Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Wednesday, July 20, 2016

Supreme Court Holds Pandora Users Not Imbued With Privacy

Readers of this Blawg are familiar with our view that persons who call things up on the Internet with keystrokes on their computer do not have a reasonable expectation of privacy as to their on-line activity. The Michigan Supreme Court advanced this view in a case that pitted the music streaming service Pandora against one of its users in a class action lawsuit that originated in federal court in California.

For those that do not know, Pandora streams music based on a user's preferences; the user cannot store, download or rewind the tune. A premium version of the service allows a user to skip commercials for a monthly fee.

A user can indicate preferences by creating a music "station" by searching for a song, artist or genre, or by indicating "thumbs up" or "thumbs down" for each song streamed by Pandora in response to the user's search request. Over time, Pandora utilizes complicated algorithms to refine a user's musical tastes, and uses that data to select new songs it thinks the user will like based on that user's input.

The California federal courts have defined a stream as, "an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory." Peter Deacon, a Michigan resident and Pandora user, sued Pandora in federal court for violation of Michigan's preservation of personal privacy act [also known as the video rental privacy act - VRPA].

Deacon sued in the Northern District of California based on diversity jurisdiction: each party to the lawsuit is from a different state. Deacon is from Michigan and Pandora's headquarters are located in Oakland, California.

The trial court ruled in Pandora's favor, dismissing Deacon's lawsuit. On appeal, the Ninth Circuit Court of Appeals, in a relatively rare procedure, certified a legal question to the Michigan Supreme Court:
Has Deacon stated a claim against Pandora for violation of the VRPA by adequately alleging that Pandora is [in] the business of “renting” or “lending” sound recordings, and that he is a “customer” of Pandora because he “rents” or “borrows” sound recordings from Pandora?
The Michigan Supreme Court concluded that Deacon is not a "customer" of Pandora as he did not "rent" songs due to the fact that he did not pay Pandora for the right to listen to its stream.

Deacon claimed violation of the Michigan law on the basis that Pandora made its users' profiles available and searchable on the Internet. Also, Deacon claimed Pandora tied those user profiles into the users' Facebook profiles without the users' knowledge or permission.

Our High Court started its analysis by stating the purpose of the personal privacy protection act: to preserve personal privacy with respect to the purchase, rental, or borrowing of certain materials and to punish violators of such privacy. The central provision of the Act provides:
a person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.
The Act defines a "customer" as "a person who purchases, rents, or borrows a book or other written material, or a sound recording, or a video recording." The Act, however, does not define "rent" or "borrow".

In a unanimous decision, the Supreme Court concluded that renting requires a payment of some type and Deacon availed himself only of Pandora's free services. Nor did he borrow the recordings as there was no implied promise to return the item borrowed.

Therefore, Deacon is not a customer within the scope of the privacy act according to the Michigan Supreme Court. The decision will now be considered in the federal case pending on appeal in San Francisco.

We here at the Law Blogger again find ourselves warning our readers: when your fingers do the walking on your computer keyboard, do not hold onto a sense of privacy regarding where you've been on the Internet.

Post #550

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Friday, July 15, 2016

Oakland Family Court Judge to Challenge Misconduct Findings

Special Master Dan Ryan
Fallout for Oakland Family Court Judge Lisa Gorcyca on the Tsimhoni parental alienation case continued this month with the release of the Special Master's report to the Judicial Tenure Commission. The report made findings of judicial misconduct that Judge Gorcyca has the opportunity to challenge prior to the case heading to the Michigan Supreme Court for disposition.

Judge Gorcyca's lawyer, Thomas Cranmer of the Miller Canfield law firm, has vowed to challenge retired Judge Dan Ryan's findings as Special Master, and has until July 29th to file a statement of objections. This case will continue for the balance of this calendar year.

Here is how Judge Ryan concluded his 34-page report:
Contrary to the chilling impact Judge Gorcyca contends this case will have on judges across the state, this is not a case that stands for the proposition that judges cannot employ stern language or make difficult decisions from the bench in contentious cases. It is a disciplinary action which stands for the singular proposition that if a judge is going to use the inherent power of contempt, the ultimate “tool in the tool box” after years of “frustration,” the judge may wish may wish to consult the owner’s manual to make sure that she or he are using the tool properly before employing one of the 34 penultimate tools of inherent judicial power, a contempt finding, to deprive any individual, or children in this case, of their liberty.
Prior to the case being placed on the Supreme Court's docket for the next term, Judge Gorcyca's case goes to the full Judicial Tenure Commission for a review of the Special Master's findings. The JTC can dismiss the complaint at that time, or make recommendations to the Supreme Court.

