Month: December 2020

From Monday’s order in Allen v. Chanel, Inc., by Judge Loretta A. Preska:

Before the Court are submissions … regarding the Court’s Order, dated August 21, 2020, that directed search engines and websites to remove materials discussing the above-captioned action following the Court’s sealing of the docket in this case. Also before the Court is a motion to intervene filed by the Electronic Frontier Foundation, Inc. and Professor Eugene Volokh of UCLA School of Law.

Having reviewed these comments from non-parties and from Ms. Allen, the Court has reconsidered the August 21, 2020 Order as well as the March 10, 2020 Order that originally sealed this case’s docket….

In 2012, following termination of her employment, Plaintiff Anu Allen filed suit against her former employer, Chanel, Inc. (“Chanel”), asserting claims for, inter alia, employment discrimination. The Court later granted Chanel’s motion for summary judgment as to each of Ms. Allen’s claims and ruled in favor of Chanel on its counterclaim for unjust enrichment.

As the Court recounted in its summary judgment opinion, in anticipation of making a severance payment to Ms. Allen, Chanel sent Ms. Allen an agreement that contained a provision by which Ms. Allen would waive her right to bring certain lawsuits against Chanel, “including” employment discrimination and harassment claims, in exchange for that payment. When Ms. Allen returned the signed agreement to Chanel, the word “including” was revised to “excluding.” With respect to Chanel’s counterclaim, the Court found that, because a material term was modified, the parties never achieved a meeting of the minds, and Ms. Allen was thus required to return her severance payment to Chanel. The Parties ultimately stipulated to dismissal of the case’s remaining claims.

On January 10, 2020, Ms. Allen filed a motion to seal her case. Ms. Allen explained that at the time of her separation from Chanel, having no legal background, she had relied on her attorney’s advice when she returned the revised separation agreement to Chanel with a Post-It note on the revised page. She also stated that her attorney had insisted that she submit an affidavit stating that she, rather than her attorney, had modified the agreement. She also stated that the public availability of her case’s docket through online search engines, and commentary on her case in online media, rendered difficult her attempts to gain new employment.

After considering Ms. Allen’s submission, the Court granted Ms. Allen’s request to seal the docket in light of her difficulty finding employment. On August 21, 2020, the Court also directed websites hosting filings from the now-sealed docket, and materials discussing those sealed filings, to remove those materials.

After receiving inquiries from non-parties following the August 21, 2020 Takedown Order, the Court invited comment from the non-parties who had submitted inquiries, as well as from Chanel.

Duck Duck Go, Inc., which operates the fourth-largest search engine in the United States, submitted a comment on October 21, 2020. (Letter from Daniel L. Schmutter, Megan E. Gray & Eugene Volokh (“DuckDuckGo Letter”).) In its submission, DuckDuckGo argued that the Court’s August 21 Takedown Order should be vacated on the basis that: (1) DuckDuckGo could not be bound by the order under Federal Rule of Civil Procedure 65; (2) DuckDuckGo did not have an opportunity to be heard; and (3) the First Amendment protected (i) DuckDuckGo’s right to publish the information disclosed by the government, i.e., the docket entries in this case and (ii) the rights of websites to which DuckDuckGo would point its users.

Free Law Project, which provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes, also submitted comment (Letter from Catherine Crump & Megan Graham, dated Oct. 21, 2020.) Free Law Project submitted that it should not be bound by the Court’s August 21, 2020 Order under F.R.C.P. 65 because it was a non-party that obtained the case materials independently and had no opportunity to be heard, and because the First Amendment protects Free Law Project’s right to publish the information it lawfully obtained. Moreover, Free Law Project advocated that the submissions in response to the Court’s September 30 Order should be docketed and that the entire docket in this case should be unsealed.

Ms. Allen submitted by email responses to the non-parties’ comments. She reiterated her struggle finding employment because of the public access to the docket of her cases, which had been compounded by additional recent personal hardship. DuckDuckGo submitted a response letter acknowledging Ms. Allen’s professional and personal difficulties but maintained that these interests were insufficient to overcome the due process and First Amendment rights of DuckDuckGo and those similarly situated and the Rule 65 limitations on the scope of injunctions

Additionally, on October 28, 2020, counsel for the Electronic Frontier Foundation and Professor Eugene Volokh of UCLA School of Law filed a motion to intervene (see Letter from Daniel L. Schmutter, dated Oct. 28, 2020), which Ms. Allen opposed (Letter from Marshall Bellovin, dated Oct. 30, 2020)….

