If you think of your personal computer as almost an extension of yourself, a recent federal court ruling in Colorado sounds a little disturbing. The court has ordered that a woman decrypt files on her laptop so they can be used by prosecutors against her. The woman, who is being tried for mortgage fraud, argued that this is a violation of her Fifth Amendment right to keep from testifying against herself, but the court sees the matter differently. Timothy Lee at Ars Technica’s explanation of the problem gets to the heart of it:
In previous cases, judges have drawn a distinction between forcing a defendant to reveal her password and forcing her to decrypt encrypted data without disclosing the password. The courts have held that the former forces the defendant to reveal the contents of her mind, which raises Fifth Amendment issues. But Judge Robert Blackburn has now ruled that forcing a defendant to decrypt a laptop so that its contents can be inspected is little different from producing any other kind of document.
For some, being forced to decrypt your computer and handing over your password to investigators so they can decrypt it might not seem that different—what’s hidden by your password might well feel as much a part of your mind as your password. But when you think about the precedent a ruling in the other direction might set, things get cloudier. The Department of Justice argues that if encryption is all that’s required to keep documents out of the hands of the courts, then potential child pornographers, drug smugglers, and others can refuse to hand over evidence on the grounds that it’s encrypted. Hmmm.
Another case from this week that shows the difficulty of aligning the modern sense of privacy with the law. The Supreme Court ruled that sticking a GPS device on a suspect’s car to track his whereabouts, without a warrant, is unconstitutional. But the court was divided as to why, on a very important point.
If a vaccine injures a child, should the parents be allowed to sue in state court? That’s a question lawyers, vaccine makers, parents, and Congress have wrestled over for a quarter century. This week, the United States Supreme Court brought forth a ruling that keeps the status quo: No, you can’t.
The justices, voting 6-2, said a 1986 federal law preempts claims that a drugmaker should have sold a safer formulation of a vaccine. The law, designed to encourage vaccine production by limiting patient suits, channels most complaints into a company- financed no-fault system that offers limited but guaranteed payments for injuries shown to be caused by a product. [Bloomberg]
The case in question, which has been kicking around for nearly two decades, was brought by Russell and Robalee Bruesewitz on behalf of their daughter, Hannah. In 1992 she began experiencing seizures after receiving a diphtheria, pertussis and tetanus shot made by Wyeth [part of Pfizer]. At the time, her parents tried to file a claim with that government-created system.
When a special Vaccine Court within the Court of Federal Claims ruled that her injuries couldn’t be linked with the vaccine, her parents tried to move the case to Pennsylvania state court. The Third Circuit Court of Appeals eventually ruled that the claim was pre-empted by federal law, a decision upheld by the Supreme Court. [Wall Street Journal]
Yesterday, the Supreme Court agreed to hear what could be the most important environmental case it will decide this year: Huge power companies like Xcel Energy and Duke Energy are appealing a ruling by an appeals court that they can be sued under public nuisance law. If that ruling is confirmed at the highest level, it could open the door to a flood of lawsuits claiming the power companies’ greenhouse gas emissions constitute a nuisance to the general public.
This one has been a long time coming. The case, brought by eight states including New York and California plus some environmental groups, dates back to 2004. First a federal judge threw out the states’ claim, essentially saying that emissions should be dealt with in legislative bodies, not courtrooms. Then the appeals court reversed that ruling, recognizing the eight states’ claim that these emissions contribute to global warming and could be considered under public nuisance law, prompting the power companies to balk and appeal.
In their appeal, the companies argue that the states lacked the legal right, or standing, to sue because they can’t show that they were harmed by anything the utilities did or that they would benefit from a ruling against the power companies. “A court is not a regulator and may not enter relief against a particular defendant where the plaintiff’s injury is not traceable to that defendant and where relief against the defendant would not redress that injury,” the companies argued. [Bloomberg]
Today, video games have their day in court. The Supreme Court is going to hear arguments of a California law meant to restrict the sale of extremely violent video games to minors, and to punish those who do so by fine.
A 2005 California law prohibits selling or renting such games to minors based on legislative findings that they stimulate “feelings of aggression,” reduce “activity in the frontal lobes of the brain” and promote “violent antisocial or aggressive behavior.” The law never took effect because lower courts found it violated free-expression rights. In a 2009 ruling, a federal appeals court in San Francisco said the state provided no credible research showing that playing violent videogames harmed minors, and found the law was an unconstitutional effort “to control a minor’s thoughts.” [Wall Street Journal]
Despite the fact that this law was stuck down multiple times and so never went into effect—and the fact that the Supreme Court declined to hear related First Amendment cases—the court accepted this one.
The nation’s political focus this week is on the plodding confirmation hearings for Elena Kagan to become a Supreme Court justice. But if you need a break from choreographed political spectacle, it’s a good time to remember that the man she would replace, Justice John Paul Stevens, casts a long shadow over science and tech.
Ars Technica revisits Justice Stevens’ legacy—he was a onetime Navy cryptographer who helped Internet freedom by ruling against parts of the Communications Decency Act and opposing software patents. And if you still have drawers full of Star Trek: The Next Generation episodes you taped off TV, you have Stevens’ decision in Sony v. Universal to thank for that (as well as setting the precedent that stopped the music industry from suppressing mp3 players).
In that 1984 case, the Supreme Court came just one vote short of banning the Betamax VCR on the grounds that taping television shows off the air was an infringement of copyright. Justice Stevens wrote for a 5-4 majority that “time shifting”—the practice of recording shows for later viewing—was a fair use under copyright law. Stevens concluded that manufacturers were not liable for their customers’ infringement if their devices were capable of “substantial non-infringing use.” He noted that Congress was free to amend copyright law to give Hollywood control over VCR technology, but concluded that the courts shouldn’t do so unilaterally [Ars Technica].
You, sir, shall be missed.
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Image: Library of Congress