Choosing sides in the FBI-Apple dispute: who has the better argument?

Many people know my interests are at the intersection of the law and technology, and as a result, have asked my opinion on the merits of the FBI-Apple dispute. In large part because there was a lot of misinformation about the basic factual circumstances of the case, I wrote a short case summary here, but tried to remain neutral. Even as I wrote it, I really had no sense of which side had the better argument. I'll also add the obvious here, because sometimes it is not as obvious to others as it is to me: this is only my personal opinion and not work-related. It's worth what you've paid for it. I'll happily (ok, perhaps not happily) acknowledge I am wrong if the results come out contrary to my opinion.

On the other hand, most people in the tech and infosec communities chose sides in the FBI-Apple dispute pretty quickly. I was initially surprised that people's views were split as much as they were, even if it appeared (and still appears) that the split leans in favor of Apple (which is admittedly anecdotal evidence on my part). Upon further review, I am not surprised that views are as split as they are.

I took a lot longer to decide precisely because I am acutely aware of the nuances that often get lost in 140-character tweets or Facebook updates. In the end, from both my personal perspective and also what I think will actually happen, I think the FBI has the stronger argument. Apple is likely to draw out the process, but I think they will ultimately lose (although, speculating ahead, their best chance of winning may be at the Ninth Circuit if the case gets that far).

My decision is based upon the specific text of the Magistrate Judge's order, especially because it overcomes some of the more potent claims about what Apple is being asked to do. In an article entitled, "Why Lawyers Need to Stand By Apple" (which I cite because it was written by a lawyer addressed to other lawyers), we can see an example of what is being said about the case:

[Apple] is being ordered to create a master key to hack any iPhone on the planet.

Such an order is well beyond the scope of reason, and what the court is demanding Apple to do will ultimately undermine any hope of any of us ever having any privacy in the digital age.

This is not an exaggeration.

[Once Apple] creates the tool to break the encryption of any iPhone, that tool will be used again and again.

Emphases are mine. This is the core argument of the article. And it is disappointingly inaccurate. 

According to the court order, 

The court is requiring Apple to "provid[e] the FBI with a signed...Software Image File ("SIF") that can be loaded onto the SUBJECT DEVICE.... The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE.

The court also gives Apple the option to do all of this at an Apple facility; meaning they could assist the FBI with this particular phone and then destroy the SIF without it ever being in the hands of the FBI or without ever leaving Apple's facility.

Could the FBI steal the SIF? Yes, but it wouldn't work on another phone without modification that it appears the FBI is not capable of doing. And if anyone ever found out that the FBI stole it, it is my belief no one would ever cooperate with the FBI again under similar circumstances, court order or not.

Neither would the SIF "break the encryption of any iPhone," or even this particular iPhone. This case doesn't really even have anything to do with encryption. The SIF would bypass or degrade software measures in place to prevent the auto-erase function from working, and from introducing delays after incorrect passcode attempts. It is true that even if and when Apple destroys the SIF, it will then still have actual knowledge of how to bypass these features--but do you really believe Apple doesn't already know? As others have pointed out, what they are being asked to do is already technically possible. They're not being asked here to do the impossible.

Using phrases like "this is not an exaggeration" does not grant your claims immunity from being exaggerated. In this case, it's worse than that: they're just not accurate. Moreover, words like "backdoor" are designed to elicit a certain response. The word has very negative connotations that , quite honestly, poisons the debate. Most infosec folks who hear the word "backdoor" will oppose it on its face.

I also recognize that this article doesn't represent everyone's views who is siding with Apple. I chose it partly because of it's outlandish claims and partly because I believe it captures a general perspective of how many people feel (even if not agreeing on the specific details).

You might also notice that I didn't discuss the Fourth Amendment in this blog post. There's a very specific reason why: the key issue in this case has nothing to do with the Fourth Amendment. The day after the shooting, the FBI sought and received a search warrant for a black Lexus. Pursuant to this search warrant, the FBI recovered an Apple iPhone 5C that was assigned to Farook but owned by his employer. The employer gave consent to the FBI to search the phone. So the FBI already has the consent of the phone's owner to search it. Likewise, Apple has no privacy interest in the phone. Anyone discussing this case as a Fourth Amendment issue should go back to law school or stop talking about it.

