MONKEY SEE, MONKEY DO: THE MEDIA CONTAGION EFFECT, MASS MURDER-SUICIDE, AND THE MITIGATING LAW IT REQUIRES

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This post was written by Associate Editor, Will Huber.  The views and opinions expressed herein are those of the author alone.

Evidence is mounting that American mass shootings and active shooter events are not exclusively caused by a single factor like a diagnosed mental illness or access to firearms, but chiefly by a “media contagion effect” thought to permeate the minds of an increasingly susceptible demographic – white men.[1] Media contagion is a tendency in some people to model or copy an activity described or illustrated in the entertainment or news media.[2] Males were perpetrators of 154 out of 160 (96.2 %) mass shooting events between 2000 and 2016, and the majority of those 154 men were white and acting alone.[3] A groundbreaking report posits that a “cultural shift from the historical precedents of a primarily patriarchal society” is causative of a newly-experienced social disenfranchisement for white males who have been socially and culturally dominant for centuries.[4] In other words, the malevolent portion of white men who perceive social class dominance as their prerogative seek to reaffirm it—implicitly or explicitly—through mass murder-suicide. In addition, future perpetrators are nursed and reinforced by a constant cycle of media coverage.[5] That is, the news media’s tacit guarantee of instantaneously catapulting the next mass shooter onto a national stage before a captive, national audience is inadvertently bestowing upon the shooter the appearance of social dominance through fame. A human evolutionary desire, as it affects men, for fame and a reclamation of social capital and social dominance (a.k.a. aggrieved entitlement) through the vehicle of mass murder-suicide is the driving factor in motivating an afflicted individual to act upon a murderous impulse.[6]

Legislative or regulatory action limiting the nature of mass murder-suicide media coverage is clearly needed—beyond mere journalistic guidelines—to mitigate the harm caused by the phenomenon.

A Sociological Phenomenon

While social scientists are just beginning to study the media contagion effect’s impact on mass shootings, significant research has been done regarding the media contagion effect’s impact on suicide rates.[7] Suicide trends, or “clusters,” in young adults show that a newspaper’s inclusion of the word “suicide” within the headline or first nine pages of an article “tips the scale” for some adolescents to act upon a suicidal impulse.[8] To explain this, social scientists point to the social learning theory, which theorizes that most human behavior is learned observationally through modeling.[9] As a result, authorities concur that it is strictly within our natural tendencies to mimic the behavior of others.[10] Indeed, the media’s coverage of a celebrity suicide can have tragic consequences. In the wake of Robin Williams’s death by suicide, suicide rates spiked nearly ten percent, resulting in almost 2,000 additional suicides between August to December of 2014.[11]

The aggrieved entitlement theory suggests, in the preponderance of cases, committing a mass shooting is a reclamation of social capital and dominance through violence.[12] As evidence of this, consider why mass shooters kill themselves after the commission of the crime in nearly half of relevant cases.[13] By committing suicide immediately after committing a mass shooting, a perpetrator can avoid the imminent social backlash and criminal proceedings that would shatter the socially dominant position he obtained during his commission of the murder.[14] In addition, boys and men have a biological and inherently sexual inclination towards social dominance.[15]  Males that are biologically afflicted by a lack of dominant traits sometimes exhibit a “tough guise,” often manifesting in an obsession with guns and other deadly weapons, which disguise their vulnerabilities and characteristics that are not considered culturally masculine.[16]

The Need for Regulation

The FCC could require media organizations covering a mass-murder incident to use a neutral, uniform pseudonym (a.k.a. perpetrator) in place of an active shooter’s name. Doing so could mitigate the frequency and severity of mass shooting events through social learning theory by limiting public obsession and promoting the protection of the perpetrator’s right to a fair trial before an impartial jury pursuant to the Sixth Amendment. Further, mere journalistic guidelines would prove insufficient to protect against media contagion because many media organizations do not abide by them. For example, in direct contradiction to the World Health Organization’s recommendation[17] that the explicit description of a suicide method not be published in a headline, in the wake of Robin Williams’s death, the New York Times published an article with the headline “Robin Williams Died by Hanging, Official Says.”[18]

The FCC indicates that, among other potential avenues, its rule-making authority is triggered when “[the] agency … itself identif[ies] a problem such as an industry behavior that adversely affects consumers.”[19] Although the FCC has not yet identified the media contagion effect as a malicious “industry behavior” harming consumers, American psychiatric and behavioral professionals have.[20] Social scientists agree that the correlation between publication detailing a suicide and the immediate uptick in public suicides implicitly warrants legislative intervention.[21] Regarding the media contagion effect on suicide, sociologists Madelyn Gould, Patrick Jamieson, and Daniel Romer, suggest publishers not use the word “suicide” in headlines, and instead move it to the body of the relevant article.[22] Further, and perhaps most interestingly, they suggest describing the deceased as “having died by suicide” instead of as “a suicide” or having “committed suicide.”[23] Likewise, as it relates to mass murder-suicide, multi-media publications detailing the event and perpetrator’s life need to be within regulatory limitations. A perpetrator’s name should not be published, at least for a period of months after the relevant event, so as to dissuade public obsession over the commission of the crime.

