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Free speech roundup

by Walter Olson on November 19, 2014

  • “Court agrees that Google’s search results qualify as free speech” [Megan Geuss, ArsTechnica]
  • “Manassas detective in teen sexting case sues teen’s lawyer for defamation” [Washington Post]
  • Reports of SLAPP suit out of Chicago not quite as initially portrayed [Ken at Popehat]
  • Compelled-speech update: Lexington, Ky. anti-bias commission orders employee training for t-shirt maker that objected to printing gay-pride messages [Kentucky.com, earlier]
  • “NY high court says anti-cyberbullying law won’t pass First Amendment muster” [ABA Journal] New Arizona law against sending naked photos without subject’s consent could criminalize many sorts of speech [ACLU]
  • UK scheme to muzzle nonviolent “extremists” just as horrid as it sounds, cont’d [Brendan O'Neill/Reason, earlier] Political director of U.K. Huffington Post calls for “sanctions” for press outlets that engage in “dishonest, demonizing” coverage of Muslims, immigrants, and asylum seekers [Guardian]
  • SCOTUS should hear case re: right to engage in political advocacy without registering with government [Ilya Shapiro and Trevor Burrus, Cato; Vermont Right to Life Committee v. Sorrell]

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A judge in Quebec has told Google to pay C$2250 to a woman caught by a Google Street View camera on her front porch in revealing, though legal, attire [Syracuse.com via Stewart Baker]

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The EU’s newly minted “right to be forgotten” may generate an Orwellian memory hole into which can be thrown the inconvenient past. “The [Washington] Post received a letter from Mr. Lazi? in September requesting that [classical music critic Anne] Midgette’s review be scrubbed from the Web. When she failed to reply, he upped the ante by claiming that it was ‘defamatory, offensive and mean-spirited’ and thus violates his legal right to be forgotten.” [Terry Teachout, WSJ via Arts Journal]

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“Net neutrality” sounds nice, fair, workable, and so forth, and has been eloquently backed by Google. Reason enough, then, to break with the “Hands Off the Net” policy under which the internet has flourished? Lest we forget: lines of business reduced to public utility status tend to stagnate [David Boaz, Cato]

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Free speech roundup

by Walter Olson on September 3, 2014

  • Lawprofs vs. speech: new book by Prof. Danielle Citron (U. of Maryland) urges stepped-up legal penalties for online expression as “harassment” ["Hate Crimes in Cyberspace," Harvard University Press]
  • European high court’s Google-unindexing folly: “The truth is, you’ve never had the ‘right to be forgotten'” [Jack Shafer; example, WSJ]
  • Feds’ National Science Foundation spending nearly $1 million to create online database monitoring “suspicious memes”, “false and misleading ideas” on Twitter [Free Beacon]
  • Flap over fantasy-art DMCA takedown demand seems to be over, but we can still enjoy Ken’s take [Popehat] More Popehat highlights: 7th Circuit affirms sanctions vs. Team Prenda of copyright troll fame; multi-level marketer threatens blogger; controversial doctor resorts “to threats and legal analysis that are at least as innovative as his cancer theories“; “In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect“;
  • When occupational licensure laws stifle speech [Dana Berliner (IJ), NYT Room for Debate]
  • Inside a deposition in the Shirley Sherrod defamation lawsuit [J. Christian Adams, earlier here, etc.] Write if you dare about Michael Mann, just hope he doesn’t sue you over it [Trevor Burrus, earlier here, etc.]
  • U.S. Civil Rights Commission member Michael Yaki argues for campus speech codes [Hans Bader, Eugene Volokh] Per EEOC: “Illegal ‘hostile work environment’ harassment for co-workers to wear Confederate flag T-shirts” [Volokh; also]

“…is bad for the rule of law and for capitalism,” opines The Economist, saying regulation-through prosecution has become “an extortion racket,” from hundreds of millions in Google drug-ad settlement money spread among Rhode Island police departments, to New York Gov. Andrew Cuomo’s muscling in to extract money from BNP Paribas in a settlement of legal offenses against U.S. foreign policy as distinct from New York consumers:

Who runs the world’s most lucrative shakedown operation? The Sicilian mafia? The People’s Liberation Army in China? The kleptocracy in the Kremlin? If you are a big business, all these are less grasping than America’s regulatory system. The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company. …

Perhaps the most destructive part of it all is the secrecy and opacity. The public never finds out the full facts of the case, nor discovers which specific people—with souls and bodies—were to blame. Since the cases never go to court, precedent is not established, so it is unclear what exactly is illegal. That enables future shakedowns, but hurts the rule of law and imposes enormous costs.

