The relative ease of electronic delivery allows bullies to say mean things about others instantly and oftentimes, anonymously.  One may think that vicious comments communicated via a text message or e-mail is of little significance, but the effects of cyber-bullying are very damaging, especially to teenagers.  A recent New York case noted:

With changes in technology, the Internet has become the venue where widespread hurtful bullying is inflicted by and on young people. See Jan Hoffman, As Bullies Go Digital, Parents Play Catch-up, N.Y. Times, Dec. 5, 2010, at A1 (examining the widespread nature of bullying on the Internet and difficulties schools have in stopping it); Schwartz, supra (discussing the suicides of three teens as a result of online bullying).

T.K. v. New York City Dept. of Educ., 779 F.Supp.2d 289, 299 (E.D.N.Y.,2011)

According to an article from The Daily News Journal, forty-three percent of teenagers are cyber-bullied per year.  Many teenagers experience negative effects from these statements, including depression and low self-esteem.  2011 WLNR 24052782.  As noted above, suicide is an extreme, but unfortunately not uncommon, consequence of cyber-bullying.  In September 2010, Tyler Clementi, a freshman at Rutgers University, committed suicide after his roommate spied on him and another man with a webcam.  Other well-known cases that resulted in suicide include Megan Meier and Phoebe Prince.

RESEARCH REFERENCES

50-State Survey: Legislatures are starting to pay more attention to this issue.  Forty-eight states have anti-bullying laws and about thirty-eight of those have some mention of electronic harassment.  Eleven states specifically mention cyber-bulling.  Check out the  50-state survey (pdf) from the Cyberbullying Research Center.

Recommended Query for the Common Law: Try the followng terms and connectors / advanced query on Westlaw or WestlawNext:

adv: (bully! /s internet cyber computer electronic text-message! cell-phone “social media”) cyber-bully!

We ran this search in all state and federal jurisdictions on WestlawNext:

Much of the new code falls under the category of  “anti-harassment.”  To broaden this query, add harass!:

adv: (bully! harasss! /s internet cyber computer electronic text-message! cell-phone “social media”) cyber-bully!

We also narrowed the search to Causes of Action (COA) and found no results.  So, we targeted headnotes in the case law:

HE((bully! /s internet cyber computer electronic text-message! cell-phone “social media”) cyber-bully!)

As it turns out, there’s just one case:

Insofar as the Plaintiff’s counsel suggestion that the posts constitute cyberbullying, the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.

Finkel v. Dauber, 29 Misc.3d 325, 330, 906 N.Y.S.2d 697, 702-03 (N.Y.Sup.,2010)

Mr. John Hithon of Alabama got an early Christmas present this year, when, on December 16, a 3 judge panel of 11th Circuit Court of Appeals reversed itself and re-instated a jury verdict that had been entered against his former employer in the case of Ash v. Tyson Foods, 2011 WL 6270741.  If this story seems familiar, you probably heard about it in the same place I did, the New York Times front page earlier this week.  If you didn’t see their write-up, it’s available on Westlaw at 2011 WLNR 26636445.

For the Times, and probably for a lot of the general public, this case was of interest because a part of it concerned whether use of the term ‘boy’ was a racial epithet, or merely water-cooler conversation.  When the Court, in 2010, held it to be mere conversation, the Plaintiff lost his discrimination claim; by holding that the racial overtones were a matter for the jury, his claim survived.

The Times noted that it is fairly rare for a Court of Appeals to reverse itself outside of the scenario of an en banc reconsideration.  I put together the following search:

sy(prior previous earlier /s opinion /s vacat! & motion moved petition! /3 re-hear!) % sy(“en banc”)

In our Court of Appeals content on WestlawNext (or CTA on Westlaw) this search finds 44 results, with Ash v. Tyson being the most recent (without the excluding the words “en banc,” the search returns 59 cases).  In the KeyCite history, these cases are noted with a straightforward ‘vacated on rehearing’ or ‘vacated on reconsideration.’   Searches like this one – within the synopsis field -  are great for users who want cases with a particular procedural posture.   Note that many cases also include Holding (HG) and Background (BG) field data. But, these fields are included in SY.  And, I actually found that searching in the Synopsis returned better results than searching the Holding field.

