Monday, May 27, 2013

Weekend Project

After first setting out to create something along the lines of Click-That-Hood with legal information about different jurisdictions, I decided to create a slightly more robust document management system to help keep track of existing and developing legal issues related to privacy law in U.S. states and/or nationwide. As someone frequently collecting references, annotating documents, bookmarking pages, etc, I wanted to bring things together in a way that also lets me play around more in Drupal 7. I intend to add features like news/API feeds, map enhancements and maybe even calendar reminders (for when a law takes effect, for example). There are some great tools out their to do similar things but I see this potentially turning into somewhere between a reference manager, CMS and task manager. You know, because none of those have been made before :) You can take a peek at how it's coming along here.

Wednesday, May 22, 2013

A Bright Line in a Blurry Landscape

The law is in a state of flux regarding the government's ability to search the contents of an arrestee's cell phone without a warrant. Should a higher standard apply given the breadth of information stored or one's expectation of privacy? Is it really that different from poking through the contents of a wallet? What if it's not password-protected?

The First Circuit recently parted ways with most other courts by announcing a very bright line rule in United States v. Wurie. The court decided that an officer's viewing of a suspect's call log after seeing "my house" calling constituted a search under the Fourth Amendment. (HT @slashdot) Without needing a password, the police looked up "my house" and matched it to a house where they later found Wurie's name on the mailbox. The police then obtained a warrant to search the property and eventually found crack, marijuana, ammunition, drug paraphernalia and more. The issue is whether the warrantless search of the cell phone for the "my house" number violated the Fourth Amendment.

Lawyer and Colonial Activist James Otis, Jr.
It's black letter law that "a warrantless search is per se unreasonable under the Fourth Amendment, unless one of 'a few specifically established and well-delineated exceptions' applies." (citations omitted) Here, the question is whether the search-incident-to-arrest (SITA) exception applies. The primary analysis revolves around Chimel v. California, in which the U.S. Supreme Court established that a SITA is justified when there is risk of officer harm or destruction of evidence. Subsequent cases have applied Chimel to find for or against application of SITA. (See chart below.)

The Wurie court relies on precedent and practicality: clear rules are necessary for officers who don't have the training, time or interest in splitting hairs, especially on the fly in wildly varying factual circumstances. TL;DR, the court crafts a bright line rule:
"We believe that warrantless cell phone data searches are categorically unlawful under the search- incident-to-arrest exception, given the government's failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence." (underlining in original)
The court, properly in my opinion, distinguishes the usual SITA characters like cigarette packs, wallets, address books and pagers from a modern cellphone, aka a computer. Interestingly, fn. 8 takes notice that, "we believe that it may soon be impossible for an officer to avoid accessing [information stored in the cloud] during the search of a cell phone or other electronic device, which could have additional privacy implications." The court spends more time on the nature of cell phone data, stating, "It is the kind of information one would previously have stored in one's home and that would have been off-limits to officers performing a search incident to arrest."

Given the way the court framed the issue, it found that the government failed to carry its burden to show that a warrantless search of cell phone data can ever fit within Chimel. Inspecting a cell phone to make sure it's not a disguised stun gun isn't the same as digging into its contents. Regarding evidentiary preservation, the court doesn't buy the government's arguments that either data could be remotely wiped, or (as the dissent emphasizes) that the failure of Wurie to answer might alert people at "my house" that he was in trouble, potentially prompting them to destroy evidence. The court says that the officers could have turned off the phone (which also wouldn't affect cloud storage, though); put it into a Faraday enclosure, or mirror the contents and then get a warrant. The court concludes, "Weighed against the significant privacy implications inherent in cell phone data searches, we view such a slight and truly theoretical risk of evidence destruction as insufficient."

The big split that might push this case toward the Supreme Court is with the Seventh Circuit's decision in United States v. Flores-Lopez, where although the risk of evidentiary destruction was slight compared to the privacy invasion, a minimal intrusion was justified. In addition, other Seventh Circuit precedent also supported a "minimally invasive" warrantless search. Still, Supreme Court preference and practical implementation called for a bright-line rule in the Wurie majority's view. "A rule based on particular instances in which the police do not take full advantage of the unlimited potential presented by cell phone data searches would prove impotent in those cases in which they choose to exploit that potential." The call from "my house" could have just as easily been Wurie's housemate asking about dinner plans. Wurie also was found with more than one cell phone, an interesting fact the court doesn't discuss. Even if it called a few times, that's not uncommon. What if it were "Lucky's Pizza" or "Fast Eddie"? Could the police assume it were an accomplice? Let fortune favor freedom, not fishing expeditions.

The court doesn't close the door completely, noting that other exceptions the government didn't invoke might apply. For example, the exigent circumstances exception in a case where a phone might contain information about a kidnapping or unfolding bombing incident. They also reject the government's claim of the good faith exception, which was ripe for review below but first argued in a footnote on appeal. On the whole and as a matter of policy, this seems like the right outcome. A bright line rule is necessary here given the unlimited scope of potential privacy harms. As the majority notes, James Otis would be proud.

