Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener and the Liberty Justice Center. Please direct media inquiries to Kristen Williamson.

Friday, December 31, 2021

Atlantic's Applebaum adds to reminscences of academic, editorial freedom; mob justice rules now

In an article in the October Atlantic, Anne Applebaum examined the potentially devastating effect of cancel culture on academic and editorial freedom.

With her usual incisive writing, Applebaum compared contemporary cancellation with the summary imposition of the scarlet letter on Hester Prynne and described how today's mob justice is dangerously empowered by social media.

What's missing from Applebaum's tale is recognition that the threat to academic freedom is not new.  Workplace mobbing has been studied since the 1980s ("ganging up"), and, as I have written before, sociologist Kenneth Westhues wrote about the threat to academic freedom in a 2004 book. I know of what I speak (2005-10, 2017-19).

The following lines struck me as most salient in Applebaum's analysis.

A journalist told me that when he was summarily fired, his acquaintances sorted themselves into three groups.  First, the "heroes," very small in number, who "insist on due process before damaging another person's life and who stick by their friends." Second, the "villains," who think you should "immediately lose your livelihood as soon as the allegation is made." .... But the majority were in the third category: "good but useless.  They don't necessarily think the worst of you, and they would like you to get due process, but, you know, they haven't looked into it."

This observation is spot on.  My heroes once were two in number, another time zero.  One of my heroes paid a price for his chronic condition of character.  Villains are rewarded by employers.  But I respect honest villains more than I respect the "good but useless," who are the vast majority of academic colleagues, for their hypocrisy is galling.  That this group is the majority is precisely what makes "ganging up," or "mobbing," possible; the villains, otherwise, are too few in number to get away with it.  Especially in legal education, I have been horrified repeatedly by the selfish indifference to wrongs in their midst borne by people who hold themselves out as champions of civil rights.

Sometimes advocates of the new mob justice claim that these are minor punishments, that the loss of a job is not serious, that people should be able to accept their situation and move on.

Indeed, in my experience, I vividly remember one colleague acknowledging the wrongfulness of the persecution, but advising that I "just wait five years" for people to forget the false allegations.  Never mind the opportunity cost to career, nor providing for my family in the interim, nor the uncertainty that five years would be enough, nor the inference of guilt that would derive from acquiescence.

"I wake up every morning afraid to teach," one academic told me: The university campus that he once loved has become a hazardous jungle, full of traps.

Check.  My classroom students are both my greatest motivation and my greatest fear.  I think of both every single time a class is about to begin.  It is a difficult and stressful dissonance to manage. 

[T]he protagonists of most of these stories tend to be successful....  They were professors who liked to chat or drink with their students, ... people who blurred the lines between social life and institutional life....  [Yale Law Professor Amy Chua:] "I do extra work; I get to know them," she told me. "I write extra-good recommendations." ....

It's not just the hyper-social and the flirtatious who have found themselves victims of the New Puritanism....  Others are high achievers, who in turn set high standards for their colleagues or students.  When those standards are not met, these people say so, and that doesn't go over well.  Some of them like to push boundaries, especially intellectual boundaries, or to question orthodoxies.

First, yes.  Westhues long ago identified jealousy, revenge, and schadenfreude as mob motivators.  Hard work and success make one a target.  Second, also yes.  To be fair, early in my academic career, work probably was too much my life: too much overlap between co-workers and social life.  In my defense, that's not unusual for an ambitious young person, especially after relocating to a new city for a new career.  

I've been disabused of that ethic.  Co-workers willing to sacrifice you to save or glorify themselves are not your friends.  Workplaces and schools design social events with the intent to mislead, imbuing senses of belonging and community that only serve the master's interests.  At today's university, students and faculty rather should be forewarned explicitly that if they find themselves on the wrong side of the groupthink, they will be devoured by the mob.

Workplaces once considered demanding are now described as toxic.  The sort of open criticism, voiced in front of other people, that was once normal in newsrooms and academic seminars is now as unacceptable as chewing gum with your mouth open.

Just so.  The kind of hard-nosed, openly aired editorial critique that was a staple of my education as a journalism student, and which conditioned me to take heat and to be stronger for it, I wouldn't dare administer in today's classroom.  Some of my law students understand the new game and read between the lines, and they'll be OK.  Some will be shocked the first time they are across the table from an adversary or in front of a judge who wasn't schooled to coddle.

Students and professors ... all are aware of the kind of society they now inhabit.  That's why they censor themselves, why they steer clear of certain topics, why they avoid discussing anything too sensitive for fear of being mobbed or ostracized or fired without due process.

True.  I have resisted modestly on this front, refusing to purge sensitive content from class materials.  But I do prioritize-down the sensitive, choose materials strategically, and exert tighter control of student discussion.  As usual, this decades-old practice in the academic trenches became a point of public concern only when Yale and Harvard professors started talking about it, as if they discovered the problem. 

If nothing is done, Applebaum concluded,

[u]niversities will no longer be dedicated to the creation and dissemination of knowledge but to the promotion of student comfort and the avoidance of social media attacks.

"[W]ill"?

The article is Anne Applebaum, The New Puritans, The Atlantic, Oct. 2021, at 60.

Thursday, December 30, 2021

Uruguay busca idear carta de derechos digital

Palacio Legislativo en Montevideo
(foto por Tiana Gerfauo Gonzalez CC BY-SA 3.0)
Uruguay está redactando una carta de derechos digitales.

En agosto, escribí sobre la iniciativa pionera para constitucionalizar los derechos digitales en Chile. Ahora Uruguay está haciendo lo mismo.

Una comisión de expertos en Uruguay estará integrada por representantes del gobierno, de las ONG, y de la academia. En 2020, escribí con favor de la voluntad de Uruguay, de mentalidad anti-cártel, de transmitir al público los partidos de fútbol nacional. Los uruguayos tienen la mentalidad adecuada.

Considerando la adopción generalizada de sistemas de protección de datos en América del Sur, sobre  el ejemplo de la GDPR europeano, especialmente en Chile, y ahora prometidas innovaciones en derechos digitales, los Estados Unidos parece cada vez más alienado como una nación que no está dispuesta a obligar a la corporatocracia a ceder a las necesidades de las personas y los derechos humanos.

HT @ Observacom.

Wednesday, December 29, 2021

News reports heroicize resistance to robbery, but storeowner's murder counsels common law wisdom

Mahaseth and his wife
(posted to Twitter by Sam Smink, WHDH 7 News)
A man was charged in early November for fatally shooting a Fall River, Mass., convenience store owner.

The murder of Stop N Save owner Lal Kishor Mahaseth in October shocked the Fall River community, near where I live in eastern Rhode Island.  But the circumstances that gave rise to it are all too familiar in Massachusetts south coast cities.

