“Yes Means Yes” Bill Fails to Adequately Address Link Between Alcohol and Sexual Assault

Beer

Much talk has surrounded California’s “Yes Means Yes” bill. SB 967 has been hailed a major shift in the way colleges will approach sexual assault by instituting an affirmative consent standard. Authored by Senator Kevin de Leon, SB 967 was signed by Governor Jerry Brown on September 28, 2014. While the “Yes Means Yes” bill did not go unchallenged by Republicans, it was unanimously put forward. Despite the unanimity, many have criticized the bill. Critiques have questioned a number of aspects of the bill, first and foremost it has been labeled as ambiguous, and many critics have alluded to possible negative consequences of the bill.

The first question is what changes will the bill actually put forth compared to how the law works now? Much attention has been given to the affirmative consent standard that the bill outlines. Specifically the bill defines consent as, “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Furthermore, “[a]ffirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.” Lack of protest or resistance is not sufficient to assume consent, nor is evidence of a dating relationship or past sexual history between the persons engaged in sexual activity.

Ideally, under this proposed paradigm shift, the person initiating sexual contact would have to obtain consent, as opposed to the old standard, which put the burden on the person being pursued to object or forcibly resist. Consequently, this shift in responsibility is expected to diminish victim blaming or questioning for failing to say no or actively resist. Some universities in California and throughout the nation have already adopted this standard of consent. While the motivation for the “Yes Means Yes” bill is admirable, it does not resolve the ‘he said she said’ scenario presented under ‘no means no’ ideology.

What is really missing from the bill is an effective procedure that addresses the use of alcohol and drugs. There should be a larger emphasis on the role of drugs and alcohol with respect to a student’s ability to provide consent to sexual contact or intercourse of any sort. The Bill states in relevant part:

(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

(C) The complainant was unable to communicate due to a mental or physical condition.

In essence the bill attempts to preclude the accused from using their intoxicated status as a defense, or to claim that the victim failed to protest or resist. Again, this represents a shift in responsibility from the victim to the accused in obtaining consent and ensuring that its validity. The validity of consent where drugs and alcohol are involved remains ambiguous.

College students are inundated with drugs, alcohol, and a new sense of freedom without any parental supervision. College is often the highlight of a person’s youth, the glory days; but for nearly one in every four women, college is a period of time in which they were sexually assaulted. In many of these cases, one or both parties were under the influence of drugs or alcohol. In fact, according to statistics, ninety percent of sexual assaults on college campuses involve alcohol.

The all too common sexual assault between college students is reflected in an incident that occurred between two freshman students at Occidental University. Referred to only as John and Jane Does, the initial contact between the students appears to have been consensual. What is in question however, is the nature of Jane Doe’s consent: whether the woman—who was intoxicated to the point of blacking out—had the ability to legitimately agree to have sex at all. Also in question is whether John Doe, also extremely drunk, violated the school’s policy by failing to recognize the woman’s consent was essentially meaningless as it was given while she was incapacitated.

Many male and female students engage in sexual activity after using drugs and alcohol. Males typically use alcohol as a way to gain confidence to initiate a “hook-up.” On the other hand, some female students rely on alcohol as an excuse to engage in sexual intercourse and avoid being labeled negatively. But too much alcohol can sometimes be a recipe for unintended consequences.

It is a reality that sex and alcohol go together. Unfortunately, so too does alcohol and sexual assault and rape, particularly on college campuses where the environment fuels a culture of sex, drugs, and alcohol. It is without question that alcohol impairs a person’s judgment. Alcohol affects a person’s conscious state of mind, lowering inhibitions, making it hard to concentrate, and making a person more impulsive. These side effects of alcohol cannot always be observed, especially if the observer is also similarly impaired. Symptoms of alcohol use such as slurred speech, loss of coordination, vomiting, and loss of consciousness are more obvious, but these only manifest after extreme alcohol consumption. The involvement of drugs and alcohol in sexual assaults on college campuses is all too common. Consequently, the proposed law fails to adequately address a student’s ability to give consent if under the influence of drugs or alcohol.

The bill merely states that, where the, “complainant was incapacitated due to the influence of drugs, alcohol….” The term incapacitated is ambiguous. Is it physically or mentally incapacitated or both? What does it mean to be incapacitated? The bill does not say. On its face the term incapacitated goes too far. An individual is not able to operate a motor vehicle if they are determined to be under the influence of alcohol. This seems a much lower standard than incapacitated.

While the ‘Yes Means Yes’ bill does address some major issues and will hopefully check victim blaming and put the responsibility on individuals to obtain consent throughout a sexual encounter, the requirement of obtaining affirmative consent does not necessarily change anything in an accusation of rape or sexual assault. By far the biggest problem with the bill is that it fails to address the biggest issue of sexual assault and rape on college campuses, the involvement of alcohol.

YouTube Kids – Luring Kids in, One App at a Time

Kids

Whether you’re an overnight sensation like Justin Bieber or you’re uploading a tutorial on how to apply the perfect make up; YouTube has become the go-to site for watching all the hottest videos. Technologically speaking, the cyber world has significantly changed over the years, especially with the Internet now being easily accessible from mobile devices. But the most alarming and overlooked trend is the ubiquitous use of the Internet by children.

Today, children use iPhones, tablets and computers to access the Internet as early as three-years-old. With the amount of time children spend online, some have become skilled navigators. The Internet offers children a lot of great advantages. Kids can access educational videos and gain exposure to new concepts and ideas all at the click of the mouse. However, everyone knows as great as the Internet is, there are a ton of risks associated with its use. A particular drawback is the privacy issues that come with such widespread access to information. Children on the Internet alone creates a lot of public concern. Not to mention the development of new devices including cell phones, tablets, and applications (apps), that have now created an alterative way to expose children to a number of privacy related issues online.

On February 23, 2015, Google launched a new app called “YouTube Kids” that is specifically tailored towards the younger YouTube audience. The app creates a site that allows children to search and explore YouTube more easily and safely while locating the videos they want. The app is currently available in the United States for free and can be downloaded on iOS and Android devices.

YouTube Kids features four categories of videos, which include: child-friendly videos; educational clips; music; and shows. The categories raise a number of questions regarding what is going to be done to protect the privacy of children using this app.

How is Google going to receive consent from parents before allowing children to access the app? Will there be ads marketed towards children using the app? If the app is to be used solely by children, what filters are going to be implemented to make sure there are age appropriate videos? Also, it is going to be interesting to see if children are able to upload their own videos, and if so, what type of sensitive information will this potentially disclose? These questions are just a number of those parents may pose; questions that hopefully parents are seeking the answers to by doing research before allowing children to access any services linked to the Internet.

The law that regulates children’s privacy online is the Children’s Online Privacy Protection Act (COPPA). Passed in 1998, Congress created the statute to ensure online service providers and organizations comply with certain standards to help protect children’s information online. This pertains to companies that collect the private information, or data, of children under the age of thirteen online. COPPA does not apply to operators that do not collect information. In other words, COPPA protects information that is gathered from children, but not necessarily the information collected about children.

In 2013, COPPA strengthened children’s privacy protections online by expanding some requirements to ensure the law reflected the new technology that has been developed since 1998. The expansion covers tablets, cell phones and the apps that can be downloaded onto these devices. The law applies to sites and apps that are geared towards children and collect the data of children under the age of thirteen. COPPA also applies to sites and apps that have general audiences but have actual knowledge that data is collected from children under thirteen.

COPPA is complicated. Essentially, the law aims to provide notice to parents that a child’s personal information is going to be collected, consent to verify the collection is authorized, and to let the parent know the child’s information is going to be protected. The law goes into depth as to all the requirements, but varies depending on the specific service provided and what type of information is collected. In any case, if a site or app is collecting a child’s personal information, the parent has the power to access the information collected, to demand the cease of the collection of information at any point, and requires the data collected be deleted at any time.

Looking closely at the language of COPPA, the law does not require that operators investigate the age of the children using their sites or apps. As long as a company does not collect information from children under thirteen and explicitly says so, the company does not have an obligation to make sure children under thirteen are not actually using their service. This means parents are responsible for making sure children are observed while online and are not consenting to use a site or app themselves. The Federal Trade Commission (FTC) is the governmental agency that regulates unfair and deceptive practices against consumers, and this includes practices against children.

