Category: reason

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
STANDING ORDER CONCERNING COVID-19 PRECAUTIONARY MEASURES

WHEREAS, the Centers for Disease Control and Prevention has determined that a novel coronavirus (“COVID-19”) presents a serious public health threat.

WHEREAS, the President of the United States has issued Proclamations prohibiting travel to the United States by foreign nationals who recently visited areas acutely impacted by COVID-19; the Department of State has issued Level 3 and Level 4 Travel Advisories for certain affected countries; and domestic and foreign health authorities have issued guidance to citizens within their respective jurisdictions, both recommending and mandating precautionary measures to defend against the spread of COVID-19.

WHEREAS, the Delaware Supreme Court has issued a statement advising that members of the public who are experiencing symptoms such as cough, fever or other respiratory problems should stay home and, if they have a court date scheduled, that they should notify the appropriate parties.

WHEREAS, the Court of Chancery regularly conducts trials and hearings involving the attendance of litigants, practitioners, witnesses, and other interested persons from around the United States and other countries.

WHEREAS, in the interest of protecting the foregoing individuals, court staff, and the public.

NOW, THEREFORE, it is HEREBY ORDERED, this 6th day of March, 2020, that the Court of Chancery will implement the following precautionary measures, which will remain in place until further order of the Court:

1. The Court will conduct conferences and hearings telephonically when it believes it would be practicable and efficient to do so and will promptly consider any request by the parties to change a hearing from being held in-person to a telephonic hearing.

2. With respect to trials and hearings for which it is not practicable to handle the matter telephonically, the following procedures shall be followed:

(a) Any attorney or party appearing pro se in a case shall promptly provide written notice to the other counsel and/or prose party appearing in such case, if such attorney or party reasonably believes that a scheduled trial or in-person hearing may require or cause the presence of an individual who (i) may be infected with COVID-19 or (ii) has been in contact within the past fourteen (14 days) with an individual who may be infected by COVID-19.

(b) If notice is given pursuant to subsection (a), the parties shall promptly confer regarding the appropriate means to conduct the trial or in-person hearing that is the subject of the notice. In doing so, the parties shall consider, among other things, (i) whether video conferencing would be appropriate and effective; (ii) whether an alternative attorney, party representative, witness, or source of proof is available without conflicting with subsection (a); and (iii) whether a delay in such trial or in-person hearing
would be appropriate, and if so, what is the least amount of delay necessary.

(c) Within three (3) days of any notice given pursuant to subsection (a), and as soon as practicable before any trial or in-person hearing that is the subject of such notice, the parties shall file a joint letter or joint motion that

(i) identifies the concern that was the subject of the notice;

(ii) explains the steps the parties have agreed upon and implemented to alleviate such concern;

(iii) sets forth any relief requested from the Court to address such concern; and

(iv) sets forth any disagreements among the parties, including alternative proposals not mutually agreed upon….

from Latest – Reason.com https://ift.tt/2TBwaEX
via IFTTT

To allow for disruptions associated with the COVID-19 pandemic, I stay all proceedings before me for six weeks, until April 20, 2020.

In the coming days, I will enter an amended scheduling order in each civil case assigned to me for pretrial supervision. As of the date of this order, however, all conferences currently scheduled before me in civil cases are adjourned to the same weekday and time six weeks after the originally scheduled date. For example, a conference scheduled for Monday, March 9, 2020, at 9:30 a.m. would be rescheduled for Monday, April 20, 2020, at 9:30 a.m.

I recognize that there may be some cases in which parties may believe that some or all of the litigation requires greater urgency. This order is without prejudice to the right of any party in any case to seek reconsideration or an alternate form of scheduling relief. However, before making any such motion, I respectfully direct the movant to confer with all other parties to the case and discuss ways to ensure that all persons involved in the litigation, as well as their colleagues, can take appropriate steps to safeguard their own health as well as the health of the community.

The purpose of this order is to remove, to the extent I can, any pressure on participants in the cases before me to prioritize the needs of the litigation over the more urgent need to promote public health.

from Latest – Reason.com https://ift.tt/2VX39W0
via IFTTT

Posted today on the court site:

The United States District Court for the Southern District of New York announces visitor restrictions to all courthouses in the District as a result of the COVID-19 virus (coronavirus) outbreak in New York.

The Centers for Disease Control has advised people to take precautions in light of the COVID-19 virus outbreak and noted that the best way to prevent illness is to avoid being exposed to this virus.

Therefore, effective immediately, the following persons shall not enter any courthouse in the Southern District of New York:

• Persons who have travelled to any of the following countries within the last 14 days:
CHINA
SOUTH KOREA
JAPAN
ITALY
IRAN
(This list may be updated as further guidance is received.)

