Category Archives: Law

Chicago’s Leadership Role in Suburban America

I just started what is so far an excellent book by Elaine Lewinnek,  an associate professor of American Studies at California State University, Fullerton. The book is called “The Working Man’s Reward,” and I wanted to plug it here. It grabbed me from the introduction, which proclaims that “Chicago’s first product was real estate.” She promises to examine how the dream of homeownership—heavily shaped in many ways by people and events in Chicago—has affected the urban and suburban landscape throughout America.

Lewinnek nicely summarizes some of her ideas at the end of the book’s introduction:

[R]eal estate is a particularly interesting product, offering to produce further profits while providing shelter, class status, community, access to jobs, and investment equity. Real estate decisions can affect health, educational opportunities, physical mobility, and ultimately class mobility. Real estate matters, so much so that riots erupted over it. [See Lewinnek’s blog post about Chicago’s 1919 race riots tied to property values.] As Chicagoans sorted out what a modern city would look like—through land speculation, boosterism, two riots, and many barely conscious, often-constrained choices—they developed a city form that affects the sprawling and often racially divided spaces that all Americans have inherited.

I’m eager to dig into many parts of this book, but one that stands out at the outset is its study of how innovative local initiatives often quickly spread to other municipalities—an idea I’ve written about before. Whet Moser, interviewing Lewinnek for Chicago Magazine, paraphrased her thesis as being about how Chicago “invented” the suburbs. In that interview, she describes how some of the first zoning laws were “fire limits” that came out of the great Chicago fire. The new building rules forbade wooden houses in the city, and that forced workers to live further from their places of work. Usefully, she “reject[s] monocausal explanations” for why the Chicago model spread, arguing that it was a complex combination of different social and political forces at work at the time. She also sees lessons for the future from her study, as summarized in this part of her interview with Moser:

At the end of the book, you argue that learning from this past is a way of preparing for the future. What did you learn in researching the book that you think we should learn from?

The things that people developed on their own—the real struggles to own humble, small houses, were things that they clung to. With the institutionalization of public housing, the small houses were bulldozed and people were put into huge towers that didn’t end up being good places to live. Now we’re going back to public housing that looks more suburban, more dispersed. Part of what working-class Chicagoans invented in the late 19th century and the early 20th century is some of what we might be coming full circle to.

And some of those possibilities, too, of living in diverse spaces; being conscious of the whole range of suburbs. To me those are kind of exciting possibilities.

Lewinnek blogs at Elaine’s Blog.

Local Government as a Threat?

Earlier this month, Franklin Foer argued in The New Republic that “The Greatest Threat to Our Liberty Is Local Governments Run Amok.” It seems that the main purpose of the article is to use Ferguson as a means to challenge the idea of modern libertarian politicians that some matters of governance are best left to local governments. The problem is that the article overlooks a lot.

I want to very briefly call out one of those things: The article’s conflation of state and local governments. As I recently explained in an essay for The Urban Lawyer, states and municipalities maintain drastically different roles in our system of government. Not that these two levels of government can’t work to solve the same problems: ours is a system of polyphony. But it is a mistake to equate the legal authority of the state with that of the city.

New Edition of The Urban Lawyer

The Spring Edition of The Urban Lawyer is up on the ABA’s page for the Section of State and Local Government. My article, Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties, is part this edition. It is also available on SSRN.

Here’s a list of the other articles in this edition, with links to SSRN versions:

The Benefits of Cities Using LEDs for Street Lighting

Ucilia Wong has a great piece up online today at Forbes about cities adopting LEDs for street lighting. They are more expensive, but last longer and more energy efficient, especially since they can be controlled digitally to dim when appropriate. LEDs also decrease light pollution, as Wong demonstrates with some interesting before-and-after pictures.

Near the end, Wong makes this interesting observation:

For all of LEDs’ energy savings and anti-light-pollution potential, their real promise may be in hastening the arrival of the smart grid. Forward-thinking cities are using retrofit programs to turn lamp housings into intelligent hubs with microprocessors, cameras, sensors and wireless radios. Streetlights can feed the system with information about traffic, weather, air quality, sudden noises and unexpected crowds.

