Microsoft, DOJ set to go head to head at Supreme Court in 2018
2017 brought us a number of new cases concerning technology and law. One of the most memorable may have been the defamation lawsuit filed against Techdirt by Shiva Ayyadurai, a man who—highly controversially—claims that he invented email. After having been dismissed in favor of Techdirt, that case is now on appeal.
We also saw the epic Waymo v. Uber lawsuit unfold, which could determine the future of autonomous driving. That case is now set to go to trial in February 2018 in San Francisco.
There’s also the ongoing lawsuit trying to get at the heart of what seems like a basic question: why the sudden uptick in digital device searches at the border? We might get closer to an answer in 2018.
Don’t forget that the notorious Tor-enabled drug marketplace, AlphaBay, was shut down. Its creator turned out to be Alexandre Cazes, a Canadian living in Thailand who frequented a "pickup artist" forum. Dealers are continuing to be prosecuted.
Questions surrounding the gig economy and labor agreements still persist—we’re still waiting on the verdict in Grubhub v. Lawson. We're also waiting for the 9th Circuit to rule in a slew of cases about Uber drivers.
But as we look to 2018, we also want to provide a little bit of closure on the five cases that we were closely following a year ago—one is now pending before the Supreme Court. So here goes.
Boggs v. Merideth
Status: Dismissed in favor of Merideth. Case closed.
While we’ve covered a number of people-shooting-at-drone cases now, this one remains our favorite by far. It has colorful characters, including one man who refers to himself as a "Drone Slayer" who, at one point, sold T-shirts with that moniker emblazoned on them.
The case boils down to a question that doesn’t yet have a clear answer: with inexpensive drones flying around, should American law recognize a concept of aerial trespass? Or put another way, is it ok to shoot at a drone flying over your house?
As Ars has reported previously, the best case law on the issue dates back to 1946, long before inexpensive consumer drones were feasible. That year, the Supreme Court ruled in a case known as United States v. Causby that Americans could assert property rights up to 83 feet in the air.
In that case, US military aircraft were flying above a North Carolina farm, which disturbed the farmer's sleep and upset his chickens. As such, the court found that Farmer Causby was owed compensation. However, the same decision also specifically mentioned a "minimum safe altitude of flight" at 500 feet—leaving the zone between 83 and 500 feet as a legal gray area.
"The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land," the court concluded.
In 2015, a Kentucky man shot down a drone that he believed was flying above his property. The shooter in that case, William Merideth, was cleared of local charges, including wanton endangerment. By 2016, the Kentucky drone's pilot, David Boggs, filed a lawsuit asking a federal court in Louisville to make a legal determination as to whether his drone’s flight constituted trespassing. Boggs asked the court to rule that there was no trespass and that he is therefore entitled to damages of $1,500 for his destroyed drone.
Finally, in March 2017, the case was dismissed in favor of Merideth—the judge ruled that federal court was not the appropriate venue to adjudicate this question. The question at the heart of the case remains live.
No appeal was ever filed.
United States v. Vaulin
Status: Pending in the US District Court for the Northern District of Illinois
January 2018 will mark six years since the raid on Kim Dotcom and the shuttering of his former site, Megaupload. During that time, he has put up an impressive legal case in New Zealand, resisting extradition to the United States. Since that time, he has launched a new company, founded a political party, been the subject of a new documentary film, and more. He remains out on bond in New Zealand.
Dotcom and Artem Vaulin, 30, face similar charges, and they share the same lawyer, Ira Rothken.
In July 2016, Vaulin was arrested in Poland, accused of being the founder of KickassTorrents (KAT), a large and well-known BitTorrent site. Like The Pirate Bay, KAT does not host individual infringing files but rather provides torrent and magnet links so that users can download unauthorized copies of TV shows, movies, and more from various BitTorrent users.
Since then, Vaulin has not moved from Poland. Like Dotcom, he has successfully resisted extradition efforts. In August 2017, US District Judge John Z. Lee, the Chicago-based judge overseeing the case, denied his efforts to have the case dismissed, largely on the grounds of "fugitive disentitlement."
This legal doctrine argues that if someone resists the American judicial system—by not agreeing to be extradited and not appearing in a US court—that person cannot use the legal bureaucracy to their own ends.
"Based on these authorities, and in light of the principles undergirding the doctrine, the Court is persuaded that the elements of the fugitive disentitlement doctrine are met in this case," Judge Lee wrote.
