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Movement Toward Legislation Protecting Against Deepfakes

by with No Comment US Law

Introduction

Deepfakes are media, primarily videos, which have been manufactured or doctored using advances in artificial intelligence. It is difficult or impossible to distinguish between deepfakes and real life, demonstrating clear and serious implications for our trust in media as technology continues to progress. Since a viral video posted in August making Bill Hader morph into Tom Cruise while doing impressions on a talk show, deepfakes have greatly risen in popularity. Deepfakes have also recently begun to demonstrate their destructive power. For example, a deepfake video surfaced in May, in which Speaker Nancy Pelosi appeared to be drunk or impaired. Henry Farid, professor of computer science at the University of California Berkeley, said this is just the tip of the iceberg of the manipulation of media. While convincingly altering video has long been a difficult but possible task for humans to accomplish, deepfake videos can now be made by allowing A.I. to do the hard work and completely fabricate what we assume to be a recording of reality.

Recent Legislative Action in California Against Deepfakes

In early October, California Governor Gavin Newsom signed into law two pieces of legislation targeting deepfakes. The first bill, AB 602, gives victims of pornographic deepfakes the right to sue the creators of the media. Importantly, the vast majority of deepfakes on the internet are pornographic, often intended to harass, intimidate, or sexualize women and famous celebrities. In fact, a startup called Deeptrace found that 96 percent of deepfakes in open circulation on the web were pornographic. To address this concern, Section 1708.86 of AB 602 specifically covers media which was originally performed by the individual but has been altered to depict sexually explicit material. 

The second bill, AB 730, was introduced ahead of the 2020 election to address political concerns over deepfakes. California assemblymember Marc Berman said in a statement after the signing of the bill, “In the context of elections, the ability to attribute speech or conduct to a candidate that is false – that never happened – makes deepfake technology a powerful and dangerous new tool in the arsenal of those who want to wage misinformation campaigns to confuse voters.” AB 730 makes it illegal to manufacture or distribute “materially deceptive audio or visual media” of politicians within 60 days of an election. According to Section 20010, the bill is designed to protect against deepfakes spread with “the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate”. To ensure no breachof the First Amendment, the bill does not apply to satire or parody videos, to news media, or published media with a disclaimer of inaccurate representation. 

What does this mean for candidates in California? As is also outlined in Section 20010, the bill authorizes any “candidate for elective office whose voice or likeness appears in audio or visual media distributed in violation of [AB 730] to seek injunctive or other equitable relief,” and to “bring an action for general or special damages against the person, committee, or other entity that distributed the media.”

Effectiveness of California Legislation

While there has been a widely positive response to AB 602, critics of AB 730 have been quick to voice concerns over its effectiveness with regard to future elections. In fact, the American Civil Liberties Union of California urged Governor Newsom to veto the bill. In a letter to the governor, the organization’s legislative director Kevin Baker wrote, “Despite the author’s good intentions, this bill will not solve the problem of deceptive political videos; it will only result in voter confusion, malicious litigation, and repression of free speech.” 

Additionally, the bill does little to address the very nature of the majority of deepfakes, which are often posted online anonymously and spread extremely quickly. The bill may theoretically give the authority to hold creators of political deepfakes accountable, but doing so would involve a lengthy tracking-down and legal process. The bill doesn’t target the creation of misinformation in the first place, and there are not mechanisms in place to quickly catch deepfakes or correctly inform the public once damage is done. For example, the video depicting Nancy Pelosi quickly gathered millions of views before being debunked, appearing across Facebook, Youtube, Twitter, and numerous news outlets and message boards. The deepfake was even shared to Twitter by Rudy Giuliani, President Trump’s personal attorney.

Beginning of a National Movement Against Deepfakes

California’s legislation follows a national trend as legislators begin to recognize the need to protect against deepfakes. Representative Yvette Clarke of New York introduced the DEEPFAKES Accountability Act to the House on June 12 as one of the first major pieces of legislation drafted to address the damaging misinformation spread by deepfakes. H.R.3230, or the Defending Each and Every Person from False Appearances by Keeping Exploitation Subject to Accountability Act, would require any person creating a piece of manipulated media with intent to distribute to clearly disclose that the video is altered, through embedded digital watermarks and text statements. Importantly, the bill would establish criminal penalties for the creation of deepfakes “with the intent to humiliate or otherwise harass the person falsely exhibited…[or] with the intent to cause violence or physical harm, incite armed or diplomatic conflict, or interfere in an official proceeding, including an election.” 

Though the DEEPFAKES Accountability Act has not seen further action since referral to the House Subcommittee on Crime, Terrorism, and Homeland Security, another deepfake bill brought to the Senate in July was just passed on October 24. Introduced by Senator Rob Portman of Ohio, the bipartisan Deepfake Report Act of 2019 now awaits consideration in the House. S.2065 would require the Department of Homeland Security to produce an annual report on the use of digital content forgery, including an assessment of the impact of deepfakes on national security and individuals. Significantly, the bill would assess altered media produced by both domestic entities and foreign governments to better understand their roles in the spreading of misinformation and political manipulation. 

Senator Gary Peters, a sponsor of the bill and the top Democrat on the Senate Homeland Security and Governmental Affairs Committee, stressed the importance of legislation addressing deepfakes by articulating, “with each passing day, deepfakes become easier to create and distribute, opening the door for bad actors to sow discord and mislead thousands with just the click of a button…we must ensure Americans are aware of the risks this new technology poses, and are empowered to recognize misinformation.” Reflecting California’s action on a national scale, legislators are moving to maintain the integrity of our democracy against the rising threat of deepfakes. 

 

Noah Charlick is a sophomore from Canton, Ohio, studying Public Policy and Global Health.

 

An Evaluation of Facebook’s Free Speech Policies

by with No Comment US Law

After Facebook Chief Executive Mark Zuckerberg recently spoke at Georgetown University and testified on Capitol Hill in front of the House Financial Services Committee, Facebook and its free speech policies have once again come under harsh scrutiny.