Field outlines for various document types can be found on WestlawNext from the Advanced Search link.  For example, see the Fields for Cases (pdf) document we pulled from the advanced search link at the cases page.

According to the Des Moines Register, three civil rights investigators at the Iowa Civil Rights Commission were  fired recently after an unrelated investigation uncovered thousands of offensive and gossip-filled e-mails between the three women. The e-mails frequently gossiped about co-workers and supervisors and included “nicknames” like “Roid Rage”, “Psycho”, “Homeless McGee”, “Stoned Intern” and “Rainman.”  Two supervisors were referred to as “Teen Wolf” and “Night Ranger.”

The three employees were denied unemployment. Administrative Law Judge James Timberland wrote that the emails, “made fun of and/or ridiculed obese people, gay, transgendered and/or transvestite people, elderly people, Wal-Mart customers, African-American men, white high school students, white men and white people generally.”

The Commission’s Executive Director, Beth Townsend (“Night Ranger”), testified at the unemployment hearing that the emails were so frequent she thought they may have taken up the majority of the workday, according to the Des Moines Register.

To read more and read some excerpts of the emails published go to this article.

E-mailing in the workplace is not a new problem, but it is a persistent one. So how do employers keep employees on their toes when it comes to personal e-mail and internet use, without invading privacy? Try,

pr,ti(internet e-mail electronic-communication /5 policy)

In Westlaw:

Labor & Employment – Law Reviews, Texts & Bar Journals (LB-TP), or

Employment Law FormFinder (FORMFINDER-EMPL)

        In WestlawNext:

From the Topics tab, choose Labor & Employment.  You can run a search in any content that is related to Labor & Employment now by searching in the search box at the top, or narrow further by clicking on All Labor & Employment Secondary Sources or Labor & Employment Form Finder.

On March 15 new implementing regulations for Title III of the ADA became effective.  Among the highlights is a new definition for “service animal.” 28 CFR 36.104.  Prior to the revision, “service animal” was left open to interpretation:

 Service animal means any guide dog, signal dog, or other animal [emphasis added] individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

This legal ambiguity fostered an environment in which monkeys, snakes, lizards and other unlikely creatures were openly carried in public, many performing no apparent task.   Such “comfort” animals are specifically excluded from the definition of service animal in the new regulation.

 Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability…The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition…

For news sources addressing the new Service Animals regulation, as well as pre-amendment coverage of “service” and “comfort” animals, try the following News search on WestlawNext, which includes “Service with a Snarl: In San Francisco, lizards, rodents, and vicious Chihuahuas have all been declared service animals”, 2009 WLNR 11760274.

           advanced:ti(service comfort /3 animal) & a.d.a. “americans with disabilities act”

 For cases, secondary sources, trial documents and other materials on WestlawNext, choose “All State and Federal” for your jurisdiction, then run the following plain language query:

           ada service animal

 To view the new regulation from proposed to final rule, try the following alternative queries in the Federal Register on WestlawNext:

          advanced:”service animal” & 1190-aa44 1190-aa46  [for cautionary details on Regulation Identifier Numbers      (RIN) searching, see Mike C.’s posts “Anatomy of a RIN” and “More on RINs”]

         advanced:”service animal” & PR(“department of justice”) & da(aft 2007)

USA v. Whatcott is an ongoing federal case regarding mortgage fraud that poses an interesting question regarding the scope of the Fifth Amendment in the digital age.  In Whatcott, the prosecutors wanted defendant Ramona Fricosu to decrypt her laptop to make the contents of the laptop available to the government. Defendant claims that this would violate her Fifth Amendment rights against self-incrimination.

EFF filed an amicus trial brief “to help the Court apply the Fifth Amendment privilege against self-incrimination in a manner that ensures the constitutional rights of those who use this technological measure [encryption] to protect their privacy and security.”  See entry 172 at 1:10CR00509.

