Category Archives: Laws

George Zimmerman Verdict Follies

The George Zimmerman murder trial out of Florida hadn’t been big on my list of news stories to follow, but I’ve found the fallout from the verdict pretty darn strange (or maybe I’m just easily amused):

  • The crybaby prosecutor: it should be obvious to most prosecutors that the professional response to a trial loss is to say that you respect the process and move on with life.  That is, unless you’re Zimmerman prosecutor Angela Corey, who apparently has a record for being a mite thin-skinned.
  • The passive-aggressive defense counsel:  Zimmerman’s attorney, Don West, when asked after the verdict for his thoughts on the trial judge, declined comment stating “I’d like to keep my bar license for a few more years.”  Dick move; in one step he communicates both his low regard for the judge and his lack of understanding of the first amendment rights of attorneys.  Yes, Mr. West, you are free to criticize the judiciary – and specific judges – without worrying about losing your law license.  Of course, it’s best to follow the counter-example of Angela Corey and do so professionally.  Which is not, incidentally, something anyone would confuse your snide comment with.  
  • The strange bedfellows: Right-wingers celebrating a defense victory over the state!  Left wingers bemoaning a criminal defendant going free!  This was very much a stand-sit moment, and it’s offered great moments in squirm-itude watching those on both the right and the left try to justify their positions.
  • Support the State!:  For me, the ironic topper was my beloved local anarchists calling for protests against the verdict.  I didn’t know that anarchists thought the police and prosecutors should have more power!

And despite the unfortunate, avoidable circumstances, despite the bumbling of law enforcement and prosecutors, despite the crappy laws and attitudes in Florida, despite the built-in biases and suspicions that leads to events like this, I’m left with this thought:

I still prefer to live in a society where the state is held to its burden, where the accused has a full opportunity for defense, and where it’s at hard for people to be locked away.  We may fall far from the mark on these fronts – look no further than our woefully underfunded public defender programs.  But if there’s one lesson the Zimmerman case offers, it isn’t that we need to walk back the rights of defendants.

A Nation of Compliance Officers

I have conflicting feelings about Edward Snowden, the shrinking-violet-of-a-spy who leaked the info on the PRISM program being run by the NSA.

– He violated every term of his employment contract and who knows how many oaths he took.

– He knew exactly what he was signing up for in working (even as a contractor) with the NSA.

– The programs involved all appear to have been lawful.

But even with all that, there’s the fact that Snowden’s act of civil disobedience also brought renewed focus to the runaway nature of our modern surveillance state. And that’s a necessary thing, even if Snowden’s methods and motives in getting us there are less-than-pure.

I’m reminded of this recent piece from Reason.com on the failings of the “compliance mindset.” For too many, all questions are answered by just following the rules. But that doesn’t cut it. There are too many times when circumstance, opportunity or risk demand that the rules be broken.

Of course, inherent in civil disobedience – but not always well-understood – is that there are consequences for breaking the rules. Snowden may be naive, he may be narcissistic, he may be a coward. His running to the largest surveillance state in the world suggests some combination of all three.

But he WILL suffer the consequences for his choice. While I question his underlying motivation and methods, I don’t condemn him for breaking the rules. He’s provided the spark for a much-needed discussion, one that will hopefully yield better protections from intrusive government surveillance. And that’s not a discussion we get to have if we become, as Reason’s Ira Stoll put it, a “nation of compliance officers.”

Lukewarm on Seattle Bike Share

Hub and Bespoke blog wrote the other day about Seattle bike share, with some nice links to posts about how great these systems are in other cities. And they are great; I love the systems I’ve used when traveling (like Capitol Bike Share in DC). When done right, urban bike share is a revelation: easy to use, super convenient, a whole new and freeing way to move about and experience a city, whether you are a resident or a tourist.

But I’m worried that Seattle’s system will turn out more like Melbourne’s – tepid and underused due to the requirement that all riders wear helmets. And it’s our own fault, for not seriously entertaining the possibility, that maybe – just maybe – we could get out of our nanny-state mentality and question whether Seattle really needs a mandatory bike helmet law.