“The First Amendment accords a strong presumption of public access to pleadings and other judicial documents that ‘have historically been open to the press and general public’ and ‘play a significant positive role in the functioning of the judicial process.'” It is well-settled that “documents submitted to a court for its consideration in a summary judgment motion are—as a matter of law—judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment.” Although this presumption applies most strongly to materials such as those produced at trial or filed in support of dispositive motions, such as the summary judgment motion here, it extends to “pretrial motions and written documents submitted in connection with them, and docket sheets.”

Although this presumption in favor of public access is fundamental, private litigants can in some cases overcome it and shield docketed materials from the public eye…. For sealing to be justified on any basis, however, a court must make “specific, on-the-record findings that sealing is necessary to preserve higher values.” Moreover, the nature and extent of the sealing must be narrowly tailored to serve these interests.

Upon reconsideration, the Court finds that Ms. Allen’s interest in sealing her case cannot defeat the presumption of public access that attaches to this case’s docket and its filings. Ms. Allen proffers her reasons in support of sealing the docket in both her original sealing request and in response to comments from the non-parties. She articulates that the public availability of the docket continued to create enormous challenges in her employment search and has affected her livelihood and wellbeing. She also notes for the Court that the modification of the contract with Chanel recounted in the Court’s motion for summary judgment, actions which some online commentators have attributed to her, was done on account of the advice of her attorney and led her to file a formal grievance against him.

Ms. Allen’s concerns are evident and undoubtedly significant. As the prospective interveners point out, however, a private litigant’s general concerns about reputational harm or negative impact to her employment prospects are not sufficient to counteract the public’s First Amendment right to these court filings.

Moreover, the fact that the docket sheet in this case and its filings have been public for years prior to the unsealing request is further dispositive of this issue. Although the Court sympathizes with Ms. Allen’s plight, in light of the recognized First Amendment rights of the press and the public, it cannot make the requisite, on the record finding that sealing is proper here. {Sealing the case’s docket also would not be a sufficiently narrowly tailored solution under these circumstances.}

As the prospective intervenors point out, however, Ms. Allen may not be completely without recourse…. “The normal remedy for alleged attorney misbehavior is a malpractice lawsuit or a sanctions award …[.”]  Although the First Amendment prohibits Ms. Allen from sealing the public record, it gives her the opportunity to correct it.

Accordingly, the Court must vacate the March 10, 2020 Order that originally sealed this case’s docket. Moreover, because the Court’s August 21, 2020 Takedown Order was issued on the basis of the March 10, 2020 sealing order, the Court also vacates the August 21, 2020 order….

Just as “‘[r]epresentatives of the press … must be given an opportunity to be heard on the question of their exclusion’ from a court proceeding,” the Court of Appeals has “recognized a similar right of news media to intervene in this Court to seek unsealing of documents filed in a court proceeding.” Here, the Court has afforded non-parties an opportunity to comment without formal intervention, however, and has vacated its March 10, 2020 order sealing the docket in this case (and thus there are no materials left to be unsealed) and the August 21, 2020 Takedown Order. Accordingly, the Court denies as moot the prospective intervenors’ motion to intervene….

Ms. Allen shall transmit a copy of this order to any search engine, news outlet, or other domain to which she sent a copy of this Court’s March 10, 2020 Order or August 21, 2020 Takedown Order.

For more, see Free Law Project’s Twitter thread on the case.

Many thanks to Dan Schmutter of Hartman & Winnicki for his pro bono help in the case, to UCLA School of Law student Leeza Arbatman for her work on the filings, and to Scott & Cyan Banister for their generous support of our UCLA First Amendment Clinic. Note that some of the recent filings remain sealed, but I think that’s just because there’s a brief delay with the unsealing.

