingness to offer alternative explanations for evidence obtained by an IMSI catcher. In one case where the FBI used a StingRay, for example, a discovered email from a special agent read: “we need to develop independent probable cause for the search warrant . . . FBI does not want to disclose the [redacted] (understandably so).”

IMSI catchers in the courts so far

The first reported decision dealing with an IMSI catcher was in 1995. In re United States, 885 F. Supp. 197 (C.D. Cal. 1995). The court, which had difficulty applying current law to the new surveillance technology, demanded that law enforcement develop stronger safeguards before permitting its use. Since 1995, nation-wide police practices of avoiding disclosure of the devices has largely shielded them from the view of courts. More recent orders from even the most tech-savvy magistrate judges suggest that judicial officers across the country still have little exposure to or understanding of IMSI technology. The lack of exposure and understanding is critical to continuing the law enforcement practice of applying for approval to use a “pen register” device.

Among the courts that have been faced with the question of IMSI catcher use, several—including the 7th Circuit in 2016—have declined to answer questions concerning the devices’ constitutionality. United States v. Patrick, 842 F.3d 540 (7th Cir. 2016). In his dissent, Chief Judge Wood described the avoidance strategies of law enforcement as “bad faith” that could justify suppression, and closed by writing that “it is time for the Sting[R]ay to come out of the shadows, so that it can be subject to the same kind of scrutiny as other mechanisms.”

The 7th Circuit ultimately did revisit the question of Sting[R]ays in Sanchez-Jara in 2018. United States v. Sanchez-Jara, 889 F.3d 418 (7th Cir. 2018). That court rejected the “general search” argument and upheld a warrant that referred generally to “electronic investigative techniques” without specifying the use of IMSI catcher technology. The other federal circuits have yet to reach a decision on the issue.

Andrews v. Balt. City Police Dep’t will almost certainly appear before the 4th Circuit again. While the question in that case deals with whether a pen register application can cover use of a Hailstorm device, deeper questions surrounding the constitutionality of a Hailstorm search underlie every aspect of the litigation. The court will be faced with a police department that has a history of abusing discretion, and that has shielded the courts from its use of IMSI catchers for years, in a moment of increased public scrutiny of police practices and procedures. The 4th Circuit thus has a unique opportunity to create a level of increased accountability for law enforcement, and to change the trajectory of police surveillance strategies for years to come.

Extracting Favors: Fossil-Fuel Companies are Using the Pandemic to Lobby for Regulatory Rollbacks and Financial Bailouts

October 17, 2020
Climate Change, COVID-19, Energy Law, Environment, Environmental Law, Regulatory

Christopher Cerny, MJLST Staffer

In the waning months of World War II, Winston Churchill is quoted, perhaps apocryphally, as saying, “[n]ever let a good crisis go to waste.” It seems fossil-fuel companies have taken these words to heart. While in the midst of one of the greatest crises of modern times, oil, gas, and coal companies are facing tremendous economic uncertainty, not only from the precipitous drop in demand for gasoline and electricity, but also from the rise of market share held by renewable energy. In response, industry trade groups and the corporations they represent are engaged in an aggressive lobbying campaign aimed at procuring financial bailouts and regulatory rollbacks. The federal government and some states seem inclined to provide assistance, but with the aforementioned rise of renewable energy, many see the writing on the wall for some parts of the fossil-fuel industry.

The ongoing COVID-19 pandemic continues to inflict immeasurable havoc on a global scale. The virus and the mitigation efforts designed to curb its spread have dramatically changed the way humankind interacts with each other and the world around us. In the United States, nearly all states at one time or another implemented mandatory shelter-at-home orders to restrict movement and prevent the further spread of the novel coronavirus. These orders have, in many ways, completely restructured society and the economy, with perhaps no sector being more impacted than transportation. At the peak of the virus in the United States, air travel was down 96% and, in April 2020, passenger road travel was down 77% from 2019. Similarly, the pandemic has altered America’s energy consumption. For example, the Midcontinent Independent System Operator reports a decrease in daily weekday demand in March and April of up to 13% and a national average decline of as much as 7% for the same time frame. A secondary impact of these market disruptions is on the fossil-fuel industry. The decrease in electricity demand has further diminished the already declining coal market, while the fall off in travel and transportation has radically impacted oil prices.