To help my Torts I class wrestle with the interrelated defenses of self, other, and property, I sometimes show a video of a local convenience store owner who fought back against would-be robbers.  When the viewer knows that no one was seriously hurt in the end, the video can be funny, while stirring serious conversation on matters such as tort doctrine, "stand your ground" laws, and the expectations of the social contract in the unique American culture of guns and personal responsibility.

Sadly and oddly, there are many videos from which to choose for this exercise, even limiting the search to nearby New Bedford, Mass.  My favorite video dates to 2012, when owner-operator Nicholas Dawoud turned the tables on assailants at the St. Elias Mini Market.  This story from WJAR has it all: robbery turned to personal threat; the frustrated defender, informed by past offenses, erupted; and other local customers joined the fray.

The tragedy in Fall River layers the problem with an added complexity.  Do news stories that glamorize defending locals incentivize a wrong choice?  Surveillance video in the Fall River case reportedly shows that 54-year-old Mahaseth resisted his armed assailants, at one point throwing a chair at them.  Does citizen frustration with failed policing in stressed economic times justify a different response to the problems of privileging defense?

Historic common law norms favor life over property in all circumstances.  The result is a familiar law school hypothetical with which students often struggle: the rightful owner of property has no privilege to commit personal attack to defend against threatened violence to dispossess, as long as the threat is merely contingent (albeit often unprovably so in real life) on the owner's refusal to surrender.  The theory is that no one will be hurt, and the wronged property owner can resort to assistance by proper authorities.

However, owing to the powerful American ethos of property and personal responsibility, the historic common law result is as likely to be excepted as applied, in practice.  The glamorization of physical defenses of property such as Dawoud's reinforces the incompatibility of the common law logic with many Americans' thinking.

Mahaseth, who was born in Nepal and earned a degree there in education, is survived by his wife and three children, The Herald News reported in October.  Prosecutors charged 37-year-old Nelson F. Coelho with murder, attempted armed and masked robbery, and carrying an illegal firearm, Mass Live reported in November.

[I acknowledge a kind note of Prof. Volokh, who aptly observes that non-deadly force in defense of property is permitted by common law.  I admittedly conflated defense by force at all, as I suggest, or fear, that the nuance is lost on the aggressor who responds violently, and potentially fatally.]

Tuesday, December 28, 2021

Police officer delivering lunch was on the job for worker comp but not for statutory immunity, court rules

Pixabay by Ronald Plett (license)
A personal injury claim against a police officer's automobile insurer highlights the different scope of what it means to be "on the job" for purposes of statutory immunity and worker compensation.

In a case the Massachusetts Supreme Judicial Court (SJC) decided in late October, Raynham, Mass., police officers on mandatory firearms training on public property in 2017 organized takeout for lunch for a paid break.  Returning to the training site in his personal truck with the takeout, one officer drove the gravel path "faster than [he] should have," braked, and slid into and injured another officer seated at a picnic table.

The plaintiff-officer was permitted to claim state worker compensation, because he was injured on the job.  The defendant-driver's insurer meanwhile claimed immunity under the Massachusetts Tort Claims Act, because the insured acted "within the scope of his ... employment."  The SJC denied the insurer of the defense.

The common law test for "vicarious liability, respondeat superior, and agency," the court explained, is "whether the act was in furtherance of the employer's work," and the same test informs the invocation of statutory immunity.  That analysis comprises three factors in Massachusetts law: "(1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"

Only the middle factor favored the insurer, the court opined, so the analysis on balance disfavored immunity.

Worker compensation and common law master-servant doctrine are indistinguishable as a practical matter in many cases, when an employee suffers injury doing the employer's bidding.  Doctrines in both veins rely on "scope" or "course of employment" tests.

But even when the language is the same, the tests differ, and in some cases, the difference matters.  Worker compensation tests only loosely for a causal connection between employment injury, thus famously allowing a traveling salesman to recover when his overnight motel was destroyed by a tornado.  Vicarious liability, and thus, Massachusetts immunity, requires a closer causal nexus between the employee's specific pursuit and the injury that results.

In this analysis, the defendant-driver's lunchtime carelessness, for which he was suspended for five days, was not a "frolic" as escapes worker compensation coverage, but, at the same time, was not in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity.

The case is Berry v. Commerce Insurance Co., No. SJC-13089 (Mass. Oct. 25, 2021).  Justice Dalila Wendlandt wrote the unanimous court opinion.

Monday, December 27, 2021

After dog bites postman, $375k jury award fits between floor and ceiling of high-low settlement agreement

Pxhere CC0
In a dog-bites-postman case in Massachusetts, the Appeals Court in late October held that the parties' "high-low" settlement agreement was a "contract like any other" and did not bar the defendants' appeal.

The plaintiff-postman in the case was covering an unfamiliar route when he was bit in the wrist and thigh by German shepherd-golden retriever mix "Chewbacca." At trial, the jury awarded the plaintiff $375,000 in damages. The defendants asked for a new trial, arguing that the jury was tainted by improper admission of information about the plaintiff's federal worker compensation benefits, in violation of the collateral source rule.

Before the jury verdict, on the last day of trial, the parties had struck a handwritten "high-low" settlement agreement.  They set a floor recovery of $150,000, if the jury verdict were anything less, and a ceiling of $1,000,000, if the jury verdict were anything more.

The plaintiff argued that the settlement agreement precluded appeal.  But it didn't say that.  Holding that the settlement agreement was to be construed as a "contract like any other," the Appeals Court found no language convincingly demonstrating defendants' waiver of appeals.  At the same time, the court held that the evidentiary admission in violation of the collateral source rule was harmless error, affirming the denial of new trial.

Regarding the high-low agreement, the court found "little law in Massachusetts."  More than 20 years ago, two New York attorneys described the agreements as "[a]n often underutilized and misunderstood litigation technique." At NYU in 2014, a research fellow examined the agreements' potential and limits in New York, Maryland, and Virginia; see also the ABA Journal in 2005.  An Illinois attorney wrote favorably about the "misunderstood" agreements in 2019, after a medmal plaintiff-baby's verdict was halved by a high-low from $101 million.  Virginia attorneys advised on drafting the agreements in 2007.

In a harder scholarly vein, research published in The Journal of Law & Economics in 2014 reported empirical research on high-low conditions and posited optimal conditions for their appearance.  Published soon thereafter, a Michigan law student argued that high-low agreements should be disclosed to juries.

The Massachusetts case is David v. Kelly, No. 20-P-706 (Mass. App. Ct. Oct. 25, 2021). Justice Mary Thomas Sullivan wrote the opinion of the court, which Justice Kenneth V. Desmond Jr. joined.  Justice Sabita Singh dissented as to the court's conclusion that the error on the collateral source rule was harmless rather than prejudicial.

Sunday, December 26, 2021

Missionaries kidnapped in Haiti reach freedom, but murky U.S. policy generally fails ransomed abductees

Haitian child in 2012 (photo by Feed My Starving Children CC BY 2.0).
News came last week that the last 12 of 17 Christian missionaries abducted for ransom in Haiti in October either escaped or were released, reports vary, and walked miles to freedom. The circumstances of their liberation raise questions about the ongoing apparent lack of any clear U.S. policy on abductions abroad.