It looks as if LEDs will be a key component of the data-driven cities of tomorrow.

Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties

I have a new paper out this week in The Urban Lawyer.  It is an essay that touches on many of the things discussed on this blog over the past few years. It can be downloaded on SSRN. Here’s the abstract:

Cities possess a far greater ability to be trailblazers on a national scale than local officials may imagine. Realizing this, city advocates continue to call for renewed recognition by state and federal officials of the benefits of creative local problem-solving. The goal is admirable but warrants caution. The key to successful local initiatives lies not in woolgathering about cooperation with other levels of government but in identifying potential conflicts and using hard work and political savvy to build constituencies and head off objections. To demonstrate that point, this Article examines the legal status of local governments and recent efforts to regulate vacant property through land banking and registration ordinances.

Rosemond v. United States & technology providers

Yesterday, the Supreme Court issued its decision in Rosemond v. United States, which addresses the culpability of a man who was charged with aiding and abetting another person’s use of a gun in relation to a drug offense.  The court decided that he is liable if he knew ahead of time that one of the people he drove to a drug deal with had brought a gun.

In reaching that result, Justice Kagan, writing for the majority, re-addressed some fundamental principles of aiding and abetting law (Rory Little at SCOTUSblog calls the decision “a primer on aiding and abetting law”). Since I recently co-authored an article on the aiding and abetting liability of technology providers, this decision was of particular interest.

The article addresses the lingering confusion over whether the mens rea for aiding and abetting is “shared purpose” or “knowing assistance.” Justice Kagan serves up a sort of blending of the two ideas, which is common among appellate courts. Justice Alito, in dissent, writes that he wishes the court would have addressed the two differing standards, but instead “refers interchange­ably to both of these tests and thus leaves our case law in the same, somewhat conflicted state that previously existed.”  Justice Alito also says, however, that he thinks the difference between the tests is “slight.”

The point in our article is that this slight distinction can have important implications for technology providers who may be at risk of being considered accomplices of their users’ crimes. Rosemond certainly adds to the conversation about that topic, but doesn’t do much to answer the question. In fact, the Court, in footnote 8, expressly takes no view on “defendants who incidentally facilitate a criminal venture rather than actively participate in it,” as with “the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used.” This hypothetical strikes at the heart of the concerns faced by technology providers.

Interestingly, Justice Scalia joined the majority opinion except for footnotes 7 and 8. The Volokh Conspiracy has an interesting discussion about how, and why, that happened, as does DailyKos.)

In other news, our article, and its title, are featured on BookForum’s Omnivore blog today.

New Podcast on Criminal Liability of Tech Companies

There’s a new discussion up at “The Law Review,” a podcast run by legal research company Fastcase, discussing some of the ideas in my recent article, Technology and the Guilty Mind, about the potential criminal liability of technology providers for aiding and abetting their users. The guest for the conversation is Fastcase CEO Ed Walters.

The part that addresses the article starts around the 12-minute mark with a dialogue on Judge Posner’s hypothetical (discussed in the paper) about a dress seller who knows his client is using his dresses in her prostitution business. The  conversation then focuses on how doctrine about knowing assistance of criminals may apply to tech companies in the communications industry (like Fastcase).  Thanks to Fastcase for highlighting the article!

Update on Kim Dotcom Extradition

Kim Dotcom crowdThere’s been two significant developments this week in the ongoing effort to extradite Kim Dotcom (the CEO of the now-defunct Megaupload) from New Zealand to the United States to face criminal charges of copyright infringement. I’ve been following the proceedings since co-authoring Criminal Copyright Enforcement Against Filesharing Services, 15 North Carolina Journal of Law and Technology 101 (2013).

First, there is a development in regard to fallout from the January 2012 raid on Dotcom’s mansion conducted by New Zealand police, at the request of U.S. authorities.  Dotcom audaciously mocked the raid at the launch event for his new service “Mega” in January 2013 by staging “a raid re-enactment complete with helicopters marked ‘FBI,’ and dancing girls clad in military-style dress (but with miniskirts).”

