Court overturns probation condition limiting use of devices that contain ‘any encryption … software’

The government has much broader authority over the speech of probationers than it does over ordinary citizens; but even probation conditions are subject to some scrutiny.

Thursday’s California appellate decision in In re Mike H. concluded that a ban on the probationer’s use of anonymizing tools to access the Internet, and a requirement that he accurately identify himself when setting up any online communications services, was permissible:

The juvenile court could reasonably conclude that requiring Mike to use his true identity online and avoid encryption or hacking tools could help the probation department assess whether Mike was communicating with C.C., in violation [of] other uncontested conditions of his probation. Thus, these conditions may serve to deter future criminality by preventing further contact with the victim…. [B]ecause uncontested probation conditions require Mike to refrain from directly or indirectly contacting, harassing, or stalking C.C. online or through an electronic device, [these conditions] reasonably enable the probation officer to confirm Mike is not breaching those restrictions through anonymous Internet use.

But the ban on using any electronic devices that contain “any encryption … software” was too broad:

Given the ubiquity of encryption technology, [this condition] is overbroad as formulated. … “[E]ncryption is standard-issue on every iPhone and Mac, with Google requiring new Android phones to be encrypted; every web page that begins ‘https’ uses encryption, including, for instance, every page on, every page on Wikipedia, and every page created by the federal government.” “While it may not be apparent to the everyday user, encryption technology is now a fact of everyday life.” In recent years, Apple, Google, Facebook, WhatsApp, and Blackberry have all “announced plans to implement end-to-end encryption on a default basis. This means that encryption is applied automatically without a user needing to switch it on.” …

As drafted, [this condition] is therefore unconstitutionally overbroad. It is also impermissibly vague, given other probation conditions allowing Internet and smartphone use. “Rather than modify this condition on appeal in an effort to save it based on surmise,” we vacate it and invite modification on remand to narrow it to its intended purpose.

Sounds right to me.

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Fake News: Giuliani admitted that Trump’s executive order on immigration is a “Muslim ban”

President Trump in the White House on Friday. (Evan Vucci/Associated Press)

I’ve seen so many headlines to this effect and so many people on social media assert this as a fact, I believed it be true — until I actually went back and looked into the source of this claim, an interview Rudy Giuliani did with Fox News. Typically, the Hill headlined its article on the interview, “Giuliani: Trump asked me how to do a Muslim ban ‘legally.‘” Other news outlets, including The Post, ran similar headlines.

The Hill relates the story as well as anyone: “I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban,’” Giuliani said on Fox News. “He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’”

Everything turns on what the final “it” means. The headline writers all seem to have decided that “it” referred to “banning Muslims.” The other possible meaning is, “Show me the right way to “go about protecting Americans from foreign jihadists entering the United States.”

The latter explanation is consistent with what Giuliani said thereafter; the former is not:

“And what we did was we focused on, instead of religion, danger,” Giuliani said.

The areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible.”

Giuliani reiterated that the ban is “not based on religion.”

“It’s based on places where there are substantial evidence that people are sending terrorists into our country,” he said.

So, no, Giuliani did not say that President Trump asked him how to do a Muslim ban legally, but how to exclude jihadists without banning Muslims generally. And in fact, both of Trump’s executive orders (temporarily) exclude people from countries whose Muslim populations make up less than 10 percent of the world’s Muslim population.

This is not a commentary on the wisdom of the executive orders, which I find to be both over-inclusive in excluding people who are no threat to the United States, and under-inclusive in that they fail to cover countries such as Pakistan and Saudi Arabia that are home to many radical Islamists. But the idea that Giuiliani “admitted” that the executive orders were “really” a Muslim ban relies on what is at best a tendentious interpretation of his interview.

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Tort lawsuits against VR/AR companies when users physically injure outsiders

Last week, I blogged about the criminal portions of Mark A. Lemley’s and my new article, “Law, Virtual Reality, and Augmented Reality,” which the University of Pennsylvania Law Review has just accepted for publication. (Click on the link to see the whole article, including footnotes.) This week, I’m turning to our discussion of tort liability and shifting now from liability for users to liability for providers.

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VR and AR users will sometimes also physically injure outsiders. A player chasing a Pokémon might run into someone or might cause damage by trespassing on someone’s property. A VR user wearing a headset might walk into a houseguest. Those injuries will often be the fault of the user herself or someone else using the system. But sometimes the injury may result from flaws in the design of the VR or AR hardware or software itself. And that opens a second, more practical possibility: suing the hardware or software designer itself.

