Police High-Speed Pursuits: Giving Police the Authority to Intervene Before the Public is Harmed

Police Pursuits. The idea brings to mind thoughts of bank robbers fleeing from the police after committing a daring heist, only to be pursued by inept cops that wind up crashing into each other as the robbers drive away in perfect Hollywood fashion. However, police pursuits are rarely as glamorous and thrilling. In reality, they are terrifying and dangerous. In fact, according to the National Highway Traffic Safety Administration (NHTSA) more than 5,000 bystanders or passengers have been killed in police pursuits since 1979

In recent years there has been a call for police departments to limit their pursuit of fleeing suspects. A simple google search reveals the continuous calls for police to stop pursuing suspects unless they are considered dangerous or committed known violent felonies. For instance, in Jackson, Mississippi, Councilman Kenneth Stokes, in reference to police pursuits coming into his ward, went as far to suggest to the local population “[l]et’s get rocks, let’s get bricks and let’s get bottles and start throwing them and then [police] won’t come in here anymore.” Similarly, in Washington D.C., Charlie Viverette’s mother claimed police should not have been chasing the suspect that hit her son, killing him. Like Charlie Viverette’s mother, many wish to place the blame for such injuries at the feet of the police rather than the fleeing suspect. In those cases, where the police due pursue a suspect and the pursuit ends with the suspect injured or killed, the police not only face criticism from the public, but the department and the individual officers involved become the subject of a civil rights lawsuit.


In attempting to terminate a police pursuit there are a variety of tactics an officer may use. Officers may attempt to “box” a vehicle in by placing cruisers around the suspect’s vehicle and gradually slowing their own speed, forcing the driver to stop. Other methods include using spike stops or the most notable precision immobilization technique, also known as the “PIT maneuver.” During a PIT maneuver, the pursuing officer uses their front push bumper to strike a fleeing vehicles rear quarter panel/bumper of the vehicle, causing the vehicle to spin and end the pursuit. While these are the most common methods, they are not the only methods to end a pursuit.  Each of these methods can involve a high degree of danger for the pursuing officers, the public and the fleeing suspect, as evident by this video, where a fleeing suspect crashes into a police cruiser while trying to avoid spike strips.


The Supreme Court has addressed the issue of use of force in the context of police pursuits only four times. Two of their decisions dealt with vehicles attempting to flee a scene while officers were nearby. The other two, discussed below, addressed the police use of force during the actual high speed pursuit. In each case, the Supreme Court found that either the officer involved did not violate the Fourth Amendment or was entitled to qualified immunity under 42 U.S.C section 1983.

The Supreme Court in 2007 first addressed the Fourth Amendment and use of force during a police vehicle pursuit. In Scott v. Harris, an officer was found to not have violated the Fourth Amendment when the officer rammed a fleeing suspect off the road. Harris was rendered a quadriplegic after leading the police on a six-minute chase that ended when Scott used the push bumper of his cruiser to ram Harris’ vehicle, causing it to veer off into a ditch. The Court held that Scott did not violate the Fourth Amendment because Harris was an actual and imminent threat to the lives of any pedestrians who might have been present, other civilian motorists and the officers involved in the chase.

Harris argued that police should have ceased the pursuit instead of ramming his vehicle, and by ceasing the pursuit the public would have been equally protected. The Court refused to adopt a rule that would give incentives for suspects to escape simply by speeding, running red lights, and endangering the public. Rather, the Court adopted the more sensible rule that “police officer’s attempt to terminate a dangerous high speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

The Supreme Court’s second decision involving police pursuits came just last year in November 2015, with the case of Mullenix v. Luna. On March 23, 2010, Israel Leija Jr., lead police on high speed pursuit. During the 18-minute chase, Leija and the pursuing officers reached speeds between 85 and 110 miles per hour. Leija phoned the local police dispatcher while fleeing and told them he had a gun and threatened to shoot at the police if they did not abandon their pursuit. The dispatcher promptly relayed this information to all the officers involved.