On April 20, a barrel of oil traded for a loss for the first time ever when demand fell so low that the cost storing oil exceeded its sale price. While the price of a barrel of oil, the world’s most traded commodity, has since improved, as of October 1st, the U.S. stock index for domestic oil companies remains down 57% in 2020. Similarly, coal consumption in the United States is projected to decline 23% this year. Natural gas remains resilient, with U.S. demand only dropping 2.8% between January and May of 2020. However, much of natural gas’s buoyancy comes at the expense of lower prices. These numbers are dire, especially for coal and oil, two domestic industries already on the decline due to the rise in renewable energy.

Fossil-fuel companies have gone on the offensive. The oil and gas industry is responding to these calamitous figures and grim financials by lobbying state and federal lawmakers for financial bailouts and the relaxation of environmental regulations. The California Independent Petroleum Association, an oil and gas trade group, requested an extension for compliance with an idle well testing plan that would push 100% program compliance from 2025 to 2029. Further, the trade group asked California to scale back on Gov. Gavin Newsom’s plan to increase the staff of the California Energy Management Division, the state agency charged with oversight of oil and gas drilling. In Texas, the Blue Ribbon Task Force on Oil Economic Recovery, created at the behest of the state oil and gas regulatory body and composed of representatives and leaders of Texas’s oil and gas trade groups, recommended the suspension of particular environmental testing and extensions for environmental reporting to the state agency. The Louisiana Oil and Gas Association asked Louisiana Gov. John Bel Edwards to suspend the state’s collection of severance taxes.

On the national stage, the Independent Petroleum Association of America asked the Chairman of the Federal Reserve to support changes to the Main Street Lending Program, a part of the CARES Act, to expand the eligibility requirements to include many oil and gas producers. The American Fuel and Petrochemical Manufacturers, a refiners trade association, called on the Trump administration and the Environmental Protection Agency (EPA) to waive biofuel policies that mandate the blending of renewable corn-derived ethanol in petroleum refining. The American Petroleum Institute also reached out to the Trump administration seeking the waiver of record keeping and training compliance.

Not to be left behind, the coal industry ramped up its lobbying as well. In an opinion piece, the CEO of America’s Power, a coal trade group extolled the virtues of the fleet of coal power plants and their necessity in the recovery from the COVID-19 pandemic. The National Mining Congress, the coal industry’s lobbying arm, sent a letter to the Trump administration and Congressional leaders asking for an end to the industry’s requirements to pay into funds for black lung disease and polluted mine clean-up

These lobbying efforts are being met with varied levels of success. In a move that garnered criticism from the Government Accountability Office, the Department of the Interior through the Bureau of Land Management cut royalties on oil and gas wells leased by the federal government, saving the industry $4.5 million. The EPA scaled back enforcement of pollution rules, instead relying on companies to monitor themselves. The Governors of Texas, Utah, Oklahoma, and Wyoming sent a letter asking the EPA to waive the biofuel blending regulations in support of the refiners trade group. In September, the EPA denied the request. The Governor of Louisiana agreed to delay the collection of the severance tax, a revenue source for the state that can normally bring in $40 million per month. The Louisiana state legislature later voted to reduce the severance tax on oil and gas from 12.5% to 8.5% for the next eight years. The EPA finalized a rule that it is not “appropriate and necessary” to regulate certain hazardous air pollutants, including mercury, emitted from coil and oil fired power plants.

It is difficult to discern what impact these industry efforts and resulting government actions will have in the long term. The financial measures may have propped up an industry that otherwise would have suffered permanent damage and bankruptcies without the influx of relief and capital. However, environmental groups are more concerned with the regulatory rollbacks. For example, after the EPA chose to allow companies to self-monitor pollution, there was a year-over-year decline of 40% in air emissions tests at industrial facilities and over 16,500 facilities did not submit required water quality reports. The ramifications of the state and federal acquiescence to the fossil-fuel industry’s requested regulatory non-compliance may end up costing the American tax payers millions of dollars, causing irreparable immediate harm to the environment, and delaying critical action needed to mitigate anthropogenic climate change.