However, the prospects of passing such a rule remain shadowy. Proponents of limiting what the media can publish are sure to run into a constitutional, first-amendment blockade. Notwithstanding the counterargument, coverage of mass shooting events “significantly increase viewership and increase advertising [revenue].”[24] Media organizations and textualist proponents of the First Amendment’s freedom of the press would combat the regulation’s passing with shouts of the public’s right to know the full name of the shooter.[25] Additionally, the National Rifle Association (NRA) may join media organizations in preventing the passing of such a rule because the NRA cashes in on the public’s fear of being innocently shot: gun sales spike dramatically in the wake of a major murder-suicide event,[26] and the NRA receives funding from gun purchasers willing to donate at point-of-sale and from “Golden Ring of Freedom” donations from gun manufacturers.[27]  Because of this, it is arguably within the NRA’s peripheral interest that mass shootings continue to occur and continue to be intensely covered by the media.

On the other hand, regulation preventing media contagion from occurring may find bipartisan support, as it is a theory based on middle ground in a debate that is otherwise highly polarized and contentious. The Don’t Name Them campaign is an organization opposing the disclosure of a perpetrator’s name.[28] The movement has received the support of criminologists and social scientists but has yet to find representation in the halls of Congress or the FCC.

[1] Jennifer Johnston, Ph.D., & Andrew Joy, BS, Mass Shootings and the Media Contagion Effect, PsycEXTRA Dataset (2016) at 2, 4, https://www.apa.org/news/press/releases/2016/08/media-contagion-effect.pdf (“[R]ampage shooters, who are almost all White men in early adulthood seek power and dominance that they perceive is their right, but perceive they are being denied, for various reasons, by society.”)

[2] Dr. Kaziba A. Mpaata, Lecture at Nkumba University, Aggressive Behaviour in Education Institutions: Theoretical Perspectives and Implications for School and University Managers in Uganda, (2008), http://ahero.uwc.ac.za/index.php/http://http://www.saica.co.za?module=cshe&action=downloadfile&fileid=36807145012175749519581.

[3] Federal Bureau of Investigation [FBI], A study of active shooter incidents in the United States between 2000 and 2013, (2013), http://www.fbi.gov/news/stories/2014/september/fbi-releasesstudy-on-active-shooter-incidents/pdfs/a-study-of-active-shooterincidents-in-the-u.s.-between-2000-and-2013.

[4] Johnston, supra note 1, at 4.

[5] Id.

[6] See Id. (citing David M. Buss, The Murderer Next Door: Why the Mind is Designed to Kill, (2005), New York, NY: Penguin Books (“90% of men and a majority of women have had at least one vivid murder fantasy, although the degree to which each individual seriously considers acting on murderous impulses varies greatly.”))

[7] See Madelyn Gould, Patrick Jamieson & Daniel Romer, Media Contagion and Suicide Among the Young, 46 ABS 1269–1284 (2003).

[8] See Id.

[9] Id.

[10] Id. (citing Albert Bandura, Self-efficacy: Toward a unifying theory of behavioral change., 84 Psychol. Rev 191–215 (1977)).

[11] David S. Fink, Julian Santaella-Tenorio & Katherine M. Keyes, Increase in suicides the months after the death of Robin Williams in the US, 13 Plos One (2018), https://doi.org/10.1371/journal.pone.0191405.

[12] See Johnston, supra note 1.

[13] See Federal Bureau of Investigation [FBI], supra note 2.

[14] Johnston, supra note 1, at 4.

[15] A. J. Moore et al., Sexual conflict and the evolution of female mate choice and male social dominance, 268 Proc. Royal Soc. Lond 517–523 (March 7, 2001).

[16] Melissa Bell & Nichole Bayliss, The Tough Guise: Teaching Violent Masculinity as the Only Way to Be a Man, 72 Sex Roles 566–568 (2015).

[17] World Health Organization [WHO], Preventing Suicide: A Resource for Media Professionals, http://www.who.int/mental_health/prevention/suicide/resource_media.pdf (last visited Oct. 10, 2018).

[18] Fink, supra note 11 (citing Perlroth N., Robin Williams Died by Hanging, Official Says, N.Y. Times, August 12, 2014.)

[19] Federal Communications Commission [FCC], https://www.fcc.gov/about-fcc/rulemaking-process (last visited Sep. 30, 2018).

