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Huge win for justice and good sense: facing a mounting public furor, “The Social Security Administration announced Monday that it will immediately cease efforts to collect on taxpayers’ debts to the government that are more than 10 years old.” [WaPo] Credit goes above all to the Washington Post and its reporter Marc Fisher for exposing the most outrageous features of the IRS’s refund-interception program last week, as recounted in this space; I like to think I helped as well by beating the drum early and repeatedly since then with Cato’s help. Overlawyered’s Facebook post on the subject has been seen by more than 60,000 people and shared more than 700 times in the past few days. (Have you liked us yet?)

The next step should be to establish for the public record how the provision in question got slipped into the farm bill, and at whose behest. Congress’s refusal to be forthcoming on this topic speaks volumes about its lack of a felt sense of responsibility toward the people it represents.

And a theme I’ve been repeating for almost as long as I’ve been writing about law: statutes of limitations developed in civilized legal systems for a reason. They protect us not only from cost, uncertainty, and the misery of legal process, but from injustice of a hundred other kinds, and they protect society itself from spiraling into a legal war of all against all. Stop trying to abolish them!

More: Ed Morrissey, Megan McArdle. And here’s a Cato podcast just out on the subject in which Caleb Brown interviews me on the topic:

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Eighteen-year-old guys have been known to say stupid things online, especially when engaged in displays of flaming and one-upmanship. Criminal-sentence kind of stupid? “I guess what you post on Facebook matters,” says Justin Carter of San Antonio, jailed after an all-caps flourish about how he was ready to “shoot up a kindergarten.” [Dallas Observer]

P.S. A related Missouri story from last year.

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Tune in Tuesday night as Cato colleagues and I liveblog the State of the Union, or check Twitter at #CatoSOTU.

While you’re at it, do follow me on Twitter at @walterolson and @overlawyered, and at Facebook on both author and blog pages.

Surveillance roundup

by Walter Olson on December 12, 2013

  • “That Thing They Said They’re Not Doing? They’re Totally Doing.” [Daily Show with Jon Stewart] “Exactly What the State Says to Deceive You About Surveillance” [Conor Friedersdorf]
  • “Warrantless Cellphone ‘Tower Dumps’ Becoming Go-To Tool For Law Enforcement” [Tim Cushing, TechDirt; Ellen Nakashima, Washington Post; David Kravets, Wired; USA Today (local law enforcement using, not just federal)]
  • Google, Apple, Microsoft, Facebook, Twitter, Yahoo, AOL, LinkedIn, but telecoms absent: “U.S. Tech Industry Calls for Surveillance Reform” [Corporate Counsel, EFF, Marvin Ammori/USA Today]
  • New Federalist Society symposium on NSA/FISA surveillance and bulk data collection includes names like Randy Barnett, Jim Harper, Jeremy Rabkin, Stewart Baker, Grover Joseph Rees [Engage, Randy Barnett]
  • Nowadays “law enforcement can feel free to admit their traffic stops are pretextual” Thanks, Drug War! [Popehat] “Sobriety Checkpoints Paved Path to NSA Email Spying” [Wired]
  • FATCA, the intrusive overseas tax enforcement law, isn’t couched in public controversy as a federal data-snooping issue, but it should be [Radley Balko, McClatchy]

The Supreme Court has declined review in Marek v. Lane, a case arising from the settlement of a privacy lawsuit against Facebook, which had presented questions about the proper use of cy pres distributions (in which money goes not to victims of the sued-over conduct, but to non-profits or other third parties). Writing in a separate statement, however, Chief Justice John Roberts indicated that the issues are of genuine concern to him, whether or not this case was the right one in which to address them. Excerpt:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Grant­ing review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action liti­gation, including when, if ever, such relief should be con­sidered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.

[Adam Steinman, Civil Procedure and Federal Courts Blog, earlier here, here; see also Archis Parasharami, Mayer Brown "Class Defense"] Relatedly, “Taking on Class Action abuse: A conversation with Ted Frank, founder of the Center for Class Action Fairness” is a new podcast at Liberty Law.

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I’ve got a new piece at Reason.com expanding on my earlier reports on the new pilot program by which Facebook will give Maryland school officials a dedicated channel with which to seek takedown of posts and other material that in their view contributes to the problem of “cyber-bullying.” I think the program represents a disturbing step toward a wider government role as arbiter of what is allowed to be said in social media, the more so as it will be difficult or impossible to know whether takedown decisions at Facebook’s discretion are an entirely neutral application of the service’s “Community Standards” or are swayed in part by the wish to keep government bodies happy. I quote various press accounts, some affording additional insight into the existing and proposed takedown process, as well as commentary by Scott Greenfield, TechDirt, and the Daily Caller in which I’m quoted. Some additional commentary: Joy Pullmann/Heartland, Josh Blackman. More: Instalanched, thanks Glenn Reynolds.