For years, Facebook has faced a wide range of criticisms regarding its free speech policies, many of which are back under public debate, after recent appearances by Mark Zuckerberg. A widely cited example of Facebook’s problems with free speech can be observed in the 2016 U.S. Presidential Election when Facebook allowed misleading and factually inaccurate ads to run on its platform. Created by Russian “trolls,” these ads were disseminated from fake accounts that were not connected to actual people. Also, Facebook’s guidelines for removing hate speech have been accused of being insufficiently restrictive. One horrific example of this came last year when Facebook was used as a mechanism to help spark a genocide in Myanmar.

In the wake of these failings, Facebook has altered many of its policies, doubled down against dangerous content, and worked to maintain free speech standards. Facebook’s commitment to allowing expression and speech, even if controversial, is laudable and representative of our nation’s democratic principles. Facebook’s policies effectively uphold its users’ freedom to express themselves, while providing entirely sensible limits on the worst aspects of speech and expression. 

 

Facebook’s Policies:

Since these incidents and widespread criticism that followed, Facebook has altered many of its policies and invested heavily in security measures to regulate dangerous free speech. In his speech at Georgetown University on Oct. 17, 2019, Zuckerberg acknowledged that the guarantee of free speech in The First Amendment of the United States Constitution does not apply to private companies, but he responded that freedom of expression is central to Facebook’s mission, which seeks to “give people a voice and bring people together.” Zuckerberg argued that since Facebook is involved in public discourse and freedom of speech is closely tied to the company’s mission, Facebook tries to ensure freedom of speech on its platform. However, there are important limits. Facebook does not allow any dangerous speech or expression on its platform, citing examples like terrorist propaganda, bullying, child exploitation, or anything else that could incite violence. In his Georgetown speech, Zuckerberg also reiterated that Facebook stands fundamentally against misinformation. Facebook requires any new accounts to provide a form of government identification and location if it “wants to run political ads.” He contends that this is the most effective way to combat misinformation because the vast majority of intentional misinformation comes from fake accounts. Facebook has also expanded its policies to combat voter suppression and targeted misinformation regarding voting. For example, the platform now prohibits actions such as providing “misrepresentations about the dates, locations, times and qualifications for casting a ballot.”

 

The Effectiveness of Facebook’s Policies:

Facebook’s defenses against these negative types of speech have come a long way. Facebook now maintains a security budget that, according to Zuckerberg, “is greater than the entire revenue of our company at the time of our IPO earlier this decade.” Within their security budget, Facebook has over 35,000 security employees protecting its users from negative content and preventing potentially dangerous activity. In addition to its employees, Facebook possesses numerous software programs and Artificial Intelligence (AI) systems that detect and remove harmful content. In fact, the technology has greatly improved, with Zuckerberg even positing that Facebook’s AI systems “identify 99 percent of the terrorist content before anyone even sees it.” Zuckerberg went on to declare that, in its attempt to decrease misinformation spread by fake, or robot, accounts, Facebook’s systems “remove billions of fake accounts per year.”

To summarize his company’s position of free speech, Zuckerberg stated that Facebook has two key commitments: “to remove content when it could cause real danger as effectively as we can, and to fight to uphold as wide a definition of freedom of expression as possible.”

 

Harsh Criticism from Capitol Hill:

Not only do many everyday Facebook users find issues with Facebook’s positions, but many members of Congress are pushing for more restrictions. In a particularly poignant exchange, Congresswoman Alexandria Ocasio-Cortez pushed Zuckerberg to explain why he will not regulate political speech by politicians, asking him a series of questions about voting misinformation and incorrect information coming from politicians. To answer the first question, Zuckerberg told the Congresswoman that voting misinformation would not be allowed, but on the second question, he answered that he did not know, before saying that Facebook would not regulate the political speech of politicians, even if their statements were incorrect or misleading. Zuckerberg addressed a similar point in his Georgetown University speech, proclaiming that he doesn’t “think it’s right for a private company to censor politicians … in a democracy.” Later in the hearing, Zuckerberg was pressed by several other members of Congress about the independent, fact-checking agency that Facebook employs and the civil rights task force. The common criticism from lawmakers was that Facebook does not do enough to restrict free speech or combat misinformation.

 

Analysis Of Facebook’s Policies:

         Despite many objections, Facebook’s policies toward freedom of speech are not only effective at removing truly dangerous content, but they actually are a great tribute to the democratic principles of the United States. Facebook’s positions on speech and expression are quite similar to that of the U.S. Constitution and Supreme Court. The First Amendment to the Constitution famously asserts that “Congress shall make no law … abridging the freedom of speech” [US Constitution, amend. 1, Dec. 15, 1791]. However, it is widely recognized that there should be some limits to free speech. For instance, in the famous Supreme Court Case Brandenburg versus Ohio, the court ruled that controversial or inflammatory speech was protected so long as it did not incite actual violence [Brandenburg v. Ohio,  395 U.S. 444, US Supreme Court 1969]. Facebook’s policies prohibit any speech fitting this description, and it goes even further by prohibiting any hate speech, even if it is clearly not inciting violence. 

Facebook users do not have universal freedom of speech on the platform, nor anything close to it. The platform correctly bans fake accounts for spreading misinformation and censors all “dangerous” content, which is defined quite broadly. But Facebook’s decision to allow free speech and, more specifically, free political speech is admirable. 

In contrast to Facebook, social media giant Twitter announced on Oct. 30 that it would ban political ads from its platform beginning on Nov. 22. Given the societal importance and widespread use of Facebook and Twitter, politicians utilize them to communicate directly with citizens, including some who might not otherwise hear their messages. To ban all political ads is to limit voter knowledge. To limit voter knowledge is to doom our democracy.

A fundamental aspect, perhaps the most fundamental aspect, of the United States is the ability to freely express one’s opinions, beliefs, approval, disapproval, or other judgements, no matter how controversial or unpopular. Facebook’s decision to uphold this ideal ought to be praised.

James McIntyre is a sophomore from Knoxville, Tennessee studying Economics and Political Science.