[20] See Gould, supra note 7.

[21] See Johnston, supra note 1, at 4.

[22] See Gould, supra note 7, at 1279.

[23] Id.

[24] Johnston, supra note 1, at 4.

[25] Id.

[26] See Anuradha, Gayathri, Menu SLS |News & Media, Why Do Gun Sales In the US Spike After Mass Shootings?, Stanford Law School, https://law.stanford.edu/press/gun-sales-us-spike-mass-shootings/ (last visited Sep. 30, 2018).

[27] See Eugene Kiely, Do Assault Weapons Sales Pay NRA Salaries?, FactCheck.org (2013), https://www.factcheck.org/2013/01/do-assault-weapons-sales-pay-nra-salaries/ (last visited Sep. 30, 2018).

[28] See Don’t Name Them, http://www.dontnamethem.org (last visited Oct. 10, 2018).

Marsy’s Law in Ohio

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This post was written by guest blogger, Stephanie Brockman.  The views and opinions expressed herein are those of the author alone.

In 1983, California native Marsy Nicholas was murdered by an ex-boyfriend.[1] Unaware the ex-boyfriend had been released on bail, Marsy’s mother, Ms. Marcella Leach, was forced to face her daughter’s killer in a grocery store just a week after her daughter’s tragic death.[2] At the time, the California court was not required by law to inform Marsy’s family of updates regarding Marsy’s killer’s case or conviction.[3] Marsy’s brother, Dr. Henry T. Nicholas worked tirelessly to fix what he saw as a glitch in the California constitution which afforded more rights to a person who committed a crime than the victims themselves.[4] In 2008, twenty-five years after Marsy’s murder, the Victim’s Bill of Rights Act of 2008 was passed in California.[5] Similar laws have since been passed and implemented in Illinois, North Dakota, South Dakota, and Ohio.[6] The state of Montana voted on, and passed, a Marsy’s Law measure; however, the law has since been struck down by the Montana Supreme Court.[7]

State constitutions and the U.S. Constitution provide protections such as the right to a jury, the right to a timely trial, the right to be informed of accusations, or the right to confront witnesses to criminals. Marsy’s Law seeks to provide constitutional protections to victims of a crime who may at times be forgotten or lost in the shuffle of court proceedings. California Constitution Article 1 §28(b)[8] provides the “Bill of Rights” to victims with seventeen rights written into the legislation “in order to preserve and protect a victim’s rights to justice and due process.”[9] In addition to the enumerated rights now codified in the California constitution, victims are eligible to receive a “Marsy’s Card” which lists the seventeen rights and provides additional resource information.[10]

Here in Ohio, some protections for victims existed as early as 1994.[11] These protections included but were not limited to “reasonable notice and respect for [the victim’s] role in criminal proceedings.”[12] Over the years, additional protections were added and in November 2017 voters in Ohio approved further changes.[13]  While some may have already existed in some form, the enforcement of the rights was difficult and the rights were scattered throughout Ohio’s constitution. The recent changes seek to make enforcement easier.

The goals for the changes voted on in November 2017 were based on the four core needs of Marsy’s Law: safety, healing, justice, and restitution.[14] The state of Ohio approved ten enumerated rights, compared to the seventeen passed by California, and the ten new guarantees written into the Ohio Constitution became effective on February 5, 2018.[15] Ohio’s Attorney General’s office will also be providing Marsy’s Cards similar to those used in California. Just as a person accused of a crime is provided with Miranda Rights by law enforcement, victims will now be informed of their Marsy’s Law rights and provided the card.

Dr. Nicholas, Marsy’s brother, was born in Cincinnati before the family moved to California and considers Ohio his home state.[16] He, of course, praised the Ohio law’s passing, stating last November, “[T]onight, Ohio voters were heard. And victims of crime past, present and future will have truly enforceable and equal constitutional rights.”[17] And certainly a majority of Ohio agreed with Dr. Nicholas’s sentiments, with eighty-three percent of voters moving to pass the laws.[18]

As with any new law, there are arguments for and against Marsy’s Law within Ohio, and certainly questions on both sides. The law itself provides the following rights to victims in Ohio:

  1. To fair and respectful treatment for the victim’s safety, dignity, and privacy.
  2. Upon request, to notice of, and the right to be present at, all proceedings involving the criminal or delinquent conduct against the victim.
  3. To be heard in any public proceeding involving release, plea, sentencing, disposition or parole in which the victim’s rights are implicated.
  4. To reasonable protection from the accused or person acting on behalf of the accused.
  5. Upon request, to reasonable notice of any release or escape of the accused.
  6. To refuse discovery requests made by the accused, except as authorized by Article I, Section 10 of the Ohio Constitution.
  7. The full and timely restitution from the criminal or juvenile offender.
  8. To proceedings without unreasonable delay and a prompt conclusion of the case.
  9. Upon request, to confer with the government’s attorney.
  10. To written notice of all rights in the Amendment.[19]