Or whether the bike share system could have an exemption from the law.

Instead, we’re going to “solve” the problem with helmet vending machines.

Much as I’d like this to work, and as much as helmet vending machines are great for those choosing to wear a helmet, I fully expect that Seattle’s system is going to be a pale shadow of what it could be until and unless the mandatory helmet law is lifted.

The Choices of Miranda

There’s been a fair bit of legal chatter about the decision of law enforcement to not read Boston bombing suspect Dzhokhar Tsarnaev his Miranda rights. What’s lost in most of the discussion is that doing so is a perfectly rational decision for the authorities to make. Why? The reasons are related to one of my favorite topics: why no one should blindly follow the law (or procedure, or “standard operating process”).

The police choosing to not Mirandize a suspect isn’t the same as choosing to disobey an unjust or unconstitutional law, or even the decision to proceed in the face of ambiguous applicability of regulation. It’s more akin to the cost-benefit involved in choosing to run a red light on a bicycle, or to breach a contract. You see, unlike the legal consequence for being caught running a red light (a ticket), there’s not a legal sanction for failing to Mirandize. There’s no independent “Miranda right;” the warning merely serves as a safe harbor allowing the police to use whatever statements the suspect may offer up after the warning has been given.

(for any criminal defense lawyer readers, yes, I am skipping over a lot of criminal law nuance here, but my point has to do with decision-making, not procedure).

Like my running the red light, the authorities here are making a pragmatic choice: give up the ability to use any incriminating statements that Tsarnaev may make against him in exchange for the increased likelihood that he yields information exposing co-conspirators, foreign support, etc. This decision is actually quite an easy one. While the FBI is preserving optionality by claiming that skipping Miranda is justified under the public safety exception (which would permit any statements to be used despite the failure to Mirandize), the much more important point is that there is almost no chance that they need any incriminating statements by Tsarnaev in order to convict him. Absent some truly startling developments, they’ve got all the evidence they need. So why not skip the warning and see what intelligence he offers up?

The rules of police procedure would say that you read the suspect his Miranda rights. And as with most rules (including red lights), that’s a good idea – most of the time. But as this case illustrates, we’re not going to maximize our chances of getting the best outcomes if we don’t critically assess, every time, whether we should follow the rules this time.

Compliance Exercises

Counter-apropos of my last post comes this article in Corporate Counsel magazine about the need for an independent Chief Compliance Officer in most corporations. The article presupposes general agreement that having such a position is critical to “elevate compliance and improve corporate governance.” And I suppose it is. But is it critical for what really important in a corporation?

You know, doing business?

And growing that business?

There’s no question that having a Chief Compliance Officer will help tick the boxes when it comes to corporate governance. But it runs the risk of glorifying the grocery clerk mentality, the lording of form over substance. Unlike every other C-level officer, this putative Chief Compliance Officer is focused on something wholly apart from the business and its goals: complying with the dictates of government. Compliance bears within its genes the potential for mission creep. Just as the regulator inevitably seeks to expand the scope of that which is regulated, the compliance officer lives with the danger of seeing ever-more ways that laws – and, critically, interpretations of laws – can be complied with. This is especially true if “compliance” is unmoored from legal, which should, at least in theory, be laying a claim to helping the business grow.

An example: My first General Counsel job was with a regional cellular company, shortly after the Telecom Act threw the mobile wireless industry into deregulation. A compliance officer would have told my board that we couldn’t possibly sell wireless phones and rate plans on a bundled basis. That was the conservative, “compliance-centric” interpretation of the regulations, which were in a state of flux at the time. It was the approach taken by our competitor. To me, young and unburdened with a career spent working for the telephone company, it was lunacy. Of course we could sell bundles, and if the regulators came around asking questions, we had a perfectly good explanation for them. An explanation that was supported by our good faith interpretation of the law and consumer interest. So we bundled away, and took a ton of market share. After nearly a year, our competitor followed suit.