 

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Fair Pay to Play Act: California Legislation Threatens NCAA Amateurism Rules

by with No Comment UncategorizedUS Law

Summary: California’s controversial “Fair Pay to Play Act” makes NCAA rules and regulations on amateurism illegal starting in 2023. The new law has reinvigorated the debate on how the NCAA limits athletes abilities to earn compensation for their name, image, or likeness.

From September 2017 to August 2018, the National Collegiate Athletic Association, known commonly as the NCAA, reported a revenue of over one billion dollars. Of the 460,000 college student-athletes who participated in NCAA sports in 2017-2018, zero received financial compensation for their athletic performances. Zion Williamson, formerly of Duke Men’s Basketball, and Tua Tagovailoa of Alabama Football are household names; their faces are plastered on posters, and their names flash across television screens around the country. Nevertheless, during their collegiate careers, these star athletes and others like them receive no money for participation in NCAA competition. As the billion-dollar sports industry continues to grow, critics have voiced their disapproval of the NCAA’s requirement of amatuer status. On Sept. 30 in California, this disapproval became state law. 

California Passes the Fair Pay to Play Act

Signed into law by Governor Gavin Newsom, California’s “Fair Pay to Play Act,” S.B. 206, states that “an athletic association, conference, or other group or organization with authority over intercollegiate athletics, including, but not limited to, the National Collegiate Athletic Association, shall not prevent a student of a postsecondary educational institution participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness.” The law also prohibits universities from implementing rules that prohibit student-athletes from earning compensation or denying scholarship from athletes who chose to market themselves.

S.B. 206 does not require universities to pay student-athletes themselves but allows for athletes to seek sponsorships and hire agents without jeopardizing their eligibility to play at California schools. The net cost to California universities under the new law would be zero, as all compensation is paid for by third-party endorsements. However, according to the current NCAA rules regarding amaetuer status, receiving any compensation for one’s likeness renders an athlete ineligible for intercollegiate competition. 

Previous Challenges to NCAA Amateurism

The problems addressed in S.B. 206 mimic other complaints against the NCAA’s amateurism rules, including those raised in O’Bannon v. NCAA. Ed O’Bannon, a former UCLA basketball star, sued the NCAA, claiming their restriction on athletes marketing their name, image, or likeness was an “unlawful restraint of trade,” a violation of the Sherman Antitrust Act of 1890, 15 U.S.C. § 1. The ruling affirmed that the NCAA’s rules and regulations are subject to antitrust laws, but that “the Rule of Reason requires that the NCAA permit its schools to provide up to the cost of attendance to their student athletes. It does not require more.” Both sides appealed the decision but the case was never heard by the Supreme Court. While O’Bannon did not win the compensation he felt he was owed, the case brought national attention to the flaws in NCAA rules. In establishing the precedent that NCAA rules must follow antitrust laws and bringing the issue to public debate, the O’Bannon case set the stage for other challenges such as S.B. 206 to the NCAA status quo. 

NCAA’s Response

The NCAA has been vocal in its criticism of S.B. 206 and warned California lawmakers of negative outcomes that will result from its passage. In a letter to Governor Newsom on Sept. 11, the NCAA Board of Directors urged the governor to veto the bill, as it threatens the NCAA’s core belief in establishing a fair playing field for all athletes. Because the law requires schools allow student-athletes to pursue sponsorships, this advantage in recruiting high school athletes would result in California schools being excluded from NCAA competition. The Board of Directors also claims in the letter that the law is unconstitutional, suggesting the NCAA is preparing a legal battle in the coming months before the law is operative in January, 2023. 

The NCAA has over three years before S.B. 206 goes into effect in California. In a statement in the hours following the bill’s passage, the organization admitted to needing change to better support its athletes but continued to voice its disapproval of S.B. 206 as a means to do so. In a warning to other states considering passing similar legislation, the NCAA stated “it is clear that a patchwork of different laws from different states will make unattainable the goal of providing a fair and level playing field for 1,100 campuses and nearly half a million student-athletes nationwide.” It is unclear whether the NCAA will turn to internal reforms or look to challenge the law in court to address S.B. 206, but in any case, amateurism as defined by the NCAA is under threat.

Just the Beginning?

The Fair Pay to Play Act in California may not be the only legislation the NCAA will find themselves fighting in the coming years. Similar bills have been introduced in state legislatures around the country, including Florida and New York, that would allow student-athletes to earn money from their name, image, or likeness. On the federal level, Representative Mark Walker (R-NC-6) introduced the “Student-Athlete Equity Act,” H.R. 1804, which would prohibit organizations like the NCAA from “prohibiting or substantially restricting” an athletes ability to receive compensation for their identity. Only time will tell how S.B. 206 will affect the NCAA and intercollegiate athletics, but as other states and federal officials follow in California’s footsteps, the NCAA is looking at a real battle over amateur sports in the near future. 

Lucy Callard is a sophomore from Cincinnati, Ohio, studying Public Policy with a minor in Classical Studies. 

 

monkey

Should Animals have Habeas Corpus Rights?

by with No Comment US Law

Habeas corpus, which directly translates to “that you have the body,” grants people the right to contest their unlawful detention in a court of law. While this concept has traditionally applied to human beings, recent debates have attempted to extend this right to animals ‘imprisoned’ at zoos, particularly those with proven advanced cognitive abilities.

The Beginning of the Debate: Tommy the Chimpanzee

Tommy was found by the Nonhuman Rights Project (NhRP) living alone in a cage in a trailer park along Route 30 in Gloversville, New York. He was raised by Dave Sabo, a chimpanzee breeder notorious for mistreating his chimpanzees. Chimpanzees’ natural habitat is in the rainforest, where they develop complex social organizations. However, in Tommy’s cramped quarters, the closest semblances to this environment were painted concrete walls and a television playing cartoons. Tommy remains there today, although his lawyers aim to relocate him to the Save the Chimps Sanctuary. He likely suffers conditions of solitary confinement, as chimpanzees possess a theory of mind resembling that of humans, in which they understand the past and anticipate the future. For these reasons, the NhRP filed a petition for a writ of habeas corpus on behalf of Tommy in the New York State Supreme Court, Fulton County in December of 2013. For the first time, legal rights were being demanded for a nonhuman animal. The Court was being forced to deliberate on a matter never raised before: if Tommy, a chimpanzee, has a right to bodily liberty.