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Two more Louisville, Kentucky, police officers who were involved in the drug investigation that led to Breonna Taylor’s death last March received termination letters yesterday. Interim Police Chief Yvette Gentry said Detective Joshua Jaynes lied in the affidavit he used to obtain a no-knock search warrant for Taylor’s apartment and was careless in planning the raid. Gentry also announced her intent to terminate Detective Myles Cosgrove, who according to the FBI fired the round that killed Taylor. The police chief said Cosgrove fired 16 rounds without properly identifying a target.

Police broke into Taylor’s apartment around 12:40 a.m. on March 13, when the 25-year-old EMT and her boyfriend, Kenneth Walker, were in bed. Walker, who said he believed the intruders were dangerous criminals, grabbed a handgun and fired a single round, which hit Sgt. Jonathan Mattingly in the leg. Mattingly, Cosgrove, and Detective Brett Hankison responded with a hail of 32 bullets, six of which struck Taylor. The case, which has been highlighted by Black Lives Matter, figured prominently in this year’s protests against police abuse.

Hankison, who faces three charges of wanton endangerment, was tentatively dismissed in June because he blindly fired 10 rounds from outside Taylor’s apartment. “Your actions displayed an extreme indifference to the value of human life when you wantonly and blindly fired ten (10) rounds into the apartment,” Robert Schroeder, Gentry’s predecessor as interim police chief, wrote in his termination letter to Hankison. “These rounds created a substantial danger of death and serious injury to Breonna Taylor and the three occupants of the apartment next to Ms. Taylor’s….I find your conduct a shock to the conscience. I am alarmed and stunned you used deadly force in this fashion.” Hankison appealed his termination to the Police Merit Board, which “will hear his appeal when his criminal case is completed,” the Louisville Courier-Journal reports.

Hankison and the other officers were serving a warrant obtained by Jaynes, who suspected that Taylor was involved in an ex-boyfriend’s drug trafficking operation. In his search warrant affidavit, Jaynes falsely claimed he had “verified through a U.S. Postal Inspector” that the ex-boyfriend, Jamarcus Glover, was receiving packages at Taylor’s apartment. “Affiant knows through training and experience that it is not uncommon for drug traffickers to receive mail packages at different locations to avoid detection from law enforcement,” Jaynes added. “Affiant believes through training and experience, that Mr. J. Glover may be keeping narcotics and/or proceeds from the sale of narcotics at [Taylor’s apartment] for safe keeping.”

As Gentry notes in her letter to Jaynes, the detective actually obtained the information about the packages from Mattingly, who in turn relied on a police officer in Shively, a Louisville suburb. “Detective Jaynes lied when he swore ‘verified through a US Postal Inspector,'” Gentry writes. “Detective Jaynes did not have contact with a US Postal Inspector….Having an independent, third party verify information is powerful and compelling [evidence]. The inclusion of this in the affidavit as a direct verification was deceptive.”

According to Taylor’s family, police found no drugs or other evidence of criminal activity in her apartment, and Glover has insisted that Taylor was not involved in his criminal activity. A postal inspector in Louisville said there was nothing suspicious about Glover’s packages, which reportedly contained clothing and shoes.

Jaynes apparently knew the packages were innocuous more than a month before the raid. In early February, Jaynes told an investigator with the Louisville Metro Police Department’s Public Integrity Unit, Mattingly informed him that “your guy just gets Amazon or mail packages there.” Jaynes added: “I remember ‘Amazon’ resonating in my head. I just remember the word Amazon. And it could have been mail packages or mail or just mail. I—I can’t remember.”

Gentry also faults Jaynes for failing to complete an operational plan before the fatal raid. “It is clear from this review that there should have been better controls, supervision and scrutiny over this operation prior to the warrant being signed and executed,” she writes. “Because the operations plan was not completed properly a very dangerous situation was created for all parties involved. You were the officer who conducted the majority of the investigation; however, neither you, your direct supervisor, [nor] his lieutenant were present or available at the scene when the search warrant was executed.”

A New York Times reconstruction of the raid, which was not recorded by body cameras, highlights several examples of carelessness. The cops did not know that Taylor’s sister lived in the apartment, and they did not anticipate that Walker would be there. They did not consult with SWAT officers, who learned about the raid only after the fact. Cosgrove and Mattingly both placed themselves in a “fatal funnel” that exposed them to the danger they cited to justify their use of deadly force. Thirty minutes went by before Taylor received medical attention.