Let me last address the argument about "creating a dangerous precedent."  That may, or may not, be true. Generally speaking, decisions at the District Court level don't hold a lot of weight as legal precedent (and this is just a Magistrate Judge's decision--not even an Article III federal judge). Yes, if this case were to make it up to the Ninth Circuit (or even the Supreme Court), it would have precedential value. But that argument is circular. Any case that is not squarely on point with another previous case will quite possibly have some value one way or another. That may be a policy argument, but it's not a legal one.

What remains clear from a legal perspective is that Apple has complied (at least) 70 times with court orders for technical assistance (presumably under the All Writs Act, but not necessarily clear from this transcript). The red meat in this case is whether Apple's technical assistance under specific facts of this case are an unreasonable burden to Apple. In those 70 cases, Apple already had the technical ability to extract information from older iPhones even while they remained locked. In this case, the iPhone 5c has additional security measures that would prevent Apple from cooperating in the same way. In one sense, the additional hurdles to cooperation are self-generated on Apple's part (which is good for Apple's customers, of course--no one would argue otherwise). The difference between those 70 cases and this one is an existent technical capability to extract information from a locked phone (which no one has seriously argued against) versus the unrealized, but technically possible capability to reduce the security measures on this particular iPhone so that the FBI can brute force the passcode. It's clear to me that the burden on Apple is greater now than it was for any of those previous 70 cases. But is it unreasonably burdensome? I believe, given the situation I described above, that a court will find it to not be such a burden. As a result, from my personal perspective and also what I think will actually happen, I think the Government has the stronger argument. Apple will be forced to cooperate.

Whether you agree or disagree--and I know many of you will feel strongly one way or another--feel free to comment or tweet. If you have a question that you're curious about that I haven't addressed--ask it. Free and open debate in a wide-ranging marketplace of ideas makes us a better place--regardless of which side you come down on.

Law in Plain English: Reed v. Town of Gilbert, Arizona

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Reed v. Town of Gilbert, Arizona

Argument: TBD (Aud.)

Click image to visit ADF website

Background: Good News Community Church placed several signs around the area of its church announcing the time and location of its services. The Town of Gilbert, Arizona notified the Church that its signs were violating Gilbert's sign ordinance because the signs were displayed outside the statutorily-limited time period. The ordinance required that signs could not be erected without a permit, but that three categories of signs were exempted from the permit requirement: 1) temporary directional signs relating to qualifying events (no greater than six feet in height and six square feet in area; only to be displayed for 12 hours before and one hour after an event; not placed in the public right-of-way); 2) political signs (up to 32 square feet in size; erected at any time, but taken down within ten days after an election; may be placed in the public right­-of-way); and 3) ideological signs (not limited in time or number; may be placed in the public right-of-way). The district court found that the ordinance was not a content-based regulation; was a reasonable time, place, and manner restriction; and (on remand) did not favor some noncommercial speech over other commercial speech. The Ninth Circuit affirmed.

Issue: The question before the Court is whether the Town of Gilbert's mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code's differential treatment of petitioners' religious signs.

Holding: In a 9-0 decision, the Supreme Court ruled that the Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny. Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.

Law in Plain English: United States v. Wong

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SCOTUSblog: United States v. Wong

Argument: Dec 10 2014 (Aud.)

Background: Hong Kong citizen Kwai Fun Wong, a leader of the Wu Wei Tien Tao religious group, was detained and deported for unlawful entry into the United States. On May 18, 2001, Wong filed a negligence claim with the (then) Immigration and Naturalization Service (INS),  alleging that she had been mistreated by that agency while she was detained. After the INS denied her claim on December 3, 2001, Wong filed a claim on August 13, 2002, under the Federal Tort Claims Act (FTCA), alleging the same conduct. The FTCA has a statute of limitations that “[a] tort claim against the United States shall be forever barred...unless action is begun within six months after the...final denial of the claim by the agency to which it was presented.” The district court dismissed Wong's FTCA claim because it was not filed within six months. An en banc panel of the Ninth Circuit reversed, finding that the statute of limitations was subject to equitable tolling. Wong's claim was filed late "due solely to the delay inherent in the Magistrate Judge system," and not through any fault of Wong's. As a result, Wong's claim could proceed.