EFF stated that their interest in this case, “is the sound and principled application of the Fifth Amendment to encryption passwords and encrypted information stored on computers.” “EFF submits in this brief that “Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity.”  On Page 9 the EFF argues, “The Act of Entering a Password or Otherwise Decrypting Data on a Computer is a Compelled Testimonial Act Protected By The Fifth Amendment.” EFF further argues that “forcing an individual to supply a password necessary to decrypt data is more like revealing the combination to a wall safe than to surrender a key.” The Government replied that, “[t]he privilege against self-incrimination must be interpreted narrowly and is not a mechanism to protect abstract privacy.” See, docket entry 177.

In an order dated July 26, 2011, the Court stated that, “Unless the government establishes by at least a preponderance of the evidence that the laptop that is the subject of the application belonged to defendant, requiring her to provide the password thereto would force her to admit ownership of the laptop, in ostensible violation of the Fifth Amendment.” See docket entry 182. The court scheduled a hearing in this matter for October 19, 2011.

To track this docket to follow up on all the developments in this case, Find the docket by going into the Dockets for the District Court of Colorado database (DOCK-CO-DCT on Westlaw) and run the docket number 1:10CR00509 or simply click on this link:  DN(1:10CR00509). For WestlawNext, click here.

Once you have accessed the docket for this case, you can click on “Track this Docket” (Westlaw) or “Track” (WestlawNext) to keep abreast of the developments in this case:

Click to Enlarge

Other Research References

For general state of the law on this subject, try these traditional boolean searches:

CASES: In ALLCASES, try 

(FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /P PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

SECONDARY SOURCES: In TP-ALL, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

TRIAL FILINGS: In FILING-ALL, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

and 

 BRIEF-ALL: (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

NEWS: In ALLNEWSPLUS, try

 (FIFTH VTH /2 AMEND!) SELF-INCRIMINAT! /25 PASSWORD (DIGITAL! ELECTRONIC! /5 KEY ACCESS!) ENCRYPT! DECRYPT! USER-NAME

The U.S. District Court for the Northern District of California recently issued its decision rejecting a motion to vacate the the court’s judgment that California’s “Proposition 8″ ban on same-sex marriage is unconstitutional.  The motion to vacate asserted as grounds that the the presiding judge should have recused himself from the case, based on his disclosure after his retirement from the bench that he is homosexual and has been in a same-sex relationship for the last 10 years. 

Specifically, it was alleged that this long-term relationship gave rise to some form of non-pecuniary interest or inference of impartiality requiring recusal or disqualification.  This seems to be a novel issue in the jurisprudence of recusal, and the court offered some interesting language in its decision.  (You can see the full text on Westlaw at 2011 WL 2321440.)

After a review of existing case law under FRCP 455(b)(4)*, the court “adopt[ed] the following legal conclusion: In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4).

The court emphasized that it is a mistake to say that a member of a minority has a greater interest in safeguarding civil rights than the majority: “In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”

The court also found that a possible future interest in marrying is too tenuous or indeterminate to require recusal under the statute: “… to base a recusal standard on future subjective intent to take advantage of constitutional rights is to create an inadministrable test, frustrating congressional efforts to protect judicial integrity with a clear, mandatory recusal statute.”

Responding to the movants’ suggestion that the judge’s prior non-disclosure might lead that infamous reasonable person to question his impartiality, which would require recusal under FRCP 455(a), the court observes, “… silence is by its very nature ambiguous, and thus is open to multiple interpretations. Another, and equally reasonable, way to interpret that silence is suggested by Ninth Circuit caselaw, which holds that it is to be presumed that any judge is impartial.”  The court goes on to say, “Beginning from the presumption that judges are impartial, the Court postulates that a judge who is silent in such a situation has already, sua sponte, considered the question of recusal and has determined that he need not disqualify himself, because no reasonable observer would conclude that his impartiality could reasonably be questioned.”

Later, the court goes to far as to observe that the judge in this case, “like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent.”  (One can only imagine what personal details of his or her life a judge might be contemplating when reading these words.)