On the surface, one can imagine how each of these rights may work to aid a victim of a crime during a difficult time. In fact, some might wonder why these rights did not exist to begin with. Without statistics, or debates, or partisan issues, looking purely at the human element, the victim of a crime, and in some cases the victim’s family, may face an uphill battle. Randall Musgraves is the father of three girls who were victims of the horrific abuse Larry Nassar subjected athletes to when he was an Olympic doctor.[20] Mr. Musgraves, overwhelmed with emotion, lunged at Nassar in a courtroom proceeding in the very public case for Nassar.[21] Imagine for a moment, this same father came face to face and was confronted by Nassar in a grocery store. Imagine having no idea a person who caused such raw emotion and turmoil for someone in your family is free and you have no idea and there was nothing you could do to argue against his freedom. Putting the self-control issues Mr. Musgraves dealt with aside, many would want a voice if someone in their family were a victim of any crime, especially in cases of such tragedies as murder or sexual abuse. Marsy’s Law works toward that goal.

The law itself has the support of many high-profile attorneys in Ohio, locally Hamilton County Prosecutor Joe Deters in addition to Attorney General Mike DeWine.[22] However, not all attorneys in Ohio support the measure and there have been snags with similar laws in Montana and South Dakota.[23] Montana voted on its version of Marsy’s Law in November 2016.[24] The law was to go into effect July 1, 2017; however, the law was stayed after a petition was filed in June 2017 to declare the law as void.[25] In November 2017, the law was struck down.[26] One glaring issues addressed in arguments in Montana, who is a victim?[27]

Judge Forchione raises the same question and potential issue about Ohio’s law in an article for Ohio Lawyer from the Ohio Bar Association[28]:

This law broadens the definition, which now would include family members, guardians, or others with a relationship to the victim. This ambiguous description could also extend the branch of victims to larger corporations, insurance companies, and other nonhuman entities. For example, if a defendant goes into a service station and shoots an individual, and fires other shots that cause damage which requires the owner of the service station to file an insurance claim, are both the corporation and insurance company now considered a victim?[29]

The costs and resources to keep up with numerous victims will likely place a burden on Ohio courts. The requirement to notify victims could also lead to potential delays for people accused of a crime. If there is in fact a delay, could this lead to a violation of the accused’s right to a timely or speedy trial? Potentially. Delays and budgetary concerns are a very real reality of the implementation of Marsy’s Law in Ohio, or any state for that matter.

Another concern regards the victim’s right to an attorney in Ohio. The rights now in effect allow a victim to access a government attorney, to be heard in certain proceedings, and to refuse discovery requests. These tasks likely fall on the desk of an attorney hired by the victim. What if the victim cannot afford an attorney? Will their rights provide the opportunity to work with an attorney in a capacity similar to a public defender? It is difficult to assume the state of Ohio, or any state, has the budget to create a new arm of publicly appointed attorneys who are required to represent victims who cannot afford their own counsel. Even if the state did provide attorneys in some capacity, what role would the attorney play in court proceedings? This portion of the law leaves a lot unanswered and could lead to confusion for attorneys throughout Ohio and their potential clients.

Marsy’s Law in Ohio is in its infancy. The spirit of the law is threaded with good intentions. Absolutely no one wants to see a family member or friend victimized. And further, to be voiceless against an accuser in the courts. Time is needed to work out the many questions which have already risen since the law became effective in February 2018 and there may even be questions yet to be discovered and answered.

 

[1] Mary’s Story, https://marsyslaw.us/about-marsys-law/marsys-story/(last visited Sep. 6, 2018)

[2] Id.

[3] Id.

[4] Id.

[5] Cal Const. Art. I § 28

[6] Marsy’s Law For All, https://marsyslaw.us/(last visited Aug. 30, 2018)

[7] Whitney Bermes, Montana Supreme Court strikes down Marsy’s Law, (Nov. 1, 2017), https://www.bozemandailychronicle.com/news/crime/montana-supreme-court-strikes-down-marsy-s-law/article_8e039131-f08c-5d3b-9025-b863cd892c64.html

[8] Cal Const. Art. I § 28

[9] Id.

[10] See California Marsy’s Card and Resources, https://oag.ca.gov/sites/all/files/agweb/pdfs/victim

services/marsy_pocket_en_res.pdf

[11] Judge Frank Forchine, How Marsy’s Law May Affect the Criminal Justice System, Ohio Bar Association Journal, Jan./Feb. 2018, at 18.

[12] Id. at 18.