Notwithstanding the no-knock warrant, which Jaynes obtained with boilerplate language that did not include any evidence specific to Taylor, the officers banged on the door—for 45 seconds to a minute, by their account, or for 30 to 45 seconds, according to Walker. The officers also say they announced themselves before using a battering ram to knock in the door. But Walker, who called 911 to report a violent break-in and initially faced an attempted murder charge that was later dropped, insists he did not know the intruders were police officers. He says Taylor got no response when she loudly and repeatedly asked who was at the door.

Nearly all of the neighbors who were interviewed by investigators or the press said they heard no announcement. The one neighbor who backed up the cops’ account initially said he likewise did not hear the officers announce themselves. Kentucky Attorney General Daniel Cameron nevertheless concluded that the officers “both knocked and announced their presence at the apartment.”

Cameron decided there was no basis for criminal charges against Cosgrove or Mattingly because they acted in self-defense. A grand juror said the charges against Hankison were the only ones the jurors considered because prosecutors told them charging Cosgrove or Mattingly was not legally viable. But Mattingly’s involvement in Jaynes’ investigation casts doubt on Cameron’s assumption that Mattingly was relying in good faith on a warrant he believed was valid. Jaynes cited information from Mattingly about “packages,” attributing it to a postal inspector. If that information actually indicated that Glover was not sending drugs or drug money to Taylor’s apartment, Mattingly had reason to doubt the basis for the warrant.

In her termination letter to Cosgrove, who fired 16 rounds down a dark hallway, Gentry says he failed to “properly identify a target” when he fired 16 rounds down a dark hallway. “The shots you fired went in three distinctly different directions, demonstrating that you did not identify a specific target,” she writes. “Rather, you fired in a manner consistent with suppressive fire, which is in direct contradiction to our training, values and policy.”

Cosgrove told investigators he was not consciously aware of using his gun. “I just sensed that I’ve fired,” Cosgrove said. “It’s like a surreal thing. If you told me I didn’t do something at that time, I’d believe you. If you told me I did do something, I’d probably believe you, too.” Although Walker fired just once, Cosgrove said he was “overwhelmed with bright flashes and darkness,” which led him to believe “there’s still these gunshots happening due to those bright lights.” He apparently mistook his colleagues’ rounds for hostile fire.

In her letters to Jaynes and Cosgrove, Gentry said “the investigation conducted by the Louisville Metro Police Department’s Professional Standards Unit is now complete.” The FBI is still looking into the raid, including the circumstances surrounding the search warrant, but the intent requirement for federal civil rights charges is hard to meet. More than nine months after the raid, Hankison is the only officer to be prosecuted in connection with it, and the charges against him, which allege that he endangered Taylor’s neighbors, are not related to her death.

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In most cases, I don’t respond to reviews of my book, unless specifically invited to do so (for example, as part of a symposium). Both the book and the review should stand on their own merits. But I will make a rare exception for this review of my book Free to Move: Foot Voting, Migration, and Political Freedom, by Luma Simms of the Ethics and Public Policy Center, at the Law and Liberty website. The reason for the exception is that the reviewer egregiously distorts what the book actually says.

Simms’ main complaint is that I supposedly exalt narrow economist self-interest and selfishness to the exclusion of everything else, and that the purpose of the foot voting I advocate is to empower people to seek more wealth, and that I assume people are purely rational and guided by reason alone:

We don’t need to go through the arguments [of the book] one by one, because there is only one, or rather there are no arguments, only assertions: Man is a rational being; his actions are based on individual choice, guided only by reason; his judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture); if he acts with others it is by his choice alone; he must live by his own achievements, for his own happiness and self-interest; he has no moral duty to others. As such, man must have the political freedom to follow his self-interest to achieve his happiness…

In Somin’s world there is no love of place, no value for a sense of belonging, nothing that says, “these particular people live here, and isn’t it wonderful that it is so.” It is a world populated by selfish and self-interested automatons seeking to enrich themselves.