Less well reported than the story of the missionaries, Haitian lawyer and university professor Patrice Dérénoncourt was shot and killed on October 31 by the kidnappers who abducted him in October.  Dérénoncourt taught crimonology and constitutional law in the Economic, Social and Political Sciences Department of the Université Notre-Dame d'Haiti.

Dérénoncourt and the missionaries are typical of the some 800 kidnappings in Haiti just this year. Economic desperation and political turmoil have resulted in flourishing gang violence, and kidnappers seeking ransom have targeted aid workers and the education sector, children included.  Struggling to maintain rule of law, the Haitian government has not been able to get a handle on the problem.  Foreign governments seem either habitually disinterested or similarly impotent.

In the Dérénoncourt case, some of the $900,000 ransom demanded had been paid.  It is unclear whether any ransom was paid for the missionaries.  Representatives of the families and, apparently, the U.S. government through the FBI, were involved in negotiation over kidnappers' outrageous demand for $1 million per person.  Whatever reports are accurate, and whether or not a ransom was paid or the pressure simply became untenable, I find it difficult to believe that the last 12 missionaries surmounted a concerted effort by the kidnappers to keep them.

The Biden Administration was understandably tight-lipped about how it was dealing with the kidnapping crisis while it was going on.  Now that the event is over, it's time for an open conversation about what U.S. policy should be, both with regard to kidnappings and to the social and economic catastrophe unfolding less than 700 miles from Miami.

In the broader picture, U.S. policy on abductions for ransom seems at best inconsistent and at worst incoherent.  In late October, families of Americans still detained abroad, in China, Egypt, Russia, Saudi Arabia, and Venezuela, called on the Biden Administration to do better.  "When we do meet with ... officials," the families wrote, "we feel we are being kept in the dark about what the U.S. government intends to do to free our loved ones."

The murder of an educator such as Dérénoncourt sets back rule of law in Haiti not by just one mind, but by a generation of students he would have taught.  Persistent instability in Haiti meanwhile is contributing to a burgeoning refugee crisis in the Americas and threatens to destabilize democracy in the Caribbean.  Even an isolationist American administration can ignore Haiti for only so long.

Saturday, December 25, 2021

Law student's diligence helps abandoned child reach win in immigration court, pathway to U.S. residency

Belatedly, but aptly for the holiday, with permission of the UMass Law Immigration Clinic and the student, I am proud to share the news that Sebastian Garcia-Holguin contributed vitally to late October court holding allowing an abandoned child to remain in the United States and petition for legal residency.


The UMass Law Immigration Clinic has been overseen for two decades by my friend and colleague, Professor Irene Scharf.  Professor Scharf plans to retire in the upcoming year.  She surely deserves that reward, but the clinic will be the poorer for her absence.  I can scarcely imagine the number of lives in which she and her students have directly effected changed for the better.  Precious few of us in the business of legal education could compete with her record.

[Text of image:]

During Sebastian Garcia-Holguin's spring semester in the clinic, he spent countless hours on a dependency case for a neglected and abandoned immigrant child. He gathered information (interviewing our client) and completed affidavits and other required documents to file with the Probate and Family Court.

Based on his work, the court ruled last week in the child's favor, that she is dependent on the court and that it is in her best interest to remain in the United States.

These findings make our client eligible to file a petition for Special Immigrant Juvenile Status with the U.S. Citizenship and Immigration Service of the Department of Homeland Security that will lead to her legal residence!

This semester, the Clinic continues its work for our client, thanks to Allison Jacome, who has been working with our client to prepare for the next stage of this lengthy application process.

Friday, December 24, 2021

Indigenous people battle extractive industries, government in Constitutional Court of Ecuador

Kichwa representatives appear before the Inter-American Commission on
Human Rights (CIDH) in 2015. (CIDH photo CC BY 2.0.)
A case inching forward in Ecuador's constitutional court pits indigenous people against extractive industries and the government over the fate of the country's vast eastern jungles.

Among the many issues on which President Joe Biden and West Virginia Senator Joe Manchin disagree is the Keystone XL Pipeline Project.

The President blocked Keystone first thing in January 2021. Environmentalists and indigenous peoples' advocates long ardently opposed the project, though as fuel prices rose in recent months, Senator Manchin was among those renewing criticism of the termination.

Meanwhile, an environmental battle implicating extraction and with arguably more precious real estate in contention is playing out in the Constitutional Court of Ecuador.  In mid-November, the court heard the first in a series of oral arguments over a bid by the Kichwa indigenous people in the eastern Sarayaku region to reclaim control of the jungle and repel extractive industries working at the behest of the government.

There are many facets to the Kichwa's struggle.  The government has for decades promoted drilling, mining, and logging in eastern Ecuador, denigrating environment and inflicting injury with the introduction of explosives and toxic run-offs.   Emily Laber-Warren wrote a concise history for Sapiens in April.  The Kichwan spiritual angle is the focus of a short but more recent piece in Ñan. Indigenous people have won cases in the Inter-American Court of Human Rights, as long ago as 2012, and in the the Ecuadorean courts, but not always to any avail with the government.

A compelling aspect of the present dispute in the Ecuadorean courts is that the issues overlap with the environmental disaster left behind at Lago Agrio by Big Oil actor Texaco, later Chevron, memorialized in the 2015 book by Paul Barrett, Law of the Jungle.  The Chevron-Ecuador saga and the related prosecution, critics say persecution, of American attorney Steven Donziger continue to make headlinesI'm still waiting for the Hollywood retellings.

Lago Agrio is 217 km north of Sarayaku; that distance says something about the scope of the slowly unfolding tragedy.  I've assigned Law of the Jungle yet again for my spring 2022 Comparative Law class.  I keep waiting for the story to take some major turn, ideally an environmentally sound one, that renders the Barrett book intolerably outdated.  Yet most of what Barrett wrote about the long jeopardy of eastern Ecuador, and the failure of rule of law within the country to respond, remains true today.

I've not been able to find a dispassionate assessment of the November hearings, but plaintiff-friendly Amazon Frontline (AF) covered the day's events.  As AF observed, the hearing followed just days after the Glasgow climate change agreement was concluded.

Implicated collaterally in the case is the emerging legal theory, "rights of nature."  My friend and colleague Dr. Piotr Szwedo, lead editor of Law and Development and a member of the law faculty at Jagiellonian University in Poland, visited Ecuador this year and is conducting ongoing research into the legal implications of the rights of nature.

Thursday, November 4, 2021

BU journal features Enríquez book on genome editing

Tomorrow, Friday, November 5, beginning at 10 a.m., the Boston University Law Review Online hosts an online symposium on the book, Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science.