It’s a Small World, and Getting Smaller: The Need for Global Health Security

October 10, 2020
COVID-19, Economy, Health, Healthcare, Public Health

Madeline Vavricek, MJLST Staffer

The word “unprecedented” has been used repeatedly by every news organization and government official throughout the last several months. Though the times that we live in may be unprecedented, they are far from being statistically impossible—or even statistically unlikely. Based on the most recent implementation of the International Health Regulations released by the World Health Organization (WHO) in 2005, more than 70% of the world is deemed unprepared to prevent, detect, and respond to a public health emergency. The reality of this statistic was evidenced by the widespread crisis of COVID-19. As of September 29, 2020, the global COVID-19 death toll passed one million lives, with many regions still reporting surging numbers of new infections. Experts caution that the actual figure could be up to 10 times higher.

The impact of COVID-19 has made pandemic preparedness paramount in a way modern times have yet to experience. While individual countries look inward towards their own national response to the coronavirus, it is apparent now more than ever that global issues demand global solutions. The ongoing COVID-19 pandemic indicates a need for increased resiliency in public health systems to manage infectious diseases, a factor known as global health security.

The Centers for Disease Control and Prevention (CDC) defines global health security as “the existence of strong and resilient public health systems that can prevent, detect, and respond to infectious disease threats, wherever they occur in the world.” Through global health security initiatives, organizations such as the Global Health Security Agenda focus on assisting individual countries in planning and resource utilization to address gaps in health security in order to benefit not only the health and welfare of the individual countries, but the health and welfare of the world’s population as a whole. The Coronavirus has been reported in 214 countries, illustrating that one country’s health security can impact the health security of dozens of others. With the ever-increasing spread of globalization, it is easier for infectious diseases to spread more than ever before, making global health security even more essential than in the past.

Global health security effects more than just health and pandemic preparedness worldwide. Johnson & Johnson Chief Executive Officer Alex Gorsky recently stated that “[g]oing forward, we’re going to understand much better that if we don’t have global public health security, we don’t have national security, we don’t have economic security and we will not have security of society.” As demonstrated by COVID-19, failure to adequately prevent, detect, and respond to infectious diseases has economic, financial, and societal impacts. Due to the Coronavirus, the Dow Jones Industrial Average and the Financial Times Stock Exchange Group saw their biggest quarterly drops in the first three months of the year since 1987; industries such as travel, oil, retail, and others have all taken a substantial hit in the wake of the pandemic. Unemployment rates have increased dramatically as employers are forced to lay off employees across the majority of industries, amounting in an estimated loss of 30 million positions in the United States alone. Furthermore, Coronavirus unemployment has been shown to disproportionally affect women workers and people of color. The social and societal effects of COVID-19 continue to emerge, including, but not limited to, the interruption of education for an estimated 87% of students worldwide and an increase in domestic violence rates during shelter in place procedures. The ripple effect caused by the spread of infectious disease permeates nearly every aspect of a nation’s operation and its people’s lives, well beyond that of health and physical well-being.

With a myriad of lessons to glean from the global experience of COVID-19, one lesson countries and their leaders must focus on is the future of global health security. The shared responsibility of global health security requires global participation to strengthen health both at home and abroad so that future infectious diseases do not have the devastating health, economic, and social consequences that the coronavirus continues to cause.

A Cold-Blooded Cure: How COVID-19 Could Decimate Already Fragile Shark Populations

October 10, 2020
Animal Law, Bioethics, COVID-19, Environment, Environmental Law, Healthcare, Maritime Law, Pharmaceuticals, Public Health

Emily Kennedy, MJLST Staffer

Movies like Jaws, Deep Blue Sea, and The Meg demonstrate that fear of sharks is commonplace. In reality, shark attacks are rare, and such incidents have even decreased during the COVID-19 pandemic with fewer people enjoying the surf and sand. Despite their bad, Hollywood-driven reputation sharks play a vital role in the ocean ecosystem. Sharks are apex predators and regulate the ocean ecosystem by balancing the numbers and species of fish lower in the food chain. There are over 500 species of sharks in the world’s oceans and 143 of those species are threatened, meaning that they are listed as critically endangered, endangered, or vulnerable. Sharks are particularly vulnerable because they grow slowly, mature later than other species, and have relatively few offspring. Shark populations are already threatened by ocean fishing practices, climate change, ocean pollution, and the harvesting of sharks for their fins. Sharks now face a new human-imposed threat: COVID-19.