I think about that often when considering the damage a compliance-first attitude can cause a company. There’s so much grey area, and so many ways to find a “compliance solution” that prevents business from happening. There’s also the very real danger that by focusing solely on ticking off the compliance officer’s checklist the company will miss bigger, more amorphous legal problems.

There may be industries where a robust – perhaps even independent – compliance program is called for. But those industries where abuses have been at their worst (financials, I’m looking at you) have never suffered from a lack of people focused on compliance. While having a lot of grocery lists will help prevent everyday lawbreaking, it’s not proof against more systemic problems. And in the meantime, it carries a very real cost in risk of loss to business focus. Far better, then, to have someone in the legal department who is focused on compliance, but whose prescriptions are ultimately filtered through the more practical hand of the GC.

What’s Right & What’s Legal

While I’m a big advocate of personal freedoms, I could never embrace libertarianism.  There’s too little recognition of what brings us together as social beings, not enough pragmatism.  Then there are the unfortunate backwaters that an unyielding defense of liberty leads to – tax resistance, antipathy to laws prohibiting discrimination, etc.  

But I loved this piece from the libertarian Reason.com blog the other day – “why I’m teaching my son to break the law.”  It plays into a debate I often have with my son; at 14, he’s got a heightened fear of the consequences of breaking rules.  I can respect that concern, and as a parent, I don’t want to see him getting into trouble for trouble’s sake.  But as I try to tell him, sometimes what’s right doesn’t line up with what’s legal.  Rules aren’t imbued with some kind of moral weight just because a government body, bureaucrat or majority of the citizenry voted for them.  Sometimes the least right laws are the most popular.  Sometimes laws are enacted that are flatly unconstitutional.  And sometimes the law is an ass.

As I’ve written before, I’m convinced that being too scrupulous about rules-following is a dangerous way to ride a bike.  But it’s also a dangerous way to live as a citizen.  The only way to stay free to stand up, to question authority and to push back on bad laws. For as Ralph Waldo Emerson observed:

“The wise know that foolish legislation is a rope of sand, that perishes in the twisting.”  

Twist away.

Rep. Orcutt Still at it

I had thought perhaps Rep. Ed Orcutt was concerned with environmental or economic justice. But via Bikehugger, we learn that Orcutt has walked back his silly comments about the environmental impacts of cycling while doubling down on his view that cyclists should pay a separate tax to support “their” infrastructure.

Never mind that we’re already paying our fair share: As I mentioned earlier, 96% of transportation funding coming from sources, like property taxes, that aren’t based on direct use of transportation infrastructure. And while it’s one thing to look at the (currently $0) contribution cyclists make to transportation on a usage basis as compared to gas tax, let’s flip that around – how fair is it that auto usage only accounts for 4% of total spending? After all, there’s no question that this 4% radically under-represents the use motor vehicles place on roadways, both in terms of capital demands and maintenance needs. Where’s the fairness in that?

But actually, and unlike Orcutt, it doesn’t bother me a bit that I pay so much for roads despite hardly ever using them as a driver. That’s because I benefit from having them there, and not just for riding on.

It’s a point that should be blindingly obvious, but clearly needs reinforcing: Transportation infrastructure is what enables so much else of our economy to click. It’s why I can get fresh produce at the store. It’s why we can have an interconnected economy with jobs and options and recreation and entertainment in myriad different locations. And it’s why we can have politicians from remote rural areas influence statewide policy (oops).

Same goes for sidewalks or protected bike lanes. Yes, they benefit the direct users – just as roads benefit those driving on them. But they also help connect everything together and provide options other than cars for moving around (which, incidentally, directly benefits those having to drive by reducing congestion). There’s a reason it’s called infrastructure. Well-designed transportation spending that accounts for the different modes people use to move around is core to keeping our society closer together and our economy and cultural life humming. It’s time for politicos like Ed Orcutt to get past the blinkered view that spending on – and benefits from – transportation is limited only to those who directly use it.