Since YouTube Kids is definitely geared towards a young audience and if Google plans to collect the information of the children using the app, YouTube Kids will need to comply with COPPA. Specifically, in regard to consent. But the concern still remains regarding how parents are going to be given notice about data collected on their children, and what kind of consent is appropriate for an app like YouTube. Currently, consent standards that adhere to COPPA include: emailing a parent; requiring a permission slip that is signed and sent back; a 1-800 number that allows a parent to call in to confirm; video-conferencing; governmental identification check; or any other reasonable efforts to obtain consent. This also poses the question as to how many times consent is going to be needed and what efforts are in place to assure the children are not consenting themselves. Realistically, there is no definite way to prevent children from accessing the Internet or downloading apps in general, besides parental oversight. However, YouTube Kids is going to have to get ready for any issues that may arise with consent.

Another issue is the area of marketing. If adults are being targeted with specific ads, children could very well be susceptible to the same. Users of the app have already mentioned child-friendly ads are used pervasively. This also raises the question as to whether third party companies that are advertising on the app are also complying with the same level of privacy standards as Google. Additionally, it also becomes a concern if parents will have to provide consent to allow these third parties to collect the child’s information as well.

The content available on YouTube Kids is going to be another issue that parents are going to have to examine. Depending on whether children are going to have the capability of uploading their own videos, COPPA now categorizes voice and video uploads as personal information. Thus, if children can upload content on YouTube Kids, there will likely be issues regarding how consent is obtained, and if it will be required just once or every time a video is uploaded.

Another obvious concern is who is going to be able to access and upload videos onto YouTube Kids if there are people out there specifically looking to target children with inappropriate content. On the other hand, there is optimism about Google taking appropriate measures to ensure children are protected and the content on YouTube Kids is filtered. This is also mentioned as a positive move in the right direction, since a number of Internet and app providers moved away from offering any child-friendly services after COPPA made updates to the law. The app also provides preferences for parents including removing the search bar entirely, thereby only allowing children to watch videos. However, users of the app say the parental controls are not secured by password and therefore give children that are old enough to read the opportunity to change the settings. The comments are also disabled which is another filter YouTube Kids offers; probably to remove any inappropriate content and potentially to prevent cyber-bullying.

Whatever Google has in store for providing online services tailored for children, offering YouTube Kids through the app is one way to test through trial and error. This includes the number of privacy issues that will be present if and when the app moves to the web. For now, COPPA offers at the very least protective measures to keep children’s information collected online private. This framework is not perfect and may leave room for leeway by operators, however it is better than nothing. Either way, there is still the possibility that children under thirteen are using YouTube now. If so, hopefully Google is tailoring this app to the younger children who have not accessed the Internet yet. It will be interesting to see how YouTube Kids complies with COPPA, and if not, the FTC will be watching closely.

RETURN INNOCENT U.S. CITIZEN TRAPPED IN EGYPT’S LEGAL BLACK HOLE

Bring Home

Too many people expect wonders from democracy, when the most wonderful thing of all is just having it.” – Walter Winchell.

 DEMOCRACY TODAY

This quote describes the attitude of the world today for democracy: the most popular form of government around the globe. Democracy, simply put, allows the citizens of its country to elect and change their leaders, to choose their leaders via frequent elections, to participate in free and fair elections, and to have access to basic protection of their civil rights. The opportunity of self-governance is one of the most appealing traits of a democratic system.

The United States is a democracy, and the First Amendment of the Bill of Rights protects our most treasured right: the freedom of speech. The First Amendment provides United States’ citizens the freedom of speech, or freedom of expression, which “is ‘the matrix, the indispensable condition of nearly every other form of freedom.’ Without it, other fundamental rights, like the right to vote, would wither and die.” Since the Bill of Rights was first ratified in 1791, the First Amendment has been attacked and tested numerous times throughout the country’s history, but it still stands as our most protected freedom in the United States.

The support for democracy around the world in recent years has made it clear that citizens of many developing nations want to have a voice in the governance of their societies. Despite the strong fervor surrounding democracy, it is not a perfect governmental system. There are many who have challenged democracy throughout the world and throughout history. For instance, the current Egyptian government currently in place is opposed to democracy and has resisted it in the most hostile manner. The first democratically elected president was Mohammed Morsi, but he saw “only one year in power before being ousted by the military on 3 July 2013.” President Morsi’s fitness as president is arguable, but the military that overthrew him and that now controls the Egyptian government made it clear that citizens who support democracy are their enemy. This military led government showed contempt for democracy’s core pillar of civil discourse by slaughtering and injuring thousands of people protesting President Morsi’s forced removal. After President Morsi was taken into custody, “[m]ass protests were staged by his supporters on the streets of Cairo, demanding his release and immediate return to power. The army responded by storming protests camps on 14 August and arresting key Brotherhood figures. Almost 1,000 people died in the crackdown[]” led by the Egyptian military. These military attacks continued; hundreds more were killed and thousands more were wounded.

On August 15, 2013, U.S. President Barack Obama stepped forward and stated that he “strongly condemn[ed] the steps that ha[d] been taken” in Egypt, but he refused “to cut the $1.3 billion the U.S. provides annually in military aid[,]” stating that “America cannot determine the future of Egypt.” This sentiment was not enough to dissuade the Egyptian military leader, led then by General Abdel Fattah al-Sisi, who has since taken over as leader of Egypt.

MOHAMED SOLTAN WRONGFULLY ARRESTED

Protests continued to take place refuting the Egyptian military’s actions, but the military’s assault on the Egyptian people persisted. Mohamed Soltan was already among the Egyptian people working towards promoting the development of democracy in the country when on August 14, 2013, the day before President Obama’s statement, Mr. Soltan suffered a spontaneous military attack during a peaceful protest. Mr. Soltan had been documenting the protest and the attack “on Twitter with his iPhone, [and] reported that he was shot in the arm[.]” The bullet remained in his arm for a couple days, and he suffered considerable pain as a result of the wound. Mr. Soltan was requested for an interview a couple days later, but was only able to speak over the phone. During this interview, Mr. Soltan stated that he feared arrest and so did not seek public medical attention for his wound. He attested that

[a]t least one other demonstrator he knew had been taken into custody after being treated in a hospital near Rabaa, he said, so he had a private doctor remove the bullet. His bandaged arm hung in a sling, which he removed whenever he encountered one of the police or army roadblocks scattered across Cairo under the military-backed government’s month long state of emergency.

His fear of arrest was confirmed a short while later. On August 25, 2013, Mr. Soltan sent his sister, Hanaa Soltan, “who lives in the Washington area, . . . a text message stating, ‘We’ve been arrested. Post.’ She has been unable to [communicate directly with] her brother since.” Ms. Soltan later received an email from her parent’s neighbors that their home in Egypt “had been broken into and destroyed[.] . . . We aren’t sure if he was arrested at a different location and brought back to the house or if he and his friends had been arrested there.”

No matter how it played out, Mr. Soltan “was arrested . . . [after he] had been working with a media committee which reported violations by the security forces against pro-Morsi supporters since his ousting.” The security forces broke into Mr. Soltan’s home in Cairo, Egypt that day and were “looking for his father, Salah Soltan, a Muslim Brotherhood figure. [They] . . . arrested Mohamed Soltan and three of his friends when they did not find his father.”

Mr. Soltan is one of over 16,000 people reported to be detained “in prisons and police stations since the ousting of former president Mohamed Morsi.” However, Mohamed Soltan is both an Egyptian citizen and a U.S. citizen. As such, Mohamed Soltan is entitled to receive the same rights and should be afforded the same international civil and human rights as any American citizen should in his capacity: a detained American in an international prison based on fictitious charges.

SOLTAN GREW UP IN THE USA

Mr. Soltan is a fellow U.S. citizen who grew up in the United States and who knows everything about being an American, right down to our country’s love of Chipotle and college sports. Below is a brief summary about Mr. Soltan and just how fundamental this country has been in his life.

Mohamed Soltan is a 27 year old Egyptian American citizen and prominent peace activist. He grew up in Kansas City, moved to Detroit for high school, and finished his Economics degree from the Ohio State University. Mohamed led many activities while on and off campus the past years. He was the president of the Muslim Student Association at OSU, organized youth events in the community, and was involved in many charitable events. His activism led him to be involved on Medical Aid convoys to the Middle East. Most recently, in 2012, he went to the outskirts of Jordan where he assisted in delivering Aid to Syrian Refugees. Mohamed’s dedication to both his identities, American and Egyptian, have shown through in his activism. His dedication to his American identity led him to stay active in local community work in Columbus, Ohio. His dedication to his Egyptian identity led him to leave Ohio . . . in order to join millions of Egyptians who called for the ouster of the long standing dictator Hosni Mubarak.