The symposium features author Paul Enríquez, a law student of mine once upon a long time ago.  Dr. Enríquez's fascinating book was featured here on The Savory Tort in July. Here is the symposium précis (which is drawn from the book jacket):

History will mark the twenty-first century as the dawn of the age of precise genetic manipulation. Breakthroughs in genome editing are poised to enable humankind to fundamentally transform life on Earth. Those familiar with genome editing understand its potential to revolutionize civilization in ways that surpass the impact of the discovery of electricity and the development of gunpowder, the atomic bomb, or the Internet. Significant questions regarding how society should promote or hinder genome editing loom large in the horizon. And it is up to humans to decide the fate of this powerful technology. Please join the Boston University Law Review Online for a virtual and thought-provoking, interdisciplinary symposium on Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science (... 2021) to discuss the complex legal, scientific, policy, ethical, political, economic, and social issues concerning this emerging technology.

The book is available from Cambridge University Press and popular retailers.

Monday, November 1, 2021

Justices test Harvard property claims, as civil rights attorney pleads passionately for return of slave images


Lanier's story in a 2020 short by Connecticut Public

This morning the Massachusetts Supreme Judicial Court heard oral arguments in the case of Lanier v. Harvard, in which Tamara Lanier seeks to recover daguerreotypes of her enslaved ancestors, father and daughter Renty and Delia Taylor, taken on a South Carolina plantation in 1850.

The case is mostly about property and procedural law, namely, replevin and laches, though counsel for Lanier described the initial possession of the images as tortious conversion.  The images were taken and "used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism," the Center for Art Law explained. "Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation."

Harvard's position depends on a narrow view of the case as a simple question of property ownership.  As the saying goes, "possession is nine tenths of the law."  Harvard bolsters its position with the argument that has become familiar from museums in our age in which returning artifacts to the once colonized, developing world is increasingly common, that the public will benefit from, and the horrors of slavery will be exposed by, public presentation of the daguerreotypes in a scholarly context.

The Lanier family articulates a broader theory of the case.  Civil rights attorney Ben Crump compared the sought-after return of the daguerreotypes to return of the possessions of Japanese families after World War II internment and Jewish families after the Holocaust, the latter including The Woman in Gold

The Lanier side divided its argument between two attorneys.  Crump opened the second half with a powerful statement of what he described as "three historical references" to frame the case from the Lanier perspective.  First, he said:

The fact that I stand before you as a free man and not a slave is a testament to someone's decision to change the course of human history.  It is a testament to our legal system, a testament that was led by the courts here in Massachusetts when Chief Justice William Cushing in 1783 judicially abolished slavery in the Quock Walker case.  And it is the reason why he is so often quoted even 250 years later with ... the idea of slavery as inconsistent with our conduct and our Constitution.

Second, Crump paraphrased Frederick Douglass, that

the genealogical trees of black people do not flourish as a result of slavery.  In essence what he was saying is that what slavery did was destroy the African-American family connection to its ancestral lineage.  But this historical case has the ability not only to recognize such lineage but [to recognize such lineage in] Ms. Linear and her family.

Third, Crump said:

This case presents a case study of Massachusetts's complicated history with slavery.  On one hand it has profited mightily from the cotton trade.  Its most powerful institution, Harvard University, has ties with slavery that date back centuries.  In fact the textile factories that were the largest donors of the university helped to build capitalistic empires on the backs of slave empires.  In fact the institution of Harvard and the institution of slavery were born in this country a mere 17 years apart.  On the other hand, Massachusetts is also the home of John Adams, and it is not lost on me or Ms. Lanier that we are in the John Adams Courthouse.  John Adams said slavery is the great and foul stain upon the North American Union.

Justices Kafker, Wendlandt, and Cypher actively and almost exclusively interrogated the advocates.  Based on the colloquy, the smart money in the case is on Lanier.  Kafker and Wendlandt tied up Harvard advocate Anton Metlitsky mostly in civil procedure.  The justices seemed to be testing out how they might navigate procedural challenges to reach a ruling in Lanier's favor.

The justices did challenge Crump and co-counsel Joshua Koskoff on First Amendment issues.  In an amicus brief in the case, the Massachusetts Newspaper Publishers Association warned against a ruling that would give the subjects of photos an ownership interest in the images, for fear that First Amendment-protected news coverage would be jeopardized.  It's interesting to see that concern raised in this context, because the point also marks division between the United States and Europe over data privacy rights in photographs of persons in public places.

The probing revealed that counsel for Lanier would render the case large or small, depending on their needs.  Taming the case back to mere property dispute, Koskoff called "First Amendment implications" in the case "a strawman."  The First Amendment is not implicated in a case of conversion, he argued, any more than the Second Amendment is implicated when someone is shot and killed.

Justice Kafker challenged Koskoff on whether return of the pictures would make them inaccessible to scholars and, as Harvard contends, thus unable to educate the public in the way that Holocaust images have.  Koskoff stuck to his guns, responding that it was up to Renty and Delia, and thus up to the Lanier family, whether the images would be used for public education.  The ends don't justify the means, he said.

In a related vein, Justice Wendlandt questioned Crump whether the outcome would be the same if the images had been discovered "in a drawer of the Boston Globe."  Crump ducked the question.  "This was a scientific experiment with black people being used as lab rats," he responded potently but inappositely, a "crime against humanity" and a crime under Massachusetts law.

Wendlandt reiterated her question, and still Crump ducked it, arguing that the hypothetical was not the facts of the case.  Wendlandt then restated Crump's response back to him as a "yes," that it makes no difference who claims ownership of the daguerreotypes today.  Crump picked up the thread, arguing analogy to the removal of The Woman in Gold from public display in Austria.

"This court has the ability to finally free Renty and Delia from bondage," Crump concluded.  "We are beseeching this court not to condemn them in death to the property of Harvard for all eternity."

The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (argued Nov. 1, 2021).  Briefs are posted on the docket.  The oral argument will be posted at the Suffolk Law archiveThe Harvard Crimson published a thorough piece on the case in March.  A retired probation officer in Connecticut, Tamara Lanier tells her story at the website of the "Harvard Coalition to Free Renty"; there also is a documentary film by David Grubin.

[UPDATE, Nov. 3:] 

The oral argument is now posted in the Suffolk archive.  Also, Tamara Lanier posted a 15-minute clip of Crump's argument on her YouTube page today (below).

I add that Crump's argument, while quotable, was not as substantively important as Koskoff's.  I rewatched the oral argument today.  It remains clear to me that the justices, at least those who participated in the colloquy, are searching for a way to have Lanier win, but are struggling to find a legal rationale that matches the policy rationale.

In a telling exchange out of the gate, the justices pressed Koskoff for a rationale to convert his theory of tortious conversion in 1850, a premise the justices seemed willing to accept, into a property right in 2021.  Koskoff responded by describing tort law as an umbrella and property law within it, reasoning that a tortfeasor is not allowed to keep the proceeds of a tort.