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“A court has ruled that a Hong Kong tycoon can sue Google over its autocomplete results suggesting he has links to organized crime.” [AP/Mashable]

Medical roundup

by Walter Olson on August 1, 2014

  • Doctor criticized on Science-Based Medicine blog proceeds to sue [Steve Novella, Orac]
  • “Can you imagine Google becoming a health company?” Sergey Brin: doubt it, field’s “just so heavily regulated” [Michael Cannon/Cato, David Shaywitz]
  • “One Box of Sudafed Over the Line: Florida Woman Arrested for Trying to Relieve Allergy Symptoms” [Jacob Sullum]
  • MICRA battle: survey finds OB-GYNs in Los Angeles County pay average $49,804 a year for coverage, in Long Island where there’s unlimited liability it’s $196,111 [Legal NewsLine]
  • Medical liability claims fall in Wisconsin [Althouse] And Pennsylvania [TortsProf]
  • FDA wants to look over drugmakers’ shoulders when they communicate with consumers, not an easy formula for social media [Elizabeth Nolan Brown]
  • “The reason that we are being required to measure BMI isn’t because a patient’s BMI has any meaningful clinical use … it’s that the BMI can be measured.” [White Coat]

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“A top EU court has ruled Google must amend some search results at the request of ordinary people in a test of the so-called ‘right to be forgotten’. The European Union Court of Justice said links to ‘irrelevant’ and outdated data should be erased on request.” [BBC; Andrew Beaujon, Poynter; Hans Bader, CEI]

It’s being led by our perennial-favorite state-AG mentionee (D-Miss.)

Meanwhile: Houston judge reported to have issued what law professor Josh Blackman calls “blatantly unconstitutional” gag order requiring Google not only to remove all records of certain allegations against an individual, but also to refrain from discussing the gag order itself [Houston Chronicle]

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  • Harassing Google executives at their homes: what better way to show you truly care about privacy? [Ars Technica]
  • Feds arrest Bitcoin executive on charges of “money laundering” and running an unlicensed cash transmission service, latest of what looks very much like a series [Reason, Rob Wile/Business Insider, earlier on Bitcoin]
  • Know (and babysit) your customers: “HSBC imposes restrictions on large cash withdrawals,” then backs off [BBC, earlier on KYC as outgrowth of money-laundering law]
  • “Banks say no to marijuana money, legal or not” [NY Times]
  • Randy Maniloff on the Target data breach and the example of the T.J. Maxx case [Coverage Opinions and more on class actions] “Swipe fee” price controls don’t help in allocating the costs of response and prevention for card data breaches [John Berlau, CEI "Open Market"] and
  • “Financial Disclosures as Regulation” panel video, part of Vermont Law School symposium “The Disclosure Debates” that I participated in last fall; participants include Tennessee lawprof Joan Heminway and moderator Jennifer Taub [YouTube]

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Stewart Baker is running a year-end contest to name the most regrettable uses of privacy law over the past year. Among his nominations: the “Agriculture Department, which cited privacy grounds in refusing to name any of the beneficiaries of the notoriously fraud-ridden ‘Pigford‘ settlement”; Health and Human Services Secretary Kathleen Sebelius, who imposed millions of dollars in fines on private health companies for lacking adequate technical controls on the privacy of health data, “even when there was no evidence that any data had been compromised,” at the same time as her own department was launching healthcare.gov, a data intake site with much more critical privacy and safety flaws; racing mogul Max Mosley, who prevailed on a French court to order Google to de-index scandal coverage of Mosley’s recreational indiscretions; and federal judge Lucy Koh, for finding Gmail’s business model potentially violative of wiretap laws. All the examples above were winners in their categories, save Mosley who trailed behind two others in the category “Worst Use of Privacy Law to Protect Power and Privilege.”