While other officers pursued Leija, Trooper Mullenix drove to an overpass intending to set up a spike strip.  Directly below the overpass another officer waited with a spike strip already deployed. Mullenix decided to consider a different tactic, shooting at the vehicle to disable it however, Mullenix was not trained in such a procedure. As Leija’s vehicle approached the overpass, Mullenix fired six shots, striking Leija four times in the upper body. Leija’s vehicle continued under the overpass, struck the spike strips, hit a median, and rolled. Leija was killed in the incident.

Relying on its precedent, the Supreme Court reversed the lower courts finding that Mullenix did not have qualified immunity. Instead, the Supreme Court held that Mullenix was entitled to qualified immunity because his actions did not violate clearly established precedent beyond debate.



While some continue to call for the police to stop pursuing only the most egregious or dangerous felonies in the name of public safety, perhaps it is more appropriate for departments to authorize officers to end high speed pursuits in an expedited manner. A fleeing suspect in a motor vehicle becomes a high speed missile aimed at the nearest unlucky innocent bystander who’s done nothing more than be in the wrong place at the wrong time. In contrast, it is the suspect who has made the decision to flee in a motor vehicle, placing the public in danger. Perhaps this is why the Supreme Court has never found an officer’s actions in a high-speed pursuit to be unreasonable. As Justice Scalia in Scott opined,

“we think it appropriate in this process to take into account…their relative culpability. It was [Harris], after all, who intentionally placed himself and the public in danger…”

By adopting a policy that reflects these case precedents, police officers will have the ability, with the constitutional authority, to end high-speed pursuits quickly before the public can be harmed. Rather than chase a suspect’s vehicle for 11-minutes or blame the police, perhaps it is time that society places the blame at the feet of the individual who made the conscious decision to endanger the public. By allowing the police to quickly intervene, this will reduce a suspect’s ability to crash into innocent motorist or pedestrians. In addition, those cases brought by suspects claiming a violation of the Fourth Amendment for a tactic during a high-speed pursuit that resulted in injury or death to the suspect, trial courts should evaluate each case beginning with a rebuttable presumption that a suspect who flees in a motor vehicle poses a danger to the public and officers. With this presumption, it is evident by Supreme Court precedent that when the police use tactics that include the use of deadly force to stop a high-speed pursuit, the actions by the officers do not violate the Fourth Amendment against unreasonable seizures. By adopting a policy that reflects this precedent, perhaps more innocent lives like Charlie Viverette, can be spared and the culpability of a high-speed pursuit can be placed where it rightfully belongs.

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


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.

More Than Meets the Eye with New Google Contact Lenses

contacts patent applicationTechnology informs privacy.

This is the lesson we relearn every time a company puts out a new product that changes the way we interact with the world and each other.  The recent disclosure of Google’s filings with the United States Patent and Trademark Office last year for a contact-imbedded “image capture component” (read: camera) caused a flurry of commentary by privacy hawks and tech fans alike.

The proposed contacts will contain a camera, sensor, and control circuit, and will likely communicate wirelessly with a remote device (smart phone) to store and process the pictures, or send them straight to the cloud.  The contacts appear to be controlled by the included sensor to take pictures via eyewinks or other eye gestures, which will make using the contacts virtually imperceptible to others.

This raises the question: if the contacts are invisible to others so that it’s impossible to know if someone is wearing them, how can you know if they are being used to record you without your consent?  Traditional cameras and smartphones require the user to obviously point and click to take a picture, giving you the opportunity to get out of the frame if you do not wish to be photographed.  Even Google Glass wearers are obtrusive enough that they provide notice to those around them that they might get recorded.  In contrast, Google Contacts would provide no such notice to others.  Someone wearing Google Contacts would be free to snap away, and those around them would be completely oblivious.  These issues continue to draw a bright line between those understandably worried about the privacy concerns the futuristic contacts will impinge, and those excited about the more positive potential applications of the new mini cameras.