It cannot be disputed that Mr. Soltan is a U.S. citizen, and thus should be protected by our government as any U.S. citizen should be protected when targeted by international militaries.

SOLTAN IS ACCUSED OF COMMITTING UNFOUNDED CRIMINAL ACTS

The Egyptian authorities moved Mr. Soltan from prison to prison in order to prevent his exact whereabouts from becoming known. In a letter smuggled out to his mother, Mr. Soltan wrote about the aftermath of his arrest. He said, “I was not allowed a phone call, nor any communication with a lawyer, with one guard quipping that he could get me anything I wanted, drugs, alcohol, prostitutes. Just not due process.”

More shocking still, Mr. Soltan was blind folded and taken to a man who then claimed to be charging Mr. Soltan of the following six crimes: “funding a terrorist organization; membership in a terrorist organization; membership in an armed militia; disturbing the peace; falsifying and spreading rumors about the internal affairs of Egypt; and finally, the killing of protestors.” Of course, none of these allegations are rooted in either fact or law. Upon hearing these accusations, Mr. Soltan described to his mother that he “was completely shocked that such charges, none of which had any basis in reality, would be so casually brought against me, and thought of the future plans I had for my career, and family, and thought that they would all be so casually ruined by this sham I was being subjected to.”

To top off these absurd criminal charges, Mr. Soltan has suffered further psychological and physical abuse at the hands of his captors. He detailed a few of his experiences to his mother as follows:

The brutality with which I have been treated has been mind boggling. During the day, soldiers and police would get in two straight lines, and we would have to run in between them as they beat us with rocks and sticks. They roused anger amongst the officers by falsely proclaiming that we had killed police officers. The officers stripped off our pants and shirts as they beat us with clubs. They put us in jail cells with what must have been 60 other inmates, and it was terribly hot and water was not made available to us. I saw an inmate suffer a heart attack right before my eyes and not receive proper medical attention. The surgical wound on my arm was open and oozing, and not one of the guards seemed to care because I was labeled a political prisoner.

In addition to being unable to see visitors, Mr. Soltan has been denied all access to the American Embassy in Cairo, Egypt. Despite these harsh circumstances, Mr. Soltan is able to speak proudly of his American heritage as he writes to his mother. He thanks his mother for nurturing him as a dual citizen.

My American identity has afforded me the opportunity to taste freedom, to breathe its limitless air, and to enjoy the liberties given to me. My Egyptian identity sincerely desires those very same privileges, and to witness Egyptians be deprived of those rights motivates me to persevere and to work towards their cause. Khalil Gibran once said that birds don’t build their nests within a cage so that their offspring don’t inherit slavery. These are the principles that the American founding fathers also spoke highly of. The people of Egypt, have the natural right to freedom.

A year into his detainment, Mr. Soltan had still not been formally charged with committing any crimes. Mr. Soltan was falsely arrest. In September, “[a]fter months of illegal detention, [he] finally stood before a judge, no evidence was presented and no argument was made, [and] the judge simply ordered he be held for another 45 days. In protest, Mohamed entered into a hunger strike immediately following [a] hearing on January 26th, 2014 with no plans to end it before he is immediately released for lack of evidence against him.” Mr. Soltan still has not been afforded a proper hearing where he has been formally charged of any crime and still has not been afforded an opportunity to offer his defense to the appropriate authorities.

His hunger strike has continued for well over a year now, and he has suffered numerous strokes and physical consequences as a result. However, Mr. Soltan has managed to hold on, and his family was recently able to convince him to take at least a few simple liquids to sustain him.

Mr. Soltan is being denied his basic human rights under international law, let alone under the laws of the United States, as mandated by the United Nations for all its members. The U.S. government needs to step forward and right this wrong, or else our country will be just as responsible for Mr. Soltan’s predicament as our country has been for the shameful blight thrust upon the hundreds of prisoners sent to Guantánamo Bay over the past century.

BASIC INTERNATIONAL RIGHTS ARE NOT BEING AFFORDED TO MR. SOLTAN

Every human being is entitled to basic international human rights, even during times of war. According to the United Nations, “Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.” As of October 24, 1945, Egypt has been an active Member State of the United Nations and has an obligation under this umbrella to “refrain from interfering with or curtailing the enjoyment of human rights[;] to protect . . . individuals and groups against human rights abuses[;] [and] must take positive action to facilitate the enjoyment of basic human rights.” The same is true of the United States, which became a Member State of the United Nations the same day as Egypt.

On December 10, 1948, “for the first time in human history” a Declaration was passed that “spell[ed] out basic civil, political, economic, social and cultural rights that all human beings should enjoy[,]” and has become widely known as the International Bill of Human Rights; the original of which can be found here.

The United Nations has also set forth a basic list of rules for treatment of prisoners of war. These rules generally apply to all Member States, and the number and breadth of these rules are vast. In relevant part, the treatment of prisoners of war are to include such things as: information regarding his admission and release times; “no person shall be received in an institution without a valid commitment order of which the details shall have been previously entered in the register[;]” “[u]ntried prisoners shall be kept separate from convicted prisoners[;]” minors are to be separated from adults; prisoners “shall be provided with water and with such toilet articles as are necessary for health and cleanliness[;]” “[e]very prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served[;] and ‘[d]rinking water shall be available to every prisoner whenever he needs it.”

The above list is just a brief summary of the many rules the United Nations has chosen to post as the basic rights of prisoners of war of its Member States. Most of these regulations have not been afforded to Mr. Soltan – and he is not even a prisoner of war. In other words, the United Nations’ standard for treating prisoners of war within Member States far exceeds the level of treatment that Mr. Soltan has received. According to his testimonies, he has received little to no medical care, receives little water, and (before his hungry strike) little food. Mr. Soltan’s accounting of maltreatment and lack of civil rights can be corroborated by the dozens of other political prisoners and non-political prisoners detained due to the 2013 Egyptian coup; many of these prisoners, some of whom have been released, have offered similar accounts of torture, lack of access to basic supplies, and denial of due process.

Furthermore, and more importantly, the United Nations makes it clear that “[n]o prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence [sic]. The competent authority shall conduct a thorough examination of the case.” Despite the United Nations’ declarations and rules surrounding international law, the current Egyptian government has spat upon the international leadership that the country elected to take support from and be a member of nearly 70 years ago.

Mr. Soltan has clearly been denied this right and stripped of his basic human rights and the most basic rights afforded to even prisoners of war. It is time that the United Nations as a whole take a stand against the severe violations found in Egypt and implement the self-governing duties it imposed upon itself when the United Nations was founded in 1945. At the least, the United States needs to protect its own and attempt to reconcile this tragedy for “United We Stand, divided we fall.”

As it stands, Mr. Soltan is left without a leg to stand on as his physical health and patriotic spirit takes lashes from the Egyptian military. It is usually impossible to avoid the consequences of certain situations without having previous knowledge of similar situations. In this case, however, here we have witnessed Mr. Soltan’s situation before – he is trapped in a legal black hole similar to that created by the United States found at Guantánamo Bay. The United States was chiefly responsible for creating this legal black hole and is still working towards repentance.

 The U.S. HAS A Legal Black Hole in Guantánamo Bay

It was in Guantánamo Bay, beginning in 1903. Cuba was granted a lease whereby it would have “total sovereignty over Guantánamo Bay, but gave the US ‘complete jurisdiction and control’. This inadvertently created a space where neither nation’s laws clearly applied: a purgatory that’s been used to park people whose legal rights posed political threats.” Because of this separation between ownership and control, a legal black hole was created, or “a gap where no jurisdiction is exercised by either state, and where no jurisdiction can be imposed by outside sources under the norms of international law. Guantánamo Bay is thus an area where a certain range of activities may occur in the absence of any legal framework.”

The most severe consequence of this superficial legal system occurred in 1991 when thousands of Haitians fled their country seeking political asylum in the United States. The President, George Bush Sr., sought to rescue the refugees from certain death at sea, who fled via makeshift boats, but refused to accept everyone into the country. Thus, he ordered “the US coast guard to take over 20,000 to Gitmo. Most were returned to Haiti. But about 200 got caught in the middle: approved for asylum, but barred from the US for being HIV-positive. These refugees staged protests and harnessed international media attention. Concerned citizens lined US streets calling to close Guantánamo; Harold Koh (then at Yale Law) organized a legal battle.” Although one U.S. judge ordered the camp closed two years later, President Clinton reopened the camp to hold nearly 30,000 Cubans just only a year after that. These Cuban refugees were forced to live in tent cities behind barbed wires for roughly two years. This pattern has repeated itself several times since 1903. In 2010 for example, it was reported that “Guantánamo still holds 176 detainees, and [only] one of them is about to stand trial[.]” President Obama made a statement “on May 23, 2013, [where he] promised to begin releasing the prisoners still held at Guantánamo Bay who were cleared to leave by his inter-agency task force in January 2010 — 86 at the time.” President Obama has made his intentions clear that he does not support the continued use of Guantánamo Bay as a detention facility, but his promise to release the pardoned prisoners remains unsatisfied. This situation reflects the difficulties of enforcing any promise, even that given by a President, where there is no legal recourse.