I find the reasoning sound, notwithstanding the doctrine of laches, but I'm not sure the semantics and metaphor were quite right.  I have never understood tort law to dictate the outcome Koskoff describes; rather, I regard the proceeds of a tort as forfeit in equity.  Well recognizing how easy it is to Monday morning quarterback, I wonder that Koskoff might have prepared a better argument grounded in equity rather than tort law.

Anyway, it will take some legal gymnastics for the court to reach the result that at least three justices seemed to desire.

Wednesday, October 27, 2021

In parting meditation on pub gossip, Czech judge peels onion on privacy limits, judicial transparency

Does GDPR pertain to pub buzz?, AG Bobek asks.
Earlier this month, Czech judge and legal scholar Michal Bobek rounded out a six-year term as an Advocate General (AG) of the European Court of Justice with a mind-bending meditation on the ultimate futility of enforcing data protection law as written and a confirmation of the essentiality of transparency in the courts.

The case on which Bobek opined hardly required a deep dive.  He said so: "This case is like an onion," he wrote.  "I believe that it would be possible, and in the context of the present case entirely justified, to remain at that outer layer.   No peeling of onions unless expressly asked for."

But the case provided Bobek an optimal diving board, and, on the penultimate day of his term as AG, he plunged and peeled.

Complainants in the case were litigants before the Dutch Council of State (Raad van State).  They asserted that disclosure to a journalist of summary case information, from which they could be identified and details of their personal lives worked out, violated their right of privacy under the General Data Protection Regulation (GDPR) of the European Union, as transposed into Dutch law.

The disclosures are permissible under a GDPR exemption for judicial activities, Bobek concluded.  But en route to that conclusion, he further opined that the potentially unbridled scope of the GDPR must be tamed to accord with social norms and democratic imperatives.

With remarkably plain reasoning, he framed the problem in a comfortable venue:

If I go to a pub one evening, and I share with four of my friends around the table in a public place (thus unlikely to satisfy the private or household activity exception of ... the GDPR) a rather unflattering remark about my neighbour that contains his personal data, which I just received by email (thus by automated means and/or is part of my filing system), do I become the controller of those data, and do all the (rather heavy) obligations of the GDPR suddenly become applicable to me? Since my neighbour never provided consent to that processing (disclosure by transmission), and since gossip is unlikely ever to feature amongst the legitimate grounds listed in ... the GDPR, I am bound to breach a number of provisions of the GDPR by that disclosure, including most rights of the data subject contained in Chapter III.

The pub might not be the only place where the GDPR runs up against a rule of reason.  Consider the more nuanced problem of footballers considering a challenge against the processing of their performance stats.  Goodness; the pub convo will turn inevitably to football.

Let's step back for a second and take stock of the GDPR from the perspective of the American street.

Americans don't get many wins anymore.  We just retreated from a chaotic Afghanistan, despite our fabulously expensive military.  We resist socialized healthcare, but we make cancer patients finance their treatments on Go Fund Me.  We force families into lifelong debt to pay for education, undermining the social mobility it's supposed to provide.  We afford workers zero vacation days and look the other way from the exploitation of gig labor.  Our men's soccer team failed to qualify for the last World Cup and Olympics, while we're not sure why our women are rock stars; it can't be because we pay them fairly.  When it comes to personal privacy, we tend to want it, but our elected representatives seem eager to cede it to our corporate overlords.

Truth be confessed, then, Americans are willing to engage in a smidge of schadenfreude when Europeans—with their peace, their healthcare, their cheap college, their Ryanair Mediterranean vacations, their world-class football, and their g—d— G—D—P—R—get themselves tied up in regulatory knots over something like the sufficient size of a banana.  Ha.  Ha.

Therein lies the appeal, to me, of Judge Bobek's train of thought.  He finds inevitable the conclusion that posting case information is data processing within the purview of the GDPR.  The parties did not even dispute that.  For today, Bobek found an out through the GDPR exemption for the business of the courts in their "judicial capacity."

The out required a stretch to accommodate posting information for journalists, which is not, most strictly speaking, a judicial capacity.  Bobek reasoned by syllogism:  For the courts to do what they do, to act in the judicial capacity, they require judicial independence.  Judicial independence is maintained by ensuring public confidence in the judiciary.  Public confidence in the judiciary is bolstered by transparency in the courts.  Transparency in the courts is facilitated by the provision of case information to journalists.  Therefore, the judicial capacity requires publication of case information to journalists.

The problem, tomorrow, is that there is no answer in the case of pub gossip.  Bobek meditated on the human condition: "Humans are social creatures.  Most of our interactions involve the sharing of some sort of information, often at times with other humans. Should any and virtually every exchange of such information be subject to the GDPR?"

Bobek
Can't be, he concluded.

[I]n my view, I suspect that either the Court, or for that matter the EU legislature, might be obliged to revisit the scope of the GDPR one day. The current approach is gradually transforming the GDPR into one of the most de facto disregarded legislative frameworks under EU law. That state of affairs is not necessarily intentional. It is rather the natural by-product of the GDPR's application overreach, which in turn leads to a number of individuals being simply in blissful ignorance of the fact that their activities are also subject to the GDPR. While it might certainly be possible that such protection of personal data is still able to "serve mankind," I am quite confident that being ignored as a result of being unreasonable does not in fact serve well or even contribute to the authority or legitimacy of any law, including the GDPR.

While we await reassessment of the bounds of data privacy law in modern society, Bobek opined more and mightily on the importance of judicial transparency as a countervailing norm.  He opened the opinion with philosopher-jurist Jeremy Bentham:

"Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against impropriety.… It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order, where the most important branches of morality are enforced...."

Bobek later picked up the theme:

Judging means individualised detail brought to the public forum....

On the one hand, the basis for judicial legitimacy in an individual case are its facts and details. The judge settles an individual case. His or her job is not to draft abstract, general, and anonymous rules detached from individual facts and situations. That is the job of a legislature. The more a judicial decision departs from or hides the factual background to a public court case, or if it is later reported with significant limitations, the more often it becomes incomprehensible, and the less legitimate it becomes as a judicial decision.

On the other hand, ever since the Roman age, but presumably already earlier, if a claimant asked for the help of the community or later the State to have his claim upheld and enforced by the State, he was obliged to step into the public forum and let his case be heard there. In classical Roman times, the applicant was even entitled to use violence against the respondent who refused to appear in the public (the North Eastern part of the Roman Forum called comitium), before the magistrate (seated on a rolling chair on a tribune higher than the general public—hence indeed tribunal), when called before a court (in ius vocatione).

It is true that, later on, there were other visions of the proper administration of justice and its publicity. They are perhaps best captured by a quote from a judge in the Parlement de Paris writing in 1336 instructions to his junior colleagues, and explaining why they should never disclose either the facts found or the grounds for their decision: "For it is not good that anyone be able to judge concerning the contents of a decree or say 'it is similar or not'; but garrulous strangers should be left in the dark and their mouths closed, so that prejudice should not be caused to others.... For no one should know the secrets of the highest court, which has no superior except God...."