Already notice of appeal has been filed, while the appeal of the underlying decision on Proposition 8 is still pending.  Certainly we have not heard the last of this issue.

* Our search for 455(b)(4) in the FED9-ALL database, yields 35 cases.

The Conspirator, a film directed by the venerated Robert Redford and released April 2011, treats the military tribunal conviction of Mary Surratt for conspiring in the assassination of President Abraham Lincoln.  For those unfamiliar with the story, Mrs. Surratt was proprietor of the boarding house frequented (and sometimes lived in) by John Wilkes Booth, and she was the mother of John Surratt, a Booth confederate and alleged conspirator.  Tried by a military tribunal with more lenient rules of evidence, no jury of peers, and no presumption of innocence, Mrs. Surratt’s case reached a conclusion fairly described as pre-determined.  She was convicted and hanged in 1865.  Mary Surratt holds the unenviable distinction of being the first woman executed by the United States government.

In the aftermath of Mary Surratt’s execution, questions were raised regarding military authority over civilians.  Ultimately, these questions would be answered by a case before the United States Supreme Court in 1866.  The case, Ex Parte Milligan (1866 WL 9434 subscription required), held that martial law was acceptable “on the theatre of active military operations” where civil courts do not function.  However, where civil courts remain in operation, civilians may not be tried by military tribunal; they must be allowed to avail themselves of the courts and of the safeguards of the U.S. Constitution, “a law for rulers and people, equally in war and in peace.”

Ex Parte Milligan is hailed as a landmark case for its protection of civil rights.  The story of Mary Surratt, once obscure, is gaining in popularity and spawning debate of her guilt or innocence.  Readers interested in reviewing the Milligan case may access it on Westlaw.  You may also find other cases and secondary sources pertaining to military topics in the MIL-TP (Military Texts and Periodicals) and MJ (Military Justice Cases)* databases.   And for you film buffs, take a minute to peruse Roger Ebert’s review of The Conspirator.

Other Sources / Research

*An interesting case NOT found in the MJ database (coverage begins in 1951), does provide some clues as to where to find documents related to the Surratt trial.  See 27 F.Cas. 1367:

 The trial of Mrs. Mary E. Surratt and others for the murder of Abraham Lincoln, president of the United States, was by military commission sitting in Washington, D. C., in May, 1865. The trial of John H. Surratt was by the criminal court of the District of Columbia, in June, 1867.

As decisions by the military courts and the courts of the District of Columbia after their reorganization under the act of March 3, 1863 (12 Stat. 764), are not included in this series, the reader is referred to the pamphlet reports of these trials, which can be found at many of the larger libraries. The trial of Mrs. Mary E. Surratt and others it sometimes denominated the ‘Conspiracy Trials.’

Westlaw Database: jlr

Query: mary /3 surratt

Results: 32

Also check out the official site’s resource center.

I recently returned from the annual Expo of the International Association of Amusement Parks and Attractions (IAAPA) held in Orlando. One of the important issues discussed in several class seminars was the new Americans with Disabilities Act Accessibility Guidelines (ADAAG).  While the amusement industry strives to put smiles on people’s faces and to appeal to the broadest spectrum of the population as possible, safety of all guests is a prominent concern to the industry.  Operators are constantly striving to have a good working knowledge of the A.D.A. requirements and how they impact operations.  Such knowledge becomes extremely complex when you look at the wide variety of goods and services offered at an amusement facility or traveling show.  The facility or show not only provides amusement rides, but it also provides water attractions, go-karts, miniature golf, indoor theaters, restaurants, games, shopping, camping facilities and restrooms.  Each of these areas has its own nuances and requirements under the ADAAGs.

On September 15th of this year, the Civil Rights Division of the Department of Justice promulgated a final rule amending its ADA Title III regulation, which covers nondiscrimination on the basis of disability by public accommodations and in commercial facilities.  The final rule can be found on Westlaw at 75 FR 56164. For earlier versions of the rule, you can use the Regulation Identification Number (RIN), 1190-AA46, as your search term in the FR database.  (A very common research question is, ‘I have the notice of proposed rule making, has the agency adopted the final rule?’ Most agencies, but not all, use RINs.  If you’ve got one, run it as your search term to find related proposed, amended and final rules.)