• Persons who reside or have had close contact with someone who has travelled to one of the countries listed above within the last 14 days;

• Persons who have been asked to self-quarantine by any doctor, hospital or health agency;

• Persons who have been diagnosed with, or have had contact with, anyone who has been diagnosed with COVID-19;

• Persons with fever, cough or shortness or breath.

Anyone attempting to enter in violation of these protocols will be denied entry by a Court Security Officer.

Here’s my question: All of us have a presumptive First Amendment right to attend court hearings; the Court has so held as to criminal trials, and all federal appellate courts that have decided the question (including the Second Circuit, which covers New York) have held the same as to civil trials.

Now there’s doubtless a compelling government interest in preventing illness and death, so some restriction on this right would likely be constitutional. But should the government, if it excludes some people from a trial or other hearing, offer live (or briefly delayed) webcasting as a less restrictive alternative?

True, generally the right of access doesn’t include a right to watch online—but that’s precisely because there is a right to attend: “While these cases establish that the press [and members of the public have] a right of access to observe criminal trials, … the right of access therein was a right to attend, listen and report. No case suggests that this right of access includes a right to televise, record, or otherwise broadcast trials.” If some people are denied a right to attend, listen, and report, should the government then instead provide them with a right to access recordings or broadcasts?

My sense is that this argument isn’t likely to prevail under current law; for instance, when there’s no space in a courtroom, the people who can’t get in aren’t entitled to video access. But if a court decides to institute broader public health restrictions, for instance banning all but a few people from attending, then I think the case for providing video access becomes stronger.

UPDATE: Just to be clear, I assume that if a party, a lawyer, or a necessary witness is thus excluded, the hearing or trial will likely be postponed; I’m focusing here on the exclusion of members of the public generally.

from Latest – Reason.com https://ift.tt/2TDGTyE
via IFTTT

Our interview in this episode is with Glenn Gerstell, freed at last from some of the constraints that come with government service. We cover the Snowden leaks, how private and public legal work differs (hint: it’s the turf battles), Cyber Command, Russian election interference, reauthorization of FISA, and the daunting challenges the US (and its Intelligence Community) will face as China’s economy begins to reinforce its global security ambitions.

In the news, Nate Jones and Nick Weaver talk through the new legal and technical ground broken by the United States in identifying two Chinese nationals and the $100 million in cryptocurrency they laundered for North Korean hackers.

Paul Rosenzweig lays out the challenge posed for the Supreme Court’s Carpenter decision by LocateX, which provides detailed location data commercially. This is exactly the quagmire I expected the Court to find itself in when it abandoned the third-party doctrine on a one-off basis. Nick points out that the data is only pseudonymized and tries with mixed success to teach me to say “de-pseudonymized.”

Nate and I conclude that facial recognition has achieved a kind of Kardashian status, though instead of being famous for being famous, facial recognition is toxic for being toxic. Kashmir Hill at the New York Times adds a new drop of poison in a story that could just as well have repeated “I hate Clearview AI” 50 times for all it told us about the company. And Vice, which never saw a Twitter mob it wouldn’t join, lets Anna Merlan tell us to hate Clearview because it found pictures of her that she apparently posted in public. Meanwhile, we all know the technology is evil, but we can’t quite remember why. If the problem is that it doesn’t work, the stories about how Buenos Aires found a wanted man on the street using another company’s recognition tech is kind of harshing the narrative. (We’re supposed to see that it’s evil because the cops had mixed up two people with the same name. Not sure that’s facial recognition’s fault, guys.)

Nate and I review the Justice Department’s guidance on how threat researchers can do undercover work safely on the Dark Web. It’s a mixed bag for sure, but the biggest beneficiary of the guidance may turn out to be Dark Web criminal network administrators.

A proposed FAA drone rule is angering aviation hobbyists. Nick feels their pain but thinks it’s time for them to get over it.

Microsoft, Google, Facebook, and others have adopted international principles for enforcing laws against child abuse. But if they were hoping to stave off the EARN IT bill, they were mistaken. The bill has been introduced, with striking bipartisan sponsorship and a few changes since we last covered it. Nick and I cross swords on whether the bill would turn the companies into agents of the government for Fourth Amendment purposes.

And in short takes, I note that the Trump Administration is borrowing from Europe in one respect: CFIUS is building a wall against the export of Americans’ personal data to China by overturning mergers that would give Chinese companies access to data on Americans’ hotel stays and their love lives. Paul tells us that Oz is apparently in the lead for a deal with the United States on the CLOUD Act. China’s Qihoo360 tries to beat US cyber forensics firms at the name-and-shame game but came up short. And the FISA Court offers some surprisingly tame changes in the wake of the Horowitz report detailing the botched Carter Page warrant application.

