Author Archives: Charles Michael Fulton

Judicial Economy in Spokeo, Inc. v. Robins

In its recent opinion Spokeo, Inc. v. Robins, 578 U.S. ____ [PDF Warning], the eight-member Supreme Court seems to implicitly disregard judicial economy in favor of an attempt at clarity. In Spokeo, the plaintiff, a Mr. Robbins alleged that the website Spokeo violated the Fair Credit Reporting Act, 15 U.S.C. § 1681–1681x, incorrectly listed a bunch of information him, such as his age, marital status, familial status, income, and level of education. Id. at 6.  Spokeo is kind of a search engine for information about individuals, scraping databases and making that information available to businesses, etc. Id. at 5. The Court remanded the case back to the Ninth Circuit Court of Appeals on the issue of whether Mr. Robins’s alleged injury satisfied the concreteness requirement of the Constitutional test for standing under Article III. Id. at 13. Justice Alito, writing for the majority, reasoned that the Ninth Circuit failed to analyze Mr. Robins’s claim under the concreteness requirement, id. at 4, even though Mr. Robins alleged that this misinformation made it difficult to get a job, id. at 22 (Ginsburg dissenting).

Judicial economy is the efficiency of operation in the judicial system. Black’s Law Dictionary, 923 (9th ed. 2009). In this case, Mr. Robins will have to resubmit his pleadings to the Ninth Circuit so that it can correct it’s legal analysis to include the concreteness requirement. As Justice Ginsburg points out in her dissent, id. at 22 (Ginsburg dissenting), Mr. Robins pleaded facts that support an injury well beyond the “bare procedural” violation that Justice Alito is concerned about in the majority, id. at 11. This process will cost the Ninth Circuit, Mr. Robins, and Spokeo, an amount that is likely measured in the hundreds of thousands of dollars. And for what, simply because the drafting law clerk conflated two elements of an analysis?

Why does the Court not merely apply the correct concreteness analysis and affirm the Ninth Circuits on the underlying facts, but not the legal analysis? I know I’ve seen such an affirmation on facts but not on law, but I cannot think of anything offhand. Could someone cite to something in the comments?

Personally, I believe that this the Spokeo decision is a reaction to the perceived ineffectiveness of the current eight-member court. The decision, and especially Justice Thomas’s concurrence, is one of most theoretical decisions I’ve ever read. It seems that the court found a way to make a very legal distinction in the evolving area of Article III standing, and just kind of said this one will be relevant, even though it had all the facts it need to decide the case and make a clear(er) holding.

If you have a different take on the why of Spokeo, please leave a comment!

Is it illegal in Virginia to kick a duck family out of your pool? Depends on what “molest” means.


It looks like a pair of ducks have moved into the pool at my condominium. I’ve seen them there consistently in the afternoon and at night for the past week. At first, I was concerned that the chlorinated pool water might be bad for ducks, so I did some googling. I came across this website from the Dallas/Fort Worth Wildlife Coalition that says that it is against “state and federal law” to “disturb relocate or destroy nests or eggs [sic]” of native birds. The DFW Wildlife Coalition warns that the ducks are in the pool not just to lay out, but to make a nest. Therefore, the DFW Wildlife Coalition concludes, once the ducks have nested, you shouldn’t use your pool until the new duck family leaves. Does the same hold true for Virginia?

A male and female mallard ducks sit by an outdoor swimming pool with their heads tucked underneath their wings.The aforementioned uninvited, but not unwelcome, ducks.

Section 29.1-521(A)(2) makes it unlawful to “destroy or molest” the nest, eggs, or young of any wild bird without a permit, unless the wild birds are “nuisance species.”  Nuisance species, defined in section 29.1-100, do not include game animals such as ducks.  So it looks like it is a crime to destroy or molest the nest that duck family made in your pool. I don’t think anyone is planning to smash up the nest or eggs—or execute a bunch of ducklings—to get their pool back. Could we just throw the eggs or ducklings in a box and take them to a local pond? That turns on what molest means in the context of section 29.1-521(A)(2) of the Code of Virginia.