Issue: The question before the Court is whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

Holding: In a 5-4 decision, the Supreme Court ruled that Section 2401(b)’s time limits are subject to equitable tolling. Section 2401(b)’s time limits are subject to equitable tolling because the Court previously adopted a “rebuttable presumption” that such time bars maybe equitably tolled. As a result, the Court concluded, Congress thus must do something special to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it. Congress did no such thing in enacting §2401(b).

Law in Plain English: Oneok Inc. v. Learjet, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Oneok Inc. v. Learjet, Inc.

Argument: TBD (Aud.)

Background: Learjet and other retail buyers of natural gas sued Oneok and other natural gas traders for state and federal anti-trust claims, alleging that they manipulated the price of natural gas by reporting false information to price indices published by trade publications. The district court ruled for the defendants, finding that the state law anti-trust claims were pre-empted by the Natural Gas Act, 15 U.S.C. § 717 et seq. (NGA). The Ninth Circuit reversed, finding that Congress had carefully divided up the regulatory power over the natural gas industry. It did not envisage federal regulation of the entire natural gas field to the limit of constitutional power. Rather, it contemplated the exercise of federal power only as specified in the NGA. Congress has previously limited the jurisdiction of the Federal Energy Regulatory Commission (FERC), and in this case the panel determined that the state law anti-trust claims arose out of transactions outside of FERC's jurisdiction. As a result, the NGA did not preclude these claims.

Issue: The question before the Court is whether the Natural Gas Act, which occupies the field as to matters within its scope, preempts state-law claims challenging industry practices that directly affect the wholesale natural gas market when those claims are asserted by litigants who purchased gas in retail transactions.

Holding: In a 7-2 decision, the Supreme Court ruled that Respondents’ state-law antitrust claims are not within the field of matters pre-empted by the Natural Gas Act.

Law in Plain English: Armstrong v. Exceptional Child Center, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Armstrong v. Exceptional Child Center, Inc.

Argument: Jan 20 2015 (Aud.)

Background: Section 30(A) of the Medicaid Act requires that state Medicaid plans contain procedures to ensure that reimbursement rates for healthcare providers “are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers” to meet the need for care and services in the geographic area. The Ninth Circuit has interpreted Section 30(A) to require that reimbursement rates bear a reasonable relationship to provider costs. Where rates fail to “substantially reimburse providers their costs,” there must be some justification other than “purely budgetary reasons.”  Richard Armstrong, the Director of Idaho's Department of Health and Welfare, conducted yearly cost studies between 2006 and 2009, developed a new rate setting methodology, and recommended substantial increases in reimbursement rates for supported living services based on the cost study results; but did not implement the proposed rate changes because the Idaho legislature did not appropriate the necessary funds. The district court ruled in favor of the Medicaid providers, and the Ninth Circuit affirmed.

Issue: The question before the Court is whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute.

Holding: In a 5-4 decision, the Supreme Court ruled that the Supremacy Clause does not confer a private right of action, and that Medicaid providers cannot sue for an injunction requiring compliance with § 30(A). The Court reasoned that the Supremacy Clause instructs courts to give federal law priority when state and federal law clash, but that it is not the source of any federal rights.

Law in Plain English: Hana Financial, Inc. v. Hana Bank

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SCOTUSblog: Hana Financial, Inc. v. Hana Bank

Argument: Dec 3 2014 (Aud.)

Background: Hana Bank began operating in May 1994 as the Hana Overseas Korean Club, but did not attempt to register its trademark until. Hana Financial (HFI) began operating on April 1, 1995, and registered its own trademark in 1996. In 2007, HFI filed a trademark infringement claim against Hana Bank, HFI contended that the Bank's use of its "Hana Bank" mark infringed HFI's "Hana Financial" mark because its use of the word "Hana" in connection with financial services would likely cause confusion. The jury found that Hana Bank had used its mark in commerce prior to April 1, 1995, and therefore had trademark priority over HFI. The jury's finding was based upon the doctrine of tacking, where a party
may claim priority in a mark based on the first date of use of a similar but technically distinct mark where the previously used mark is the legal equivalent of the mark in question or indistinguishable such that consumers consider both as the same mark. The Ninth Circuit affirmed, ruling that tacking is a question of fact that must ultimately be decided by the jury.

Issue: The question before the Court is whether the jury or the court determines whether use of an older trademark may be tacked to a newer one.

Holding: In a unanimous decision, the Supreme Court ruled that whether two trademarks may be tacked for purposes of determining priority is a question for the jury. When the relevant question is how
an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer.