[13] Jackie Borchardt, Ohio crime victims’ rights amendment passes with landslide victory, (Nov 7, 2017), http://s.cleveland.com/SDVoHsi

[14] Judge Frank Forchine, How Marsy’s Law May Affect the Criminal Justice System, Ohio Bar Association Journal, Jan./Feb. 2018, at 18.

[15] Ohio Const. art I, § 10a.

[16] Jackie Borchardt, Ohio crime victims’ rights amendment passes with landslide victory, (Nov 7, 2017), http://s.cleveland.com/SDVoHsi

[17] Id.

[18] Id.

[19] Ohio Const. art I, § 10a.

[20] Eric Levenson, Father lunges at Larry Nassar in court before being restrained, (Feb. 2, 2018), https://www.cnn.com/2018/02/02/us/larry-nassar-attack-court/index.html

[21] Id.

[22] Jessie Balmert, Election 2017: What is Ohio Issue 1, aka Marsy’s Law?, (Nov 2, 2017), http://cin.ci/2kzI0QM

[23] Id.

[24] Whitney Bermes, Montana Supreme Court strikes down Marsy’s Law, (Nov. 1, 2017), https://www.bozemandailychronicle.com/news/crime/montana-supreme-court-strikes-down-marsy-s-law/article_8e039131-f08c-5d3b-9025-b863cd892c64.html

[25] Id.

[26] Id.

[27] Id.

[28] Judge Frank Forchine, How Marsy’s Law May Affect the Criminal Justice System, Ohio Bar Association Journal, Jan./Feb. 2018

[29] Id at 19.

STATE SALES TAX IN THE WAKE OF WAYFAIR

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This post was written by Lead Notes Editor, Russell Gribbell.  The views and opinions expressed herein are those of the author alone.

This summer the Supreme Court turned the online shopping industry upside down with its holding in South Dakota v. Wayfair, Inc. that states may indeed collect sales tax on an out-of-state seller with no physical presence in the state.[1] The decision overruled the previous holding reached in Quill Corp. v. North Dakota.[2] Internet retailers are scrambling to comply with the new ruling; what follows is a synopsis of the tri-state area’s current laws regarding sales tax.

TRI STATE

Image courtesy of asperia.org

Kentucky

Kentucky follows the prior rule from Quill requiring a physical presence, or physical nexus, in the state.[3] Kentucky Revised Statute (KRS) §139.340(2) defines physical presence as a “retailer engaged in business in this state.”[4] Kentucky’s Department of Revenue (DOR) published documentation to assist sellers determining their tax liability.[5] For example, the DOR stated that a nexus is generally understood to include not only the physical presence in the state, but also any subsidiary or affiliated entity.[6] If a seller qualifies as a physical presence, or a nexus, the seller has an obligation to collect and pay Kentucky state sales tax.[7] However, customers may be responsible for paying their own taxes when shopping online, known as a use tax.[8]

Ohio

Unfortunately for those of us in Ohio, we have already experienced the effects of the Wayfair decision. A new law requiring certain larger Internet sellers with no physical presence to collect Ohio sales tax went into effect on July 1, 2015.[9] In order to qualify, the seller must have an agreement with an Ohio-based business or seller, and the gross receipts from Ohio customers exceeds $10,000 during the preceding 12 months.[10] Similar laws enacted in other states have garnered the name “Amazon Laws.”[11] Ohio’s tax statutes do not define physical presence, but a 1996 Ohio Supreme Court decision relied upon the language in Quill stating that “the physical presence standard applies . . . to sales and use taxes.”[12] Also, just like Kentucky, Ohio has a use tax that is the customer’s responsibility, although the Ohio Department of Taxation (DOT) words it differently, stating that if a seller is not located in Ohio nor has a substantial nexus, then the seller cannot be required to collect Ohio tax, however, the purchaser is still liable for Ohio use tax.[13]

Indiana

Indiana also requires a physical presence for tax collection purposes under the Indiana Administrative Code (IAC) Title 45 §2.2-3-3.[14] Interestingly, the Indiana Department of Revenue (DOR) webpage has a voluntary disclosure program for out-of-state sellers.[15] However, a 2009 ruling allowed mail order companies (i.e., companies that had zero physical presence and shipped all items sold via mail or carrier) lacked “substantial nexus” and therefore did not have to collect Indiana sales tax.[16] Indiana also reached a special “Amazon agreement” that required the retailer to start paying sales tax by 2014.[17] Customer responsibility is traceable to a FAQ page on the DOR website, in which the use tax is attributable to “Internet purchases from out-of-state vendors.”[18]

Takeaways

It is clear that the laws in Kentucky, Ohio, and Indiana use varying methods to try and collect taxes from online transactions. Internet use taxes may become obsolete, as states enact wider laws capitalizing on Wayfair. Lawmakers in all three states are likely brainstorming ways in which to update tax laws so that the states can better collect Internet sales taxes.