The lease with Cuba is open-ended, history keeps repeating itself, and there appears to be no realistic method of permanently closing the camp for good. It has remained for over 110 years to be the United States’ legal black hole where a President can stick any individual – enemy or not – on an island camp for however long he decides and for whatever reason he chooses. And there is no legal recourse for those who suffer such imprisonment.

Mr. Soltan is suBject to a Legal Black Hole with no Due Process

Mr. Soltan has been held in Egyptian military prisons for no other reason other than his political contributions to democracy and patriotism placed him in a dangerous predicament. His mission is simple: to bring the same liberties the citizens of the United States experience to the citizens of Egypt because Mr. Soltan truly believes in liberty, freedom, and justice for all.

When Mr. Soltan was arrested and isolated from his friends and families, he was plugged into a world of legal fiction. He has been locked away from civil society for over a year and a half and still has not heard the formal charges brought against him. There is no evidence to offer against him, and his accusers have not attempted to fabricate any either. Mr. Soltan has not been afforded the right to defend himself against these accusers in a competent court of law. He has not been granted the most basic of human rights during his imprisonment. And yet, there is no legal recourse for him. He is suffering from a similar plight as those who have been forced into one of Guantánamo Bay’s detention camps. However, no one has come to his rescue. The Egyptian President is responsible for not just Mr. Soltan’s false imprisonment, but also the false imprisonment of thousands of others accused of committing criminal acts fabricated by the same Egyptian military that forced President Morsi’s removal.

Mr. Soltan is an innocent young adult, a college graduate of the Ohio State University, and a fellow United States citizen. His human rights have been violated to an outrageous level, and he is being denied due process in all sense of the phrase. It is time the United States government turns its attention to Mr. Soltan’s situation. It is time to demand that the Egyptian government present substantial evidence of Mr. Soltan’s guilt and of the crimes he has allegedly committed; it is time to demand that they provide him with basic due process and human rights afforded to every person under binding international laws; or it is time to demand his immediately release.

Conclusion

One of America’s founding fathers, John Adams, warned the founding nation to “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself.” I urge every person who reads this article to take Mohamed Soltan’s life to heart and the meaning of democracy – the right to be free and the right to be treated as a human being – to reality. Do not let democracy die with Mr. Soltan by leaving him to the mercy of a military dictatorship that has wrongfully murdered hundreds, injured thousands, and imprisoned tens of thousands more for their own purposes. Rather, I urge this country to not to let the evils of injustice and cruelty reign over innocent individuals such as Mr. Soltan while choosing to hide under a cloak of righteousness by pointing the finger at the aggressors and skirting the responsibility of protecting a fellow citizen. Let the suffering stop. Do not let Egypt repeat what has already become a shameful blot on U.S. history at Guantánamo Bay and permit this tragic legal black hole to continue.

Mr. Soltan is an American through and through. He has proved this in many respects, but he stated it best when we said: “‘The Egyptian side of my identity deserves as much freedom and democracy and liberty as my American side does,’ he said. ‘It’s what I learned in sixth-grade civics class: Give me liberty or give me death.’”

Bring Mohammed Soltan home, to his country, our country, the United States of America, where he belongs and reunite him with his friends and family who love and miss him dearly.

 

VIEW MOHAMED SOLTAN’S PLEA FOR HELP

Please follow this link to a leaked video of Mohamed Soltan recorded on June 3, 2014 using a hidden camera phone and shows Mr. Soltan pleading for help from his prison cell. This was the last telecommunication released, and it can only be assumed that Mr. Soltan has been unable to obtain another phone to contact the outside world. You can view more videos about Mr. Soltan, posted by his family, friends, supporters, and congressman, here.

 

A LETTER TO THE PRESIDENT, SINCERELY MOHAMED SOLTAN

The following link is of a letter written by Mohamed Soltan directed to U.S. President Barack Obama on his 26th birthday in November 2014. A copy can also be found here. Furthermore, one of his friends recorded a video of himself on May 6, 2014 reading Mr. Soltan’s letter to our President, which is available on YouTube.

***

MOHAMED SOLTAN SENTENCED TO LIFE IN PRISON

The above article was originally published on April 6, 2015 on the Golden Gate University Law Review Online website. However, on April 11, 2015, Mr. Soltan was sentenced. He was not given a fair trial and no evidence was brought against him. Nonetheless, he has been sentenced to life in prison. Given Mr. Soltan’s innocence, failing health, and refusal to give up his hunger strike, this sentence is synonymous to a sentence to death.

We cannot let this injustice take place. We need to take a stand against what the Egyptian military has done to thousands of innocents, and, at the very least, we need to protect our own citizens. We need to SAVE MOHAMED SOLTAN!

Please help spread awareness of Mr. Soltan’s tragic story. The online article has hyperlinks leading to the citations and is available at: https://ggulawreview.org/2015/04/06/return-innocent-u-s-citizen-trapped-in-egypts-legal-black-hole/. Thank you for your support.

Prime Air Encounters FAA Turbulence

better delivery

Safety first. That was the message the Federal Aviation Administration (FAA) sent in a February 15th press release.

Unmanned aircraft systems (UAS), often called drones, are rapidly entering the public space. Beyond hobby flight, drones have many useful applications. For instance, drones can be used for crop monitoring, bridge inspection, aerial photography, and much more. Moreover, major corporations like Amazon and Google see a bright future in drone package delivery programs. Nevertheless, safety concerns temper some of the excitement.

The FAA is responsible for the safety of civil aviation. Because drones operate in federal airspace, Congress tasked the FAA with creating new safety rules to address commercial drone flight. In February, the FAA released its proposed new rules governing drones weighing less than 55 pounds, which are used for non-recreational purposes. Among other restrictions, the proposed rules limit flights to daylight, visual-line-of-sight, below 500 feet, at flight speeds not to exceed 100 miles per hour. Additionally, operators must not fly drones over people. The FAA would also require operators to be certified and to incur other responsibilities.

Not everyone is happy with the FAA’s newly proposed rules. Opponents say that the rules needlessly stifle technological development with unwarranted safety concerns. For example Jeff Bezos, CEO of e-commerce giant Amazon, wants its drone-based Prime Air program to reduce package delivery down to a 30-minute window. Bezos first announced in 2013 his plans to reinvent package delivery through the use of unmanned drones. Since that time, Amazon has hired various aeronautical and robotics experts in hopes of testing in the United States and eventual launch of Prime Air.

Under the proposed FAA rules, however, Prime Air remains grounded. Currently the FAA’s policy for UAS operations is that “no person may operate a UAS in the National Airspace System without specific authority.” Even under the newly proposed rules, Prime Air’s wings remain clipped. Visual restrictions combined with the ban on human over-flight would hinder Prime Air, rendering drone-based package delivery useless. After all, the purpose of drone-based delivery is to substitute drones for humans. To require continuous line-of-sight drone delivery quashes this purpose.

Tensions between public safety and commerce are not new. Nevertheless, safety concerns regarding the use of drones are worth contemplating. Consider for instance the once revolutionary idea of placing the newly invented automobile into the public’s hands in 1910. With the benefits of increased mobility and independence, the automobile simultaneously brought pedestrian, driver, and passenger injuries and fatalities. These new problems required novel solutions. As ubiquitous now as airbags, seatbelts, and headlights are, none of these existed during the early stages of automobile development. More importantly, changes to the law and the creation of new automobile laws and regulations helped ensure public safety without discouraging innovation.

Before thousands of drones get a free pass to drop packages on porches, the possible risks must be mitigated. The FAA Modernization and Reform Act of 2012 stipulates that the FAA “provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.” The concern for public safety is significant, and the FAA must get its new rules right. Anyone who has been struck by an errant ball or Frisbee knows that flying objects hurt on contact. Damage to property no less injures. Drone-to-person contact and air-to-air collision are just some areas posing significant public risk. Whether by operator error, computer glitch, or frequency jamming, drones are by no means risk-free modes of flight. Even with modern advances in sense-and-avoid technologies purportedly being integrated into newer drones, the public has a right to demand thorough flight-safety regulations and restrictions.