These design defects should be analyzed using normal tort law rules. Just as a car or bicycle manufacturer may be liable for physical injuries caused by defects in the device, so a VR or AR equipment manufacturer may be liable. If a defect in an AR headset, for instance, causes it to flash a very bright light that temporarily blinds users and leads them to run into people, that sounds no different from a defect in a bicycle’s brakes that leads the rider to run into someone.

Many such defects would stem from the VR or AR system providing incorrect information to people — for instance, an AR system defectively instructing you to turn in the wrong place, or a VR system that claims to sense whether someone walks into your room but then defectively fails to properly report it. The fact that information is involved complicates things, because the publication of information — even false information — might implicate the First Amendment. For instance, the 9th Circuit has held that the publisher of the Mushroom Encyclopedia isn’t strictly liable when you poison yourself because the Encyclopedia had bad information. On the other hand, the publisher of a flawed aeronautical chart is strictly liable when you use the chart to fly into a mountain.

Even if the Mushroom Encyclopedia case is correct, we think incorrect directional information provided by VR and AR that makes you walk into a wall is more like the incorrect directional information provided in aeronautical charts. Even more than with charts, people generally rely on instructions provided by their VR and AR headsets automatically, with no opportunity for reflection. Indeed, that is the whole point: If a VR headset shows a pathway for you to walk down, you’re supposed to walk down it. That assumes that the VR system is supposed to know where walls and other obstacles are, but they generally do.

The 9th Circuit’s effort to distinguish aeronautical charts from the Mushroom Encyclopedia is a little opaque, but it supports our position:

Aeronautical charts are highly technical tools. They are graphic depictions of technical, mechanical data. The best analogy to an aeronautical chart is a compass. Both may be used to guide an individual who is engaged in an activity requiring certain knowledge of natural features. Computer software that fails to yield the result for which it was designed may be another. In contrast, The Encyclopedia of Mushrooms is like a book on how to use a compass or an aeronautical chart. The chart itself is like a physical “product” while the “How to Use” book is pure thought and expression.

Even if a mushroom encyclopedia is “pure thought and expression,” because it teaches how to do something, a VR or AR headset is far from that. Instead, it’s an even more automatic “guide” than a compass: It offers visual cues that the user is meant to follow without thinking. It is like a physical product, albeit one composed in large part of information.

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Crafts? Good. Science? Good. “Crafty science”? Not good

In legal science, it turns out that “crafty science” means fortunetelling and spell-casting, as in this Joplin, Mo., ordinance:

Any person who shall advertise by display of a sign, circular or handbill, or in any newspaper, periodical, magazine or other publication, or by any other means, to tell fortunes or reveal the future, to find or restore lost or stolen property, to locate oil wells, gold or silver or other ore or metal or natural products, to restore lost love, friendship or affection, or to reunite or procure lovers, husbands, wives, lost relatives or friends, or to give advice in business affairs, or advice of any kind or nature to others for or without pay, by means of occult or psychic powers, faculties or forces, clairvoyance, psychology, psychometry, phrenology, spirits, mediumship, seership, prophecy, astrology, palmistry, necromancy or like crafty science, cards, talismans, charms, potions, magnetism or magnetized articles or substances, oriental mysteries, crystal gazing or magic of any kind or nature shall be deemed guilty of a misdemeanor.

Many such ordinances may violate the First Amendment, but here I just want to note the “crafty science” label. The legal phrase, by the way, apparently dates back to a statute from Henry VIII’s reign (in 1531), and which punishes — with a certain poetry to it —

all … idle persons going about in any countries or abiding in any city borough or town, some of them using divers & subtle crafty & unlawful games & plays & some of them feigning themselves to have knowledge in physic, physiognomy, palmistry, or other crafty science whereby they bear the people in hand, that they can tell their destinies deceases & fortunes & such other like fantastical imaginations to the great deceit of the King’s Subjects ….

But the phrase in lay language appears in the Canterbury Tales, referring there specifically to alchemy, but perhaps just as a special case of the general concept of occult knowledge (likely stemming from an obsolete meaning of “craft” — “occult art, magic” — plus “science” in the sense of “a particular area of knowledge or study”).

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Why successful people should not feel guilty about voting with their feet, but should instead make it easier for others to do the same

Famed writer J.D. Vance, author of the powerful book Hillbilly Elegy, recently wrote an interesting New York Times column about the potential problems caused by the tendency of successful people to leave struggling regions for greener pastures elsewhere:

Experts have warned for years now that our rates of geographic mobility have fallen to troubling lows. Given that some areas have unemployment rates around 2 percent and others many times that, this lack of movement may mean joblessness for those who could otherwise work.

