Month: December 2014

Sony’s attorney David Boies has sent a
letter to The Wall Street Journal, The New York Times, The
Hollywood Reporter, and other outlets about the data hackers
recently
seized from the studio. “We have reason to believe that you may
possess, or may directly or indirectly be given, illegally obtained
documents or other information,” Boies wrote. Sony, he informed
them, “does not
consent to your possession, review, copying, dissemination,
publication, uploading, downloading, or making any use of the
Stolen Information.” He urged the papers to
immediately inform him of any material from the hack that they
have, and then to destroy it. If they ignore this request and
publish stories based on the material, the company may sue
them.

Would Sony prevail in such a suit?

Eugene Volokh doesn’t think so. Writing in The Washington
Post, the UCLA law prof
points to two precedents that would spell trouble for the
studio:

First, let’s look at
Bartnicki v. Vopper (2001). Vopper was a radio commentator
who received a tape recording of an illegally intercepted
conversation; he apparently wasn’t involved in the illegal
interception, but a reasonable recipient of the recording should
have realized that the conversation had been illegally intercepted,
and Vopper likely actually did realize this. Vopper played parts of
the conversation on his program, and was sued under a federal
statute that made both the interception and the use of such
conversations illegal (both a crime and a tort).

But the Supreme Court held that Vopper’s broadcast incorporating
the intercepted communication was protected by the First Amendment.
Though the interception was illegal (and could constitutionally be
kept illegal), the playing of illegally intercepted material under
these circumstances was constitutionally protected, at least when
the broadcaster wasn’t involved in the illegal interception, and
the communication was on “a matter of public concern.” (The
particular conversation involved union leaders who were allegedly
discussing physically attacking managers.)

The second precedent is
Pearson v. Dodd (D.C. Cir. 1969)—not a Supreme Court
precedent, but still influential. Some ex-employees of Sen. Thomas
Dodd, in league with some current employees, took some documents
from the senator’s office without permission, photocopied them, and
then sent the copies to investigative reporters Drew Pearson and
Jack Anderson. Pearson and Anderson published articles based on the
documents. Dodd sued, claiming the publication was an invasion of
privacy, and also constituted “conversion,” which is to say
basically use of stolen property.

The D.C. Circuit rejected these theories, concluding that the
publication just wasn’t tortious (and thus not having to reach the
First Amendment issue). When information is on a matter of public
concern, the court held, the fact that it was illegally leaked
doesn’t make publishing it an invasion of privacy. And the
information in the copied letters does not “fall under the
protection of the law of property, enforceable by a suit for
conversion.”

Volokh adds some caveats, including a note that if someone were
to publish an entire script—the hackers’ booty apparently includes
the screenplay for an upcoming James Bond movie—that
would open the publisher to charges of copyright infringement. For
the most part, though, any media outlet sued by Sony for violating
the commands in Boies’ letter would have a pretty strong
defense.

Last
week, the House faced a momentary crisis as it attempted to pass a
$1.1 spending bill—the “cromnibus,” which combined 11
appropriations bills with a continuing resolution. Conservative
Republicans objected because the spending bill did not stop
President Obama’s executive action on immigration; liberal
Democrats, urged on by Sen. Elizabeth Warren (D-Mass.) opposed a
tweak to derivatives regulation in the Dodd-Frank financial reform
law.

White House support for the bill helped overcome last-minute
Democratic objections, and the Republican leadership attempted to
quell dissatisfaction on the right. The bill passed in the House,
and moved on to the Senate, where it was backed by the Democratic
leadership. Over the weekend, it passed, but not before first
losing a chunk of Democratic support over the financial reform, and
then facing an unexpected procedural delay from Sen. Ted Cruz
(R-Texas), who forced a vote signaling opposition to Obama’s
immigration move before allowing the spending bill to pass.

In the end 21 Senate Democrats and 18 Republicans joined
together in opposition to the bill. The Democratic objectors
were among the party’s most liberal members; the Republicans some
of the GOP’s most conservative. And yet, despite their different
objections, they were, in some sense working together—to defeat the
bill and the wishes of the leadership of their own parties.

For years, writes Senior Editor Peter Suderman, we have heard
about increasing polarization in American politics and the growing
divide between the left and the right. But the spending bill vote
reveals another battle emerging—not the left versus the right, but
the edge versus the center.

View this article.

“Giuliani began each work day…with an 8 a.m. meeting, an
almost military-style briefing with his top staff,” wrote Fred
Siegel in his 2005 biography of Rudy, The Prince of
the City. “The importance of the ‘8 a.m. morning
meeting,'”— writes Siegel quoting Giuliani—”‘cannot be
overstated…I consider it the cornerstone to efficient
functioning.'”

Our current mayor is more likely to be found buried under a heap
of blankets at that ungodly hour,
notes New York magazine’s Jessica Roy:

Bill de Blasio, who’s notoriously tardy for everything from
memorials to speeches, was so late for a flight from JFK in
November that he kept passengers from boarding for 20 minutes. New
York’s mayor is so perennially late that
the Post once gifted him
a West Elm alarm clock (without a snooze button).

Last month, Hizzoner
missed most of a ceremony to honor the victims of Flight 587,
after arriving half-an-hour late for an 8:05 a.m. ferry. His
aides initially blamed the mayor’s tardiness on “heavy fog,” but de
Blasio later admitted that he was recovering from a “rough night”
and was feeling “really sluggish.” When he was public advocate,

notes the Observer, de Blasio “sometimes had
difficulty waking up in the morning…leaving staffers waiting for
hours outside his home or showing up late to morning events.”

I go to the same YMCA as de Blasio in Brooklyn’s Park Slope, and
just this morning I caught him slowly peddling away on an exercise
bike at 8:20 a.m. If de Blasio’s going to make good on
his promise to solve the “inequality crisis” and turn the Big
Apple into a progressive paradise, he’ll need get to the office.
Sweet dreams, Mr. Mayor.

In a
new study in The Proceedings of the National Academy of
Sciences University of Minnesota researchers report in various
scenarios that vehicles using alternative fuels are often more
harmful to human health than are conventional gasoline-powered
automobiles. From the abstract:

We find that powering vehicles with corn ethanol or with
coal-based or “grid average” electricity increases monetized
environmental health impacts by 80% or more relative to using
conventional gasoline.

The AP
reported:

“It’s kind of hard to beat gasoline” for public and
environmental health, said study co-author Julian Marshall, an
engineering professor at the University of Minnesota. “A lot of the
technologies that we think of as being clean … are not better
than gasoline.”

Not surprsingly, the study does find that vehicles powered by
electricity derived from wind and solar power have the least health
effects. Keep in mind, however, that solar
provided 0.23 percent and wind 4.13 percent of U.S. electricity
in 2013.