Understandably, Amazon and others want fewer restrictions and faster authorization to fly. However, the revamping of airspace regulations should emphasize safety over commercial needs. In the interim, the FAA can grant Special Use Airspace privileges to Amazon and others so those companies may continue to develop and refine safe drone flight. Smart regulatory reform and technological advances need not proceed at odds. A concerted effort among aerospace and commercial leaders, combined with well-crafted regulations, serves both the public and industry.

The proposed FAA rules are not yet final. Until April 24, 2015, FAA Director Michael Huerta says the FAA will accept public comment. Huerta asserts that, “[w]e want to maintain today’s outstanding level of aviation safety without placing an undue regulatory burden on an emerging industry.” In addition to Amazon, lobbyists from aerospace industries to news media plan to push back on the regulations. To voice suggestions before the FAA decides on new drone airspace regulations, go to the Federal government’s easy online public comment form. Submissions are due by 11:59 Eastern Time, April 24, 2015.

 

 

San Francisco Nudity Ban, A Balance of Interests

Nudity Ban

In California, public nudity is legal, so long as those participating are not engaged in lewd acts. Individual cities can choose to invoke bans on public nudity, which Berkeley, San Jose, and San Francisco have done. In November 2012, San Francisco lawmakers outlawed something that is not an issue in other parts of the country, public nudity. The debate over public nudity began in 2011 when San Francisco Supervisor Scott Wiener wrote an ordinance that requires nudists to put a towel between themselves and any public property they choose to sit on. This ordinance came as a response to an increased number of complaints regarding men whose exercise of their right to be naked was almost a daily occurrence in the Castro District.  The nudity ban, which went into effect in February 2013, placed a $100 fine on first-time offenders and possible jail time for those caught more than three times.

Was this ban necessary? This is a question that many have asked, especially advocates of public nudity. Prior to the ban, on any given day, a person who walked around Market and Castro streets would be sure to witness someone in the buff at a café table, on a park bench, or even pumping gas. The ban prohibits people from participating in everyday public activities in the nude, but it does leave exceptions where nudity is still acceptable. These events include the annual Gay Pride Parade and the Folsom Street Fair, which cater to certain sexual subcultures.

In March 2013, a request by nudist activists for a temporary restraining order blocking the ban on nudity in public places was turned down. U.S. District Judge Edward Chen denied the restraining order because the evidence presented lacked details and lacked a substantive legal argument. Chen explained that nudity is not inherently expressive, so it is not protected speech.

Every year since the ban was enacted, nudist advocates have gathered in Jane Warner Plaza at Castro and Market Street to protest the nudity ban on its anniversary. On Saturday, February 1, 2014, protesters were wearing censor cards, or socks to cover up their genitals in compliance with the ordinance. However, when protestors removed these items, leaving themselves fully exposed, police gave a five-minute warning that they needed to cover back up. When the protestors failed to comply with the request, police began arresting protestors who were violating the ordinance.

Similarly, on Sunday, February 1, 2015, a rally was held to protest the ban on its two-year anniversary. Organizers of the protest did not obtain a permit for this event and because of that, police officers arrested two men and women whom they warned were in violation of the ordinance.

Despite these instances of enforcement of the nudity ban, it has largely been ineffective to prevent public nudity. As a resident of the Castro neighborhood I can attest that even with the ban, I can walk down Castro Street on any given weekend and still see people walking around in their birthday suits.

Upon closer examination of the language of the ordinance, I found that SEC. 154(b) only states that a person may not expose his or her genitals or anal region. But the ban does not go so far as to require people to wear clothing while in public places, nor does it specify what can be used to cover the genital and anal regions, only indicating that these regions are not to be exposed. As a result of this vagueness, it is still very common to walk down the streets of the Castro neighborhood and see people who are for all intents and purposes naked, with the exception of a flap or a sock to cover their genitals.

Though the ban has not entirely stopped people from being “naked” in public, there are separate city laws that prohibit nudity in restaurants, public seating areas, and parks. It is unclear to me whether the ban was necessary because it appears to be a “naked” fail. However, nudist activists disagree, and argue that it is not the same as it was prior to the ban because the ban stifles their ability to engage in free expression, their “body freedom,” and using nudity as a political statement. Activists further argue that forcing people to cover up will damage San Francisco’s reputation as a “city without inhibitions.”

The ban was only approved by a 6-5 vote by the Board of Supervisors. Those who voted against the ban were concerned that civil liberties and free speech would be infringed as well as its potential to change San Francisco’s notoriously tolerant style as a city. However proponents of the ban disagreed, claiming that while the San Francisco and the Castro in particular are a place for freedom, expression, and acceptance, these concepts have limits and should not elicit an anything goes idea. Public spaces are made for everyone, thus, it is important to have minimum behavioral standards. However, the question remains whether this ban was necessary in the first place, especially since it has not entirely prevented the expression it was meant to.

What Do You Really Want? Speech v. Reputation in a World of Instant Gratification

The "Loaded Hash Browns" at Jacks N Joe.
The “Loaded Hash Browns” at Jacks N Joe.

“Where do you want to eat?”

That’s the question many food aficionados ask when they start making dining plans for the day. It’s also the question most regular people ask on a daily basis – it doesn’t matter if you’re in a relationship, celebrating with friends, or simply divulging in the numerous food spots your town has to offer.

Today’s social media provides us with an unprecedented platform for expression. Although you can definitely sue someone for defaming you, social media’s expansive platform has created an unintentional temptation for abuse – we can say what we want, how we want, about who and what we want, with very minimal worry for consequences.

Eating out at restaurants is extremely common, particularly in big cities and populations like the Bay Area. It is no longer seen as something reserved for a special occasion. Hipsters love to buck the trend, but right now, what’s “in” is what’s “out” – as in what food is “out” there, and how can I find it?

Buying groceries and cooking a meal at home isn’t cool anymore. It may be more expensive to maintain a “going-out-to-eat” diet, but it’s more in tune with the times. In particular, San Francisco is full of “techies” and young folks with disposable income. Other than the newest smartphone or fancy cocktails at “that bar everyone goes to,” these folks cannot wait to spend their money on all the newest and most popular foods that everyone in their inner-circle is talking about.

If you’re in the know, then you know that Yelp! is the number one way to find out where those best eats are. The website (and app) allow anyone to filter their search by the type of food, the price of food, and the desired area of dining within seconds.

Other social media outlets provide even more ways for foodies to share their love with the rest of the world: Instagram, Foursquare, Twitter, and Facebook provide windows into the kitchens of the finest food joints around. The sharing is fun, and it has created instant access for anyone with a smart phone and an affinity for “friends,” “@” signs, and “hashtags.”

But with all this sharing, there is a great deal of reliance being placed on strangers to tell us what is “good” and what is “bad.” I’ll admit – when I look to Yelp to find a good breakfast place (the morning after a jolly evening with my companions), I expect the app to be accurate. I want to find a place that sells Corned Beef Hash, within 5 blocks from Mission St., that’s open by 8:00am, for less than $5, and that accepts credit cards. I rely on Yelp, and the users who share on Yelp, to find that for me. And I do not expect them to fail me.

But what happens if I don’t get the information I’m looking for? Or if Yelp leads me astray? Or if a restaurant hasn’t conformed to a certain part of my search criteria?

For some people, the answer is not so pretty: they’ll post bad ratings on Yelp despite never actually eating the food. A picture on Instagram will be shared, but a caption will be included disparaging the establishment for not being open at 5:00am or not accepting credit cards. Some tweets imply incompetence due to one food item’s inadequacy. Some dedicate entire Twitter accounts to disparage the restaurant. And some tweets are somewhere in between being confused and upset.

Have we gotten to the point where that kind of criticism is warranted? Do we rely on these applications so much that we’ve come to expect them to be on point, all the time, no matter what? It should not come to the point where, when these searches fail us, we can destroy a restaurant’s reputation with unfettered discretion.

Our First Amendment rights of freedom of speech are strong, and we are all entitled to our opinions. But the state always has a counter-balancing interest in protecting one’s reputation. Businesses in the food industry rely on their clientele enjoying their experience and spreading the word to other potential customers. A line must be drawn between “angry foodie upset with the restaurant experience” and “unwarranted comments detrimental to the reputation of a restaurant.”

Defamation is when someone makes statements about another person, causing that person’s reputation to sink within the community. At common law, one could be liable for a defamatory statement concerning someone else if that statement was published to other people. “Publishing” included writing, radio, and spoken words – and the more permanent the message could be, the easier someone could sue and win a defamation suit.