Oral arguments for Tommy’s case were first heard in October 2014 in the Third Judicial Department of the New York State Supreme Court. Steven M. Wise, founder and president of the NhRP, intended to convince the Court that Tommy was “detained against his will because no chimpanzee… would possibly wish to live in the conditions in which he is living.” Furthermore, the NhRP sought to prove that Tommy is a legal person and keeping him in solitary confinement is grounds for unlawful detention. In a controversial argument, Wise compared Tommy’s case to that of Lemmon v. People, in which young slave children who fled to northern states were freed and relocated to the custody of a better caretaker under habeas corpus. Wise argued that 26-year-old Tommy possessed cognitive abilities comparable to those of a human child and should thus be relocated to a sanctuary. Ultimately, the Third Judicial Department ruled that Tommy “is not a ‘person’ entitled to the rights and protections afforded by the writ of habeas corpus” because chimpanzees cannot “bear any legal duties, submit to societal responsibilities, or be held legally accountable for their actions.”

Following this decision, various amicus curiae briefs and expert affidavits were submitted in support of Tommy’s case. Lawrence H. Tribe, a Professor of Constitutional Law at Harvard Law School, submitted a compelling brief which argued that the Courts fundamentally misunderstood the purpose of the common law writ of habeas corpus and incorrectly defined legal personhood; if the Courts define personhood as the capacity to “bear rights and duties,” then “third-trimester fetuses, children, and comatose adults” are, too, denied personhood under that definition. Furthermore, renowned primatologist Jane Gooddall submitted an expert affidavit expressing that chimpanzees are indeed responsible for duties akin to those of humans. For example, adult male chimpanzees are responsible for patrolling their territory to protect their female and young. Despite these compelling narratives, the Court denied NhRP’s second habeas petition in December 2015.

Tommy’s case does not end there. In October 2016, the NhRP filed an appeal with the First Judicial Department following concerns that Tommy’s owners, the Laverys, relocated him beyond the jurisdiction of New York courts. A joint hearing was held March 2017 in Manhattan for Tommy and Kiko, another chimpanzee allegedly facing unlawful detention. In line with Tribe’s assertions, Wise argued that denying Tommy and Kiko bodily liberty on the grounds that they are incapable of bearing duties and responsibilities is not a legally acceptable reason, as it “[would deprive] millions of humans in New York the ability to go into court.” Under this definition of personhood, children, the elderly, and the disabled would be deprived of habeas corpus rights. In addition, Wise adopted Goodall’s assertions in arguing that chimpanzees can bear duties and responsibilities within their own communities. 

Ultimately, the First Judicial Department ruled that the NhRP cannot seek second writs of habeas corpus for Tommy and Kiko. Following this decision, the NhRP appealed it to the Court of Appeals, but were denied their motion for permission to appeal by Judge Eugene M. Fahey. Judge Fahey admitted that he struggled with the decision and said that although a “chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing” and “ultimately, we will not be able to ignore it.”

For the NhRP, this decision signifies “progress in the fight for nonhuman rights,” and is currently deliberating its next steps for achieving habeas corpus rights for animals of ‘personhood’ like Tommy and Kiko.

The Debate Today: Happy the Elephant

Recently, the NhRP has been fighting on behalf of an elephant named Happy who has been in captivity for 42 years. Happy was moved to the Bronx Zoo after spending five years at a safari park in Florida. There, she has resided alone since the passing of her companion Grumpy in 2006. Her ‘habitat’ is a 1.15-acre yard and indoor stall with few attractions besides a small pond, green ball, and scattered shrubs and logs. Happy is the subject of a well-known cognition study in which she recognized herself in a mirror, proving that elephants are self-aware like humans, supporting the NhRP’s arguments.

In their natural habitats, elephants migrate great distances in search of fibrous food and sources of water. Contrastingly, Happy spends hours standing on concrete in cramped quarters and consuming calorie-rich foods, conditions which lead to being overweight, poor sleeping habits, behavioral tics, and abnormal gaits. Given the stark differences between Happy’s living conditions at the zoo and her natural habitat, and her astonishing level of self-awareness, the NhRP concluded that she is entitled to habeas corpus.

Happy’s case is currently being heard under Judge Alison Y. Tuitt at the New York State Supreme Court in Bronx County. Judge Tuitt granted Wise’s motion for admission to represent the NhRP in voicing Happy’s case to the Court. While the case was scheduled to be heard on Oct. 21, it has recently been adjourned. For the time being, the NhRP has succeeded in obtaining a restraining order on Happy that prevents the Bronx Zoo from relocating her, an action that would prevent the state from having jurisdiction over the matter.

Until the Courts reach a final decision, the meaning of personhood under the law remains widely debatable. Certainly, the NhRP and similar organizations will remain dedicated to pursuing justice under habeas corpus for ‘nonhuman humans.’

 

Natalia Núñez is a sophomore from Yonkers, New York pursuing a Public Policy major, Markets & Management Studies certificate, and Psychology minor.

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Copyright Protection of Dance

by with No Comment US Law

Summary: Lawsuits against the popular gaming company “Epic Games” will force federal courts to expand upon copyright laws regarding dance and choreography.

Introduction

The video game Fortnite has over 200 million registered users, currently making it the most popular video game in the world. However, Epic Games, the creator of Fortnite, is facing multiple lawsuits related to potential copyright infringement. Celebrities and media icons claim the game developers stole their dance moves and, thus, their intellectual property. Millions of Fortnite users buy these dance moves on the game, so the actual dancers behind them want a share of the billions of dollars that Epic Games has generated from the game. While there is no hiding the fact that Epic Games made a profit from dances created by others, that does not necessarily mean that these dances are protected under copyright law.