But from the community’s perspective, mobility can be a problem. The economist Matthew Kahn has shown that in Appalachia, for instance, the highly skilled are much likelier to leave not just their hometowns but also the region as a whole. This is the classic “brain drain” problem: Those who are able to leave very often do….

As one of my college professors recently told me about higher education, “The sociological role we play is to suck talent out of small towns and redistribute it to big cities….”

[W]e often frame civic responsibility in terms of government taxes and transfer payments, so that our society’s least fortunate families are able to provide basic necessities. But this focus can miss something important: that what many communities need most is not just financial support, but talent and energy and committed citizens to build viable businesses and other civic institutions….

Of course, not every town can or should be saved. Many people should leave struggling places in search of economic opportunity, and many of them won’t be able to return…. But those of us who are lucky enough to choose where we live would do well to ask ourselves, as part of that calculation, whether the choices we make for ourselves are necessarily the best for our home communities — and for the country.

Vance writes that such considerations played a role in his own decision to move back to his home state of Ohio after attending Yale Law School and working in Silicon Valley. Having achieved success by departing the struggling community where he grew up, he has now returned to the same region, in part of out of a sense of civic duty.

Vance’s concern for disadvantaged communities is admirable. But the advice he offers civic-minded successful people may not be the best way for them to help. In most cases, they can best serve society by living wherever they can be most productive. If an engineer or a computer programmer can produce more and better innovations in Silicon Valley than in her hometown in Appalachia, she might well benefit society more by moving than by staying put. The ideas and products she develops will help not only people in Silicon Valley but those back in Appalachia, as well. Over time, even people who stay put benefit greatly from the achievements of those who move in search of opportunity.

Vance’s own life story is actually an example of this dynamic. If you read his moving book, it’s hard to avoid the conclusion that his life was transformed by moving: leaving home to join the Marine Corps, get a college degree at Ohio State University, and eventually going to Yale, opened up opportunities that he probably would never have had if he had not left home. As a result, he is now a far more productive member of society than he likely would have been otherwise.

Although Vance has returned to his home state, he did not move back to the depressed community where he grew up, but to Columbus, a growing city whose economy has done very well in recent years. He likely concluded that he and his family would be happier, more productive, and better able to serve society there than in a less successful part of the state.

Vance’s Appalachian “hillbilly” background could hardly be more different from my own, as an immigrant from Russia. But there is one important commonality: both our lives were transformed for the better by moving. The same is true of many millions of other people. Historically, voting with your feet has been a powerful engine of upward mobility for immigrants and native-born Americans alike.

Moreover, people who “vote with their feet” for regions with greater economic opportunity and better public policy incentivize jurisdictions to adopt better policies in order to be more competitive. That too can benefit society as a whole, not just those who actually move.

Vance also worries that if successful people move to areas with greater opportunity, that may exacerbate ideological segregation in society, thereby worsening political polarization. Such polarization is indeed a serious problem. But the evidence suggests that geographic mobility is not a major factor in exacerbating this problem, and in some cases might even make it less severe rather than more. The so-called “Big Sort” probably is not a major cause of our political dysfunctions.

Despite my reservations about some other aspects of his argument, Vance is absolutely right to point to the dangers of declining mobility for the poor. Scholars on both the right and left have warned that such factors as excessive zoning and occupational licensing have made it more difficult for the disadvantaged to move to areas with greater opportunity. There is much we can do to make it easier for people to achieve upward mobility by moving. Foot voting transformed both Vance’s life and my own. And it can do the same for many others who currently feel trapped.

Those who have been fortunate enough to achieve a measure of success thanks to mobility should not feel guilty about it. We can help society best by being productive citizens and – where possible – working to ensure that the foot voting opportunities that benefited us become more available to others.

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Tort liability in VR and AR: direct lawsuits against offenders

A visitor tries out a virtual reality experience during the Mobile World Congress 2017 in Barcelona on Feb. 27. (David Ramos/Getty Images)

Last week, I blogged about the criminal portions of Mark A. Lemley’s and my new article, “Law, Virtual Reality, and Augmented Reality,” which the University of Pennsylvania Law Review has just accepted for publication. (Click on the link to see the whole article, including footnotes.) This week, I wanted to turn to tort liability. First, the most straightforward stuff — direct tort lawsuits against offenders.

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A. The causes of action

… In theory, [direct tort liability of offenders] might be possible in many of the circumstances we have identified, even if criminal law won’t apply. For instance, using strobe lights to deliberately cause a seizure in a person one knows is epileptic is likely at least negligence, and possibly also a form of battery, though that question is complicated.