In this day and age, commentary on social media has a serious and permanent impact on a restaurant’s reputation. This goes both ways: if commentary is good, customers come flocking in; if commentary is bad, customers have the presumption that the restaurant is never worth visiting.

When we consider going out to eat, there is a lot of value in getting a “heads-up” from others about the quality of a restaurant’s food and service. If the food, service, or overall experience is actually poor, a bad review is justified. And “truth” is always a defense to any claim of defamation.

But hateful comments, even in the context of food, can be an unlawful assault on a restaurant’s reputation. Most restaurants are focused on making a profit – they’re not focusing on whether they need to file a defamation lawsuit in response to spiteful social media attacks.

But all it takes is a few bad reviews for a restaurant to start going under (even if certain restaurants have recently challenged that premise).

So before you tell me where you want to eat, really think about what you want, and how you know you want it.

I know you’re hungry, but try not to get too cranky while we try to find the right place!

Yates v. United States: The Supreme Court Lets Florida Fisherman Off the Hook for Sarbanes-Oxley Charge

Fishing

Last month, the Supreme Court delivered its opinion in Yates v. United States, overturning the Eleventh Circuit and holding that a provision of Sarbanes Oxley – the law enacted in response to the sort of corporate and accounting fraud seen in the Enron scandal – does not apply to the destruction of fish. That’s right, fish – Red Grouper to be specific. While this may seem like the obvious result, considering the activities of South Florida fisherman share little in common with the sort of white collar crimes we associate with Sarbanes-Oxley, the two lower courts hearing the issue reached a different conclusion, and even the Supreme Court was divided 4-1-4. Ultimately concluding Congress had specific intentions when drafting the poorly worded statute at issue, the plurality dug deep into its tackle box of statutory interpretation tools to limit the scope of the broad phrase “tangible object.” As a plain meaning interpretation would render the statute applicable in virtually every instance of evidence tampering, the Court expressed concern over the leverage the threat of twenty years behind bars would provide prosecutors, especially in instances such as this, where the defendant’s conduct amounts to a mere civil infraction.

In August 2007, John Yates, captain of the Miss Katie, a commercial fishing boat based out of South Florida, was six days into an expedition in the Gulf of Mexico when Officer John Jones of the Florida Fish and Wildlife Conservation Commission boarded his vessel to perform a routine inspection. While on board, Officer Jones noticed several fish hanging on the deck that appeared under the legal limit of 20 inches, a violation punishable by fine or fishing license suspension. Suspecting there may be more, Officer Jones proceeded to inspect the remainder of the Miss Katie’s catch, ultimately discovering 72 undersized fish. After separating the undersized fish from the others, Officer Jones issued Yates a citation and instructed him to leave the fish separated until his vessel returned to port, where they could be properly documented and disposed of.

Four days after the initial interaction, Officer Jones again met up with the Miss Katie upon the vessel’s return to port. Jones reinspected the catch, measuring the fish that had been previously separated as under the legal limit. However, after measuring the fish a second time, Officer Jones noticed the sizes did not match up with his records; although the fish were still undersized, most were just barely under 20 inches. Suspecting the fish were not the same fish he measured before, Officer Jones began an investigation in which he discovered Yates had instructed his crewmembers to throw the smaller fish overboard, and to replace them with other fish in the catch. Based on his orders, Yates was indicted for destroying, concealing, and covering up undersized fish to impede a federal investigation, a violation of 18 U.S.C. § 1519.

As noted above, Section 1519 was enacted as part of the Sarbanes-Oxley Act of 2002 – legislation intended to protect investors by targeting acts of corporate fraud. Section 1519, titled “Destruction, alteration, or falsification of records in Federal investigations and bankruptcy,” provides:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States…shall be fined under this title, imprisoned not more than 20 years, or both.”

The issue the court had to decide in the case was whether the fish Yates tossed overboard fall within the scope of a “tangible object” as that term is used in the statute. The Department of Justice urged to the Court to apply a plain meaning interpretation of the phrase, a formulation with which the Federal District Court and Eleventh Circuit Court of Appeals agreed. Yates, on the other hand, pointed to Section 1519’s title and origin as a provision of Sarbanes-Oxley, arguing the statute “only applies to records, documents, or tangible items that relate to recordkeeping.”

In a four-one-four decision, Justice Ruth Bader Ginsburg, writing for the plurality, reversed the lower court and agreed with Yates’ interpretation. Focusing on the context in which the phrase “tangible object” appears, the section’s title and location amongst other specialized provisions in the code, and the list of words preceding the phrase, the main opinion concluded “tangible object” within Section 1519 is limited to those objects used to record or preserve information. Relying in part of the principle of noscitur a sociis – “a word is known by the company it keeps” – the court stated, “‘[t]angible object’ is the last in a list of terms that begins ‘any record or document.’ The term is therefore appropriately read to refer, not to any tangible object, but specifically to the subset of tangible objects involving records and documents, i.e. objects used to record or preserve information.” Justice Alito, in his concurring opinion, similarly relied on the statute’s list of nouns and verbs preceding the phrase “tangible object,” as well as the section’s title. In his view, “[a]lthough perhaps none of these features by itself would tip the case in favor of Yates, the three combined do so.”

According to the dissent, authored by Justice Kagan and joined by Justices Scalia, Kennedy and Thomas, the issue was much simpler than the plurality’s “fishing expedition” to come up with an interpretation made it out to be. In their view, the plain meaning of “tangible object” includes fish, and the long list of words surrounding the phrase expressed Congress’ intent that the statute has a wide range of application. Despite agreeing with the plurality that Section 1519 is a “bad law – too broad and undifferentiated, with too-high maximum penalties, which gives prosecutors too much leverage and sentencers too much discretion[,]” the dissent saw the plurality as replacing a statute enacted by Congress with an alternative of its own design.

Although the plurality’s opinion in Yates reads like a lesson in obscure principles of statutory interpretation, the oral argument in this case provides the greatest insight to the justifications for the holding. After asking the Department of Justice attorney about several hypothetical scenarios such as an individual throwing back a single undersized fish, someone who picks and disposes of a protected flower, or a camper who covers embers from a fire where it was not allowed, the Court appeared reluctant to interpret the statute in a manner that would allow its application to such a wide variety of trivial cases. In the words of Chief Justice Roberts, the statute’s 20-year maximum sentence would provide prosecutors “extraordinary leverage,” encouraging offenders to take plea deals that would still exceed what is fitting for their conduct. Of particular concern to the Justices was a statement made by the DOJ attorney that it is agency policy to seek the most severe punishment available when pursuing prosecution.

As pointed out by the dissent, Section 1519 is not an outlier, “but an emblem of a deeper pathology in the federal criminal code.” Overly broad statutes with high maximum punishments and affording prosecutors and judges a great deal of discretion are not uncommon in our system, and undoubtedly contribute to our country’s status as the world leader in incarceration. Although the decision in Yates at times seems as though the Court was reaching to achieve the desired outcome, this case sends an important message that similar broadly worded statutes will be closely scrutinized, including not only their legislative history, but also the context, title, placement in the code, and the potential far reaching consequences.

Liability for CrossFit Trainers

The author performing an olympic lift.
The author competing in a beginner’s level CrossFit competition.

On the weekend of January 16, 2013, Kevin Ogar was paralyzed during a Crossfit competition. He was completing a “snatch,” where a competitor lifts a barbell from the ground over his head in one swift motion, when he let go of the barbell, it fell behind him, bounced off a stack of weights, and then hit him in the back.

Some people might have called this incident a freak accident while others who have heard of Crossfit being dangerous might blame it on the inherent nature of Crossfit. People might look to blame the athlete for overestimating his strength or not having the proper technique. But accidents in the sports world are not unique just to Crossfit. Out of the 30 million teens (14 and younger) who participate in organized sports, about 3.5 million experienced injuries with the most common injury being sprains and strains. Many of the training aspects of Crossfit are included in other sports such as running, push-ups, sit-ups, and HIIT (high intensity interval training).