How does something receive copyright protection?

In order for something to receive copyright protection, the work must be “fixed in a tangible medium of expression.” The moment an original work is fixed into this medium, it can be protected under copyright laws. Registration is not necessary but always recommended, just in case the creator brings up an infringement lawsuit. At that point, the work must be registered with the US Copyright Office. Additionally, works covered under US copyright laws are protected in not only the US but in many other nations.

What about dance?

Circular 52 of US Copyright Law states the rules and limits to choreography copyright protection. When it comes to dance, the preferred “medium of expression” is through video. Other acceptable mediums are textual descriptions, drawings, and dance notations. Above all, the dance must be original, independently created, and creative. “Commonplace movements or gestures” as well as “social dances” are not protected under copyright law. For example, classical dance such as ballroom dancing or swing dancing cannot receive copyright protection. However, if a dance is original and consists of minimal creativity, it may receive copyright protection. However, just because a dance consists of classical dance moves does not prevent it from achieving copyright protection. In Horgan v. Macmillan Inc, the Second Circuit Court of Appeals compared dance moves in a choreography to words on a writer’s paper. The court stated that although common dance moves cannot receive copyright protection, an original, creative dance routine consisting of these “commonplace movements or gestures” can still receive copyright protection.

Social Dances vs. Choreographed Dances

Ultimately the case against Epic Games relies on how the Federal Courts interpret these dances. As the defendant, the case for Epic Games will argue that these dances at question fall under “Social Dances,” which do not receive copyright protection. These dances were very popular before Fortnite included them, so the courts have the decision on how to classify these dances. The plaintiffs, on the other hand, will argue that these dances are choreographed works, unique in nature, and deserve copyright protection.

Establishing Precedence

There have never been similar cases to this one, so the federal courts will be weighing in on a very new topic. This means that eventually, the federal courts may be establishing some type of precedence on the matter for similar cases in the future. Therefore, this case is very significant in the fact that it can greatly influence the relationship between copyright protection and dance.

Jacob Turobiner is a freshman from Calabasas, CA, majoring in Political Science.

151219-F-HC995-046

Courthouse Dogs: Witness Comforts, Defendant’s Rights

by with No Comment US Law

Summary: Although the 2013 case People v. Tohom explicitly determined that courthouse dogs are constitutional, the debate over whether or not the court was justified in prioritizing witness’ rights continues.

From their beginnings with New York City attorneys in the 1980s, courthouse dogs have become a contentious and sensitive issue. Initially used to comfort abused children during interviews with prosecutors and therapists, courthouse dogs are now being proposed as a nationwide method of accommodating child witnesses inside the courtroom, not just outside of it. Although the 2013 case People v. Tohom explicitly determined that courthouse dogs are constitutional, the debate over whether or not the court was justified in prioritizing witness rights continues.

Those who oppose the decision argue that courthouse dogs are especially problematic for defendants. By prejudicing the jury, courthouse dogs jeopardize a defendant’s right to a fair trial. When judges allow courthouse dogs to be present, for example, they communicate to the jury that the comfort of the animal is required precisely because trauma has occurred. The dog serves as a confirmation of the defendant’s guilt, and the jury presupposes what they are supposed to decide on in the first place. Jurors may also find themselves sympathizing more with the witness; swayed by the presence of an animal, or perhaps reminded of their own pets, jurors would subconsciously side with the witness. Courthouse dogs, then, provide another mechanism for attorneys to rely on emotion, not fact. Abuse cases may already evoke emotion in the jury, and the presence of courthouse dogs only exacerbates this.

Courthouse dogs can also violate the defendant’s rights under the 6th Amendment. The Confrontation Clause of the 6th Amendment guarantees defendants the right to “effective confrontation” through “meaningful cross-examination.” Courthouse dogs by nature limit cross-examination because they perceive and alleviate stress regardless of its cause. A witness who is stressed by lying is comforted just the same as a witness who is stressed by recalling her trauma. Unintentionally, the dogs provide a buffer between the potentially untruthful witness and the cross-examiner. They protect witnesses who do not necessarily warrant protection, enabling them to better recall coached testimony or withstand a cross-examination that would otherwise expose dishonesty. In this sense, courthouse dogs deprive defense attorneys of the chance to attack the child witnesses’ credibility. Additionally, because defense attorneys cannot cross-examine the dog, they cannot explain or show the jury why the child may be upset. The combination of miscommunication and bias makes courthouse dogs especially problematic for defendants.

As pressing as these concerns may seem, the court is equipped to address them without banning courthouse dogs altogether. While it may be difficult, for example, for defense attorneys to communicate the details behind what a dog is intended to do, it is less difficult for a judge. Extensive jury instruction from the judge could explicitly communicate to the jury that causes of emotional distress are not necessarily benign. The judge could similarly warn the jury against presupposing innocence, guilt, or credibility. Finally, if seeing the dog prejudices jurors, judges can simply hide the dog. In one Indiana case, the dog lay in the witness box near the witness’ feet, hidden from the jury for the entirety of the trial. Adapting an “out-of-sight, out-of-mind” approach with courthouse dogs preserves the benefits to the child witness while minimizing the harms to the defendant.

In fact, preserving the benefits to child witnesses should remain the court’s top priority, as the very existence of an abuse trial depends on the presence of the child witness. In abuse cases, the victim is often the main, if not the only, witness. The absence of victim participation, then, results in the absence of the case. Courthouse dogs may limit effective cross-examination, but they ultimately enable prosecution – as many witnesses would either refuse to appear in court or be physically unable to without the dogs. In one case, a golden retriever named Rosie helped a fifteen-year-old sexual assault victim speak about her experience during therapy and later, during testimony. And in another, a witness agreed to appear in court specifically because of the dog.

While the potential for courthouse dogs to limit defendants’ rights still exists, the alternative is too harmful to accept. Sanctioning an environment in which witnesses can be intimidated and effectively bullied out of testifying would set a dangerous precedent not only for child witnesses but all witnesses. Courthouse dogs limit the trauma child witnesses face in court, allowing them to freely tell their stories and assist in effective prosecution. The extent, then, to which legalizing courthouse dog programs prioritizes child abuse victims’ rights is necessary. The vulnerability of children and the fragility of acquiring crucial testimony demands it.