After a quick search, it doesn’t look like the Code defines molest. Black’s Law isn’t really helpful, defining molestation as “prosecution or harassment” or “unwanted and indecent advances to or on someone”. Black’s Law Dictionary, 1096 (9th ed. 2009). I don’t think the general assembly pictured homeowners prosecuting, harassing, or making indecent advances toward ducklings. The Oxford English Dictionary is more helpful, defining molest as to “annoy or pester . . . in a hostile or injurious way” and “attack or interfere with”. The Concise Oxford Dictionary, 877 (9th ed. 1995).

Presumably, you could move the nest, eggs, or duckling without injuring them. So, it comes down to whether moving the nest, eggs, or ducklings is an act of hostile annoyance or pestering. The OED defines hostile, in part, as “opposed.” Id. at 657. In moving the duck nest, you are definitely acting in opposition to the duck family. But who is to judge whether the eggs or ducklings would be pestered or annoyed? I mean, they are just ducklings—I don’t know if they can feel annoyed. I think adult ducks can express at least something very similar to annoyance, like the alarm quack when a person gets too close.

Ultimately, I would advise a client to call local animal control and ask for advice and help dealing with a duck nest established in a swimming pool. If you do violate Virginia law by removing a duck family from the pool, you can face fines up to $500. Va. Code §§ 18.2-11(c); 29.1-521(C).

Personally, I hope that the condo association has to close the pool for the summer. I am not a pool guy (I burn really easily), and I wouldn’t mind it if there were less people near my back patio this summer. If you’ve ever faced this problem, let me know what your did or what animal control said to do in the comments!

Transfer-by-Transfer, Step-by-Step Transit Directions?

Does anyone know if there is a good app for step-by-step transit directions for any city?

Thinking about my girlfriend navigating the Chicago transit system during her work trip this week, I started wondering if there are transit navigation apps as good as Waze is for vehicle navigation.

Credit to

My guess is that there is not. Generally, mass transit systems use underground transfer stations for trains and, sometimes, buses. Underground stations would make location by GPS impossible. But, I started thinking about using WiFi for locations in transit systems. According to my iPhone’s complaints every time I turn off my WiFi when I leave my house, WiFi assists in determining accurate locations.

Interestingly, New York City is in the process of installing WiFi in their subway system. I wonder if an app developer could develop an transit app that could use, say, the plain text name of WiFi networks to determine an individual’s location within an underground transit station. Say, if I were at the Washington Metropolitan Transit Authority’s Pentagon station, could such a transit app, using WifI, recognize that I was on the upper floor of the station when arriving by the Yellow Line and that I had to go downstairs to catch the Blue Line?

Something like this would be extremely helpful to tourists and cut down on the time investment necessary to confidently use public transit. By increasing the use of public transportation, we’d be lowering the amount of carbon emissions. As such,as they say on Silicon Valley, we’d have an app that could save the world.

Is hacking a celebrity’s nude photos a “sex offense” in Virginia?

No, hacking a celebrity’s nude photos does not appear to be a sexual offense in Virginia under the current statutory scheme.

In response to this week’s massive disclosure of celebrity nude and revealing photos, Lena Dunham, creator and star of HBO’s Girls, attempted to remind the Twittersphere that the hackers were sex offenders, not mere hackers:

Ms. Dunham’s charge seemed to ring true with a lot of people. Her tweet was mentioned with approval during the first hour of NBC’s Today show as well as in a number of op-ed pieces on the scandal. As a legal analysis, however, Ms. Dunham’s assertion is a lot less tenable.