Far from focusing on wealth alone, throughout the book I emphasize that foot voting decisions are often the result of efforts to escape brutal repression, that they can expand political choice on a variety of dimensions, and that increasing foot voting opportunities is of special value to the poorest and most oppressed people in the United States and around the world. These aren’t just minor points relegated to an obscure passage or a footnote. They are central themes I repeatedly highlight in almost every part of the book, beginning on page 2 of the Introduction.

I also explain in Chapter 1 how foot voting promotes political freedom on several different prominent theories thereof, such as consent theory, nondomination, negative freedom, and positive freedom. None of these are solely (or even primarily) about maximizing people’s ability to “enrich themselves.”

If I thought that people have “no moral duty to others,” I would not have bothered to write the many parts of the book where I argue that it is immoral and unjust for governments to exclude migrants and restrict freedom of movement on the vast scale that most currently do. The points I make against such policies apply regardless of whether they serve the narrow self-interest of those who enact them.

Promoting economic opportunity is an important advantage of expanded foot voting, and I cover that issue at some length in various places in the book. For reasons I go into in detail, it is of special value to the poor and oppressed who are otherwise condemned to lifelong poverty through no fault of their own, due to being trapped under the rule of oppressive or dysfunctional governments. But my defense of the economic value of foot voting does not mean that it is the only value, and it certainly doesn’t imply that wealth should be pursued to the exclusion of all other goals.

I also neither claim nor assume that human actions are “guided only by reason.” To the contrary, I emphasize—in Chapter 1—that one of the advantages of foot voting over conventional ballot-box voting is that the former creates stronger incentives for people to curb irrational biases to which we are all at least to some degree prone. But I also point out (in the same chapter) that completely rational decision-making is probably unachievable. The advantage of foot voting here is not that it does away with irrational biases in the evaluation of information, but that it reduces their impact.

It is similarly false to claim that I reject all “love of place” or “sense of belonging.” To the contrary, I point out (pp. 144-46), in response to a famous critique of foot voting by Albert Hirschman, how empowering people to vote with their feet enables many to find homes that better fit their  values, and interests. That, in turn, enhances “sense of belonging,” and leads to greater investment in and participation in community institutions (a point backed by empirical evidence I describe).

I do argue in the book that migrants—both domestic and international—are entitled to a presumptive right to freedom of movement, and that governments cannot justly exclude them, except in a few extreme, unusual circumstances. Much of the book (Chapters 5 and 6) is devoted to criticizing numerous rationales for broader rights to exclude, including several that enjoy widespread support. This, perhaps, is what has attracted Simms’ ire. If, so, that’s fine.  A book rejecting widely held views is going to attract some pushback.

Had Simms tried to answer the points I actually made, she could potentially have made a useful contribution to the debate over these issues. But she instead attacks a caricature of her own making.

The points noted above are far from the only flaws and distortions in Simms’ review. But I will stop here, because I think I have said enough to show that her review cannot be trusted as a description of what my book actually says.

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Are you looking forward to resuming something that resembles a normal life in terms of travel, concert attendance, and public gatherings? Vaccines for COVID-19 are a big step towards putting pandemic fears behind us. But if hosts aren’t satisfied with knowing vaccines are available, they may want proof that event attendees and travelers have had their shots. That’s where immunity passports come in, and they may help us move past the pandemic—or add new intrusiveness and frustration to our activities.

The idea of immunity passports originated in the spring as a recourse for those who had already suffered a bout of COVID-19. They would be “digital or physical documents that certify an individual has been infected and is purportedly immune to SARS-CoV-2,” noted a May article in The Lancet. “Individuals in possession of an immunity passport could be exempt from physical restrictions and could return to work, school, and daily life.”

Immunity passports, then, were conceived as something liberating for those no longer at risk from the disease. “This has at least some potential as a way to loosen the ties that have brought so much work and so many lives to a standstill,” Ron Bailey, Reason‘s science correspondent, observed in April.

Since then, however, the idea has morphed more than a little. For starters, it’s looking less like a Get Out of Jail Free card and more like a hall pass.

“International air travel could come booming back next year but with a new rule: Travelers to certain countries must be vaccinated against the coronavirus before they can fly,” The Globe and Mail recently reported.