Isadora Toledo is a freshman from Buffalo, New York planning to pursue a major in public policy and a minor in education.

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9th Circuit Court Of Appeals Upholds Ban On President Trump’s Attempt To Repeal DACA

by with No Comment US Law

Summary: In 2017, the Acting Secretary of Homeland Security, Elaine Duke, issued a memorandum rescinding the memo that established DACA and setting forth a plan to phase it out. Recent rulings, however, have upheld the DACA program, creating legal barriers to the Trump Administration’s attempt to end it.

In 2012, the Obama Administration authored an Executive Branch Memorandum more commonly referred to as DACA, which stands for the Deferred Action for Childhood Arrivals. This memorandum was previously entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and was issued by the then Secretary of Homeland Security, Janet Napolitano. Despite the fact that Congress rejected the program on multiple occasions during the normal legislative process, DACA created a non-congressionally authorized administrative program permitting “certain individuals who came to the United States as juveniles and meet several criteria…to request consideration of deferred action for a period of two years, subject to renewal, and eligibility for work authorization.”  

As outlined in the final version from June 15, 2012, DACA applies to individuals  “if they had come to the U.S. before their 16th birthday; were under age 31; had continuously resided in the United States since June 15, 2007; and were in school, graduated or had obtained a certificate of completion from high school, obtained a General Educational Development (GED) certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.” Applicants are ineligible if they have been convicted of a felony or a significant misdemeanor.

Since its inception, hundreds of thousands of applicants have been granted DACA status. The Migration Policy Institute estimates that there are about 1.3 million people who fall under the criteria for DACA status and about 699,350 people who actually have it. The latter statistic has grown by almost 10,000 people since September 4, 2017, the day Acting Attorney General Jeff Sessions stated that DACA was “an unconstitutional exercise of authority by the Executive Branch.” Under the legal advice of the Attorney General, the Acting Secretary of Homeland Security issued a memorandum rescinding the June 2012 memorandum that established DACA and set forth a plan to phase out the program.

Though President Trump promised his supporters a new immigration plan, he has been faced with several legal complications of late. The most recent of which is the decision by the 9th Circuit Court of Appeals in Regents of the University of California v. DHS (“DACA II”). After considering whether to lift an injunction ordering the federal government to continue the DACA program, the 9th Circuit upheld the temporary order made on January 8, 2018 by Judge William Alsup of the U.S. District Court for the Northern District of California, preventing President Trump from repealing DACA and requiring the U.S. Citizenship and Immigration Services (USCIS) to continue accepting renewal applications for DACA status.

Following the decision, the government took the unusual step of seeking to bypass the review in the 9th Circuit and appeal directly to the U.S. Supreme Court. This legal mechanism is called a “cert. before judgment” and was filed January 18, 2018. This request is granted by the Supreme Court “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” On February 26, 2018, the Supreme Court announced that it had “denied cert.” and the case must begin with the 9th Circuit Court of Appeals.

On November 8, 2018, upon review in the 9th Circuit, it was ruled that the “rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law.” This ruling was made by a three-judge panel: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens. Judge Owens repeatedly questioned whether or not the motive to repeal DACA was racially charged. During litigation, Hashim Mooppan, the Justice Department counsel defending the Trump Administration’s attempt to end DACA, claimed that Trump’s inflammatory statements calling Mexicans “drug dealers, criminals, rapists” had nothing to do with the decision of Acting Secretary of Homeland Security Duke. In response to these claims, Judge Owens stated, “[r]ight, but the Acting Secretary ultimately reports to the President of the United States, and he has said all kinds of things that could be relevant in this litigation.”

Ultimately, the 9th Circuit found that the decision to end DACA was based “solely on a misconceived view of the law.” Affirming that the Executive Branch has power in the enforcement of our nation’s immigration laws, the 9th Circuit justified their ruling by finding: “Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public.”

This case is accompanied by two others, creating a trio of cases which challenged the recission of DACA by the Trump Administration. Following the District Court in California’s decision, a U.S. District Court in Brooklyn, New York similarly issued a preliminary injunction on February 13, 2018, requiring the government to accept DACA renewal applications. The government has since appealed the decision to the Second Circuit Court of Appeals. Oral arguments are tentatively scheduled for the week of January 22, 2019. The third case originates in the U.S. District Court for the District of Columbia. On April 24, 2018, Judge John Bates issued his decision that would reinstate DACA as it was before September 5, 2017, when USCIS was accepting first-time applications for DACA rather than just renewal applications.

Further pursuing their goal to end DACA, despite adverse rulings made in the federal courts, the Department of Justice has requested that the Supreme Court review the trio of cases which block President Trump’s plan to end the DACA program. On Monday, November 5, the Department of Justice said: “An immediate grant of certiorari is necessary to obtain an appropriately prompt resolution of this important dispute.” The Trump Administration has worked tirelessly to repeal the progress of the Obama Administration, yet has had little success in its efforts to end DACA. If they want to successfully terminate the program, they will need to take a different approach than their currently unsuccessful one.

Isabella Caracta is a freshman from Piscataway, New Jersey, intending to major in Psychology and Global Health.

A New Approach to an Old Problem: Partisan Gerrymandering in Pennsylvania

by with No Comment US Law

Summary: In light of recent Supreme Court decisions on partisan gerrymandering, the example set forth by the Pennsylvania Supreme Court provides a promising way to challenge gerrymandered redistricting plans.

As millions of Americans head to the polls, one of the most important choices on the ballot will be for congressional representatives.  But, for the millions of voters in Pennsylvania, there is something unique about this year. Following a February ruling from the state’s Supreme Court, the 2011 Congressional Redistricting Plan proposed by the state legislature was found to violate the state’s constitution. Instead of the so-called “2011 plan” or any other plan drawn up by the Harrisburg Legislature, the state’s voters will be using a map with a different author–the state’s Supreme Court.