The debate is nothing new.  As far back as 1890, Warren and Brandeis wrote their famed piece on privacy inspired by the invention of the handheld instant camera.  Prior to this, anyone who wanted their picture taken had to pose for a long time, and so only those who were really into having their picture taken would put up with the hassle to do so.  With the advent of the handheld camera, for the first time a camera owner could snap your picture without your consent.  Warren and Brandeis worried about the consequences for privacy in a world where all anonymity is lost because anyone may take your picture at any time.

The emergence of Google Glass sparked privacy concerns over the potential for well-equipped strangers to record you without your consent. In response, some establishments have banned Google Glass at the door outright in an effort to ease their customers’ minds and prevent situations where a Glasshole enrages other patrons by blatantly filming them against their wishes.  The danger of Google Contacts is they bypass the social issues of Google Glass and can be worn invisibly by anyone.  If they do indeed come to market, what remedies will be available to those who wish to go about their lives unrecorded?

Although you usually do not have a reasonable expectation of privacy in a public place that does not mean that you give up all privacy protections when you step out your door.  A celebrity is expected to put up with a certain amount of publicity for their private affairs, and they make the decision to give up their anonymity in exchange for the other benefits celebrity offers.  But Google Contacts have the potential to make us all celebrities without our permission.  We should not have to give up our anonymity without our consent.

Additionally, while it appears the contacts do not currently have video recording capability, such technology is likely not far off.  While public video cameras are increasingly becoming an unfortunately ubiquitous fact of life, there is a difference between being recorded by a building-mounted camera without sound while you walk down the street, and being recorded by the person at the next stool over while you talk with your friend at the bar.  Even absent video capability, the idea of a user at a bar or restaurant secretly taking photos and processing them instantly with facial recognition software in the cloud is enough to raise anyone’s privacy hackles.  Google currently prohibits facial recognition software on Google Glass, but it is more than probable that third parties will implement such software in the near future.

Even with a ban on facial recognition, Google is a company that makes its money off of targeted advertising.  It is hard to believe that the company would not employ some analytics to the camera on Google Contacts, and there would be no way to know how many were running at any given time.  The Contacts would also allow Google to stream ads directly to your eyeballs, and while wearing the Contacts there would be no way to look away.  This would enable Google to charge a premium for Contacts ad space, increasing its incentive to analyze everything that the Google Contacts wearer saw.

Furthermore, the rise of Big Data and the drive to collect anything and everything and store it in the cloud for future use, in addition to the NSA’s interception of massive amounts of customer data from Silicon Valley companies, would combine with Google Contacts to create a recipe for privacy violations of enormous proportions.

All this brings us to the conclusion that perhaps, just as Warren and Brandeis felt, we need a new conception of privacy.  The thought of Google Contact users capturing pictures of those around them without their knowledge just feels creepy.  While we all admittedly give up a certain amount of privacy when we walk out our door each day, there must be a limit to what we give up.  We still maintain the right to associate with others, and speak our minds freely without being constantly recorded.  If we are to be recorded, then we need to be notified and given an opportunity to consent.  The problem with camera contacts is that they are invisible, making any effort to enforce or regulate their usage a daunting task.  While they undoubtedly would have some exciting applications, their potential for abuse just seems too great.

The Historical Significance, Modernization, and Future of the Video Privacy Protection Act


In the twenty first century, we are accustomed to the privacy protections that prohibit video rental service companies from releasing our consumer service history to other sources without first obtaining our written, signed consent.  However, most consumers likely do not know the historical significance of why we came to appreciate these privacy protections or what the exact terms of these privacy protections are….

 The Consumers’ Perspective

Businesses have gained significant momentum by the Video Privacy Protection Act’s (“VPPA”) 2013 amendment in present and future video industry markets, such as online video streaming and social networking partnerships – and these impacts extend to the consumers.  These changes can be considered as either beneficial or harmful.  And even though the VPPA has “modernized” to some extent by incorporating modern technology and communications, it has not fully “modernized” to preserve the privacy rights the VPPA was enacted to protect.