In the modern age, returning to the opening quote of Jeremy Bentham, it is again believed that even garrulous strangers should be allowed to see and understand justice. Certainly, with the arrival of modern technologies, a number of issues must continuously be re-evaluated so that garrulous strangers cannot cause prejudice to others....

Naturally, the publicity of justice is not absolute. There are well-grounded and necessary exceptions. The simple point to keep in mind here is: what is the rule and what is the exception. Publicity and openness must remain the rule, to which naturally exceptions are possible and sometimes necessary. However, unless the GDPR were to be understood as imposing a revival of the best practices of the Parlement de Paris of the 14th century, or other elements of the Ancien Régime or the Star Chamber(s) for that matter, it is rather difficult to explain why, in the name of the protection of personal data, that relationship must now be reversed: secrecy and anonymity were to become the rule, to which openness could perhaps occasionally become the welcome exception.

Bobek seems content with judicial exceptionalism in the GDPR framework.  I'm not so sure.  I rather think the problem of the courts points to the broader problem of GDPR scope.  Will there ultimately be a pub exception, too?  Stubborn American insistence on framing data protection as business regulation, as in California data protection law, suddenly exhibits some appeal.

The case is X v. Autoriteit Persoonsgegevens, No. C-245/20, Opinion of Advocate General Bobek (Oct. 6, 2021).  HT @ Edward Machin, writing in London for Ropes & Gray.

This is not Bobek's first high-profile opinion on the GDPR—even this year.  Read in Fortune about his January opinion in a Facebook case.

Tuesday, October 26, 2021

State constitutional law offers untapped potential to bolster advocacy in freedom of information

The Vermont Supreme Court relied on the 1777 Vermont
Constitution, as amended in 1786, to support access to
information under the public records act (PRA, or FOIA)
in 2021.
In the summer, two third-year law students published in the Journal of Civic Information a superb investigation highlighting the untapped potential of state constitutional law as a tool in access advocacy in the United States.

Among the many ways in which the U.S. Constitution shows its age is its lack of a right of access to information (ATI). ATI has become a recognized human rights norm in modern constitutions and regional instruments around the world, while the concept in U.S. federal law remains relegated to statute: the Freedom of Information Act (FOIA), which once was landmark yet today suffers from significant dysfunction. For my own part, I have examined the significance of  this divergence relative to the problem of privatization in the U.S. FOIA and the South African Promotion of Access to Public Information Act (PAIA).  I spoke last month to the U.S. FOIA Advisory Committee re same (HT).

The constitutional lag is not characteristic of all U.S. states.  By the count of University of Florida Levin College of Law students Jessica Terkovich and Aryeh Frank, ATI is recognized in the constitutions of seven states: California, Florida, Illinois, Louisiana, Montana, New Hampshire, and North Dakota.  In their article, Terkovich and Frank examined case law in these states to see how the constitutional provisions are implicated.

The researchers found that the constitutional provisions were not realizing outcomes in ATI litigation in these states all that different from outcomes that might be reached under the states' statutory expressions of ATI.  Rather than concluding that the constitutional provisions are inconsequential, however, Terkovich and Frank concluded from the evidence that constitutional ATI is under-used as a source of law to bolster access advocacy.

Their reasoning resonates with me.  When I was a newly hatched academic in the 1990s, I was enchanted by an examination copy of a casebook on state constitutional law.  (Lexis and West have current offerings.)  I was never able to swing the course offering, but the subject informed my teaching and research.  Accordingly, I've always encouraged students to consider state constitutional approaches to legal problems.

Often, state high courts recite by rote the default position that they interpret state constitutional rights as merely co-extensive with federal rights; the pairings are construed in pari materia.  The proposition that the free-press-and-speech provision of Article XVI of the Massachusetts Declaration of Rights is co-extensive with the First Amendment to the U.S. Constitution was reiterated recently in the scrap over a Boston flagpole now bound for the U.S. Supreme Court.

Courts might reflexively choose the easier path, shrugging off the burden of state constitutional interpretation.  But they can readily embrace state constitutionalism when it suits their needs.  The Supreme Court of Arkansas long construed the 1874 state constitutional guarantee against unreasonable search and seizure in pari materia with the federal Fourth Amendment.  Until they didn't.  When the U.S. Supreme Court bounced back a state high court disposition as erroneous under the Fourth Amendment, the nonetheless jurisprudentially conservative Arkansas court, in 2002, suddenly discovered distinct meaning in the state constitution to support its earlier conclusion in the defendant's favor.

That result could not have happened if criminal defense lawyer John Wesley Hall had not made the argument.  And that possibility, that the state constitution could mark the difference between liberty and imprisonment, was exactly why Hall included the Hail Mary claim despite longstanding precedent on the in pari materia approach, he once told me.

The potential for potency in a state constitutional claim is all the greater when the right at issue is expressed in the state constitution, but not in the federal Constitution, as is the case for ATI.  And the potential is not limited to the seven states that Terkovich and Frank analyzed.  Just in September, the Vermont Supreme Court extended its ATI law, the Public Records Act (PRA), to shine sunlight on the records of a private contractor responsible for healthcare in state prisons.

Vermont is not on Terkovich and Frank's list of seven.  Nevertheless, in Human Rights Defense Center v. Correct Care Solutions LLC, the Vermont Supreme Court relied on exhortative language—previously held unenforceable by private cause of action—dating to 1786 in the state declaration of rights: "That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them."

The article is Jessica Terkovich and Aryeh Frank, Constitutionalizing Access: How Courts Weigh State Constitutional Claims in Open-Government Litigation, 3(1) J. Civic Info. 1 (2021).

Monday, October 25, 2021

Incarcerated persons have access to information in Massachusetts law, court confirms, but not in all states

Image by Ichigo121212 from Pixabay
A man imprisoned for murder has a right of access to public records no less than anyone else, the Massachusetts Appeals Court held in the summer.

Nine years ago, Adam Bradley was co-perpetrator of a home invasion in Billerica, Massachusetts, northwest of Boston, in which 22-year-old resident Quintin Koehler was shot and killed.  The crime was tied to the Bloods gang, according to The Boston Globe.  In 2017, at age 32, Bradley was convicted of first-degree murder and sentenced to a life term.

Lately, Bradley has used the Massachusetts Public Records Law (PRL, or FOIA) to investigate his conviction by requesting police records.  He alleged in a lawsuit that the State Police records access officer (RAO) failed to respond to multiple PRL requests.

In court, the RAO resisted production under the PRL on two grounds, (1) the ongoing investigation exemption of the PRL and (2) the parallel availability of records to Bradley in criminal discovery.