Crossfit is defined as “that which optimizes fitness (constantly varied functional movements performed at relatively high intensity).” As a Crossfit athlete, I can attest to its high intensity, sweat-inducing, and back-breaking workouts known as a WOD (Workout of the Day). Crossfit exercises include running, pull-ups, push-ups, sit-ups, barbell lifts, tire flipping, rope climbs, burpees, kettlebell swings, and wall balls. Workouts last from just a few minutes to over an hour. A study from my alma mater, the University of Rochester, puts the rate of injury of Crossfit athletes at 20%, which seams reasonable based on my personal experience. These injuries could be minor such as a sprain or extend to more major injuries such as breaking a bone. In the year and a half I’ve been doing Crossfit, besides being incredibly sore and tired at times, I have only been injured once and it was more my own clumsiness that caused it than anything else. I was doing an exercise where you touch your foot on a bench and go back and forth between each foot, and I tripped myself, felt backward on my wrist, and sprained my wrist. It took my out of Crossfit for about 3-4 weeks.

Even though injuries in CrossFit are not unusual, just like they’re not unusual or unexpected in any physical activity, the main issue in this post is how much responsibility should a Crossfit trainer have if an athlete does get hurt?

To operate a Crossfit box, trainers only have to receive their level-1 Certification and pay a monthly fee to be an affiliate of CrossFit. The level-1 Certification encompasses a two-day training from 9am to 5pm and requires the person to pass the Level 1 test. The test is a 55 question multiple-choice test about “core concepts, methodology, and foundational movements of CrossFit”. There is no prerequisite for skill level or experience training under a supervisor before you attend the class and take the test. While this may seem under-inclusive for someone to own, operate, and run a gym full of athletes at varying levels of skill, most of the people who start coaching have been training in Crossfit, or lifting for quite a while.

Comparing this certification to an athletic coach that might teach at a high school or coach a sport, most athletic coaches must have at least their bachelors, but many trainers have their masters degree as well. This education includes both classroom and experiential learning with topics such as “nutrition, kinesiology, biomechanics and exercise physiology.” In addition, many states require athletic trainers to be certified or licensed. The exam for certification consists of 175 questions about injury/illness prevention and wellness protection, clinical evaluation and diagnosis, immediate and emergency care, treatment and rehabilitation, and organizational and professional health and well-being.

With Crossfit’s limited training, it’s easy to see how someone without prior knowledge, training, or experience might not be the most competent trainer especially when you add heavy weights and quick movements to the workout. That is why it’s important for a trainer to get supplemental information about preventing sports injury, proper mobility, Olympic lifts, and overall nutrition and fitness.

In addition to having more knowledge, training, and experience with coaching amateur athletes, trainers may attempt to waive liability for negligence by having an athlete sign a waiver. Negligence is “a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.” In CrossFit, that would be maintaining equipment, being competent to teach CrossFit, observing students, and making sure students are safe. However these waivers don’t excuse gross-negligence. Gross-negligence is “carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil.” For example, if your trainer knows a piece of equipment is broken and knows that you using that could cause substantial injury and still has you use it anyway; you may still sue that trainer for gross-negligence even though you have signed a waiver. However you would not be able to sue a trainer for lifting a bar that was too heavy for you. Think of these waivers as the same type of document you would sign if you went rock climbing, or white-water river rafting.

Ultimately, it’s up to a trainer to protect his or her Crossfit box. When a trainer potentially gets sued, the court is going to look into such things as the trainer’s knowledge, experience, and involvement in the class; the quality of the “box” (Crossfit for gym); other injuries; the size of the class; the maintenance of the equipment, etc.  The most important part of protecting your box is having the proper training to teach your athletes and good equipment. That means not just going to the Crossfit Level 1 certification, but going to other seminars, conducting your own research, and learning how to analyze and improve someone’s technique. Just because a trainer may be able to perform a move perfectly doesn’t necessarily mean they can teach another person. Teaching requires adapting to your students’ learning process, demonstrating movements, and correcting movements on your athletes.

The next most important part is implementing a program that teaches athletes how to do proper lifts, monitoring them and making adjustments throughout the entire workout, and ensuring that each part of the workout is done safely and within that athlete’s ability. Finally, an athlete has a responsibility to listen to their body and communicate with their trainer to ensure that are Cross-fitting safely. When you are tired, don’t go to a high intensity class. Instead supplement you workouts with hikes, long runs, or mobility.

Crossfit has kicked me into the best shape of my life. I want others to feel the same way and most importantly, I want others to be able to learn to Crossfit safely and effectively. It’s up to trainers to expand about their skills and knowledge, and maintain their box. That way, when a newbie walks into the box and is required to do a snatch for the WOD, they have the ease and skill to do it because their trainer has demonstrated the Olympic lift, has observed him or her perform the movement and made suggestions for how to improve. We might not all be Rich Froning, but we can all improve our Fran time.

Celebrity Nude Photo Leak: Just One More Reminder That Privacy Does Not Exist Online and Legally, There’s Not Much We Can Do About It

FilmOn August 31, 2014, the Internet nearly exploded.  A website called 4chan.org uploaded nude images of over 100 women, including many well-known celebrities.  Though this was not the first incident of private celebrity photos (or videos) being made public on the Internet, it was the largest leak of its kind to happen all at once.  The intimate photos posted on 4chan were taken from each celebrity’s personal iCloud account.  A few days after the leak, Apple confirmed that individual iCloud accounts were hacked in a “targeted attack” where hackers used “brute force” to gain access to individual usernames and passwords.  Since the initial leak, several more rounds of stolen private celebrity photos have been released by 4chan.org.

Additionally, less than six weeks after the initial 4chan celebrity photo leak, a website called viralpop.com posted a database of at least 100,000 Snapchat photos which were intercepted by hackers and then later downloaded onto 4chan’s website.  Snapchat is an app where users send photos or video clips to their friends which self-destruct within 10 seconds of receipt.  Once the database was posted on viralpop, users of 4chan downloaded the files and created a searchable database where people can find photos by searching for Snapchat usernames.  Aside from the obvious privacy concerns of users who believed that their photos were deleted, the Snapchat leak is perhaps even more disturbing than the celebrity photo leak because many of the nude photos released are of underage boys and girls (half of Snapchat’s users are between the ages of 13 and 17).  It is not clear whether Snapchat will be sued over this incident, though Snapchat maintains that the leak originated from third party apps which Snapchat’s Terms of Use expressly prohibits.

In the weeks following the celebrity nude photo leak, a heated discourse emerged from online and traditional media outlets and from the celebrities themselves via social media.  While most people agree that it was a criminal breach of privacy when someone hacked into the iCloud accounts of celebrities and publicly exposed their private pictures, some also believe that the victims of the breach should take responsibility for their part in the incident.  These critics believe that the celebrities should have taken better care to secure the photos or not taken nude photos in the first place, because they knew that being famous would make them a target for this type of attack.  Most of the celebrities involved in this breach were women, which has led some critics to suggest that this violation of privacy is yet another example of female oppression in our male dominated society.  This sensationalized exploitation reminds women that they have no right to privacy in the age of the Internet when it comes to their own bodies.  Actress Jennifer Lawrence, a victim of multiple rounds of the 4chan photo leaks, said in a recent interview that the leaks amounted to a sex crime and accused people who viewed the photos of perpetuating a sexual offense.  It is important to note that less than a handful of male celebrities have had private photos stolen from their iCloud accounts and released as part of this celebrity photo leak.  Also, though not surprisingly, the public indignation about the incident is primarily centered on the victims we recognize.  Very little of the discourse even refers to the hundreds of photos of not-famous women which were also released in these leaks.

We have also learned from this massive breach that there is little legal recourse for victims of hacking.  After the photo release, celebrity victims turned to lawyers and copyright infringement law to resolve their problem.  Martin Singer represents a group of unnamed celebrities whose photos were released on 4chan.  Singer sent a letter (and released it to the press) threatening to sue Google for over 100 million dollars for not acting quickly enough to remove links to the photos from its search lists.  Singer’s letter cites the Digital Millennium Copyright Act of 1998 which provides a safe harbor from liability to internet service providers who do not have actual knowledge that its users are posting “infringing” materials.  In the letter, Singer maintains that Google has had actual knowledge of the infringement by its users because Singer himself sent Google “dozens of notices” since the initial photo leak demanding that Google remove the content.  Google has since responded that it removed thousands of photos within hours of each request and closed hundreds of user accounts.

It may seem odd that Google is the target of this lawsuit because Google is primarily a search engine; Singer’s letter does not accuse Google of hacking into the iCloud accounts or posting the leaked photos online for all to see.  But, aside from having deep pockets, there is another reason that Singer could be targeting Google: the real photo hacker(s) are unknown and may never be discovered.  Other hacking incidents over the past couple of years highlight the near impossibility of prosecuting these types of criminals.  Numerous times, anonymous yet extremely sophisticated hackers have stolen sensitive customer information from large retailers and even banks, without any legal repercussions.