Law in Plain English: Integrity Staffing Solutions, Inc. v. Busk

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Integrity Staffing Solutions, Inc. v. Busk

Argument: Oct 8 2014 (Aud.)

Background: Jesse Busk and Laurie Castro are former employees of Integrity Staffing Solutions, which provides warehouse space and staffing to clients such as Amazon.com. Busk and Castro sued Integrity under the Fair Labor Standards Act (FLSA, as amended by the Portal-to-Portal Act) for requiring its employees to pass through a security clearance area at the end of each shift without being compensated for that time. The district court ruled for Integrity, holding (based on cases from two other circuits) that the time spent clearing security was not compensable. The Ninth Circuit reversed, finding that because Integrity required the security screenings to prevent employee theft, the time could be considered 1) necessary to the principal work performed and 2) done for the benefit of the employer.

Issue: The question before the Court is whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.

Holding: In a unanimous opinion, the Supreme Court ruled that the time that respondents spent waiting to undergo and undergoing security screenings is not compensable under the FLSA because the screenings at issue were noncompensable postliminary activities as defined by the Portal-to-Portal Act.

Law in Plain English: United States v. June

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SCOTUSblog: United States v. June

Argument: Dec 10 2014 (Aud.)

Background: On February 19, 2005, Andrew Edward Booth was killed in a car accident on an interstate highway in Arizona when the vehicle in which he was traveling as a passenger crossed a cable median barrier and crashed into oncoming traffic. In 2006, Marlene June, acting as conservator for Booth’s minor son, filed a wrongful death action against a contractor and against the State of Arizona for negligently installing and maintaining the median barrier. Because of FHWA's delays in making certain employees available for deposition, June's counsel did not learn until April 2009 that the FHWA permitted the allegedly defective cable median barrier to be installed and remain in service despite never having passed the FHWA’s crashworthiness testing. On December 20, 2010, more than five years after the accident, respondent presented a claim under the Federal Tort Claims Act (FTCA) to the Federal Highway Administration (FHWA). The FTCA has a statute of limitations that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues...” On March 18, 2011, the FHWA denied respondent’s claim as untimely. The district court dismissed the case as untimely filed. An en banc panel of the Ninth Circuit reversed, finding that 28 U.S.C. § 2401(b) was subject to equitable tolling. As a result, June's claim could proceed. 

Issue: The question before the Court is whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

Holding: TBD

Law in Plain English: POM Wonderful LLC v. The Coca Cola Company

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: POM Wonderful LLC v. The Coca Cola Company

Argument: Apr 21 2014 (Aud.)

Background: Pom sued Coca-Cola, alleging that Coca-Cola misled consumers to believe that Coca-Cola's Pomegranate Blueberry consisted primarily of pomegranate and blueberry juices when it actually consisted mainly of (the cheaper) apple and grape juices. Pom challenged the name, labeling, marketing, and advertising of Pomegranate Blueberry. It claimed that Coca-Cola violated the false-advertising provision of the Lanham Act, which authorizes suit against those who use a false or misleading description or representation about any goods. The district court ruled that Pom's Lanham Act challenge to Pomegranate Blueberry's name and labeling was barred by the Food, Drug, and Cosmetic Act (FDCA)'s implementing regulations. The Ninth Circuit affirmed, finding that where the FDA has not concluded that particular conduct violates the FDCA, a Lanham Act claim may not be pursued if the claim would require litigating whether that conduct violates the FDCA.

Issue: The question before the Court is whether the court of appeals erred in holding that a private party cannot bring a Lanham Act claim challenging a product label regulated under the Food, Drug, and Cosmetic Act.

Holding: In a unanimous decision (with Justice Breyer recused), the Supreme Court ruled that competitors may bring Lanham Act claims like POM’s challenging food and beverage labels regulated by the FDCA. Neither the Lanham Act nor the FDCA, in express terms, forbids or limits Lanham Act claims challenging labels that are regulated by the FDCA.

Law in Plain English: Scialabba v. Cuellar de Osorio

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Scialabba v. Cuellar de Osorio (previously Mayorkas v. Cuellar de Osorio)

Argument: Dec 10 2013 (Aud.)