Hacking into a celebrity’s iCloud account is likely a federal crime, as shown by Christopher Chaney’s ten-year sentence following his guilty plea stemming from his release of nudes from celebrities including Scarlett Johansson and Mila Kunis. Mr. Chaney was charged under the federal wiretapping statute and Computer Fraud and Abuse Act, 18 U.S.C § 1030 (“CFAA”).

The Virginia statutes covering wiretapping and computer crimes, the Virginia Interception of Wire, Electronic or Oral Communications Act, Va. Code §§ 19.2-61 to 19.2-70 and the Virginia Computer Crimes Act, Va. Code §§ 18.2-152.1 to 18.2-152.16, respectively, are very different from the federal statutes. Consequently, an analysis of the facts of Mr. Chaney’s case under Virginia law instead of federal law is too arduous to consider here. Regardless, I think it is safe to  assume that Mr. Chaney could have been prosecuted under the equivalent Virginia statutes.

A sexual offense is a whole different level of transgression, as evinced by the fact that sexual offenders have their name and address listed in a federal website searchable by the public. This website links the individual state sexual offender databases.

In Virginia, sexual offenses are set out in the Sex Offender and Crimes Against Minors Registry Act, Va. Code §§ 9.1-900 to 9.1-922 (the “Registry Act”). The Registry Act establishes Virginia’s sex offender registry and specifies which offenses require registration. Id. §§ 9.1-900 to 9.1-902. Not surprisingly, the Registry Act does not require registration for a violation of the Virginia Computer Crimes Act. See id. § 9.1.-902. Notably, the Registration Act does not require registration for the criminal statute perhaps most on point—section 18.2-386.2, prohibiting the sale of nude images of another with the intent to harass. See id. § 9.1.-902. Nor does the Registration Act require registration for violations of any of the obscenity production or distribution crimes, Va. Code §§ 18.2-372 to 18.2-389, unless the obscenity crime involves minors. See id.

I am not a criminal prosecutor. I suspect that an experienced prosecutor in the Commonwealth Attorney’s office may be able to come up with a charge that fits the facts of the situation, as far as they are known at this time, and qualifies as a sex offense. Barring such creativity, however, it does not appear that the hacking of a celebrity’s nude-photo database qualifies as a sex offense in Virginia.

Disagree? Let me know in the comments!


You can rack up charges on PACER, and it’s still free.

Hunting down the decision discussed in this post about Hulu and the federal Video Privacy Protection Act cost me about $2.50 using the federal court’s PACER web service. Every time I use PACER, I get anxious as I see the $0.10/page charges add up with every click. I was looking for an Order, which should be an opinion and therefore available at no cost, but every time I searched for the case or the document it cost me $0.10/page!

I also forget that I probably won’t be paying those charges every time I use PACER. According to § 8 of the Electronic Public Access Fee Schedule [PDF Warning], a user must accumulate more than $15.00 in use charges in a quarter before the user is billed for use of the web service. So, as long as I don’t hunt down more than five or six more decisions before July, I should be in the clear.

Remember that, if used in moderation, PACER is free. Now, I should really review this decision and write a blog post on the revival of the Video Privacy Protection Act, so that $2.50 wasn’t a waste of money . . . . Oh yeah, I probably won’t be paying it!

My Identity Was Stolen!

On August 14, 2013, I received a call from the Citibank fraud department, asking if I had authorized anyone from Lockheart, Texas to be an “authorized user” on my Citi credit card account. Apparently, the last name of the erstatz authorized user was “Lopez.” I told them that I had not authorized anyone to use my credit card account. The people at Citi were great, actually, and helped me report the identity theft to the three credit bureaus, who put an extra layer of security on my account.

It appears that my personal information is in the possession of several fraudsters. Citibank contacted me on August 23 and told me that someone attempted to open a Wyndham Rewards credit card with Barclay bank. I contact Barclay, and they sent me the application. The person who attempted to open the Wyndham card would have added “Barbara Crislip” as an authorized user on the fraudulent account. I’m not saying that Ms. Crislip is the identity thief–for all I know it is a fake name or Ms. Crislip is somehow an unwitting victim as well. The IP address on the application indicates that applicant was using America Online, and likely in the North Dakota/Kansas area.