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That’s the gist of an announcement this morning from the office of Maryland attorney general Doug Gansler, following on the passing into effect of the state’s groundbreaking “cyberbullying” law, which I criticized earlier this year. The National Association of Attorneys General (NAAG) is involved too in the Educator Escalation Channel, which will start with a pilot Maryland program. Gansler says those targeted for post takedowns will include Facebook users who are “not committing a crime… We’re not going to go after you, but we are going to take down the language off of Facebook, because there’s no redeeming societal value and it’s clearly hurting somebody.” Although the rationale is to protect Maryland juveniles from unwelcome and hurtful online communications, the initial press reports offer no indication that the Facebook users whose speech is targeted for takedown will necessarily be other Maryland juveniles.

What could possibly go wrong? I’ve got some thoughts on the question at Cato at Liberty. More: Scott Greenfield (“Facebook becomes the agent of the state. … Welcome to the start of something big.”)

Careful about Facebooking during your injury suit, okay? Another costly bit of blab during the same case was to announce on the social media site that the couple hadn’t gone through with a divorce yet because of the case; the wife had won $2 million on a loss-of-consortium claim, which the judge proceeded to toss after the Facebook posts were revealed, ordering a new trial on damages. (The original damage award had been $5.4 million.) In the suit against a subsidiary of Quest Diagnostics, the husband claimed he sustained an ongoing “catastrophic,” “debilitating” injury to an arm nerve during a botched blood test. [Fulton County Daily Report, Georgia] More on litigants’ social media bloopers: Ed Gerecki and Dave Walz, Drug and Device Law (court levies sanctions after lawyer instructs client to “clean up” various embarrassing postings from Facebook including “I [heart] hot moms” t-shirt.)

  • Gov. Christie vetoes bill enabling workers and job applicants to sue employers who asked about Facebook use [NJLRA, Star-Ledger, more]
  • “Shockingly a British pub might want to hire British employees,” NYC Human Rights Commission sees things differently [Amy Alkon]
  • Anticlimax: despite fears, NLRB won’t ban at-will disclaimers in employee handbooks [Jon Hyman]
  • “Equally injurious to the children of the laboring classes is their utilization by their parents in theatrical and operatic shows” [Kyle Graham]
  • Senate confirms plaintiffs’ class action attorney as newest appointee to EEOC [Stoel Rives]
  • Public accounting: “Two advances for pension transparency” [Josh Barro]
  • At least there’s one category of young worker for whom job prospects remain bright, namely kids of Andrew Cuomo’s friends [David Boaz]
  • An Instalanche from Glenn Reynolds at Instapundit, and Prof. Bainbridge remembers the phrase “takes the Boeing;” R.S. McCain on blogging communities and linkiness; Coyote (“Congrats… The Overlawyered blog is one of the blogs I read every day, and is one of the grand old blogs of the Internet”); Joe Patrice/Above the Law; Chris Fountain/For What It’s Worth (“If you haven’t used it to keep track of the inanities of our modern society of flawed men and laws, here’s a good opportunity.”); Think Tank Watch.
  • From Twitter: Tunku Varadarajan (“I love — and recommend — ‘Overlawyered’”), Alan Gura (“so the lawyers have gone over all the details and finalized the documents?”), Sohrab Ahmari (“sharpest critic of our litigious culture… must-read”), Popehat (“indispensable”), David Boaz, Danny Alvarez, Sr. (“REALLY? Congrats. You better keep that flippant attitude now that you are part of ‘The Man!’”), Jack Robling (“I’d love to meet the lawyer who lawyered @overlawyered and @CatoInstitute’s marriage”); occasional guestblogger Ron Coleman (“So, hey, am I now retroactively a prestigious ‘Cato blogger’?”), Kurt Loder, Andrew Stuttaford, John Carney (“Surprised it took this long”), Massimiliano Trovato (“must read for anyone interested in law and liberty”), Jeremy Kolassa (“must [follow] if you want to know how litigation is screwed up in this country”), Scott Greenfield (“indie blogs bite the dust. Congrats to Wally, but I hate to see it go ‘corporate’” — and exchange with Popehat), Tom Kirkendall, Susan Cartier Liebel, Business Roundtable, Bob Lucas Jr., and many others.
  • At Facebook, various reactions including from longtime reader Doug Iverson: “I’d just like to say that I think Overlawyered was better before Walter turned it over to Cato to market. I think it’s hyped more.” My response, in part: “Ian, my colleague at Cato, now writes the regular Facebook links, which are the chief reason visits to the site via Facebook are up tremendously in recent weeks. If Doug writes to Cato to say that Overlawyered’s Facebook presence has become a flagrant puffery scheme designed to lure readers into giving the website a try, I think they will give Ian a raise.”
  • If you missed it, Friday’s announcement.