Discussion: The Child Status Protection Act (CSPA) provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants (also known as “primary beneficiaries”). Cuellar de Osorio's citizen mother filed a petition for a visa (for a married daughter of a citizen) on her behalf in May 1998. Cuellar de Osorio's son, who was then 13, was listed on the petition as a derivative beneficiary. Cuellar de Osorio's visa was approved in June 1998, but her priority date did not become current until November 2005. By then, her son was 21 and as a result was ineligible for a derivative visa. The United States Citizen and Immigration Services (USCIS) denied the request for priority date retention under the CSPA. The District Court ruled in favor of USCIS, but the Ninth Circuit reversed, concluding that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries.

Issue: The questions before the Court are (1) whether Section 1153(h)(3) of the Immigration and Nationality Act–which provides rules for determining whether particular aliens qualify as “children” so that they can obtain visas or adjustments of their immigration status as derivative beneficiaries of sponsored family member immigrants–unambiguously grants relief to all aliens who qualify as “child” derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals (BIA) reasonably interpreted Section 1153(h)(3).

Holding: In a 5-4 decision, the Supreme Court ruled that BIA’s textually reasonable construction of § 1153(h)(3)’s ambiguous language was entitled to deference.

The Board of Immigration Appeals interpreted the Child Status Protection Act as providing relief to only those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition. In other words, the CSPA provision under review does not apply to derivative beneficiaries piggy-backing on a parent. The Supreme Court agreed that this was a permissible interpretation of the CSPA. In short, if you are principal beneficiary (the sponsored individual), you can keep your place in line. But if you are a derivative beneficiary (a spouse or children of the sponsored individual), you cannot.

Law in Plain English: Executive Benefits Insurance Agency v. Arkison

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Executive Benefits Insurance Agency v. Arkison

Argument: Jan 14 2013 (Aud.)

Discussion: Nicholas Paleveda and his wife, Marjorie Ewing, operated Aegis Retirement Income Services, Inc. ("ARIS") and the Bellingham Insurance Agency, Inc. ("BIA"). ARIS designed and administered defined-benefit pension plans, and BIA sold insurance and annuity products that funded those plans. BIA became insolvent, and Paleveda used BIA funds to incorporate the Executive Benefits Insurance Agency, Inc. ("EBIA"). In the meantime, BIA filed a voluntary Chapter 7 bankruptcy petition. The Trustee, Peter Arkison, filed a complaint against EBIA and ARIS to recover the commissions deposited into the EBIA/ARIS account, which the Trustee alleged to be property of the estate. The complaint alleged fraudulent transfer claims and a claim that EBIA was a successor corporation of BIA and therefore liable for its debts. The bankruptcy court granted summary judgment in favor of the Trustee, concluding that the deposits into the EBIA/ARIS account were fraudulent conveyances of BIA assets and that EBIA was a "mere successor" of BIA. The bankruptcy court entered a final judgment for $373,291.28. EBIA appealed to the federal district court, which affirmed the judgment. EBIA appealed again, and now for the first time claimed that the bankruptcy judge was constitutionally proscribed from entering final judgment on the Trustee's claims. The Ninth Circuit concluded Article III bars bankruptcy courts from entering final judgments in actions brought by a noncreditor absent the parties' consent, but that EBIA consented to the bankruptcy court's jurisdiction. As a result, that court's entry of summarj' judgment in favor of the Trustee was acceptable.

Issue: The questions before the Court are  (1) whether Article III permits the exercise of the judicial power of the United States by bankruptcy courts on the basis of litigant consent, and, if so, whether "implied consent" based on a litigant’s conduct, where the statutory scheme provides the litigant no notice that its consent is required, is sufficient to satisfy Article III; and (2) whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding under 28 U.S.C. 157(b).

Holding: In a unanimous decision, the Supreme Court ruled that under Stern v. Marshall, a bankruptcy court may not enter final judgment but may issue findings of fact and conclusions of law to be reviewed de novo by a district court.

Law in Plain English: Wood v. Moss

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SCOTUSblog: Wood v. Moss

Argument: Mar 26 2014 (Aud.)

Discussion: Michael Moss and other anti-Bush protesters brought a Bivens action against United States Secret Service agents Tim Wood and Rob Savage, who were assigned to protect President George W. Bush during a 2004 campaign appearance in Oregon. The protestors' complaint alleges that the agents engaged in viewpoint discrimination in violation of their First Amendment rights when the agents moved them (but not another group of pro-Bush demonstrators) to create a security perimeter around the President. The Nith Circuit ruled that the anti-Bush protestors had alleged a plausible First Amendment claim and that Agents Wood and Savage were not entitled to qualified immunity.