[1] See SCOTUSblog, http://www.scotusblog.com/case-files/cases/south-dakota-v-wayfair-inc/ (last visited Sept. 7, 2018).

[2] Id.

[3] David M. Steingold, Kentucky Internet Sales Tax, nolo (last visited Sept. 7, 2018), https://www.nolo.com/legal-encyclopedia/kentucky-internet-sales-tax.html.

[4] Id. See also Kentucky Revised Statutes Chapter 139, Kentucky Legislature, http://www.lrc.ky.gov/Statutes/chapter.aspx?id=37663 (Aug. 30, 2018).

[5] Id.

[6] See id.

[7] See id.

[8] See id. A DOR online document states that one example of the use tax is purchasing an item online, and not paying Kentucky state sales tax.

[9] David M. Steingold, Ohio Internet Sales Tax, nolo (last visited Sept. 7, 2018), https://www.nolo.com/legal-encyclopedia/ohio-internet-sales-tax.html.

[10] See id. The law also applies to affiliates.

[11] Id. See also Ohio Revised Code Title 57, Chapter 5741: Use Tax; Storage Tax, LAWriter Ohio Laws and Rules, http://codes.ohio.gov/orc/5741 (July 29, 2018).

[12] Id.

[13] See id.

[14] David M. Steingold, Indiana Internet Sales Tax, nolo (last visited Sept. 7, 2018), https://www.nolo.com/legal-encyclopedia/indiana-internet-sales-tax.html. See also Indiana Administrative Code Title 45, Indiana General Assembly, http://www.in.gov/legislative/iac/iac_title?iact=45 (Aug. 22, 2018).

[15] See id. See also Voluntary Disclosure Program, Indiana Department of Revenue, https://www.in.gov/dor/3616.htm (last visited Sept. 7, 2018).

[16] Id.

[17] See id.

[18] Id.

Federal Arbitration Act

This post is written by Associate Editor Alexandra Walker. Opinions and views expressed herein are those of the writer alone. 

The Supreme Court will soon take up the issue of whether employers can require employees to sign class-action waivers and arbitration agreements as a condition to employment. As most people who have ever had a job are aware, there is no room for negotiating these provisions and employees needing a job are in a vulnerable state when it comes to these contracts. If you don’t sign the dotted line, you don’t have employment.

For those unfamiliar with the area of labor law, Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.“[1] Furthermore, Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.[2]

Additionally, the Federal Arbitration Act (FAA) states that a written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.[3] There are two exceptions to the FAA. First, an arbitration agreement may be invalidated on any ground that would invalidate a contract under the FAA’s saving clause, and second, application of the FAA may be precluded by another statute’s contrary congressional command.[4]

Those opposing such employment contract provisions rely heavily on the language and congressional intent of the NLRA. The NLRB argues that the savings clause of the FAA ensures that there is no irreconcilable conflict between the NLRA and the FAA.[5] In regards to the congressional intent exception, the NLRB has implied that congress, in acting the NLRA, demanded protection of employees’ collective rights in legal action.[6] The main issue in this circuit split is whether Section 7 of the NLRA and the FAA work together or should be viewed separately.

Currently, the circuit split is between the fifth circuit, seventh circuit, and ninth circuit.[7] This year, the U.S. Supreme Court will decide this major labor and employment issue, which will affect the rights of individual employees across the nation.

[1] 29 U.S.C. § 157.

[2] 29 U.S.C § 158.

[3] 9 U.S.C. § 2.

[4] D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 358 (5th Cir. 2013).

[5] Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1158 (7th Cir. 2016).

[6] Id.

[7] See D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016), and Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016).

United States v. Microsoft & the CLOUD Act

This post is written by Associate Editor Andy Countryman. Opinions and views expressed herein are those of the writer alone. 

 

If I save something to my cloud drive (Google Drive, Apple iCloud, Amazon Cloud Drive, etc.), where is it stored? For disinterested users with a rudimentary understanding of what data is, I imagine the line of thinking typically goes something like this: “Well, I know most of the online services use ‘cloud’ storage, but I know there are not invisible storage boxes floating over my head. I suppose my data has to be physically located somewhere.” And after hitting this point of digging, the user is satisfied with his attempt at understanding how cloud storage works. But, this picture is incomplete without the introduction of the internet and servers.

Online service providers, such as Microsoft with its Outlook email service, do store the information in a physical location – on a server at a data center. Data is located in a physical building somewhere and can be accessed with the click of a button from somewhere else. For instance, if an email service provider wanted to retrieve the content of an outgoing email, it could instruct a computer, robot, or person located at the data center to read the email and report back.