Rep. Orcutt on Those Freeloading, Polluting Bicycles

Ed Orcutt is the ranking minority member on the Transportation Committee in the Washington House of Representatives.  In an email to a constituent, Orcutt riffed on the transportation tax bill introduced last week.  It started off easily enough:

“I am not a fan of much in the House Transportation tax proposal nor of many tax proposals . . .”

(of course not – Orcutt is an erstwhile Republican and fan of the Tea Party)

But just like the Tea Party can find a soft spot in its heart for government action when it comes to Social Security, Medicare or enforcing drug laws, Orcutt has found a tax that he actually likes:

“. . . but I have to admit I think there are valid reasons to tax bicycles.”

Really?  Like what?

Well, it may be the case that Orcutt is a closet economist, because he seems awfully concerned about externalities – you know, the costs that certain activities impose on the rest of society that aren’t paid by the person or industry creating the cost.  Orcutt, with professorial patience, continues:

“Think about this for a moment.  Currently motorists are paying to use their cars on the roads while they are actually driving their cars.  At the same time, they are paying for bike lanes because there is no gas tax – or any transportation tax – generated by the act of riding a bike on the roadways.”

That’s an admirable concern for the “free rider” problem right there. I assume Orcutt feels the same way about the firearms dealers and timber industry in his district paying the full freight for the costs they impose, although I’ve yet to see his incisive macroeconomic analysis on that topic.

But never mind that – on to the bikes!   Yes, it must be a dreadful thing, all us freeloading cyclists.  Orcutt is right, of course – we don’t pay a tax based on usage.  Compared to cars, we ARE freeriders, creating externalities that are paid for by society.  There’s no debate about that.  Although 96% of Seattle’s roadway budget comes from non-usage based funds (principally property, sales and B&O tax revenue), fully 4% comes from gas tax.  FOUR PERCENT!

The burden of which – and I can’t be plainer about this – is borne solely on the shoulders of drivers.

Rep. Ed Orcutt is obviously a principled economist, focused on the question of fairness.  I’m sure he would advocate that cyclists pay for roadway commensurate with usage and impact in relation to cars and trucks.

So let’s do some quick math.

  • In Seattle, gas tax revenues used for roads equals about $13.5 million annually.
  • Bikes are used for about 5% of commutes.  There’s obviously recreational riding as well, but let’s assume that’s washed out by non-commute driving.
  • 5% of $13.5 million is a little shy of $700,000.
  • But we haven’t accounted for commercial driving, which places a massively disproportionate burden on transportation infrastructure given the weight of the vehicles and the miles driven.  Let’s say that cuts the share attributable to bikes down to $350,000.
  • Oh, and we haven’t accounted for the difference in commute length.  The average one-way commute for drivers in Seattle is 14.1 miles; for cyclists it’s 6.1 miles. So that brings the “cycle share” down to about $150,000.
  • Then’s there’s vehicular weight and rolling resistance on pavement – the biggest driver of transportation infrastructure wear and tear.  Let’s say the average motor vehicle weighs 4000 pounds, and the average bike-and-rider 200.  That’s probably understated, since it doesn’t account for commercial vehicles or the differences in tire size, but let’s go with it because it makes for a nice, clean 5% ratio.  That brings the number down to $7,500.

So those of us commuting by bike in Seattle are free riding to the tune of, at most, $7,500 per year.  I’m guessing a more detailed analysis or factoring in the positive externalities of cycling would reduce that number further or even turn it negative.

As Orcutt is a devotee not only of fairness but also of small government, I’m certain he would not want to create or expand state bureaucracy to collect so piddling a tax, a tax whose meager revenues would be swamped by the cost of collection and enforcement.

