New Editors-in-Chief: Laura Budd, Amanda Klimczak, and Lindsay E. Landstrom

New Managing Editors: Kevin Hollinshead and Sarah Traynor

Written by: Lindsay E. Landstrom

Grey haired and bushy-browed, crackpot scientist Dr. Emmett Brown (Doc) stands on his toilet, trying to hang a picture. Then, crash! Slipping on the wet porcelain, Doc tumbles, striking his head on the sink. Hours later, emerging into a foggy consciousness, a vision: “Yes…yes…THAT’S IT!” Doc eagerly gets busy. A month later, Doc emerges from his lab and proclaims: “I shall call it, the Flux Capacitor.”

Doc has invented something new and useful: a means for time travel. Besides changing his reputation as neighborhood wackjob, Doc recognizes that his invention is worth billions of dollars and worldwide acclaim. Therefore, Doc works with an attorney to draft a patent claim, which the attorney then files with the United States Patent and Trademark Office (USPTO). Doc and his Flux Capacitor have now begun the process of patent prosecution.

What does patent prosecution entail? It can be described as a series of negotiations between Doc, the inventor/claimant, and an examiner at the USPTO. The average claimant will wait two to three years before the USPTO issues its final decision. The Flux Capacitor, being the first means for time travel, will likely linger a tad longer. Within that time, Doc is entitled to two rejections, which he may then revise before either approval or final rejection. Over ninety per cent of all utility patents end at this point: either the USPTO awards the inventor patent protection or the claimant will abandon the claim after final rejection.

If Doc is rejected by the examiner but is certain that he can make a successful revision, Doc may pay another fee and receive a continuation. If Doc insists the examiner has wrongly rejected the Flux Capacitor, he may appeal the examiner’s rejection to the Board of Patent Appeals and Interferences (BPAI). If denied by the BPAI, Doc may file for ex parte review in the Court of Appeals for the Federal Circuit or commence civil action against the director of the USPTO. Great Scott! That’s a lot of procedure!

Doc will most certainly benefit from the 2011 America Invents Act, which, among other features, makes the US a first-to-file nation. The new system cleans up messy interference proceedings and streamlines the prosecution process. If Doc files first – which, being the first to invent a means for time travel, seems likely – he will have priority. It used to be that if greaseheads like Biff Tannen (What are you looking at? Say hi to your mom for me) sought to patent the same invention, the USPTO would declare interference and determine which inventor was first to practically adapt his patent, thus determining priority. Not anymore.

Commencing his successful patent prosecution, Doc acquires a ladder. Hanging his official United States Patent in the bathroom (to commemorate the site of his greatest idea), he asks his friend, Marty, “You want to cruise for chicks in my DeLorian?” Marty, knowing his girlfriend, Jennifer, would disapprove, glances at his watch and exclaims, “8:25! I’m late for school!”

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Introduction, or, “Are you ready to rock?!?”

The 2012 presidential campaign in is full force.  How can I tell?  I can hear it.  If you close your eyes and listen, you may be able to hear it too: classic rock blasting from the PA systems at campaign rallies and YouTube videos featuring former top 40 hits playing underneath political messages.  In past years, Bill Clinton entered the ring, entourage in tow, to Fleetwood Mac’s “Don’t Stop.”   George W. Bush hit the squared circle with “I Won’t Back Down” from Tom Petty.  (You’d think Michelle Bachman would learn.)  Today, this rock song/politician marriage has his its pinnacle.  Every major presidential candidate in the last several elections has rehashed a 70s or 80s hit to “symbolize” (we’re brushing with broad strokes here) the message of his or her campaign.  GOP candidate Newt Gingrich is the newest offender. Even lower level baby-kissers, like Rand Paul of Kentucky, joined the rallying cry party.  Cue the frenzy of public admonitions, cease and desist letters, and frantic calls to intellectual property attorneys.

Copyright Law, or, “This is the one that made us famous.”

Unfortunately, there is a little obstacle called copyright law, which most politicians fail to hurdle before exploiting the protected works of others. There are two basic copyrighted works involved in a song: the musical composition and the sound recording. The artists’ claims against the politicians are more clearly defined in their exclusive rights in the musical composition. Under federal copyright law, owners of a musical composition that is original and fixed in a tangible medium for more than a transitory duration maintain an exclusive right to reproduce the work, prepare derivative works based upon the work, perform the work publically, and distribute the work for the life of the author plus 70 years. IIt is largely copyright law that the aging musicians use to bring suits against the politicians for infringement. (The other theory of law under which musicians have brought suit is false endorsement under the Lanham (Trademark) Act, which has been shown to be a less successful claim.)

The critical element of the copyright statute at issue here is the right to publicly perform the copyrighted work.  When Sarah Palin blasts “Barricuda” or John McCain shuffles to the heady beat of a Foo Fighters tune, the artists claim their right of exclusive public performance has been violated.  On its face, this seems like a fairly easy argument to make.  However, critical details about the law of copyright and the ownership of the original works at issue distort the issue like an amp turned to eleven.  Issues of copyright ownership and licensing, and the doctrine of fair use each suggest that perhaps the politicians have fallen into a unique loophole in copyright law wherein their uses are not actually violations of copyright law.

Rights of the Politicians, or, “You may remember this one!”

Ownership of the compositions (and recordings) favors the politicians. How so? Mainstream musicians are generally under contract to massive record labels.  Thus, typically it’s the labels, not the artists, which own the copyrights in the sound recordings. Deals with record labels can be hugely lucrative for musicians.  However, a caveat of most record deals is that an artist grants full legal control of his or her music to the label. Nevertheless, its not the record label, it’s the publishing company, yet hand in the cookie jar, that controls the copyrights in the musical composition. The web of artists, record labels, and publishing companies is just a small fraction of the legal rights attached to a song recording. The important take-away for the politicians: the artists themselves usually possess very few legal rights in their own music.