If anyone has any more information on Barbara Crislip, I’d love to hear it. A google search did not turn up anything beyond a couple of facebook accounts of middle-aged women.

Won my first case last Friday

On Friday, I made my first in-court argument as an attorney, defending a tenant in an eviction. This was an actual case filed with the court and the judge ruled in my favor after admittedly brief argument with a pro se plaintiff on the other side.

I had a dispositive motion before the court, but as it was a landlord/tenant case, I was prepared to go to trial if the judge rejected the motion. Thanks to the insistence of my girlfriend, I practiced arguing my motion at least ten times the night before. In the landlord/tenant cases before mine on Friday, the judge kept asking if the plaintiffs had provided the notice that was the focus of my motion. So, before I argued my motion, I was confident the judge would respond to my argument. With that confidence, and the repetitive practice, I was pretty relaxed in front of the judge and able to articulate my point succinctly.

Looking back on the experience, I realized two things. First, I don’t clearly remember exactly what I said when I was speaking to the judge. The memory is like a car accident – kind of hazy flashes without a coherent feeling of a narrative. I wonder if this is because of the amount of adrenaline coursing through my veins. Do other litigators feel this way after an argument?

Second, the pro se plaintiff probably had no idea why his claim was rejected. My argument was that the notice was a “condition precedent” to the eviction action. The judge interpreted this as a “jurisdictional” requirement. I think the pro se plaintiff probably thought that I won my argument using magic words, a phrase currently decried in legal academia. I wonder if either the judge or I, as the opposing lawyer, had a duty to make the proceedings more understandable for the pro se plaintiff?

World of Warcraft may be reading your browser history

I play World of Warcraft, a popular online multiplayer sword-and-sorcery game, on a Mac. I also run Little Snitch, a Mac program that alerts the user when another program attempts to make a connection over the Internet, whether incoming or outgoing.

Yesterday, I was shopping online for some new dog food and I read an article on If I remember correctly, I had the browser open when I launched the World of Warcraft program. Little Snitch then notified me that the World of Warcraft launcher attempted to contact and, both of which I had visited with my browser a few hours before.

I reviewed the World of Warcraft terms of use, but I couldn’t find anything that would allow them to read my browser history. Specifically, I focused on the “Acknowledgments” section of the ToU, which discusses disclosing personal information at the request of law enforcement and for the safety of the user. I have an email out to, so I’ll update if I get any information.

Is anyone else concerned about this?

Triumph over Kodak AiO Printer Software for Mac

I have a Kodak ESP 7 printer, which has been a pretty reliable machine. The same cannot be said for the Kodak AiO Printer software suite, without which you cannot download the printer drivers. For whatever reason, Apple does not provide the drivers, so you’re stuck with this software that has conflicted with OS X’s sleep procedures and is some sort of bizarre memory hog. Today, after spending most of the day working on it, I finally figured out what files I needed from the AiO Printer Software package to use the printer from my Mac without the memory-sucking bloatware. I installed the following files into my /Library/Printers folders:
and the following file into /Library/Printers/PPDs/Contents/Resources folder:
Also, I grabbed an existing set-up file, in this case “,” from another laptop that had the full AiO software suite installed and copied into /Users/USERNAME/Library/Printers. When I tried to use the ESP 7 after doing all this, OS X told me that the files may have been corrupted, then repaired the permissions on the files. After that, it has been working like a charm … at least until it ran out of ink again.
I would advise anyone dealing with this to install the entire AiO software suite, then set aside the files mentioned above, and finally to uninstall the AiO software. Then, after resetting your Mac, replace the files you set-aside to the necessary folders and reset a final time. Hopefully, you will be able to use your Kodak ESP printer without the AiO headaches!