The "next steps" in this procedure are summarized by the Commission on its website:
After hearing the testimony, or after reviewing the master’s findings, the Commission may dismiss the matter if it determines that there has been insufficient evidence of misconduct.  However, if the Commission determines that misconduct has been established by a preponderance of the evidence, it may recommend that the Michigan Supreme Court impose discipline against the judge.  The Commission itself has no authority to discipline a judge; the Michigan Constitution reserves that role for the Supreme Court.  The Commission may recommend that the Court publicly censure a judge, impose a term of suspension, or retire or remove the judge from office.  The Commission issues a Decision and Recommendation, which triggers the next series of steps.
It is difficult, given the misconduct findings of the Special Master, to predict what the plenary JTC will do, but we here at the Law Blogger think we know what the Supreme Court will do, regardless of any recommendations from the JTC.

Respectfully, while we applaud how Judge Ryan set about doing the difficult job he was asked to perform, we disagree with his ultimate conclusions, and agree with Judge Gorcyca on one key point: the next family court judge that considers making a hard decision to enforce her orders in a high-conflict custody matter will no doubt think twice about resorting to her contempt powers. In our opinion, that impacts the independence of the judiciary in the wrong way.

To appeal a decision to a higher tribunal is one thing; but to remove a jurist from the bench essentially as a consequence for a particular decision is not the way courts are designed to function.

Accordingly, while the Supreme Court may agree with the tone of Judge Ryan's misconduct findings, we here at the Law Blogger believe the High Court will reject any JTC recommendation of reprimand or suspension in this case. We hasten to add, in our opinion, that is the right result.

Regardless of the outcome, this case now stands for the proposition that family court professionals, eventually, will bear the scars of their work in the family law industry.

Post #549

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Wednesday, July 6, 2016

The Legality of Bitcoin

The mysterious Satoshi Nakamoto released Bitcoin software in late 2008. The actual identity of the code founder, who promptly disassociated himself, or itself, with Bitcoin, has never been proved, remaining a matter of conjecture.

Bitcoin was designed as an electronic cryptocurrency traded on a decentralized network as a way to move and hold money.

One of the unique features of Bitcoin as a traded currency is that its encryption algorithms allow a holder to remain anonymous. Because of this, the electronic currency has been associated with a growing number of illegal transactions in the sale of arms and illegal drugs; think of the now-defunct Silk Road.

Prior to its Silk Road notoriety, Bitcoin was largely unknown until 2013 when, due to the high volume of bitcoin trades in China, its price began to spike, reaching $1000 for a single Bitcoin. There is wide-spread speculation that Chinese investors are using Bitcoin to evade the capital controls of the Chinese government.

Bitcoin was designed to be traded on a closed network of tightly controlled servers. One of the issues that has cropped-up with the cryptocurrency as it approaches its ten-year mark is whether the network should be expanded. With a network purposely limited to conducting only 7 transactions per second, there is a significant and growing backlog of transactions.

Publicity of this price spike fostered another interesting aspect of cryptocurrency: Bitcoin mining. Bitcoin mining is where a network of dedicated computers perform calculations designed to seek out and acquire the newly released Bitcoins. The activity has become organized into mining pools; the largest ones are in China.

Bitcoin mining pools are acquiring clout as well as Bitcoins. These mining pools, consistent with the software design of the cryptocurrency, get votes on software changes and other administrative decisions affecting the currency.

Estimates predict that all Bitcoins will be "mined" within the next 10-years, lessening the reward for conducting such energy and time-consuming activity until such reward reaches zero. When this happens, the costs of Bitcoin transactions will increase.

In recent years, companies that have attempted to manage a Bitcoin exchange have been burned. Mt. Gox, a Japanese Bitcoin exchange, was hacked in 2014 and lost the equivalent of $350 million in Bitcoins; it promptly filed for bankruptcy.

On the other hand, processing fees for Bitcoin transactions are relatively low; about 15 cents. Transfers of the currency across boarders is done without the typical banking delays [3-5 business days] and higher fees associated with wire transfers and credit card purchases.

The terrorist group ISIS has posted requests for its financial supporters to send Bitcoins to pro-ISIS websites. It is unlikely, however, that such a cash of Bitcoin would be converted to hard currency.

Unlike cash, Bitcoin does still leave a digital trace that can be unraveled given sufficient time and resources. The undoing of the Silk Road, for example, took a specialized FBI and U.S. Treasury joint task force 18-months. As a result, the FBI is currently holding one of the largest cashes of Bitcoin in the world; estimated to be worth over $28 million.