Selection of cases mentioned in United States v. Wurie; quotations and paraphrasing below from the Wurie majority's description unless noted
Case Summary
Supreme Court Decisions
Chimel v. California, 395 U.S. 752 (1969) "[W]arrantless search of the defendant's entire house was not justified by the fact that it occurred as part of his valid arrest." Established underlying SITA justifications of officer safety and evidence preservation
United States v. Robinson, 414 U.S. 218 (1973) SITA applied to searches of the person, irregular cigarette pack found during pat down contained heroin; full search of the person incident to lawful arrest ok; broadly approved SITA during a lawful arrest (Robinson at 235)
United States v. Edwards, 415 U.S. 800 (1974) Paint chips found on suspect's clothing after he was in lawful custody potentially tying him to the burglary; SITA ok
United States v. Chadwick, 433 U.S. 1 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991) Feds retained control of footlocker seized after defendants were arrested when they loaded it into the trunk of a car, agents opened it an hour and a half later and found pot; no SITA exception, no exigency, safety or other risk
Arizona v. Gant, 556 U.S. 332 (2009) search of arrestee's vehicle (which also invokes a host of other rules); reiterated Chimel rationales; a search of a vehicle incident to arrest is lawful "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Gant at 343)
Missouri v. McNeely, 133 S. Ct. 1552 (2013)) "rejected a per se rule for warrantless blood tests of drunk drivers" and required a fact-specific analysis under the exigent circumstances exception; distinguished SITA at 1559 n.3
Warrantless search ok
United States v. Finley, 477 F.3d 250, 254 (5th Cir. 2007) reliance on Robinson and Edwards, SITA ok due to need to preserve evidence on cell phone; looking through arrestee's call records and text messages
United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) reliance on Robinson and Edwards, SITA ok due to need to preserve evidence on cell phone
United States v. Quintana, 594 F. Supp. 2d 1291, 1295-96 (M.D. Fl. 2009) photographs on cell phone
People v. Diaz, 244 P.3d 501 (Cal. 2011) "a cell phone can be freely searched incident to a defendant's lawful arrest, with no justification beyond the fact of the arrest itself"
People v. Nottoli, 130 Cal. Rptr. 3d 884, 894 (Cal. Ct. App. 2011) gun, "tooters," and Blackberry found during vehicle search of person arrested for being under the influence, unlocked phone's wallpaper showed image of masked, smocked person holding two rifles; concerned about terrorism or other crimes, police browsed texts related to marijuana cultivation, photos of guns and emails showing purchase of illegal ammo; very detailed discussion of Supreme Ct., California, other state cases, esp. vehicle-specific. SITA of cellphone ok. (my notes)
Commonwealth v. Phifer, 979 N.E.2d 210, 213-16 (Mass. 2012) reliance on Robinson and Edwards, SITA ok due to need to preserve evidence on cell phone
United States v. Flores- Lopez, 670 F.3d 803, 804 (7th Cir. 2012) obtained the arrestee's cell phone number from the phone; "evidence preservation concerns outweighed the invasion of privacy at issue in that case, because the search was minimally invasive"; 7th Circuit precedent supporting "minimally invasive" searches (Concepcion)
Warrantless search not ok
United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007) "a cell phone should be viewed not as an item immediately associated with the person under Robinson and Edwards but as a possession within an arrestee's immediate control under Chadwick, which cannot be searched once the phone comes into the exclusive control of the police, absent exigent circumstances"
State v. Smith, 920 N.E.2d 949 (Ohio 2009) cell phones different in nature from other closed containers due to higher expectation of privacy in contents so a warrant is required
Smallwood v. State, __ So. 3d __, 2013 WL 1830961 (Fla. May 2, 2013) relying on Gant to find that once the phone has been removed from the arrestee's person, ability to use it as a weapon or destroy evidence contained therein foreclosed
United States v. Wurie See above!

Tuesday, May 7, 2013

Appropriation FTW

The Second Circuit recently published its decision in Cariou v. Prince, a case involving appropriation artist Richard Prince's use of photos from photographer Patrick Cariou's book Yes Rasta. Both the art and copyright communities were watching closely, with the decision having potential implications on everyone in the art food chain (collector and gallery owner Larry Gagosian is also a defendant), technology companies and others. An analysis of some of the amicus briefs can be found here. OK, let's draw some lines. Consider whether you think Prince's Graduation (right) should be considered a fair use of Cariou's original:

Now, how about James Brown Disco Ball, which takes from multiple Cariou photographs among other places:
After a detailed description of Cariou's and Prince's works, the court begins its discussion of fair use and rejects the District Court's rule:
"The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Campbell at 577; Harper & Row, 471 U.S. at 561. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.” Campbell, 510 U.S. at 579; see also Blanch, 467 15 F.3d at 253 (original must be employed “in the creation of new information, new aesthetics, new insights and understandings” (quotation marks omitted)); Castle Rock, 150 F.3d at 142."
The court spends the most time on the first fair use factor,* finding that twenty five of the works are clearly transformative. It remands the case to the District Court to apply the correct legal standard to the remaining five. Further correcting the District's standard, the majority says that it should not have mattered whether Prince claimed the works were satires or parodies since transformativeness is assessed from the point of view of the "reasonable observer." They favorably cite the Seventh Circuit's 2012 decision in Brownmark Films LLC v. Comedy Partners (the South Park “What What (In The Butt)” case) to support their side-by-side review of the works and finding of fair use early in the litigation.