Issue: The questions before the Court are (1) whether the court of appeals erred in denying qualified immunity to Secret Service agents protecting the president by evaluating the claim of viewpoint discrimination at a high level of generality and concluding that pro- and anti-Bush demonstrators needed to be positioned an equal distance from the President while he was dining on the outdoor patio and then while he was travelling by motorcade; and (2) whether respondents have adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group.

Holding: In a unanimous decision, the Supreme Court ruled that the agents were entitled to qualified immunity.

Law in Plain English: Petrella v. Metro-Goldwyn-Mayer, Inc.

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SCOTUSblog: Petrella v. Metro-Goldwyn-Mayer, Inc.

Why did the Supreme Court take this case? In this case, the Ninth Circuit held that the defense of laches is available in copyright cases. In the Fourth Circuit, there is no laches at all. If a copyright suit is brought within the statute of limitations, it may go forward. In the Eleventh Circuit, "there is a strong presumption that a plaintiff's suit is timely if it is filed before the statute of limitations has run. Only in the most extraordinary circumstances will laches be recognized as a defense." Even if laches is found, "laches serves as a bar only to the recovery of retrospective damages, not to prospective relief."  In the Second Circuit, laches is available as a bar to injunctive relief but not to money damages. In the Sixth Circuit, laches is available in only "the most compelling of cases." So-called "circuit splits" are perhaps the most common way cases make it to the Supreme Court.

Argument: Jan 21 2014 (Aud.)

Background: In 2009, Paula Petrella filed an action for copyright infringement, unjust enrichment and accounting against Metro-Goldwyn-Mayer, Inc., and others. According to Petrella, the defendants infringed her purported interest in a book and two screenplays that together allegedly formed the basis for the 1980 motion picture Raging Bull. Petrella's father Frank, who wrote the 1963 screenplay, died in 1981. In 1991, Petrella successfully renewed the copyright in the 1963 screenplay. Because her father died within 28 years of the original copyright, the renewal rights vest in the author’s heirs (Paula) regardless of whether the author assigned the renewal term of copyright to a third-party prior to his death. Petrella renewed the copyright and knew of her claims in 1991, but did not file a lawsuit until January 2009. Because of the three-year statute of limitations prescribed by Congress in 17 U.S.C. § 507(b), Ms. Petrella claimed damages only for the copyright infringement occurring between 2006 and 2009.

The District Court granted summary judgment in favor of the defendants, holding that Petrella's claims are barred by the equitable defense of laches. The Ninth Circuit affirm.

Issue: The question before the Court is whether the nonstatutory defense of laches is available without restriction to bar all remedies for civil copyright claims filed within the three-year statute of limitations prescribed by Congress, 17 U.S.C. § 507(b).

Holding: In a 6-3 decision, the Supreme Court ruled that laches cannot be invoked as a bar to Petrella’s pursuit of a claim for damages brought within §507(b)’s three-year window. By permitting a successful plaintiff to gain retrospective relief only three years back from the time of suit, the copyright statute of
limitations itself takes account of delay.

Law in Plain English: Northwest, Inc. v. Ginsberg

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Rabbi S. Binyomin Ginsberg.
Image from ajc.com.

SCOTUSblog: Northwest, Inc. v. Ginsberg

Argument: Dec 3 2013 (Aud.)

Discussion: Ginsburg brought suit against Northwest Airlines alleging a breach of contract under the implied covenant of good faith and fair dealing when Northwest revoked his WorldPerks membership. The Airline Deregulation Act (ADA), 49 U.S.C. § 41713(b)(1) provides that States "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation..." Based upon this provision, the District Court held that Plaintiffs claim was preempted by the ADA and dismissed the claim. The Ninth Circuit reversed, finding that in the ADA's language or history suggested that Congress intended displace State common law contract claims that do not affect deregulation in more than a "peripheral...manner."