Download the 304th Episode (mp3).

Take our listener poll at steptoe.com/podcastpoll!

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

from Latest – Reason.com https://ift.tt/2TDwBP2
via IFTTT

The national injunction has landed again at the Supreme Court, and maybe the third time’s the charm. Nick Bagley and I filed an amicus brief today, with the able assistance of Donald Burke and Zachary Ferguson at Robbins Russell. Which side we take is not a mystery. We wrote together about this subject in the Atlantic, and we each testified earlier this month before the Senate Committee on the Judiciary. But even for those who have been following the debate there may be some new twists. We take up the following questions:

Is the national injunction novel? (Yes.)

Is the national injunction supported by equity’s tradition of group litigation? (No.)

Is the national injunction authorized by the APA? (No.)

Is the national injunction good policy? (No—and though that conclusion will be unsurprising, we also give new arguments and new examples of the chaos caused by the national injunction.)

Finally, was a national preliminary injunction needed in this case? (No.)

If you want to read the brief, it’s here. And, as always, you should read the other side. (I’ll update this post with links to any briefs devoted to the national injunction issue in support of respondents.)

from Latest – Reason.com https://ift.tt/2VZMjWo
via IFTTT

Investors evidently, for the moment, think that the novel coronavirus outbreak is going to hurt the global economy. The S&P 500 stock index is down about 19 percent from its highs a month ago. Only time will tell if those fears are justified, but a couple of economists at the Australian National University use econometric modeling to trace out scenarios to help the public and policymakers better understand how the COVID-19 epidemic could play out over the coming year. Keep firmly in mind that these are scenarios, not predictions.

In these scenarios, the Australian researchers seek to take into account the ferocity of the disease, and how consumers, producers, and governments will react. They try to quantify macroeconomic variables such as the direct costs of the disease, the costs of global supply chain disruption, the effects on labor supply, and how consumer spending will fall as a result of people’s efforts to avoid exposure to infection in public spaces.

Let’s set aside the three scenarios that chiefly focus on the disease’s effect on China, and look specifically at the broad effects on the U.S. economy in their better- and worse-case scenarios. In their better-case scenario (scenario four) the researchers calculate that the overall mortality rate in the U.S. would be 0.07 percent, resulting in the deaths of 236,000 Americans in the first year.

It is important to note that the mortality rate is calculated by dividing the entire population by the number of disease deaths. The case-fatality rate is calculated by dividing the number of infected people by the number of people who died of the disease. To get at what the case-fatality rate implied by these scenarios might be, let’s assume the coronavirus infects people at about the same rate as a 1918 Spanish flu epidemic U.S. infection rate of 28 percent. Today that would mean that 90 million Americans would contract the virus, implying a case-fatality rate of just under 0.3 percent. The seasonal flu case-fatality rate is around 0.1 percent.

In their worse-case U.S. scenario, the Australian researchers calculate that the disease would kill about 1,060,000 Americans in the first year, yielding an overall mortality rate of 0.3 percent. Assuming the Spanish flu attack rate, that implies a case-fatality rate of 1.2 percent. That is just half of the U.S. 2.4 percent case-fatality rate for the 1918 Spanish flu epidemic.

In the better-case scenario, the COVID-19 epidemic would reduce U.S. GDP by 2 percent or about $420 billion. In the worse-case scenario, GDP would drop by more than 8 percent, that is, $1.8 trillion dollars. For comparison, real U.S. GDP fell by 4.3 percent during the Great Recession a decade ago, reducing U.S. GDP by about $650 billion.

In the Australian researchers’ scenarios, the coronavirus outbreak also whacks the stock markets. “Equity markets drop sharply both because of the rise in risk but also because of the expected economic slowdown and the fall in expected profits,” explain the authors. As it happens, today is the eleven-year anniversary of the S&P 500’s Great Recession bottom closing price of 676, down from its 1,565 high closing price on October 9, 2007. That was a 56 percent decline.

The researchers’ scenarios project a fast, V-shaped economic recovery as the epidemic wanes in the next year.

The researchers devised these scenarios as a way to argue that possible big losses stemming from pandemics justify greater investments in public health measures. But how plausible are the scenarios with respect to the way the novel coronavirus epidemic is currently playing out?

Consider that in their best-case scenario for China, the researchers calculated that the epidemic would kill 280,000 Chinese people in the next year and, in the worst case, 12.6 million Chinese people would succumb to the disease. Although the coronavirus is continuing its spread across the globe, the fact that China has reported 3,120 deaths and the rate of infection is dropping suggests that even the Australians’ best-case scenario may prove to be too pessimistic. Let’s hope so.

from Latest – Reason.com https://ift.tt/38E7KyS
via IFTTT