Judge Wallace** dissents from this part of the opinion, and would have remanded the entire case to the District Court to apply the correct legal standard (which he agrees with). He rejects the majority's strong reliance on Brownmark both because of its factual differences and complicated procedural history. Deciding fair use at the summary judgment stage isn't new, though it has been criticized. For example, the Southern District of New York recently decided Associated Press v. Metlwater in favor of the plaintiff on summary judgment. However, since the Second Circuit has corrected a legal standard here, Wallace thinks the entire case must be remanded. He also disapproves of the implicit approval of the "fleeting glance" test in this case because Brownmark involved a clear case of parody while Prince's works aren't so obviously transformative. He further notes that other evidence might pop up on remand, and the black letter copyright law stretching from Bleistein to Campbell admonishing judges not to be art critics.

On the other hand, the discussion of the size, shapes, context, materials and other blatantly obvious differences between most of Prince's works and the Cariou originals seems to easily support a finding of transformativeness under the "reasonable observer" test. Citing Castle Rock (Seinfeld trivia game not fair use) and Twin Peaks (third party TV show guide not fair use), they do pull back a bit. "Our conclusion should not be taken to suggest, however, that any cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative."

Given its finding of transformative use, the court doesn't dig in to the commercial nature of Prince's use under the first factor and turns to the fourth factor, finding that neither Prince's work nor its display usurp the original or potential licensing markets for the Cariou photographs due to the different intended audiences and nature of the works. The court mentioned Cariou's lack of follow up about a canceled showing of his work (which was due to mistaken belief he was involved in an exhibition of Prince's works), paltry sales and no attempted licensing. The court continues, "just as with the commercial character of Prince’s work, [the second fair use] factor “may be of limited usefulness where,” as here, “the creative work of art is being used for a transformative purpose.” Bill Graham.

Finally, there's the third factor, “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” The District Court had considered whether Prince took no more than necessary for his work. However, "the secondary use “must be [permitted] to ‘conjure up’ at least enough of the original” to fulfill its transformative purpose." Leibovitz, citing Campbell. Given the transformative level of most of the works, this factor favored Prince too.

Sidetrack: As Matthew Sag explains here, the Author's Guild's recent arguments in the ongoing Author's Guild v. HathiTrust case is essentially that the defendants took too much by retaining additional copies of the scanned books beyond what was necessary for their transformative use. This is reminiscent of Warner Brothers v. RDR Books, the SDNY case holding that a Harry Potter fan guide took too much of the original work to qualify as a fair use. The Second Circuit is clear in Prince that the standard is just enough to 'conjure up' the original work. However the question is framed, it still leaves open the question of how much is too much. For HathiTrust, is it a snippet? No more than two backup copies? Only indexed title metadata? I agree with Sag's point about needing to retain the originals as better OCR technology comes along, likening it to a biologist preserving original specimens. Between RDR Books and the favorable citations to Castle Rock and Twin Peaks here, it might seem that fan fiction and reference works have to do a bit more to avoid liability in the Second Circuit. Still, factor four (usurping the existing or potential market of the original) becomes more important on those facts since the transformative use is far less apparent and the plaintiff is already operating or likely to enter the appropriator's intended market. Now back to your regularly scheduled Cariou v. Prince summary..

The court discusses the remaining five works on their way back to the District Court and calls Prince's alterations "minimal." Why not just say they aren't fair use? Why leave just the hard ones to the District Court as Judge Wallace points out? The final section of the opinion notes that Gagosian cannot be a secondary infringer on the twenty five works since there's no direct infringement due to the fair uses, and that the District should determine his direct or secondary liability as appropriate on the remaining five works.

Is this a coup of social norms ultimately shifting the law away from creators' rights as some have suggested? I haven't seen side-by-side comparisons of all the original and secondary uses, but are photos of Rastafarian men in the woods really deserving of such strict copyright protection to begin with? Although there's a line of case law suggesting "thin" copyright protection in certain types of works (data-based, compilations, functional, recipe books, others), that argument might not go far given the (arguably unfortunately) low threshold for copyrightability of photographs.

Building on Brownmark, this case is good news from a defendant's perspective since plaintiffs are less likely to force them into lengthy litigation or settlement. Also, the repeated facts about the commercial and promotional failure of Cariou's work leave the door open for strong factual distinctions in future cases. The big takeaways are that a new work doesn't have to comment on the original to be considered a fair use and the reasonable observer test stands, though lower courts are invited to invoke it earlier in litigation. While the case offers a bit of clarification for lawyers, the effect on artists remains less clear as usual. As you might have guessed, James Brown Disco Ball is a fair use (along with twenty four others, mostly similar collages from what I've seen) and Graduation is one of the five on its way back to the District Court. Until next time..

* The factors come from 17 U.S.C. §107, which reads:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 
**Sitting by designation from the Ninth Circuit, interestingly.