In contrast to a similar challenge in Wisconsin, the decision in League of Women Voters vs. Commonwealth found the 2011 plan unconstitutional under the Pennsylvania Constitution, rather than the Equal Protection Clause and the First Amendment freedom of Association, as was done in the November 2016 Gill v. Whitford ruling.  In Gill v. Whitford, a panel of Federal District Court judges found that the partisan gerrymander of the state’s Assembly seats constituted a violation of the Equal Protection Clause of the Fourteenth Amendment.  Additionally, the panel concluded that the map created a geographic discrimination, because “diluting the weight of votes because of the place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status.”

However, upon appeal by the state of Wisconsin, the Supreme court avoided making a stand against Gerrymandering on the basis of a technicality. Currently, the motion to intervene filed by the Wisconsin State Assembly over Gill v. Whitford will be heard in district court in April 2019.  Likewise, upon appeal for a stay, the US Supreme Court denied to hear League of Women Voters v. Commonwealth, allowing the state Supreme Court’s ruling to hold.

Although the future of Wisconsin’s partisan gerrymandering map is disputed, the decision in League of Women Voters v. Commonwealth appears to have held.  Not only is it unique in that it is the only case in which a state Supreme Court has identified partisan gerrymandering, but it provides an example to other states’ attempts to use the courts to tackle unfair redistricting. Given that the federal court system has failed to consistently analyze partisan gerrymandering in a timely manner, other plaintiffs could benefit from following the League of Women Voters of Pennsylvania by using state constitutions to assess the constitutionality.

In their ruling, the Pennsylvania Supreme Court cited Article 1, Section 5 of the state constitution, which  guarantees that “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” The Court, arguing that there was no comparable analog in the US Constitution, ensured that the state courts will retain jurisdiction on the issue.

But the question remains: would it be possible for other state courts to use similar clauses in their state constitutions? Obviously, what works for some states will not work for all.  But in Section 1 of Wisconsin’s Constitution, it stipulates that Assembly districts must be drawn “as compact as practicable.” But the word “practicable” leaves this clause to interpretation, and although modeling technology and data have improved over time, there is still no objective way to evaluate compactness in the state districts.  

However, it is estimated that 29 states have clauses in their constitutions that could lend themselves to similar legal battles as Pennsylvania’s.  Although there exist problems with state courts making partisan decisions—due to the politicization of many state courts—this does offer a promising approach to resolve cases of partisan gerrymandering in light of the historic action (or inaction) of the US Supreme Court on this issue.

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Are America’s Antitrust Laws Prepared for the 21st Century?

by with No Comment US Law

Summary: In the twenty-first century, amidst significant changes to the American and global economy, our century-old antitrust laws may be lacking the key protections needed to regulate the giants of today’s economy, despite their past successes in breaking up monopolies.

In response to the increasing power of the Standard Oil Company, who controlled the refining of more than 90 percent of oil in the United States by 1880, Ohio Senator John Sherman proposed the Sherman Antitrust Act to preserve “free and unfettered competition as the rule of trade” by breaking up monopolies. 128 years later, a new challenge is faced as courts must decide whether or not the technology magnates of the twenty-first century are in violation of existing antitrust protection.

In addition to the 1914 Sherman Antitrust Act, the Clayton and Federal Trade Commission Acts expanded protections against “conspiracy…in the restraint of trade” and “unfair methods of competition,” respectively.

Although the Sherman Act states that “every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony,” the definition of what defines a monopoly (or an attempt to create one) is left to the courts to decide. What percentage of a market must be controlled by a company before it is considered to be a monopoly? If a monopoly reduces inefficiencies, which benefit consumers by lowering prices, is this monopoly actually harming consumers? And the question that may be more relevant than ever: what counts as an industry? Is online shopping a distinct industry from brick-and-mortar retail?

In the 1962 Supreme Court Case Brown Shoe Co. v. U.S., the third-largest and eighth-largest shoe retailers attempted to merge, however, the Court argued that doing so would violate the Clayton Act. The Supreme Court defined the shoe companies as partaking in not just one industry, but three: men’s, women’s, and children’s shoes. The District Court found that in the vast majority of cities, competition would decrease in the shoe industry. Interestingly, the precedent of past mergers influenced the court’s decision to side against the companies.

Despite the apparent loss that Brown Shoe seemed to offer to businesses, there remained a silver lining within the court’s analysis. Such mergers could benefit consumers as long as doing so would reduce inefficiencies in an economy of scale, making the industry more competitive and beneficial to consumers.

Twelve years later, Brown Shoe was essentially reversed in the 1974 case United States v. General Dynamics Corp. The attempted acquisition of United Electric Coal Companies by the eponymous General Dynamics Corporation had much in common with that attempted by Brown Shoe Co. Both were in industries that faced an increasingly small number of companies controlling an increasingly large share of the industry, and while this acquisition would enlarge the market share of General Dynamics, the court no longer assumed that this caused a decrease in competition. In fact, the court suggested, it may actually increase competition in the industry as United Electric, who focused on strip-mining, was facing dwindling reserves and a decline in their ability to rival the other coal companies in the surrounding areas.

However, as the economy underwent significant changes with the dawn of the internet and the growth of the technology sector, which often act in ways which traditional brick-and-mortar businesses do not, there is doubt in the ability of the nation’s antitrust laws to act when needed.  Perhaps the best example of the disconnect between the tech boom and politics is the appearance of Facebook CEO Mark Zuckerberg before three Senate committees, where Utah Senator Orrin Hatch failed to understand the company’s ad-based revenue model.  If the Legislative branch cannot grasp the fundamentals of the twenty-first-century economy, what chance does the more isolated Judiciary stand in analyzing the finer details of a merger between two multifaceted tech firms?