While sharks cannot contract the COVID-19 virus, the oil in their livers, known as squalene, is used in the manufacture of vaccines, including COVID-19 vaccines currently being developed. Shark squalene is harvested via a process known as “livering,” in which sharks are killed for their livers and thrown back into the ocean to die after having their livers removed. The shark squalene is used in adjuvants, ingredients in vaccines that prompt a stronger immune response, and has been used in U.S. flu vaccines since 2016. Approximately 3 million sharks are killed every year to supply squalene for vaccines and cosmetic products, and this number will only increase if a COVID-19 vaccine that uses shark squalene gains widespread use. One non-profit estimates that the demand for COVID-19 vaccines could result in the harvest of over half a million sharks.

Sharks, like many other marine species, are uniquely unprotected by the law. It is easier to protect stationary land animals using the laws of the countries in which their habitats are located. However, ocean habitats largely ungoverned by the laws of any one country. Further, migratory marine species such as sharks may travel through the waters of multiple countries. This makes it difficult to enact and enforce laws that adequately protect sharks. In the United States, the Lacey Act, the Endangered Species Act, and the Magnuson-Stevens Fishery Conservation and Management Act govern shark importation and harvesting practices. One area of shark conservation that has gotten attention in recent years is the removal of shark fins for foods that are considered delicacies in some countries. The Shark Conservation Act was passed in the United States in response to the crisis caused by shark finning practices, in addition to the laws that several states had in place banning the practice. The harvest of shark squalene has not garnered as much attention as of yet, and there are no United States laws enacted to specifically address livering.

Internationally, the Convention on the Conservation of Migratory Species of Wild Animals (CMS) and the International Plan of Action for the Conservation and Management of Sharks (IPOA) are voluntary, nonbinding programs. Many of the primary shark harvesting nations have not signed onto CMS. The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) is binding, but there are loopholes and only 13 shark species are listed. In addition to these international programs, some countries have voluntarily created shark sanctuaries.

Nations that have refused to agree to voluntary conservation efforts, that circumvent existing international regulations, and lack sanctuaries leave fragile shark species unprotected and under threat. The squalene harvesting industry in particular lacks transparency and adequate regulations, and reports indicate that protected and endangered shark species end up as collateral damage in the harvesting process. A wide array of regional and international interventions may be necessary to provide sharks with the conservation protections they so desperately need.

Research and development of medical cures and treatments for humans often comes with animal casualties, but research to development of the COVID-19 vaccine can be conducted in a way that minimizes those casualties. There is already some financial support for non-animal research approaches and squalene can also be derived and synthesized from non-animal sources. Shark Allies, the conservation group that created a Change.org petition that now has over 70,000 signatures, suggests that non-shark sources of squalene be used in the vaccine instead, such as yeast, bacteria, sugarcane, and olive oil. These non-animal adjuvant sources are more expensive and take longer to produce, but the future of our oceans may depend on such alternative methods that do not rely on “the overexploitation of a key component of the marine environment.”

The EARN IT Act has Earned Sex Workers’ Criticism: How a Bill Regulating Internet Speech will Harm an Under-resourced Community Often Overlooked by Policymakers

October 3, 2020
Cyber Security, Human Rights Law, Internet

Ingrid Hofeldt, MJLST Staffer

In March of 2020, as the COVID-19 pandemic swept across the nation, Senator Lindsey Graham introduced the EARN IT Act (EIA), a bill that would allow Congress to coerce internet providers into decreasing the security of communications on their platforms or risk a potential deluge of legal battles. In addition to violating the freedom and security many U.S. citizens enjoy online, this bill will particularly harm sex workers, who already face instability, housing insecurity, and the threat of poverty as the COVID-19 pandemic has made their work nearly impossible. Many human rights groups, including the American Civil Liberties Union, Human Rights Watch, and the Stanford Center for Internet and Society strongly oppose this bill.

With the aim to protect children from sexual exploitation online, the EIA would amend Section 230 of the Communications Decency Act of 1996 (CDA). The CDA protects internet platforms from legal liability for the content shared by their users. Because of the CDA, the government cannot currently prosecute Facebook for its users’ decisions to upload child pornography onto their accounts. However, the EIA strips platforms of this protection. Additionally, the EIA establishes a National Commission on the Prevention of Online Child Sexual Exploitation. This commission will develop best practices for internet platforms to “prevent, reduce, and respond” to the online sexual exploitation of children. Though not legally binding, these guidelines could influence courts’ decision making as they interpret the EIA.

