Category Archives: Technology

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!

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 http://stackoverflow.com/users/1927538/iprogrammed

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!

 

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 Time.com. 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 www.petsmart.com and www.time.com, 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 privacy@blizzard.com, 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:
Library_Printer
and the following file into /Library/Printers/PPDs/Contents/Resources folder:
Printers_PPD
Also, I grabbed an existing set-up file, in this case “KodakESP7+0781.app,” 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!

Protect against tkdot[dot]com!?

Like many new website owners, I took a look at my website analytics to find that tkdot[dot]com (I am replacing the “.” with “[dot]” to avoid accidentally sending them traffic) was linking to my site with various sex-related keywords. I don’t know why, but this is evidently a fairly common problem.

Like the example above, many of the website owners are wondering if anything can be done. I think the answer is yes, at least with my hosting service, GreenGeeks. GreenGeeks gives me a function called “IP Deny Manager” in my “cPanel”. Certainly, other hosting services have similar functions in their user interface. Anyway, mine looks like this:
Set up to (hopefully) block tkdot[dot]com
To get to the point illustrated above, I just entered the URL of the offending website, and the Ip Deny Manager spit back out the IP address.
Hopefully this will work. If it doesn’t, I’ll let you know. If anyone sees anything wrong with this approach, or knows something I don’t, please let me know in the comments!

EDIT: After some consideration, I don’t think this will do what I want it to do. I think the IP Deny Manager will simply keep anyone from that IP, in this case 173.193.105.246, from being able to access my website. So, if the guy at the server farm where tkdot[dot]com is located hops on and tires to direct his browser to my website, he’ll get an error message. Consequently, I don’t think it will keep anyone from seeing a link to my site at tkdot[dot]com and following it to my website, which is what I want. It may, however, keep the tkdot[dot]com spiders from cataloging my website, which may keep it from popping up in searches. As of today, May 1, I have not seen any traffic from tkdot[dot]com. This may simply be a coincidence or may be attributable to the fact that May is only thirteen hours old at this point. I’ll keep you posted.

Enforcement, Privacy, and Constitutional Problems with Virginia’s New Texting-While-Driving Law

Virginia’s new texting-while-driving law is not only unenforceable, as a recent article in the Washington Post notes, but raises privacy and constitutional concerns as well. The new law retains the existing language in Va. Code Ann § 46.2-1078.1, which prohibits entering multiple letters or text into a cellphone “as a means of communicating with another person” and readings texts or emails transmitted to or stored on your cellphone. This language leaves police officers, while traveling at 65 mph, to determine whether a driver is using his cellphone to send a text or call his wife.

Enforcement problems. As the traffic division commander for the Fairfax police said in the WaPo article, police officers would have a very difficult time determining whether a person was texting or typing the name of a restaurant into Google Maps. Also, drivers could just lie about what they were doing on their phone if they are pulled over, as suggested by a recent blog postNews reports, however, report that police officers will give people the option to present their cellphone to prove that they have not been texting or emailing or to fight the ticket in court. But someone could easily write an app that displays fake text messages with fake timestamps. Ideally, such an app would look just like the native text message/email app and contain copies of the actual texts and email on the phone, but have timestamps that subtracted an hour from the real timestamps.

Privacy concerns. Despite the reassurance that police officers would give a driver the option to submit to a search of the cellphone for evidence of a recent text or refuse the search and fight the ticket in court, Professor Gershowitz of William & Mary explains in a recent article that police officers have constitutional grounds to search cellphones for evidence of texting under all of the different state texting-while-driving laws. Specifically, Professor Gershowitz posits that such searches are permissible under two different exceptions to the Fourth Amendment’s protection against unreasonable search and seizure, the search-incident-to-seizure exception and the automobile exception. The search-incident-to-seizure exception would not apply to the revised Virginia law because the statute does not give a police officer the authority to arrest a suspect. Under the automobile exception, however, Professor Gershowitz says that police officers would have authority to search cellphones in a traffic stop for texting-while-driving even without the authority to arrest. Specifically, the professor reasons that police officers would have authority to search cellphone “containers” in such a traffic stop because the officer personally observed the driver texting. This personal observation give the officer sufficient probable cause for both the traffic stop and the search of the cellphone “container” under existing Fourth Amendment jurisprudence, even if the officer mistook the use of Google Maps for texting or emailing. Therefore, under the automobile exception to the Fourth Amendment, a police officer may legally decide to search a driver’s cellphone even if the driver refuses to consent to the search when the driver is pulled over for allegedly texting-while-driving—even if the driver was just searching for an address on Google Maps.

Constitutional problems. In this article, however, Professor Gershowitz says that, while the automobile exception clearly allows cellphone searches during stops for texting-while-driving, it is not clear where in the cellphone, or what apps on the phone, the police officer may search. That is to say, it is not clear whether the police officer’s authority to search is limited to only an app used primarily for texting or email, or if the officer has the authority to search any app that could possibly be used for communication such as a Facebook app or a web browser. This would be a concern as well for those that submit to the officer’s request to search the cellphone, assuming the officer will only check for texts and emails, and finding out that the officer searched through their web browsing history.

Professor Gershowitz explains that the where authority is likely controlled by the language of the statute. The language of Va. Code Ann § 46.2-1078.1, recall, prohibits in part entering text into a cellphone to communicate with another. Therefore, police officers would certainly be able to review texting and email apps, as those are primarily direct communication apps, but what about your Facebook app? Is a Facebook post a “means of communicating with another person” under the meaning of the statute? Most people do not expect direct replies from their Facebook updates, like you would a direct text, but people certainly intend to communicate to others through a Facebook post. If officers have authority to search beyond email and texting apps, could they have the authority to search your cellphone’s web browser as well? Many people choose to use a web browser over a specialized app for accessing Facebook because of privacy concerns. Additionally, if the police officer has the authority to search for Facebook posts, certainly they have the authority to search for postings to message boards or blogs that were posted through the web browser. What about a Reddit app?

The legislature should revise the texting-while-driving law sooner than later to avoid the cost of enforcement, privacy violations, and constitutional problems of the pending version of Va. Code Ann § 46.2-1078.1. I would support a blanket ban on the use of hand-held cellphones, which was Maryland’s recent solution to the problems discussed above. However, criminalizing the use of hand-held devices likely disproportionately affects those who cannot afford a car with an integrated hands-free device. But I believe that a blanket ban on the use of cellphones in the car would be an overreaction to the problem as well.

Thoughts?