First, now that “Online Consent” is permissible, it is as easy as clicking “I accept” on a browser webpage to share your favorite movies and video service providers within your network.  “It’s about time!” is the response most likely to come from the network-friendly user.  Everything else we do online can be accepted and shared just as simply, but we did not have to wait until 2013 for this to happen.  For those who have been waiting to share their most recently viewed television series with their friends, this is a great benefit.  However, this can also be a scary concept for the cautionary user who prefers to keep his “Personally Identifiable Information” (PII) private.  If this latter user decides he wants to share memories of a childhood movie with his childhood friend whom he connects with online only, he will be able to.  But he will have to weigh how important it is to him to share this memory when he must conjointly allow his service providers to share his PII with their business partners.  This amendment may have its social networking perks, but there is no provision here that furthers the interest of consumer privacy by allowing the video industry to obtain consent to share PII online.  With so many people utilizing the web, it is probable that consumers will affirmatively eradicate the need for consumer privacy laws by over-sharing their information such as their video preferences on their social networks.  And it will not matter the extent to which their service providers gather and take advantage of the consumers’ PII, unless each consumer takes the “time and tenacity” required to erase herself from the Internet.

The second provision provides that video rental companies must obtain consent in a “distinct and separate” manner outside other terms and conditions.  This requirement is the biggest benefit consumers could have asked for.  This is because modern usage of fine print is illusory where only less than one in one thousand persons actually read the fine print online when accepting service contracts.  As Andy Greenberg puts it in his article, Who Reads The Fine Print Online? Less Than One Person in 1000: “take a look at the actual statistics that show who reads the fine print, and the numbers are so close to zero that they call into question whether those legal disclosures should even be considered a safeguard for consumers.”  At the very least, the amendment grants consumers who are truly against allowing their service providers to share their PII with the providers’ business partners an explicit opportunity to say NO.

The stalest portion of the amendment in furthering consumer privacy is that the consent period has increased to a two-year maximum if it is obtained in advance.  Fortunately, the consumer can withdraw consent if he feels this time period is too long for him to trust a video company and their partners with his PII.  This portion of the amendment adds absolutely no value for the consumer, who obtains zero financial benefit.  It takes only a second to click a button, and an individual can simply accept to share their PII on a case-by-case basis just as easily as sharing their video preferences with their social networks.  However, providing blanket consents and even limited consents to video companies and their partners to PII for two years is nothing but intrusive to the consumer’s privacy.

If a person truly wants to revoke every video company’s right to share their PII, she can.  This is because the last significant portion of the amendment requires video rental companies to provide consumers with the opportunity to withdraw their consent.  So if she changes her mind and decides she does not want her video service provider to share her PII, even though she shared her video preference(s) with her best friend in a private message on her social network, she can prevent her video provider’s access going forward – she just has a bit of footwork to put in. First, she will need to remember how much consent she has provided (whether it was one blanket consent or several, unique consents).  Next, she will need to link these consents back to the individual video companies and track them down (either in person, via phone, or online).  Finally, she will need to contact them and submit her revocation request.  It is simple.  And it is as unlikely as it is simple that most people will go through these steps – only less than one person in 1000 even reads fine print… It is an extreme improbability that people in our “on demand world” would bother to re-trace their video rental and purchase history in order to eradicate any possible exploitation of their PII.


This online article is a shortened-summary of the in-depth research paper I wrote in Fall 2013. In that paper, I focused on the history of the Video Privacy Protection Act (VPPA) of 1988, an online streaming company’s lawsuit, the resulting lobbying for change in the VPPA, the 2013 amendment of the VPPA, and the benefits and consequences of these changes.  Here, I state only the 2013 amendment’s impact on the consumers.  However, the complete research paper is available on my LinkedIn page at http://lnkd.in/bKnFHy7 or you may click on it under my “Experience” section of my full profile at http://www.linkedin.com/pub/erica-williams/41/81/808/.