While preventing the sexual exploitation of children is a worthy aim, this act will provide victimized children with little protection they don’t already have, while opening sex workers and child victims of sexual exploitation up to greater violence at the hands of sex traffickers. Officials at the National Center for Missing and Exploited Children (NCMEC) are overburdened by the existing reports of online child sexual exploitation. The center has reached “a breaking point where NCMEC’s manual review capabilities and law enforcement investigations are no longer doable.” Sex traffickers also don’t necessarily use the platforms that the EIA would target or use internet platforms at all. As one sex worker explained, “[i]t’s interesting to note that Jeffrey Epstein didn’t use a website to traffic young women and neither do the pimps I have met in my 17 years as a sex worker.”

The EIA will impact internet providers’ ability to offer end-to-end encryption, the software that allows internet users to anonymously and securely message each other. Sex workers rely on end-to-end encryption to connect, share information relating to health and safety, and build their businesses. An anonymous sex worker explains that websites with end-to-end encryption allow them to “safely schedule and screen their clients before meeting them in person,” while making them “less dependent on exploitative third parties like pimps.” If enacted, the EIA will likely harm sex workers immensely, because (1) sex workers will likely make less money without online platforms to secure clients; (2) sex workers will have to resort to less safe, offline means of finding clients; and (3) sex workers who continue using these platforms that have become unencrypted will face the risk of prosecution if law enforcement or website monitors discover they are engaging illegal activity. The EIA will affect internet providers’ ability to offer end-to-end encryption in primarily two ways.

Firstly, strong evidence exists that the commission the EIA creates will establish anti-encryption guidelines. This commission will include 19 unelected officials, some of whom must have experience in law enforcement. Unsurprisingly, this commission has no mandated representation of sex workers or sex worker advocates. The EIA will not require this commission to conduct human rights impact assessments, write transparency reports, or establish metrics of success. Given that the commission is headed by Attorney General Barr, who has strongly opposed encryption in the past, it is likely that the commission will recommend that internet platforms either (1) not employ end-to-end encryption, the practice that allows for private, secure internet communications or (2) allow law enforcement agencies a “backdoor” around end-to-end encryption so they can monitor otherwise secure internet communications. The commission also has the power to create whatever recommended standards for internet platforms that it desires, which could a recommendation ban end-to-end encryption. While these guidelines do not have the force of law, courts could look at them persuasively when ruling on whether an internet provider has violated the EIA.

Additionally, the EIA has the potential to open internet providers up to crushing liability from state governments or private individuals based on whether these providers offer encrypted messaging. Regardless of how courts ultimately rule, lengthy and costly court battles between internet providers and state governments will likely ensue. Some internet providers will probably choose to stop offering encrypted messaging services or allow law enforcement agencies a “backdoor” into their messaging services so law enforcement agents can view private Facebook messages or videos. The “voluntary” policies offered by the commission could become essentially mandatory if providers wish to save money.

Senator Patrick Leahy responded to the concerns around encryption by adding an amendment to the EIA that stipulates that “no action will be brought against the provider for utilizing [encryption];” however, Senator Leahy did not address the issue of a law enforcement “backdoor.” Additionally, state governments could still use the EIA hold internet platforms accountable under their state laws, for recklessly or negligently failing to moderate encrypted and report it to NCMEC. Mike Lemon, the senior director and federal government affairs counsel reasons that “the new version of the [EIA] replaces one set of problems with another by opening the door to an unpredictable and inconsistent set of standards under state laws that pose many of the same risks to strong encryption.”

Sex workers are already vulnerable to food insecurity, housing insecurity, and the threat of poverty because of the COVID-19 pandemic and the recent passage of FOSTA/SESTA, a law that resulted in the extermination of websites such as Backpage that sex workers commonly used. As one sex worker explains, “my work is all contact work… a pandemic with a transmittal virus means… [my work has] moved completely online.” Based on survey results conducted by Hacking/Hustling, 78.5% of sex workers secure the majority of their income through sex work. Following the passage of FOSTA/SESTA, 73.5% of sex workers reported that their financial situations had changed. In the words of these anonymous respondents: “I’m homeless and can’t pay the bills.” “My income decreased by 58% following FOSTA/SESTA.” “I used to make enough to feel comfortable. Now I’m barely scraping by.” “I feel totally erased.”