But perhaps not.  Because Orcutt may have a bigger agenda.  You see, he is not only an economist, but also an environmentalist, concerned about the dire impact of bicycling on global warming.  He may like this tax because it uses the “pull” of state taxation to drive an end desirable to Orcutt – getting all of those spandex-clad polluters off their bikes and back behind the wheel where they won’t do so much damage to Mother Earth:

“But if I am not mistaken, a cyclist has an increased heart rate and respiration. That means that the act of riding a bike results in greater emissions of carbon dioxide from the rider.  Since CO2 is deemed to be a greenhouse gas and a pollutant, bicyclists are actually polluting when they ride.”

Read the whole crazy here.

(h/t Seattle Bike Blog)

 

 

Creative Commons and “Noncommercial” Use

One of the promises of Creative Commons is the idea that all sorts of works – writing, photography, other visual arts – can be made more accessible via a workaround to state-based copyright law (here in the US, copyright attaches automatically to virtually any independent work of expression – this blog post, your cat photos, my son’s CreepyPasta entries – you name it).

It’s a good idea; the uncertainty of copyright makes it harder to share things than it should be.  For example, let’s say I found a photo online that I wanted to use on my blog.  I could try and contact the photographer and get permission to use it, but that’s an uncertain process at best.  It will take an indeterminate amount of time, with no guarantee that I will get an OK – or even any response at all.  So I’ll move on to a less-ideal choice of photoillustration, or go with no photo at all.

Creative Commons is designed to solve that sort of problem.  If the photographer assigns a Creative Commons license to the photo, I should have all the information I need from the license to know whether I can freely share it on my blog and what conditions, if any, apply (for example, attribution, restrictions on derivative works, etc.).

In practice, however, Creative Commons doesn’t work as well as it could.  There are a number of different license types, with different conditions and limitations on use.  And as Glyn Moody at Techdirt points out, license types can be freely changed by the creator of the work, leaving a previously-permitted use twisting in the wind (although CC licenses are non-revocable, it can be difficult to prove that use was under a previous license).

The biggest problem, however, is the fact that many Creative Commons licenses have limitations to noncommercial uses.

Why is this a problem?  Because very, very people actually understand what this means.   Even most attorneys don’t understand what “noncommercial” means.  And this leads not only to hurt feelings (and more restrictive licenses) when a use is made that the creator doesn’t care for, but also a lot of uncertainty among those who would otherwise use the work.

Back to my example of clipping a Creative Commons-licensed photo for a blog.  Let’s say the license is “CC BY-NC” – a widely used license permitting sharing (with attribution) and derivative works but restricting commercial use.  Well, no problem – my blog is noncommercial, right?  But what if my blog has advertising? What if it has a Cafepress store, Amazon widget, or some other form of merchandising?

What if I’m writing for the New York Times?

The answer is that – in the U.S. at least – none of these examples represent commercial use.  The fact that a publisher has a commercial motive does not mean that everything published is likewise commercial.  “Commercial” means that the work itself is resold or incorporated into something that is for sale (although there are plenty of exceptions even then, starting with fair use).  This is a basic legal principle, and it’s been reinforced time and time again.  See, for example, the Dex Media v. City of Seattle case I wrote about earlier.  Or the Browne v. Avvo suit filed by an attorney upset over his rating right after Avvo launched in 2007.  Or the latest Lindsay Lohan lunacy, involving a suit (tossed yesterday) over a reference to the troubled actress in a Pitbull song (“locked up like Lindsay Lohan”).

The fact that this principle has to be so often reinforced shows how lacking in fluency many are when it comes to the distinction between the commercial interests of a publisher and the noncommercial nature of that which is published.  And based on my anecdotal reading around this issue (and talking with many, many attorneys confused about this point), more people than not believe that “noncommercial” means that the work in question will only be used by a noncommercial entity.

So the CC BY-NC license is a half-measure that probably leaves few really satisfied.  I suspect all would be better off choosing either to stick with full copyright protection (if the thought of having your work published in for-profit media offends) or go with a wide open CC BY license – or even renounce all copyright protection entirely with a CC0 license.  Creative Commons should also consider providing more guidance around exactly what “noncommercial” means – and what it doesn’t mean.