"As long as Vaulin is in Poland, he is not within the Court’s reach. And, as far as the Court is aware, he is actively resisting extradition efforts. His attorneys represented at the most recent status hearing that there is a 'real possibility' that he will agree to appear here, but also indicated that he is actively appealing the Polish courts’ decision to extradite him, a process which could take years. Thus, insofar as Vaulin is interested in participating here, he appears willing to do so only from a safe distance. As for the second and third principles, Vaulin should not reap the benefit of purposefully evasive behavior, and issuing a ruling in these circumstances could encourage such behavior, rather than voluntary surrender."
The most recent entry in the Vaulin docket is dated December 6, 2017: "The government reports that Defendant is continuing to appeal the extradition order in Poland. Status hearing set for 4/3/18 at 9:30 a.m."
United States v. Martin
Status: Pending in the US District Court for the District of Maryland
As Ars reported 12 months ago, while everyone knows the name Edward Snowden and the shockwaves he sent through the intelligence community in 2013, fewer people know the name Harold "Hal" Martin.
Martin, like Snowden, was a contractor for the National Security Agency at Booz Allen Hamilton and held top-secret clearance. In August 2016, he was arrested and criminally charged with "unauthorized removal and retention of classified materials by a government employee or contractor." Prosecutors alleged that Martin had a substantial number of materials that should never have left government custody.
Unlike Snowden, it’s unclear whether Martin is simply a "hoarder" (as his own lawyer argued) or whether he was someone who meant to sell, divulge, or disclose classified NSA material.
This case hasn’t advanced at all since we last wrote about it, which could suggest that Martin is cooperating with the government. The most recent docket entry is dated October 31, 2016.
United States v. Croghan
Status: 8th US Circuit Court of Appeals ruled in favor of government
Child porn is no doubt a scourge upon the world. No reasonable person would question the government’s authority to investigate it. However, there has been some new concern as to what tools the government is using, in what it calls "lawful hacking" or a "network investigative technique" (NIT), to go after sites and users that would otherwise be shielded by their use of Tor.
As Ars reported before, investigators in early 2015 used the NIT to force users on a child porn site called Playpen to cough up their actual IP address, which made tracking them trivial. In another related case prosecuted out of New York, an FBI search warrant affidavit described both the types of child pornography available to Playpen's 150,000 members and the malware's capabilities.
As a way to ensnare users, the FBI took control of Playpen. Playpen users came to the site with their Tor-enabled digital shields down, revealing their true IP addresses. The FBI was able to identify and arrest nearly 200 child porn suspects. After 13 days, the FBI shut Playpen down. However, nearly 1,000 IP addresses were revealed as a result of the NIT’s deployment, which suggests that even more charges could be filed.
Beau Croghan, a man in Iowa, was one of those hit by this NIT. He is accused of downloading child porn via Playpen. However, his case was just one of a small handful in which a judge ruled to suppress the evidence due to a defective warrant. The government appealed that ruling to the 8th Circuit, where it prevailed in a July 2017 ruling.
While there may have been a violation of the Fourth Amendment, the "good faith exception" to the "exclusionary rule" applied. In short, the mistake didn’t rise to the level of needing to suppress the evidence.
"On balance, the marginal benefit of deterrence fails to outweigh the associated costs," the court found.
Attorneys for Croghan have not made any efforts for an en banc re-hearing or an appeal to the Supreme Court.
United States of America v. In the matter of a Warrant to Microsoft, Inc.
Status: Appeal pending before the Supreme Court
The question is this: can American law enforcement, with a valid warrant, obtain data physically held abroad by an American company? Microsoft argues that no, any data held abroad cannot be touched by an American court order, while the Department of Justice argues that this allows companies to easily defy judicial orders.
This particular case revolves around email held in an Outlook account in Ireland—it is not publicly known what the government hopes would be revealed by acquiring the email, which was sought as part of a drug investigation. Investigators have also not revealed whether the email account owner is American or if that person has been charged with a crime.
American authorities sought this data under the Stored Communications Act. The US government, could, however, use the Mutual Legal Assistance Treaty process as a way to contact Irish authorities to serve a local warrant upon Microsoft’s Irish subsidiary, which controls the data center, to obtain the data. That procedure, which may have already been undertaken, is likely slower than a SCA warrant. However, if the government did go ahead with an MLAT request, it was likely to have been fulfilled during the lengthy process of the judicial appeal.
On December 13, 2017, the Republic of Ireland filed its own amicus brief—supporting neither side—arguing essentially that it would comply with an MLAT request "if and when it be made."
Oral argument has been scheduled for February 27, 2018.
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