The EIA will narrow the amount of websites that sex workers can safely use, if a backdoor for encryption is allowed to law enforcement. Additionally, if internet platforms are liable under state laws, these platforms will more heavily police their content, resulting in the removal or prosecution of sex workers. Many sex workers will likely leave platforms that don’t provide encryption given safety and privacy concerns. While “sex workers were pioneers of the digital realm . . . [they] are now being kicked off the same online platforms . . .[they] built and inspired.”

Sex workers and sex worker advocacy organizations have come out in strong opposition against the EIA; however, given the lack of political sway sex workers hold due to societal biases, their outcry has fallen largely on deaf ears. In response to the EIA, several prominent sex workers organized a live, virtual art exhibit to protest the EIA. In the words left behind on this page: “[t]hey can try to keep on killing us, to put their hands over our mouths, but they can never keep us away. We’ll be back.”

Nineteen Eighty Fortnite

October 3, 2020
Antitrust, Corporate Ethics, Internet, Litigation, Video Games

Valerie Eliasen, MJLST Staffer

The Sixth and Seventh Amendments affords people the right to a trial by jury. Impartiality is an essential element of a jury in both criminal and civil cases. That impartiality is lost if a juror’s decision is “likely to be influenced by self-interest, prejudice, or information obtained extrajudicially.” There are many ways by which a juror’s impartiality may become questionable. Media attention, for example, has influenced the jury’s impartiality in high-profile criminal cases.

In cases involving large companies, advertising is another way to appeal to jurors. It is easy to understand why: humans are emotional. Because both advertisement perception and jury decisions are influenced by emotions, it comes as no surprise that some parties have been “accused of launching image advertising campaigns just before jury selection began.” Others have been accused of advertising heavily in litigation “hot spots,” where many cases of a certain type, like patent law, are brought and heard.

A recent example of advertising launched by a party to a lawsuit comes from the emerging dispute between Apple Inc. and Epic Games Inc. Epic is responsible for the game Fortnite, an online “Battle-Royale” game, which some call the “biggest game in the world.” Epic sued Apple in August for violation of the Sherman Antitrust Act of 1980 and several other laws in reference to Apple’s practice of collecting 30 percent of every App and in-App purchase made on Apple products. When Epic began allowing Fortnite users to pay Epic directly on Apple products, Apple responded by removing Fortnite from the App Store. The App Store is the only platform where users can purchase and download applications, such as Fortnite, for their Apple products. In conjunction with the lawsuit, Epic released a video titled Nineteen Eighty Fortnite – #FreeFortnite. The video portrays Apple as the all-knowing, all-controlling “Big Brother” figure from George Orwell’s 1984. The ad was a play on Apple’s nearly identical commercial introducing the Macintosh computer in 1984. This was an interesting tactic given the majority of Fortnite users were born after 1994.

Most companies that have been accused of using advertisements to influence jurors have used advertisements to help improve the company image. With Epic, the advertisement blatantly points a finger at Apple, the defendant. Should an issue arise, a court will have an easy time finding that the purpose of the ad was to bolster support for Epic’s claims. But, opponents will most likely not raise a case regarding jury impartiality because this advertisement was released so far in advance of jury selection and the trial. Problems could arise, however, if Epic Games continues its public assault on Apple.

Epic’s ad also reminds us of large tech companies’ power to influence users. The explosion of social media and the development of machine learning over the past 10 years have yielded a powerful creature: personalization. Social media and web platforms are constantly adjusting content and advertisements to account for the location and the behavior of users. These tech giants have the means to control and tailor the content that every user sees. Many of these tech giants, like Google and Facebook, have often been and currently are involved in major litigation.

The impartial jury essential to our legal system cannot exist when their decisions are influenced by outside sources. Advertisements exist for the purpose of influencing decisions. For this reason, Courts should be wary the advertising abilities and propensities of parties and must take action to prevent and control advertisements that specifically relate to or may influence a jury. A threat to the impartial jury is a threat we must take seriously.

October 2020

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