Meanwhile, Dotcom has challenged the search warrant underlying the raid in New Zealand courts. This had some success. First, the Prime Minister apologized to Dotcom for the government spying on him. Then, in November 2013, a New Zealand High Court Judge ruled that the search warrants used in the raid were not proper because they were just “general warrants” and thus “did not adequately describe the offences to which they related.”

This week, however, Dotcom has faced a set back. On February 19, an appellate court issued a decision disagreeing with the High Court Judge’s analysis and concluding that the warrants were valid. You can read the appellate decision here.  Dotcom has vowed on Twitter to appeal to the New Zealand Supreme Court. But as noted by the Independent, “[t]he decision will benefit US prosecutors who say the Megaupload website has cost film studios and record companies more than $500 million (£300 million) and generated more than $175 million in criminal proceeds by letting users store and share copyrighted material, such as movies and TV shows.”

Second, the extradition hearing for Dotcom that was scheduled for April 2014 was delayed on February 25, with a new date yet to be set. It’s already been delayed before. The delay is probably meant to allow time for the proceedings about the search warrant to resolve. But Dotcom, in his standard provocative manner, has”accuse[d] the New Zealand government of interfering in the judicial process, to delay the hearings until after the country’s election, due in either October or November,” according to The Register.

Third, as a bonus, Dotcom gave an interview this week to Complex Tech in which he mouths off about the charges against him. He complains that Google has had many more takedown requests related to pirated links than Megaupload ever had, but yet is still in business. Of course, as my paper explains, Megaupload’s real problem wasn’t the number of takedown requests it received, it’s that prosecutors allege that the company either ignored those requests or helped facilitate the re-posting of pirated material.

Finally, Dotcom also mentions in the interview some sort of tripped-out new file service “called Meganet, which is basically kind of like a fluid ocean of data where whatever glass of water you dump into it you can never extract from it anymore, and you kind of just meet the water in the ocean somewhere.” We’ll see where that goes.

Technology and the Guilty Mind

Please check out my new article, “Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices?,” which was recently posted to SSRN. Here’s the abstract:

The creators of today’s most successful technologies share an important willingness to push the envelope — a drive that propels digital industry forward. This same drive, however, can lead some technology purveyors to push the limits of legality or even become scofflaws in their pursuant of innovation or (more often) profit. The United States must figure out how to harness the important creative force at the heart of the hacker ethic while still deterring destructive criminal wrongdoers. Because it is often courts that must answer this question, it is essential to examine the legal doctrines prosecutors use to sweep up technology providers.

This Article focuses on one type of criminal liability — accomplice liability — that can act as a dragnet on technology that lends itself to criminal use. In particular, a violation of the federal statute for aiding and abetting, 18 U.S.C. § 2, can be implied in every charge for a federal substantive offense, and there is a potentially troubling strain of cases holding that knowing assistance can be enough to deem someone an aider and abettor, even without stronger evidence of a shared criminal purpose.

This Article examines when proprietors of technology with both legal and illegal uses aid and abet their users’ crimes. The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. The Article explains the legal doctrines underlying this type of liability and provides examples of at-risk technologies, including spam software, filesharing services, and anonymity networks like Tor. Ultimately the article concludes that the web of superficially conflicting rulings on the required mental state for aiding and abetting are best harmonized — and future rulings on liability for new technologies best predicted — by looking to the existence of “substantial unoffending uses” for the product or service provided by the technologist accused of aiding and abetting.

New Article in Santa Clara High Tech Law Journal Online

Kim Dotcom Pirate Megaupload

Sorry for the break in blogging; I’ve been focused on some other projects, including getting out the final versions of my article about criminal prosecution of filesharing services. A long-form version will appear in the North Carolina Journal of Law and Technology later this month, and a shorter discussion of the topic was published this week in the inaugural online edition of the Santa Clara Computer & High Technology Law Journal. Please feel free to check it out and leave comments.