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April 26 roundup

by Walter Olson on April 26, 2013

  • Police in city of Manchester, U.K. say they’ll record attacks on punks, Goths as hate crimes [AP]
  • If claiming severe permanent injuries from auto mishap, best not to place well in a marathon six months later [West Virginia Record]
  • “Altering or deleting a Facebook account during litigation may be … spoliation of evidence” [Paul Kostro, Brian Wassom, Jim Dedman]
  • Note to Trademark Office: “breastaurant” is not trademarkable [David Post; earlier here, here, and here]
  • Iowa Rep. Bruce Braley, a Litigation Lobby stalwart, seeks Senate seat of retiring Harkin [DMR, earlier]
  • Meta? Lawyer files suit over a suit [the Brooks Brothers kind] [Staci Zaretsky, Above the Law]
  • Judge Shadur: “the most egregious fraud on the court … encountered in [my] nearly 33 years on the bench.” [Courthouse News]
  • Do you enjoy reading Overlawyered? Check back later today, after 9 a.m. Eastern, for a major announcement about the site!

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“Wayne County, Mich. Judge Kathleen MacDonald slapped a Dearborn man with an injunction ordering him to take down his Facebook comments critical of a class-action settlement of a case against McDonald’s for selling non-halal meat.” [Daniel Fisher, Forbes; Paul Alan Levy, Public Citizen; Ted Frank, PoL] More: Blue Dog Thoughts.

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With a new law, Vernon County, Wisconsin has put itself at the forefront of attempts to regulate disparaging email, online chat, blogs, Facebook posts (specifically cited by one advocate at a hearing), and Twitter. The law seems to be a product of the media hype over “cyberbullying.” [Popehat, Volokh]

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December 4 roundup

by Walter Olson on December 4, 2012

  • Wendy Murphy brings her believe-the-accuser shtick to the University of Virginia [KC Johnson, Minding the Campus]
  • UK: foster parents in Rotherham might want to take care not to belong to the wrong political party [Telegraph]
  • “The Disappearance of Civil Trial in the United States” [John Langbein, Yale Law Journal & SSRN]
  • “Liability Is ‘Wrong’ Solution for Rating Agencies” [Mark Calabria, Cato at Liberty] Mere days later: “Sixth Circuit Rejects Ohio Pension Fund Suit Against Rating Agencies” [Adler]
  • “Yes, it is now illegal to be fully nude in San Francisco *unless you are in a parade*” [Lowering the Bar]
  • Once lionized in press: “Former Ohio AG Loses Law License for 6 Months Over Ethics Violations While In Office” [ABA Journal, Adler]
  • Facebook says it may go after some lawyers who’ve repped adversary Ceglia [Roger Parloff, Fortune]

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“Facebook and Twitter have landed several Britons in court and even jail recently. Critics decry the trend as a worrisome overreaction.” [L.A. Times]

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A Facebook observation

by Walter Olson on November 3, 2012

Many politically active people “like” candidates and causes to which they are in fact ardently opposed, since following the opposition’s Facebook stream can be a smart way to keep tabs on what it’s doing. But as a result Facebook keeps feeding us sponsored posts — often very misleading ones — that follow the formula “[my friend] likes [candidate/cause X]“.

By the way, if you’re on Facebook, you really should be liking Overlawyered, here. That’s true even if you can’t stand the site and just want to keep tabs on its nefarious ways.

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“Paul Ceglia, who sued Facebook founder Mark Zuckerberg in 2010, claiming he was promised a 50% share in the social media company, was arrested on Friday. His alleged crime: doctoring, fabricating and destroying evidence to support his claims. The feds described his lawsuit as a multi-billion dollar scheme to defraud Facebook and Mr. Zuckerberg.” [Joe Palazzolo, WSJ Law Blog, Donna Tam, CNet]

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From the summary: “Judge throws out multibillion dollar suit arising from obscure CD-and-audiotape rental law, saying there’s no evidence anyone was actually harmed by Pandora’s integration with Facebook two years ago.”

The suit [by class action firm Edelson McGuire] claimed violations of an obscure pre-Internet era Michigan law, which says a company “renting or lending” sound recordings may not disclose details about customers’ transactions without their written permission. Because it specifies $5,000 penalty per violation, the possible damages could total in the tens of billions — far more than Pandora’s actual $1.8 billion market capitalization.

The judge, however, said the law did not create a right of action on behalf of unharmed consumers, and also was unpersuaded that the music-streaming service was “renting or lending” songs. [Declan McCullagh, CNet]

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