The final rule adopts the 2004 ADAAG and makes them operable six (6) months after publication or on March 15, 2011; while the 2010 Standards (ADAAG) will become enforceable eighteen (18) months after publication or March 15, 2012.  With the promulgation of 2010 Standards, amusement operators will be looking at ways to better accommodate hearing-impaired and sight-impaired guests.  Keep your eyes open for future discussions on this topic.

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The 3rd Circuit on Tuesday September 7th handed down a much anticipated decision  dealing with the Governments attempts to get cellular network positioning information  without a warrant (2010 WL 3465170).

The dispute stems from the Governments attempts to obtain cell site location information (CSLI)  regarding a particular subscriber under the Stored Communications Act (18 U.S.C.A. §§ 2701 et seq.).

CSLI is information that cellular providers maintain regarding the location of their customers when they make a call.  Whenever a cellular customer makes a phone call, the cellular providers record what tower transmitted the call, as well as what “face” of the antenna was used to receive the call.

The police argue that this is valuable information for proving that individuals were at certain locations at particular times.  In this case, they requested the information under the Stored Communications Act provision that allows the Government to obtain the information by getting a court order merely upon a showing of the information’s relevance and materiality of the data to an ongoing criminal investigation.  This Act relieves the Government in certain situations of having to get a warrant and show probable cause.

In this case, the lower court refused to grant the order, and in a rare occurrence the order denying the request was joined by the other judges in the district.  The lower court held that the Stored Communication Act did not apply and that the CSLI records could only be obtained upon a showing of probable cause.

The 3rd Circuit here decided that the Stored Communications Act does not necessarily require that Probable Cause be shown in order to obtain this data.  Having decided that the lower court’s decision would not stand, much of the later decision dealt with the Government’s contention that if it met the requisite showing under the Stored Communications Act then the Magistrate must grant the order.  The 3rd Circuit did not agree, in addressing the legislative history they concluded that the magistrate might have discretion to require probable cause and a warrant under some circumstances.  The 3rd Circuit then remanded to the lower court for further consideration.

For more on the Stored Communications Act, see Chapter 9 of Data Security and Privacy Law: Combating Cyberthreats; specifically,  DATASPL § 9:17 et. seq.

Maricopa County, Arizona Sheriff Joe Arpaio has been sued by the United States Department of Justice.  The complaint, available on Westlaw at 2010 WL 3436735, alleges that the sheriff’s office has refused to cooperate with a Federal investigation into possible violations of Title VI of the Civil Rights Act of 1964.  It states, in part:

Since March 2009, the United States has attempted to secure Defendants’ voluntary cooperation with the United States’ investigation of alleged national origin discrimination in Defendants’ police practices and jail operations. Despite notice of their obligation to comply in full with the United States’ requests for information, Defendants have refused to do so. Defendants’ refusal to cooperate with reasonable requests for information regarding the use of federal funds is a violation of Defendants’ statutory, regulatory, and contractual obligations.

The docket for the case is also available on Westlaw, and can be tracked via the “Track this Docket” link if you want to receive notification of all new filings in the case.  A search of the Arizona State and Federal Dockets database (DOCK-AZ-ALL) for PTN(arpaio) & FLD(aft 12/31/2009) will return not only the docket for this case, but also dockets for other recent litigation involving “America’s Toughest Sheriff” (Note: sort the results by Filing Date to view the most recently filed cases first).

There are also numerous law review and journal articles that mention Sheriff Arpaio.  A search in the All Law Reviews, Texts & Bar Journals database (TP-ALL) for Joe Joseph /2 Arpaio returns 85 documents.  Many of these discuss Sheriff Arpaio’s aggressive enforcement of immigration laws, which is apparently what prompted the DOJ’s investigation. 

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