Although there are a host of laws in place that criminalize hacking, because of the nature of the crime and the nature of the Internet itself, hackers are rarely punished.  Most attempts to curb photo leaking on the Internet do little to protect victims.  Recently, California enacted laws that criminalize “revenge porn,” similar to laws already in place in 12 other states.  Both SB 1255 and AB 2643 were signed by Governor Brown on September 30, 2014.  Largely, these laws aim to prevent jilted former lovers (or anyone else who might have nude photos of someone) from posting private photos online to publicly humiliate the victim.  SB1255 states that a person who intentionally distributes naked photos or videos of a person engaging in a sex act “knowing that the depicted person does not consent, is guilty of disorderly conduct.”  AB2643, alternatively, gives victims of revenge porn the right to file a civil action against the perpetrator who distributed the material without the victim’s consent, provided that the victim suffered severe emotional distress.  Although these laws are a significant step in the right direction toward protecting individual privacy, the circumstances under which these laws apply are very narrow, and thus not very effective.  The laws only apply to the person who makes the recording, not third party distributors who publish the photos for all to see.  Also, if the victim took the recording or photo of him or herself, these laws do not apply.  Neither the victims of the leaked celebrity photos nor the victims of the stolen Snapchat photos will benefit from these laws.  The frustrating reality is that there is little to no legal recourse for many victims of these types of privacy breaches.  It is unclear how the law will develop to provide greater individual privacy protections around the Internet in the future, but as it stands now, it is doubtful that any law could fully protect privacy on the web.  For now, it seems the only way to protect your privacy is to rely on yourself.

Maintaining complete privacy over material stored or sent online is undoubtedly impossible to achieve, but for those who enjoy the convenience of technological innovations, there are a few simple steps one can take to help increase the protection of their privacy.  First, if you choose to use cloud storage systems to store personal photos or information, be sure to take advantage of the highest security system that that provider allows.  Since the celebrity photo leak, Apple and other companies have written about how to do this.  The most important take-away for protecting any online account is to have effective password protection; passwords that are difficult to crack, using different passwords for different accounts, and changing passwords regularly.  Second, if you are using internet capable devices to take private photos, be sure to disable any feature that automatically uploads photos to a cloud storage system or social network application.  In other words, store private photos locally on devices or external hard drives that only you can access.  Third, do not send private photos to third parties via electronic device unless you are absolutely sure that you can both trust that person (today and in the future) not to share the photo and trust that the person’s devices and online accounts are also secure.  The bottom line is that it only takes a few taps on a smartphone to make something very private turn into something very public, and once something is online, it is out of your hands forever.  With so few effective legal protections in place, it is up to each individual to vigilantly take precautions to protect private material.

Looking for a Third Option: An Alternate Solution in the Gun Debate

Rifle and Scope

We’ve all heard the statistics on gun-related crime in the United States and how it compares to gun violence to other countries. We’ve also heard about the perpetual gridlock in Congress that has made passing new comprehensive, nationwide, gun legislation impossible. We’ve also seen mass shootings across the country, with calls to arm teachers in classrooms or increase regulations and restrictions on gun ownership. The only thing that seems abundantly clear in the gun debate in the United States is that we are anything but united in our views on this important issue.

There was a time when major cities were passing very strict gun control laws. But those reforms in the District of Columbia, Chicago, San Francisco, and other cities have all had their various gun regulations overturned by recent court decisions. On the other side of this issue, gun clubs and organizations, including most prominently National Rifle Association, advocate for safe and responsible gun ownership as an alternative to government regulation as a means to combat gun violence. With such debate becoming entrenched, a stalemate has developed in which nothing significant can be accomplished by those advocating for increased gun regulation, while the current interpretation of the 2nd Amendment stands as a protection of an individual right to possess firearms and the solutions to the gun violence epidemic which spring from that side of the debate.

What many outside the study of law do not understand is why questions about gun ownership have become such an issue today. However, an explanation of where the expansive 2nd Amendment right to gun ownership comes from may yield an option which could present an acceptable compromise to both sides of the debate.

It took many years for the 2nd Amendment to be definitively interpreted as we understand it today. That process transformed it from a largely powerless provision of the Constitution, to one more in line with the NRA’s interpretation of the 2nd Amendment as a historically based individual right to own firearms. In examining how this transformation occurred from a legal standpoint, we discover an alternate solution to the continuing debate over gun control, one that takes a wholly different approach than the solutions of the past.

The 14th Amendment to the United States Constitution, ratified shortly after the Civil War, is the avenue through which numerous protections in the Bill of Rights have been applied to bind the individual state governments as well as the federal government. The 14th Amendment has been used over time to slowly adopt the individual protections of the Bill of Rights through a process called incorporation. Before the 14th Amendment, the Supreme Court had previously held that various rights we recognize today only applied as limitations on the federal government and that state governments were not bound to recognize those rights. While it took some time before the Supreme Court began to use the 14th Amendment to extend the Bill of Rights to the states, the Court eventually began the long process to establish many of the Constitutional rights we recognize today. One by one, the Supreme Court held that the 14th Amendment’s language required that the states be bound to the same Constitutional protections as the federal government; creating nationwide recognition of the freedom of speech under the 1st Amendment and a multitude of criminal procedure protections provided by the 4th, 5th, 6th and 8th Amendments. The protections of each of these Amendments were deemed to be applicable to the states as incorporated by the 14th Amendment’s due process clause.

After over a century of cases to the contrary, the latest Constitutional right to be incorporated to apply to the states is the 2nd Amendment’s prohibition against restrictions on gun ownership in the 2010 decision in McDonald v. Chicago. This was shortly after the Court had clarified that the 2nd Amendment specifically protected an individual’s right to possess guns.

While incorporation demonstrates the power of the Supreme Court to interpret the Constitution in such a manner as to extend its authority, there are some who have called for disincorporation of Constitutional rights related to religion and criminal procedure. They propose that the Court should undo the extension of some Constitutional protections which were applied to the states by the incorporation doctrine. The tension between the states and the federal government in the area of criminal procedure is an area of extensive study, which has included some discussion of disincorporation in academic tones. But the discussion with regard to religion has been more one of advocacy, arguing for the Supreme Court to act by overturning the incorporation of the Establishment Clause.

Conversely, the dialogue regarding disincorporation of the 2nd Amendment has been sorely lacking. Could this be a possible avenue to remove the gridlock that has paralyzed our legislatures from making any movement on addressing the development of gun laws?

Given that the Court can at times be as gridlocked and contentious as the legislature, such bold action by the Justices to overturn decisions from just a few years ago seems highly improbable. However, their decision to recognize the 2nd Amendment as applying to the states rests upon the incorporation doctrine and the Court’s interpretation of the language of the Constitution. If we change what is in the Constitution, we can overturn that decision and disincorporate the 2nd Amendment. There are already historical examples for making an amendment to the Constitution overturning previous language. We amended the Constitution to outlaw slavery, which had previously been implicitly included in the Constitution. We overturned the 18th Amendment, which had banned alcohol when we discovered that such a ban did not work out as we had imagined. We have also repeatedly changed who is allowed to vote.

This is not to say that passing an amendment to disincorporate the 2nd Amendment would be easy. Only 27 amendments have succeeded, out of over 11,000 proposed amendments. Given that the debate over gun regulation is so contentious across the country, it would at first seem that the already difficult process of successfully amending the Constitution would fail. Perhaps counter-intuitively, there is an opportunity in this approach which is lacking from any direct attempts at a national gun policy. Given that disincorporation would allow each state to act independently with respect to gun laws within their state, this proposed solution would present an opportunity for the political establishment on both sides to present this as a win. It would free the states to liberalize or expand gun regulation, whereas at present all states are similarly restricted by the 2nd Amendment. Disincorporation could also insulate states which desire laxer gun laws from any further intrusion by the federal government into this area should the Supreme Court reverse course on their 2nd Amendment jurisprudence.

Justice Brandeis, in New State Ice Co. v. Liebmann, described the states as laboratories, where the individual states may, if they choose, “try novel social and economic experiments without risk to the rest of the country.” The debate on how to address the issue of gun violence will continue, and that debate will continue to meet the gridlock, which will continue to prevent or significantly delay most serious attempts at gun regulation in this country. As pointed out by Justice Brandeis, the Supreme Court has the power to prevent the states from exercising such powers of experimentation, as they have done with the issue of gun control. Perhaps, if they are not willing to release the states from that restriction so they may seek other and better answers, the people may be able to free themselves through a Constitutional amendment, and then allow the states to seek their own solutions to this important issue.