Carriers will also impose restrictions. The International Air Transport Association (IATA) endorses immunity passports and has developed its own Travel Pass. Qantas says it will require proof of vaccination and other airlines are bound to follow. Norwegian Cruise Lines is considering a similar move.

Domestically, Hawaii currently requires COVID-19 tests for travelers who want to skip quarantine; state officials are considering a vaccine requirement.

Similar rules may apply to many entertainment venues. Ticketmaster points out that “one idea to keep the event entry process as simple and convenient as possible is to find a way for fans to link their digital ticket to their negative test results, vaccine status, health declaration or any other info that is determined to greenlight access.”

Accomplishing that task shouldn’t be difficult, given that there are already competing implementations of immunity passports seeking to make the process painless and to address potential concerns.

The IBM Digital Health Pass, which is designed to “bring people back to a physical location, such as a workplace, school, stadium or airline flight,” boasts that “privacy is central to the solution, and the digital wallet can allow individuals to maintain control of their personal health information and share it in a way that is secured, verifiable, and trusted.” IATA’s Travel Pass promises that “travelers always remain in control of their data with their privacy protected.” The similarly travel-oriented CommonPass, sponsored by the World Economic Forum (WEF), claims that it “delivers a simple yes/no answer as to whether the individual meets the current entry criteria, but the underlying health information stays in the individual’s control.”

That’s a promising start with the various offerings all offering privacy assurances. But there’s a very real possibility that, instead of anonymous codes in competing apps, our vaccination status will end up as entries in a government database that follows us from one checkpoint to the next.

For starters, both IATA (through its One ID) and WEF have been pushing “touchless travel” in which biometric identification becomes the norm and “your face and body are your passport,” as a WEF article about post-pandemic travel puts it. The authors specify that, ideally, “the individual is in possession of and controls their identity attributes, such as their date and place of birth and physical characteristics, but also travel history, health information and other data.” Fundamentally, though, people’s movements would be governed by databases accessed through iris scans and fingerprints. “Health information” would, presumably, include vaccinations for COVID-19 and whatever bugs emerge in the future.

Under such a system, immunity passports look less like competing apps that you can swap out if they screw up, and more like government websites to which you upload required documents and hope that the inevitable glitches aren’t too awful as they follow you … everywhere.

What kind of glitches? Just look at the government no-fly lists of people who are supposedly too dangerous to allow on airplanes, which have been so notoriously inaccurate and difficult to correct that they were ruled unconstitutional by a federal judge last year. “Even in clear cases of mistaken identity or clerical blundering, a name can linger in the system for years,” CNN noted in 2015. The ACLU calls them “Kafkaesque.”

This was seven years after then-Homeland Security Secretary Michael Chertoff admitted, “we do have circumstances where we have name mismatches,” amidst suspicions that a journalist had been added to the list because he criticized the TSA. Placement on the list has been used by the FBI as a punishment for people who don’t play ball—a lawsuit over that abuse is working its way through the courts right now.

This isn’t a peculiarly American problem; Canada’s no-fly list has been similarly mismanaged. Thirteen years after implementing the list, Ottawa “hopes to have a new system for individuals who have names similar to those of genuine terror threats in place later this month—and up and running in time for the holiday travel season,” according to a November CBC report.

So, a system of immunity passports could mean picking a widely accepted app with a good reputation for privacy that will offer scanners nothing more than a QR code certifying your health status. Or it could require you to call a federal agency—business hours only, please—to explain that the document you just uploaded was a vaccination certificate and not a pregnancy test.

And yes, this objection applies not only to immunity passports, but to the whole database approach embodied by “touchless travel.” Vaccine information is just one important place to hold the line for competing, decentralized solutions rather than submit to yet another bureaucratic boondoggle.

In the current pandemic-panic environment, it seems inevitable that we’ll be asked to offer proof of vaccination in the near future, at least for international travel and possibly even for attending large gatherings. The potential exists for satisfying such requirements in a way that’s relatively respectful of privacy. But immunity passports will only be tolerable if we can resist the pressures to turn them into entries in a larger-scale and more-intrusive version of no-fly lists.

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