Companies with users across the globe must serve them efficiently and cost-effectively. Many companies have set up data centers in centralized locations across the globe to sharpen the delivery of online services. These global companies encounter foreign laws with regularity. None of this is novel; but what is yet to be seen is how technologies like cloud storage will impact the relationship between domestic and foreign laws.

This is the backdrop by which Microsoft opposed a search warrant by the government, under the Stored Communications Act of 1986 (SCA), of emails located on a Microsoft-owned server in Dublin, Ireland.[1] There is no question that the SCA gives government the authority to compel a company to disclose information stored domestically.[2] However, the SCA generally does not have extraterritorial reach. Meaning, the SCA cannot be used by the government to force a company to turn over information that is stored in another country. In obtaining a search warrant, the government ordinarily would need to use the treaty mechanisms in place with the country where the information sought is located. But, using the treaty mechanisms can be slower and cumbersome.

The United States argued that because the conduct occurred domestically, that is, Microsoft retrieved the files from here in the United States, that the search warrant was only being applied domestically.[3] The United States believes that the SCA focuses on disclosure, not necessarily on the storage.[4] Further, the United States argued that the information was within Microsoft’s control domestically even though it may have been physically located abroad.[5]

While both sides have an interest in winning the case, both the United States and Microsoft agree that changes needed to be made to the SCA. The issue with extraterritoriality was only one indicator of the need for an update. Fortunately for both sides, and with both sides supporting, Congress recently passed the Clarifying Lawful Overseas Use of Data Act (CLOUD Act).[6] In all likelihood, the CLOUD Act will moot the case and the United States will be able to use the Act, in conjunction with a new search warrant, to cause Microsoft to turn over the emails located in Ireland. Practically, the CLOUD Act assesses heightened importance on executive agreements between the United States and foreign countries.[7] Issues such as the expediency of MLATs seem to be directly targeted by the Act, but continued debate will likely occur as country-specific agreements are drafted.

 

[1] United States v. Microsoft Corp., 138 S. Ct. 356 (2017)

[2] 18 U.S.C. §§ 2703

[3] United States of America v. Microsoft Corporation, 2018 WL 835269 (U.S.), 3 (U.S.,2018)

[4] Id.

[5] Id. at 13.

[6] Peter Swire and Jennifer Daskal, What the CLOUD Act Means for Privacy Pros, iapp.org, https://iapp.org/news/a/what-the-cloud-act-means-for-privacy-pros/.

[7] Swire and Daskal, supra note 6.

Artificial Intelligence—The Emerging Author and Inventor

 

This post is written by Associate Editor Tarah Remy. Opinions and views expressed herein are those of the writer alone. 

Exciting and new technology is emerging every day. Some of this technology we hardly expected to see beyond our television screens. Artificial intelligence (AI) has been a heavy topic of interest for decades. Film makers, writers, and artists alike have created alternate realities where AI has evolved into the unthinkable. Movies depict apocalyptic alternate realties where AI outgrow humans, becoming sentient and demonstrate intelligence far beyond human capabilities.

Our task, as students and legal professionals, is to ask whether the law is moving fast enough to keep up with the new developing technology. Look at AI today, in the real world, advancement is apparent though maybe not to the extent seen in films. Today, there are examples of AI writing literary works and nearly winning awards of high recognition.[1] AI is writing news articles,[2] painting portraits in the style of artists long gone,[3] and even composing musical pieces.[4] So maybe AI comes in peace with no plans to overrun humans.

AI are creating works of art equal and at times beyond human ability through a process known as “Deep Learning”. Learning, as we are all aware, is “the acquisition of knowledge or skills through study, experience or being taught,”[5] similarly, the process of Deep Learning is “…machine learning that is dedicated to mimicking human learning capabilities. It uses multiple layers of neural networks to translate high level abstractions, recognize complex patterns and comprehend patterns.”[6] Does that sound familiar? So, the issue to consider is, when a work of art is created by AI, who then owns the copyright? Is it the programmer, the entity who owns the machine, or perhaps, the AI itself? Seemingly obvious it is still a hard concept to absorb. Our instinct is to default to the human being, whatever their involvement might be. There is no established law on this exact issue, but there is potential for legal disputes and possible changes specifically in the world of IP copyright.

Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex, United Kingdom conceptualizes it best, “[t]raditionally, the ownership of copyright in computer-generated works was not in question because the program was merely a tool that supported the creative process, very much like a pen and paper…But with the latest types of artificial intelligence, the computer program is no longer a tool; it actually makes many of the decisions involved in the creative process without human intervention.”[7]

Copyright law protects not the idea behind the work, but in fact the expression, the procedures, or methods of creating.[8] Inspiration is born of many different sources. We learn from our surroundings and from history thereby creating works unique to ourselves.[9] This is a relatively acceptable concept when it relates to human beings.  Article 1, Section 8 of the United States Constitution states, “[t]he Congress shall have power …to promote the progress of science and useful arts, by securing for limited tımes to authors and inventors the exclusive right to their respective writings and discoveries.”[10]  Logically speaking, it is highly doubtful the framers spoke of, or even considered the possibility of such advanced technology at the time of drafting. However, today AI fits the definition of author and inventor. Should it be guaranteed the same protection?

 

[1] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine (October 2017) http://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html

[2] Id.

[3] Id.

[4] Bartu Kaleagasi, A New AI Can Write Music as Well as a Human Composer (March 9, 2017) https://futurism.com/a-new-ai-can-write-music-as-well-as-a-human-composer/

[5] English Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/learning

[6] Deep Learning, Futurism https://futurism.com/?post_type=glossary&p=53163?post_type=glossary&p=53163

[7] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine (October 2017) http://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html

[8] David Vaver, Principles of Copyright, World Intellectual Property Organization, http://www.wipo.int/edocs/pubdocs/en/copyright/844/wipo_pub_844.pdf

[9] Idea and Expression-Case File #7: The Matching Wallpaper, http://www.copyrightuser.org/wp-content/uploads/2017/07/CU_CaseFile_7.pdf

[10]U.S. Const. art. 1 §8

Kentucky Cracks Down on Service Animal Fraud in Housing

This post is written by Senior Editor Pamela Hall. Opinions and views expressed herein are those of the writer alone. 

            The debate surrounding service and emotional support animals has been heating up in recent years.  The news is permeated with stories of airline fiascos and other incidents of animals behaving badly in public.[1]  Service animals and emotional support animals are specifically protected by various federal laws, including the Americans with Disabilities Act[2], the Fair Housing Amendments Act of 1988[3], and the Air Carrier Access Act.[4]  Recently, states have made an effort to crack down on abuse of these generally broad protections by creating fines for fraudulently representing mere pets as service or emotional support animals.  So far, laws have been passed in New York, Colorado, Maine, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Texas, Utah, and Virginia to create liability for misrepresentation of an assistance animal.[5]  Kentucky has chosen to join the trend by introducing a bill targeting tenants in rental properties.

            Kentucky House Bill 329, if it becomes law, will create a misdemeanor of “misrepresentation of an assistance animal”  if a person “misrepresents part of a request for a reasonable accommodation to maintain an assistance animal in a dwelling that the person has a disability or disability-related need for the use of an assistance animal; makes a materially false statements for the purpose of obtaining documentation for the use of an assistance animal in housing; creates or executes a document that misrepresents an animal as an assistance animal for use in housing, provides documentation to another falsely stating that an animal is an assistance animal for use in housing; or fits an animal, which is not an assistance animal, with a harness, collar, vest, or sign that the pet is an assistance animal.”[6]  The stated fine for the offense is not to exceed $1,000 dollars.[7]  Otherwise, the law mirrors the Fair Housing Amendments Act of 1988 as to standards for obtaining a reasonable accommodation to maintain an assistance animal in a rental property and does not create a new standard for obtaining an accommodation in housing for assistance animals.[8]

This law is likely to create some interesting litigation surrounding the standards to keep an assistance animal in the context of rental housing as they relate to the violation of misrepresentation.  The standards for a “reasonable accommodation” and the requisite link between the function an animal performs and the disability of an individual, in relation to the federal law, have already been debated in cases appearing on the dockets of other state courts.[9]  It is yet to be determined how courts will balance the complex interests of creating important accommodations for individuals who require them to obtain equal rights to housing against the need for enforcement that responds to the real concerns of landlords and other tenants who must share community property with assistance animals.

The bill has been passed in both the Kentucky House of Representatives and the Kentucky Senate, and was delivered to the governor on Ma

[1] Michael Ollove, These 19 States are Cracking Down on Fake Service Dogs, PBS, (March 24, 2018), https://www.pbs.org/newshour/health/19-states-cracking-fake-service-dogs.

[2] 42 U.S.C.A. § 12182

[3] 24 CFR 960.705

[4] 49 USCA § 41705

[5] Kevin Fritz and John W. Egan, New York Passes Law Against Animal Fraud, Joining Other States, SEYFARTH SHAW (March 24, 2018), https://www.adatitleiii.com/2018/01/new-york-passes-law-against-service-animal-fraud-joining-other-states/.

[6] Ky. HB 329

[7] Id.

[8] Id.

[9]John Ensminger and Frances Breitkopf, Service and Support Animals in Housing Law, AMERICAN BAR ASSOCIATION, (March 24, 2018), https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/servicesupportanimals.html.