Issue: The question before the Court is whether the court of appeals erred in holding, in contrast with the decisions of other circuits, that respondent’s implied covenant of good faith and fair dealing was not preempted under the Airline Deregulation Act because such claims are categorically unrelated to a price, route, or service, notwithstanding that respondent’s claim arises out of a frequent-flyer program (the precise context of American Airlines, Inc. v. Wolens) and manifestly enlarged the terms of the parties’ undertakings, which allowed termination in Northwest’s sole discretion.

Holding: In a unanimous opinion, the Supreme Court ruled that the ADA preempts a state-law claim for breach of the implied covenant of good faith and fair dealing if it seeks to enlarge the contractual obligations that the parties voluntarily adopt.

Law in Plain English: Law v. Siegel

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SCOTUSblog: Law v. Siegel

Argument: Jan 13 2014 (Aud.)

Did you know? The plaintiff, Stephen Law, filed a pro se (by himself), in forma pauperis petition to the Supreme Court. Based on recent statistics, such a petition has less than two tenths of one percent chance of being accepted.

Background: Law filed for Chapter 7 bankruptcy. He indicated two liens on his house and a homestead exemption of $75,000. While the homestead exemption would ordinarily be protected in bankruptcy, Siegel (the bankruptcy trustee) sought to compensate the estate for the monetary costs imposed by Law's misconduct by imposing a surcharge on the homestead exemption (effectively eliminating it). The Bankruptcy Court allowed Siegel's surcharge motion, and both the Bankruptcy Appellate Panel and the Ninth Circuit affirmed.

Issue: The question before the Court is whether the Ninth Circuit erred in allowing the bankruptcy trustee to surcharge the debtor’s constitutionally protected homestead property.

Holding: In a unanimous decision, the Supreme Court ruled that the Bankruptcy Court exceeded the limits of its authority when it ordered that the $75,000 protected by Law’s homestead exemption be made available to pay Siegel’s attorney’s fees. As a result, Law's homestead exemption was protected even despite his egregious misconduct.

Law in Plain English: United States v. Apel

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Dennis Apel. Photo from Paul Wellman,
Santa Barbara Independent.

SCOTUSblog: United States v. Apel

Argument: Dec 4 2013 (Aud.)

Background: Dennis Apel is a frequent protester at the front gate of  Vandenberg Air Force Base. He was as subject to a pre-existing order barring him from the base, and was convicted of trespassing under 18 U.S.C. § 1382. After his conviction, the Ninth Circuit ruled in another case that a stretch of highway running through the base was subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," and as a result the federal government lacked the exclusive right of possession of the area on which the trespass allegedly occurred. Therefore, a trespassing conviction under § 1382 was not valid. In a per curiam decision, the Ninth Circuit reversed Apel's conviction.

Issue: The question before the Court is whether 18 U.S.C. § 1382, which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement.

Holding: In a unanimous decision, the Supreme Court ruled that for purposes of § 1382, a military installation emcompasses the commanding officer's area of responsibility; and here, it includes Vandenberg's highways and protest area. As a result, the Ninth Circuit's decision was vacated and Apel's conviction would be reinstated.

The painted green line marks the boundary for peaceful
protest activity, according to Vandenberg Air Force Base.

Law in Plain English: Walden v. Fiore

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Walden v. Fiore

Argument: Nov 4 2013 (Aud.)

Background: Fiore and Gipson gambled in Puerto Rico and won $97,000. They intended to travel to Las Vegas via Atlanta, but were stopped and questioned at the San Juan Airport. TSA agents eventually let them go, but told them they might be questioned later in the trip. In Atlanta, DEA Agent Walden approached and questioned them. A drug-detection dog alerted, and Walden seized the cash. Fiore and Gipson continued on to Las Vegas. The cash was later returned when the Assistant U.S. Attorney concluded that the government lacked probable cause. Fiore and Gipson sued Walden in Nevada under Bivens, alleging that Walden violated their Fourth Amendment rights when he seized their cash in Georgia. The District Court dismissed the complaint for lack of personal jurisdiction, but the Ninth Circuit reversed.

Issue: The questions before the Court are (1) whether due process permits a court (in this case, in Nevada) to exercise personal jurisdiction over a defendant (Walden) whose sole “contact” with the forum state is his knowledge that the plaintiff has connections to that state; and (2) whether the judicial district where the plaintiff suffered injury is a district “in which a substantial part of the events or omissions giving rise to the claim occurred” for purposes of establishing venue even if the defendant’s alleged acts and omissions all occurred in another district.