For the other scenarios, tort liability would be more of a stretch, but not implausible. Disturbing the peace might be recharacterized as nuisance, at least in a suit brought by “nearby” VR or AR stores whose business is interfered with by the screaming; but, especially as to VR, that would require nuisance law to be modified, for instance by treating VR “places” as tantamount to “uses of land” which nuisance law protects. Nuisance also generally requires either long-term interference or especially serious interference; disturbing the peace law punishes even brief incidents.

Virtual groping might be treated as intrusion upon seclusion; though it happens in “public” places, the intrusion tort can apply even there, to behavior that is seen as intruding on one’s bubble of personal space. Indecent exposure might qualify as well. Both might also constitute intentional infliction of emotional distress, even in the absence of physical touching, on the theory that they are both “outrageous,” though that tort generally requires a showing of severe emotional distress where there is no physical contact.

Tort law can also reach a wide array of conduct that wouldn’t [generally] be a crime even in the physical world. Defaming a VR avatar should be a tort, even if the avatar is pseudonymous.

One of us has had an extended debate with a well-respected federal judge who believed it was impossible to defame an avatar because avatars weren’t real, so their reputation couldn’t be injured. This “it’s just a game” sense might pervade VR for some time in the courts, in part because most judges are unlikely to be early adopters of VR. But we think such a view is misguided.

Corporations can sue for defamation, because people invest time and money to create reputational capital for the corporation. There’s no reason why the same wouldn’t apply to a pseudonym that is used to do business, in VR or otherwise — or to one that is used for ordinary life. The idea that falsehoods that damaged the reputation of Mark Twain weren’t defamatory unless they expressly mentioned Samuel Clemens strikes us as unsound.

The damages to a pseudonym’s reputation might be less in many situations than the damages to a real person’s reputation, because many pseudonyms have built up less reputational capital, and people can take on new ones with little loss. But they could be quite great in other situations, if — as is true in some Internet circles and will likely be increasingly true in VR — the pseudonym or avatar is better known than the person’s name, which might be obscure or even deliberately concealed. Most readers probably couldn’t come up with the real name of The Weeknd, but that doesn’t mean we couldn’t defame him.

B. Practicalities (and impracticalities)

Tort lawsuits against VR and AR offenders have one important advantage over criminal prosecutions: They are available even when the police are unwilling to intervene. For example, even if the police don’t want to spend their time on a difficult investigation — especially when they think the complainant could have avoided the problem using technologically enabled self-help — the complainant can still demand his day in court.

Practically speaking, though, we doubt that people will often sue each other for most VR or AR behavior. First, again, there is the Bangladesh problem. VR torts might involve tricky jurisdictional questions; if you’re screaming in a VR forum from your apartment in Poland, is it fair to require you to answer lawsuits filed in San Francisco or in Buenos Aires?

People have litigated that question extensively in Internet cases. But even if a court in, say, California concludes that it has jurisdiction over the Pole (perhaps because the Pole targeted strobe lights at a person who he knew to be in San Francisco), enforcing a judgment against someone half a world away would likely be very hard, and in any event many defendants would lack the money to satisfy a judgment.

Second, while police refusal to go forward wouldn’t be a barrier to civil lawsuits, the cost of such lawsuits might be. However distressed one might be by virtual groping, it’s unlikely that one would be willing to spend tens of thousands of dollars tracking down the culprit, suing him, and trying to recover the judgment. Some people might, perhaps to send a message, but that would be rare.

And abbreviated procedures that are aimed at making lawsuits cheaper and easier — such as small claims trials or restraining orders — won’t help much. A small claims court might be reluctant to allow a lawsuit against someone far away, even if jurisdiction is in principle available; any judgment, moreover, would still be costly to enforce. And the police may be as reluctant to go after a faraway restraining order violator as they are to go after a faraway flasher or screamer.

[All this may well give plaintiffs an even greater incentive to go after the VR/AR providers — more on that in coming posts, though you can read about it even now in the full article.]

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European Commission president threatens to ‘promote the independence of Ohio and Austin, Texas’

The president of the European Commission, Jean-Claude Juncker, has been trying to rally support for the EU by saying the bloc isn’t about to break up.

That’s what European Union executive branch leader Jean-Claude Juncker said he’d do, if Trump continues to urges other European countries to echo Brexit. Because we all know how swayed Americans will be by EU politicians telling them whether or not to secede. Or is this that famous absurdist Luxembourg humor?

Maybe it would have been better if he had decided not to intrude into another jurisdiction’s decision-making process — a decision that might be called … Juncker abstention.

(Actually, that last sentence is just an excuse for an inside law joke; I don’t think there’s anything per se wrong in an official telling people in other countries what to do — but it’s often counterproductive.)

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