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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]
  • Trademark infringement claims as way to silence critics: Jenzabar gets comeuppance in form of court award of more than $500,000 in attorney costs [Paul Alan Levy, earlier and more]
  • Court holds Google Books project to be fair use [Matthew Sag]
  • Questioning the ITC’s patent jurisdiction: “Why should we have a trade agency litigating patent disputes?” [K. William Watson, Cato, more, yet more, related]
  • Courts come down hard on copyright troll Prenda Law [Popehat]
  • Annals of patent trollery: New York Times et al rout Helferich [EFF, Liquid Litigation BLLawg] Monolithic Power Systems v. 02 Micros [IP for the Little Guy] Resistance by Newegg, RackSpace, Hyundai, etc. [WLF]
  • Re: copyright terms, US government shouldn’t endorse view that longer always means better [Simon Lester, Cato]
  • Legal tiff over use of hotel carpet patterns in costumes [Io9]

Tech roundup

by Walter Olson on November 6, 2013

  • Far-reaching, little-discussed new regulation: Stewart Baker on NIST rules mandating cybersecurity at private enterprises [Volokh; first, second, third, fourth posts]
  • “Ominous Developments on the Internet Governance Front” [David Post]
  • “The Exaggeration Of The Cyberbullying Problem Is Harming Anti-Bullying Efforts” [Tim Cushing, TechDirt]
  • “Will California’s New Data Breach Notification Duty Stimulate Class Action Litigation?” [Glenn Lammi, WLF]
  • Some thoughts on how the law should treat domestic drones, public and private [Kenneth Anderson]
  • Privacy lawsuit against Gmail could do a lot of damage [Mike Masnick, TechDirt; Matt Powers, CEI "Open Market", parts one, two]
  • Warning: more efforts ahead from legal academia to come up with stringent liability schemes for software makers [New Republic and Lawfare]

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Many loyal users (including me) were beyond glum when Google decided to close down its venerable RSS reader, effective yesterday. Maxim Lott at Fox News has this report:

“You would think that it would take little effort to maintain the site, but compliance keeps the cost up,” the source ["familiar with the matter"] told FoxNews.com.

He gave one example of a costly regulation.

“In Europe they’ve had a regulation for years where basically, if someone requests that all their data on a site be deleted, the company must comply. Reader wasn’t compliant with that. So it comes down to, do you spend a lot more resources making the service compliant, or working on something new?”…

Google spokeswoman Nadja Blagojevic declined to comment about whether regulatory costs played a role in Reader’s demise.

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Medical roundup

by Walter Olson on June 6, 2013

  • New ACA regulations from the feds restrict employer wellness programs [Jon Hyman; Leslie Francis, Bill of Health]
  • Frequent-flyer defense medical examiner comes to grief in New York [Eric Turkewitz]
  • Fecal transplants (that’s not a misprint) appear to hold out hope of saving a lot of lives, except for the mountain of FDA paperwork blocking them [Amar Toor/The Verge, Maggie Koerth-Baker] Enter the grey market [Beth Skwarecki]
  • Why can’t the FDA catch up with Europe on sunscreens? [Alex Tabarrok]
  • “The banning of catastrophic-only plans infuriates me the most…. the only plans that are actually financially sensible for a healthy individual to purchase.” [MargRev comments section]
  • More on the recent study of malpractice suits by a group of Johns Hopkins researchers [Christopher Robinette]
  • For all his public health pretensions, Michael Bloomberg “has no idea what he’s talking about” on medical marijuana [Jacob Sullum]
  • Another look at asylums? [James Panero, City Journal]
  • Feds’ war on Google pharma ads reflects no credit on D.C. [Brian Doherty]

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Randal O’Toole doesn’t share the concerns of Greg Beato and others.

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