Holding: In a unanimous opinion, the Supreme Court ruled that the District Court lacked jurisdiction. For a State to exercise jurisdiction consistent with due process, a relationship among the defendant, the forum, and the litigation must arise out of contacts that the defendant himself creates with the forum. The plaintiff cannot be the only link between the defendant and the forum. As a result, the District Court could not hear Fiore and Gipson's claim.

Law in Plain English: DaimlerChrysler AG v. Bauman

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: DaimlerChrysler AG v. Bauman

News Coverage:

• Lawfare: Justice Department Urges Supreme Court to Reverse Ninth Circuit in Bauman v. DaimlerChrysler (Jul 12, 2013)

Argument: Oct 15 2013 (Aud.)

Background: A group of Argentinians sued DaimlerChrysler Aktiengesellschaft (DCAG) in federal court in California under the  Alien Tort Statute (ATS) and the Torture Victims Protection Act of 1991 (TVPA). They alleged that that one of DCAG's subsidiaries, Mercedes-Benz Argentina (MBA), collaborated with Argentinian state security forces to kidnap, detain, torture, and kill the plaintiffs and/or their relatives during Argentina's "Dirty War." The District Court dismissed the case for lack of jurisdiction, but the Ninth Circuit reversed, finding that DCAG was subject to personal jurisdiction in California through because of its (indirect) corporate subsidiary Mercedes-Benz USA (MBUSA is a subsidiary of DaimlerChrysler North America Holding Corporation, which itself is a subsidiary of DCAG).

Issue: The question before the Court is whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum state.

Holding: In a 9-0 decision, the Supreme Court ruled that Daimler is not amenable to suit in California for injuries allegedly caused by conduct of Mercedes-Benz Argentina that took place entirely outside the United States. As a result, the claims of the Argentinians fail because the Court does not have jurisdiction to hear the case.

"I dare you to step over this line!"

Remember this one?

When Bugs Buggy dared Yosemite Sam to step over the line, I suspect he didn't think it would turn out to be a federal case. Nonetheless, two cases in the upcoming Supreme Court term quite literally involve lines in the sand, er, ground.

United States v. Apel: Dennis Apel is a frequent protester at the front gate of  Vandenberg Air Force Base. He was as subject to a pre-existing order barring him from the base, and was convicted of trespassing under 18 U.S.C. § 1382. After his conviction, the Ninth Circuit ruled in another case that a stretch of highway running through the base was subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," and as a result the federal government lacked the exclusive right of possession of the area on which the trespass allegedly occurred. Therefore, a trespassing conviction under § 1382 was not valid. In a per curiam decision, the Ninth Circuit reversed Apel's conviction. The Supreme Court will decide whether a federal law which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement. The protest area outside the front gate of the base is represented by the green line painted on the road in the image below.

McCullen v. Coakley: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed. The Supreme Court will decide (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled. One of the clinic buffer zones is indicated by the painted white arc in the image below.

Law in Plain English: Hollingsworth v. Perry

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

My preview of the case is here.

Hollingsworth v. Perry

In 2008, Californians passed Proposition 8, which amended the California constitution to prohibit same sex marriage. Perry and her spouse and another same sex couple filed suit, alleging that Prop 8 violated the Fourteenth Amendment. California refused to defend the constitutionality, but the District Court allowed Hollingsworth and other residents, who had placed Prop 8 on the ballot, to intervene and defend the law. The District Court found that Prop 8 violated both the Due Process Clause, because the state had no compelling interest in denying the right to marry to same sex couples; and the Equal Protection Clause, because there was no rational basis for limiting the designation of marriage to opposite-sex couples. The results below, and the decision by California not to defend the law, raised two questions before the Court: first, whether Hollingsworth had standing to defend Prop 8; and second, whether the Equal Protection Clause of the Fourteenth Amendment prohibited California from defining marriage as the union of a man and a woman. It is important to note that the first question was threshold question, meaning it must be decided in the affirmative for the Supreme Court to consider the constitutionality question. In a 5-4 decision, the Supreme Court ruled that Hollingsworth did not have standing to appeal. As a result, the Ninth Circuit's decision was reversed and remanded. The practical impact of this decision is that same sex marriage will be permitted in California, because the petitioners do not have standing to defend the law. This is a narrow ruling that will not apply outside of California.