The Appeals Court soundly rejected both state arguments.  On the first ground, RAO overreached by declaring the entirety of the case file within the investigation exemption.  On the second ground, the PRL operates independently of parallel access in criminal process, the court held.  The RAO anyway owed Bradley a response asserting grounds for non-production.  The state public record supervisor twice ordered the RAO to respond.

The court holding accords with state freedom-of-information norms; the most noteworthy point of the case is that an appeal was required.  As in other states' FOIA exemptions for ongoing investigations, the Massachusetts PRL requires record-by-record review, redaction for partial production when possible, and, if necessary, in camera inspection by the trial court in a legal challenge.

The problem of parallel access is somewhat more vexing, though still should not have confounded the RAO.  Some states expressly exclude active litigants from FOIA uses that might subvert judicial procedure.  But such exclusions, which are far from universal, typically do not bar post-conviction access in criminal matters, even with ongoing appeals.  The RAO in the instant case relied on regulatory language that faintly suggested discovery exclusivity, and the court properly dispelled that theory.

Parallel access questions are thornier when there are state regulatory mechanisms in play that arguably supersede state FOIA as a matter of legislative intent, especially in the area of business regulation.  For example, a statutory framework for state contracting might regulate disclosure and non-disclosure of records maintained by the contractor or submitted to the state, arguably superseding FOIA access.  Even then, the rule of statutory construction that FOIA access is to be construed liberally and FOIA exemptions to be construed narrowly usually makes FOIA a trump card.  Bradley's case presented no such wrinkle.

The case is noteworthy also for a rule that is not at play.  Massachusetts is not one of the states that has limited or simply disallowed FOIA use by prisoners.

The Arkansas Department of Corrections (DOC) lobbied successfully for an amendment to the Arkansas FOIA in 2003 to exclude incarcerated felons from the state definition of "citizen."  Access advocates, including me, managed at that time to negotiate the exclusion down to only DOC records and pro se requests, allowing attorney-representatives to make requests.  Eight years later, the exemption was amended to eliminate the DOC limitation.

It was difficult to advocate for prisoner access.  Incarcerated felons are not a popular constituency and don't vote.  And to be fair to state officials, many dilatory and hardly comprehensible requests emanate from prisons and tie up public resources with no clear public benefit.  At the same time, of course, persons deprived of liberty are susceptible to human rights abuses for which accountability is notoriously elusive.  Michigan public radio in 2016 explored the problem of prisoner civil rights in the absence of access to information in that state's law.

The Massachusetts case is Bradley v. Records Access Officer, No. 20-P-419 (Mass. App. Ct. 2021).  Justice Gregory I. Massing authored the opinion for a unanimous panel also comprising Justices Henry and Ditkoff.  Before appointment to the bench in 2014, Justice Massing served as executive director of the Rappaport Center for Law and Public Service, and previously as general counsel for the state's Executive Office of Public Safety and Security.

Monday, October 18, 2021

Accidental deaths on nonpublic stairways threaten public transit with tort liability in London, Boston

Canning Town Station in 2020
(photo by Ewan Munro CC BY-SA 2.0)
An English court last week exonerated the London Underground of liability in the death of a trespasser who fell down fire-escape stairs; meanwhile, in New England, investigation continues into the death of a Boston professor who fell from disused stairs in the Massachusetts Bay Transportation Authority (MBTA) system.

The facts of the cases differ, but both point to the obligation of aging transit systems to secure their physical infrastructure, even against risks to trespassers.

Bernard Ovu, a 35-year-old IT specialist for the UK Bar Council, fell, hit his head, and died in 2017.  On a meandering journey on a bitter-cold night, Ovu was returning home from a wedding; a post mortem test reported his blood-alcohol level at 0.176%.  At about 2 a.m. at the Canning Town Station, Ovu went through an emergency exit door, where an emergency stair led to a second door to the street.  Surveillance showed that Ovu reached the street-level exit door, but, for unknown reasons, did not push it open.

An image in the Ovu opinion depicts Canning Town Station.
The triangle marks the platform exit; the square marks street
access. Ovu fell at the circle.

Meanwhile, responding to a silent alarm, an Underground worker had secured the platform-level door.  Evidence showed that Underground policy required workers to sweep the area before re-securing the door, but no sweep was done.  Underground officials knew the emergency way was accessed occasionally, especially in late-night hours, by persons seeking to urinate or vomit.  Ovu could not reenter the platform and apparently believed himself trapped.  Seeking another exit, he fell on the stairs at 2:49 a.m. and died, possibly as a result of the combination of his injuries, intoxication, and the below-freezing temperature.

A professor in the Boston University School of Public Health, David K. Jones also was in a place where he should not have been.  The 40-year-old was out for a Saturday morning run in September when he took a staircase down from an overpass near the JFK Station.  The staircase was rusted and missing six steps: a gap through which Jones fell 20 feet to his death.  The staircase had been closed for 20 months and was fenced off at top and bottom; it is unknown how or why Jones entered it.  The MBTA removed the stairway days after the accident.

With investigation continuing in the Jones accident, the MBTA system has since suffered a bloody escalator accident and a pedestrian near-miss with debris falling from a stairway.  Commentators have thus linked the state of the transit system with the national debate over infrastructure financing.

The court in the Ovu matter ruled that Ovu was a trespasser in the emergency way and that the Underground had conducted itself reasonably relative to that status.  Despite the Underground's derogation of policy, Ovu had arrived in his predicament through his own misfeasance, and he was not in fact trapped.  It remains unclear whether Jones knowingly passed through secure fencing; if he did, then he was a trespasser on the rusty stairway from which he fell.  If that was the case, then Massachusetts law would not preclude liability, but would afford less latitude to a plaintiff than UK law.

Historically, common law was unforgiving of trespass.  The web of rules that evolved for the problem of landowner liability for dangerous conditions varied the liability rule depending on the status of the injured person.  At its simplest, distinctions were drawn in the three categories of public invitees, social guests ("licensees"), and trespassers.  The latter were owed little in the way of landowner duty, at most to refrain from the intentional or reckless infliction of harm.

Common law complexity has gradually given way to a unitary "reasonableness" standard, under which the status of the plaintiff is referred to the jury as a circumstance for its consideration.  When the Washington Supreme Court chose to retain the common law framework in 1986, it observed that only nine states had moved to the unitary standard—as well as England, by statute.  Today, half of states have adopted the unitary standard, and it is favored by the Third Restatement of Torts.

But among unitary-standard states, trespassers are not necessarily incorporated, reflecting a continuing vitality in their common law disfavor.  States, including Massachusetts, exclude trespassers from the unitary standard by a ratio better than two to one.  After some wrangling in the case law, the UK by statute incorporated trespassers into the unitary standard.

Thus, Ovu, even as a trespasser, was owed a duty of reasonable care.  A Massachusetts trespasser can prevail only upon proof of reckless or intentional wrongdoing.  If the estate and family of Jones seek liability from the MBTA, they will be far better off if the investigation uncovers a defect in how the stairway was secured.  If Jones made an innocent mistake of fact, then plaintiffs might hope to challenge his status as a trespasser and move him to within the unitary reasonableness standard.  That uncertainty might explain why there has not yet been report of a lawsuit in the Jones matter, while the Sept. 26 escalator accident yielded a suit by the first of October.