Two recent developments make antitrust cases more difficult to fully analyze in the modern age. The first is globalization and the multiple jurisdictions in which multinational corporations operate under.  Because the different jurisdictions may be affected differently by mergers—two companies that may be relatively small in most jurisdictions may have a very large share of a certain industry in a relatively small nation—there is room for some countries to engage in protectionism under the name of antitrust laws.  The second is the “better, faster, high-tech” development of the “New Economy,” where efficiency and competition can be difficult to measure.

Although there have been calls for a legal challenge to the increasingly monopolistic control of Amazon, existing laws do not provide significant legal standing for any large-scale challenge to the e-commerce giant.  Rather than using monopolistic practices to beat its competition, Amazon simply beats them with its size, selling massive quantities on razor-thin margins to outsell its competitors. Although this is obviously terrible for plurality in the industries in which Amazon operates, it has not harmed the consumer, at least not yet. However, Amazon’s actions have shown a methodical plan to achieve such a large market share that it can monopolistically manipulate its suppliers and that gives it an unfair advantage in a seemingly fair competition with other companies.  

But for now, Amazon still stands. And it is hard to see Amazon being seriously challenged by American Antitrust Legislation without a significant reinterpretation of the Clayton Act by the Supreme Court. Although, in the past, economies of scale allowed for increasing competition, it is possible for companies to get so large that this advantage while benefiting the consumer by price, hurts them by restricting choice. And in the age in which data collection by companies such as Amazon, Facebook, and Google is more scrutinized—and more prevalent—than ever, the lack of choice over who collects our data, and what is collected, may prove to damage the consumer more than the extra money paid to keep the brick-and-mortar bookstore afloat amidst the low prices of Amazon and the rest.

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The Complex Nature of US Evacuation Laws

by with No Comment US Law

Summary: While every state has laws regarding mandatory evacuation policy, it is usually up to the citizen whether or not to follow an order.

Introduction

Every year, natural disasters force millions of people across the United States to flee dangerous conditions. So far in 2018, many evacuations have been coast to coast, with most coming from hurricanes and fires. For example, government officials ordered over 1 million people to evacuate before Hurricane Florence made landfall in North Carolina on September 14, 2018. Even more recently, wildfires across California have displaced hundreds of thousands across the state. While most citizens in high-risk areas adhere to evacuation orders from state and local governments, there will always be those who ignore them. In low-risk areas where evacuations are rare, people are far less likely to evacuate since, for some, the danger is unimaginable due to a long, positive living experience. The federal government is not known for issuing evacuation orders but rather the state governments. Each state has its own policy on enforcing evacuations, with many going as far to make it a crime to not follow evacuation orders. However, the sheer number of citizens who ignore orders combined with the difficulty of enforcing the laws tend to leave people with the idea that a mandatory evacuation may not be “mandatory” after all.

Issuement and Enforcement

The primary person in each state responsible for declaring an emergency and taking action is the governor. Evacuations, however, are mostly decided by and mandated by local governments across the nation. In California, not adhering to a mandatory evacuation order could be punishable by a fine of up to $1,000 and 6 months imprisonment. In Maryland, the same law applies. Many other states have similar laws, which give local governments the right to press legal charges and forcibly remove citizens from hazardous areas. In 1987, the state of Ohio specifically wrote out a law that allows the police to enforce evacuation policy in a “reasonable manner” for those who resist leaving.

Practicality of Enforcement

It is widely accepted that using force to ensure evacuation is not practical although some state laws technically allow it. Using force can lead to lawsuits and issues with civil rights. After Hurricane Katrina, the issue of physical force and evacuation policy came to light after some citizens were forcibly removed by police. In Konie v. Louisiana, defendant Patricia Konie brought a civil rights case against the state of Louisiana because she felt her physical removal by police from her own home led to “physical and mental injuries.” Ultimately, the court ruled in favor of the police and against Konie. This lead to the state of Louisiana acting as a proponent of forcible evacuation policy.

The emergence of lawsuits such as Konie v. Louisiana reinforces the idea that although forcible evacuation is legal and provides immunity for possible loss of property, excessive force is not covered. Therefore, state and local governments could face a multitude of lawsuits if forced evacuation occurs.

Additionally, there is a moral question that comes into play. Not all citizens ordered to evacuate are able to. Financially, evacuating can be an incredible burden, in many cases not financially feasible. A financial burden tied to no means of transportation forces citizens to shelter in place. One report shows that about 100,000 New Orleans residents had no transportation resources available in order to flee before Katrina. The same report also explains that about half of those who did not follow evacuation orders had no possible way to leave. Sadly, public opinion stirred by government statements led to the idea that citizens who stayed behind had a choice. The data proves otherwise.

In many cases, there are also citizens who have the resources and means of transportation to flee but do not. A widely-known example of this is in California, where wildfire evacuations lead some citizens to stay and take a risk. Of these people, some are forced to fend off the flames in an attempt to save property. Not only do these actions endanger citizens, it can, more importantly, put the lives of first responders at risk for no reason. Therefore, it can be a selfish act to not evacuate unless there is no possible way to.

Convincing Tactics by States

Some states such as North Carolina and Texas inform citizens who stay that they are civilly held accountable for the costs of first-responders and that help may not even be able to come to begin with. Another tactic used by government officials is the use of specific, alarming rhetoric. FEMA acknowledges that citizens are far more likely to take action in an emergency situation when the problem is portrayed by officials as urgent and hazardous. This leads to local and state officials, as well as federal organizations, to make powerful, bold statements specifically designed to incite the true danger of what could come without evacuating. On a much darker yet effective approach, some local governments and police forces across coastal Virginia use the “magic marker” strategy by providing markers and instructing citizens who refuse to evacuate to write their social security number on their body so that they can be identified if needed after the natural disaster.

Conclusion

Ultimately, it is usually up to the citizen whether or not to evacuate although the laws explicitly say the opposite. The threat of legal repercussions of not evacuating under mandatory orders is far more effective than the actual enforcement of these laws since many problems such as lawsuits can arise if physical force is used. Not all citizens have the luxury of evacuating, but those who do and do not take advantage of this put themselves and first responders at greater risk.

Jacob Turobiner is Trinity freshman from Calabasas, CA, planning to major in Political Science.