Despite the stigma of criminal activity associated with cryptocurrencies, retailers such as Amazon and eBay have started to accept Bitcoin payments. Locally, the Bronx Deli in Pontiac has a sign in their door pronouncing Bitcoin as an accepted as a medium of exchange.

Thus, while Bitcoin may have attributes as a medium of exchange, it is not as solid as a unit of account; folks don't always know what the value of a Bitcoin is due to its tendency for flux. This makes the currency less attractive.

Will Bitcoin be as ubiquitous as Facebook, or as functional and accepted as the U.S. Dollar? Only time will tell.

We here at the Law Blogger will continue to monitor its development, advising our readers along the way.

Post #548

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Wednesday, June 29, 2016

Wonder Dog Goes to the SCOTUS

Courtesy ACLU Michigan
Guest Blogger and Clarkston lawyer Laura Nieusma shared her thoughts about the SCOTUS petition of the week.

This October, 12-year-old Ehlena Fry and her Goldendoodle Wonder will be the topic of discussion for the highest court in the country. The SCOTUS granted certiorari to the lawsuit Ehlena's parents filed against Napoleon Community Schools after the school refused to allow Ehlena's service dog into the classroom with her.

The Jackson, MI school has since announced that Wonder would be allowed to attend school with Ehlena, but this announcement was made only after Ehlena attended school without Wonder for six-months, and then was permitted to bring Wonder for a short period of time, but forced to leave the dog in the back of the classroom, not allowing her to perform the tasks she had been trained to perform.
At the end of the 2010 school year, Stacy and Brent Fry made the decision to enroll Ehlena in a different school system, fearing retribution from Napoleon Community Schools.
Wonder is a service animal who is protected under the Americans with Disabilities Act. This Act defines a service animal as "a dog that is individually trained to do work or perform tasks for a person with a disability." Ehlena relies on Wonder to retrieve dropped items, open and close doors, turn on lights, and help her remove her jacket, all tasks that she cannot perform independently as a result of her cerebral palsy.
SCOTUS is expected to focus on the procedural aspect of the case: whether the Fry family was required to exhaust their legal remedies under the Individuals with Disabilities Education Act before bringing suit under the Americans with Disabilities Act. While both statutes provide protection for disabled individuals, the Fry's brought their lawsuit under the Americans with Disabilities Act and not the Individuals with Disabilities Education Act. This distinction is crucial as the former legislation allows for an award of monetary damages, while the latter statute does not.
The parties agree that Wonder is a service dog afforded protection under the applicable statutes and that the Fry family did not exhaust pursue administrative remedies before beginning the lawsuit under the Americans with Disabilities Act. The issue to be decided: when the administrative remedies available do not provide for the relief sought, is a plaintiff required to exhaust those administrative remedies before pursuing an avenue that can provide the requested relief?
We expect briefing and oral argument to take place during the October 2016 term. We will keep you posted on the Fry's case and the fate of their dog Wonder.
Post #547

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Monday, June 27, 2016

Domestic Violence and the Right to Bear Arms

Today, the last day of the term, the SCOTUS announced its 6-2 decision in Voisine v United States which expanded a federal firearm prohibition to include crimes of domestic violence. The consolidated cases, from Maine in the 1st Circuit, tested the scope of the longstanding "felon in possession" laws that disqualify convicted felons from possessing firearms.

Domestic violence is a misdemeanor in Maine as it is here in Michigan and in the majority of states. Justice Elena Kagan wrote the opinion, focusing on the definition of mens rea and the "use of force". The Court expressly adopted the Model Penal Code definitions of the criminal mental state, expanding that definition to include reckless conduct.

This case once again pits the ever-roving intersection between federal and state laws. Mr. Voisine's state law conviction of domestic violence was the predicate to the federal firearm charge; a charge based on a 1996 extension of the federal firearm prohibition.

In Voisine's case, while on probation for a domestic assault, the state learned he possessed a rifle. His ineligibility to do so led to federal charges. In a very well-written opinion, Justice Kagan illustrates examples of a reckless mens rea in the domestic relations context.

When a spouse throws a plate against a wall in anger near the other spouse, for example, the mens rea is reckless. And this is enough to render someone convicted of such a misdemeanor ineligible to possess a firearm.

An interesting dimension to the case is Justice Clarence Thomas' dissent raising a Second Amendment constitutional issue that was not briefed in the case. [Note: this was the case where Justice Thomas asked questions during oral argument for the first time in over a decade.] Justice Thomas asserted that the Second Amendment is treated "cavalierly" when this right -the right to bear arms- can be lost for a lifetime due to a "reckless misdemeanor conviction".

Post #546

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