It happens that the Massachusetts Appeals Court heard a case about just such a mistake of fact in 2016.  In Bernier v. Smitty's Sports Pub, Inc., a pub patron in his 70s, Ronald Leger, was killed when he fell down a dark basement stairwell with uneven steps.  Leger mistook a door marked "Employees Only" for the entrance to the men's room.  He had been drinking, but had been to the pub and used the restroom before.  The door usually was locked, and there was no evidence that a patron had made the same mistake before.

The trial court in Bernier ruled Leger not a trespasser.  The adequacy of the marking on the unlocked door, at the pertinent time at which Leger stood before it, was incorporated into the question of negligence for the jury's consideration.  The jury awarded the plaintiffs 80% recovery after reduction for Leger's own negligence in making the mistake.

On appeal, the court affirmed.  The status of a visitor on land, trespasser or otherwise, was properly a question of law for the trial court, the Appeals Court opined.  The jury verdict was sufficiently supported by the evidence.  One could imagine a similar analysis in the Jones matter.

The English case is Ovu v. London Underground (Q.B. Oct. 13, 2021).  Master Victoria McCloud authored the opinion.  HT @ Gordon Exall, Civil Litigation Brief, via Private Law TheoryWells, Anderson, & Race, LLC, Denver, Colo., prepared a 50-state survey of landowner liability regimes in the United States in 2015 for the National Association of Minority & Women Owned Law Firms.

Thursday, October 7, 2021

RIP Russ Kick, eccentric FOIA champion

With images obtained under the federal FOIA, Russ Kick's "Memory Hole"
catalyzed conversation on the Iraq war. Now archived at the Library of Congress.
The transparency community lost an eccentric hero in September: Russ Kick died at his home in Tucson, Arizona, at age 52.

Kick's passing has been reported in many forums, and he was well remembered by The Washington Post and Seven Stories Press last week.  Nevertheless, I feel bound to add my own recognition of the loss.  A self-described "rogue transparency activist," Kick was a legend in the access community.  I knew him only through email exchanges.  I remember him as consistently eager and obliging at the prospect of rallying a recruit to any one of his many causes.

I'm sorry that the Post obit, by Harrison Smith, is paywalled, because it's a thorough and deserved tribute to a remarkable person who embodied the term "citizen-activist" long before it was fashionable.  Kick was a "FOIA frequent flier" who used the "spear" of access law, as Senator Patrick Leahy recently described the federal FOIA, to investigate the many causes that stirred him, from chemical warfare to animal welfare.

Kick had some real wins, too.  His 2004 publication of photos of coffins returning from the Iraq war stimulated vital public discussions about access, privacy, and, of course most importantly, the war itself.  The Defense Department said the photos were released mistakenly.  Vibrant discussions in my FOI class were fueled by those photos and by other content that Kick collected at his Memory Hole website (archived).  Kick's many and varied collection of FOIA prizes persists, for the time being, at The Memory Hole 2 and its "sister site," AltGov2.

Kick edited "The Graphic Canon."
I don't want to be too narrow in my recollection, nor to whitewash Kick's sometimes bawdy tastes and conspiracy-minded inclinations.  His eclectic libraries of content rescued from digital deletion ranged beyond government records to, as the Post summarized, "classic literature, erotica, food and ancient meditation practices."  His literary talents generated a bibliography of the intriguing and bizarre, including a "disinformation" series that touted conspiratorial revelations on governments and sex.  Meanwhile, he edited stunningly artful representations of classic literature in graphic novelizations.

It would be easy to write off Russ Kick as a quaint sort of crackpot.  The Post quoted Kick aptly describing himself: "'I can't focus completely on any one thing for too long,' he wrote in an online biography. 'My personal brand is a mess.'"

Yet with such volume of productivity in so many veins, with real impact that moved the needle to put the demos back into democracy, there was undeniably genius in the madness.  Russ Kick left the world better off than he found it for what he contributed.  Any of us should be so blessed to have the same said of us when we're gone.

Tuesday, October 5, 2021

Unregulated, 'Dark Waters' chemicals persist in cookware, clothing, sickening people, environment

Comedian and social critic John Oliver's latest top story on HBO's Last Night concerned PFAS, the artificial chemical substances behind non-stick coatings on cookware and incorporated into food wrappings and textiles, known to be highly dangerous to human health.


The stuff persists, Oliver explained, in new, unregulated, and unlabeled formulations, despite a horrific track record of illness, from obesity to terminal cancer, and environmental damage.  Oliver related recent history by quoting parts of the landmark New York Times Magazine feature by Nathaniel Rich in 2016, "The Lawyer Who Became Dupont's Worst Nightmare."  That piece inspired the unsettling 2019 feature film Dark Waters.  Oliver also excerpted a 2018 documentary, The Devil We Know.

PFAS, a "forever chemical" that persists in the environment for thousands of years, is now in the blood of virtually all Americans.  Food wrappings and clothing are our greatest risk, Oliver explained, and there is no labeling to warn us.

I just caught this on a spot-check. Adiós, sartén.
In my household, since Dark Waters brought the issue to our attention, we've exclusively adopted silicone tools to use with non-stick-coated cookware.  And at the first sign of scratching, out goes the pan or pot: a pricey luxury we are lucky to be able to afford, while we only worsen the environmental problem.  We have lately been investigating non-stick alternatives, and Oliver has ignited the gas burner under us to get moving on that.

PFAS is in the water supply, too, sometimes in alarming doses, 70 parts per trillion (ppt) being the EPA's recommended maximum concentration in drinking water.  Oliver pointed viewers to a "PFAS Contamination" interactive map created by the NGO Environmental Working Group.  The map is intriguing and informative to play around with, as it compiles water quality data from around the country.

But the most frightening takeaway from the map is the data it does not contain.  Data collection is hit or miss.  The closest results to me in East Bay Rhode Island come from a small school serving only 40 persons (4 ppt), a Massachusetts water district serving 13,627 persons (20 ppt), and the Pawtucket (R.I.) water system, serving 99,200 persons and reporting a PFAS excess at 74 ppt.

My local water authority, Bristol County (BCWA), says my water rather comes from Providence, which is not on the EWG data map, and where water quality reports appear to be missing.  It further undermines my confidence in the system that BCWA has been wanting to build a pipeline to Pawtucket, which offers, BCWA says, "another source of excellent quality water."

At last, Europe is moving ahead with regulation; I hope that will spur the United States to follow suit.

[UPDATE, 17 Oct. 2021:  Providence Water sent me a copy of the 2020 Water Quality Report in the mail. As anticipated by Oliver, there is no mention in the report of PFAS.]