Thus, when a candidate seeks to use a protected work (like a copyright protected musical composition), he or she can pay a royalty to the publishing company and receive a license to use the work in a specified manner, avoiding all legal ramifications. So, while the artist rakes in the cash through royalties (which matriculate down from the publishing company to the artist), the artist is then left with no legal remedy to stop the politician’s use. Alternatively, when a work is misappropriated (ie, there is no payment for use), there has been a copyright violation.  So, when John McCain and his party post a political ad using Jackson Browne’s “Running On Empty” without paying for a license to Browne’s song, the copyright owner in the musical composition has a potential copyright infringement claim, and the infringer is more likely to settle the claim. But, so long as Clinton, Bush, and whomever else pay royalties to the owner of the copyright, the rockers may be out of luck if the politicians refuse balk at their requests to stop.

If the musician owns his or her own copyrights, he or she may still be subject to the fair use privilege.  There is no bright-line rule for fair use.  Instead judges balance four factors (the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market) to determine whether the artist’s copyright interests are secondary to the use being sought. Therefore, an artist who has taken all the steps necessary to maintain ownership of the contested work may still be out of luck, depending on the fair use analysis. Importantly for the musicians, though, fair use analysis is applied at the discretion of the judge. The controversial decision in Henley v. DeVore suggests that judges may be very malleable with the law when seeking to protect artists’ rights.

No matter the viability of their legal remedies, musicians have been extremely successful at stopping politicians from utilizing their creative endeavors in political forums.  Why is that?  It is possible that the politician doesn’t want a legal controversy at the apex of his or her campaign, especially against a well-liked public figure like Dave Grohl or Jackson Browne. Therefore, instead of fighting the legality of the artist’s claims, which may or may not be valid, it is easier for the politician to find a new song and hope either that the new artist doesn’t get wise to the use, or that the two happen to play for the same political team.

Copyright Protection versus Political Motivation, or “Here’s one from the new album!”

The musicians insist that their motivations are not political.  Like a classic band’s newest single, nobody really buys that.  The artists fight out of the blue corner against politicians fighting out of the red corner, with a few exceptions.  The copyright claims are not frivolous, but they are certainly aimed.  As the researcher for this article, Sarah, said to me at the conclusion of her work, “Wow, all Republicans (and one for Obama).”  Still, no matter the antipathy between the liberal musicians and the conservative candidates they seek to enjoin, and no matter how blatantly political the claims may be, we cannot forget that there remain viable copyright issues at stake when a politician chooses a protected work of popular music as a rallying cry for his or her campaign.

Conclusion, or “We got one more for ya!”

Although it appears that, in our fractured and tumultuous political climate, snowballing towards what is certainly to be a torrid presidential election (perhaps the nastiest since Herbert Hoover’s Republican Machine slandered Democrat Al Smith to a 6-million vote majority in 1928), musicians are taking litigious stances against politicians more frequently, I still can’t help but wonder: would it be different if the politicians actually used songs that accurately reflected their various viewpoints?  Perhaps honest use could foster harmony between these adversaries.  Therefore, I would like to close my discussion on the use of copyright protected music in political forums with some musical suggestions for the 2012 candidates (may some campaigns rest in peace):

Michelle Bachman: “Girl, You Have No Faith In Medicine” by the White Stripes.  I think this one is fairly self-explanatory.

Herman Cain: “Blame It On Cain” by Elvis Costello. Cain-endorsed Newt Gingrich may be shouting to the sky if his campaign comes up short.

Newt Gingrich: “Let’s Talk About Me” by Alan Parsons Project. Newt has plenty of experience explaining himself.

Barack Obama: “Best of Both Worlds” by Van Halen.  For the President of the people, and by “for the people,” he means continuously bailing out big businesses with the people’s money.

Ron Paul: “Immigrant Song” by Led Zeppelin.  Lock those borders and throw away the key.

Rick Perry: “Punishment Fits The Crime” by the Ramones. Perry doesn’t mess around with retributive justice.

Mitt Romney: “Wrapped Around Your Finger” by the Police.  In the eyes of the law, corporations are people too you know.

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Patents are an essential element in the progress of science and technology. They are a company’s most valuable assets. For example, Google is working to acquire Motorola Mobility primarily for their patent portfolio, for an astronomical $12.5 billion. Based on the prices companies are willing to pay to acquire patents indicates how important patents are in furthering business and invention.

Patents protect an inventor’s work and time by granting her a limited monopoly over their useful discoveries. This means that for 20 years an inventor has exclusive control over the use of her invention. She may give others permission to use her discoveries through licensing agreements in exchange for money. If a rival company or inventor does use her hard work without a license, she may sue for infringement. Companies spend thousands of dollars annually to protect their products through patent litigation and this effectively prevents others from using their valuable ideas and processes.

Image Credit: Joe Altario

The recent ratification of the Leahy-Smith America Invents Act (AIA) is going to cause many changes to occur in the area of patent law. The AIA will take full effect on March 1, 2013, and there have been mixed reviews regarding the changes that will occur and how those changes will affect future patent law. Small-scale inventors and companies with less available capital think that the new bill favors larger corporations and better-funded research. Others, especially larger companies, believe that the changes will help promote the progress of science and improve the patenting system by encouraging earlier disclosure of inventions. Unfortunately, there is no consensus among patent lawyers of how these changes will affect the law.

The changes regarded to be the most important include changing from first to invent to first to file, altering the best mode defense in litigation, increased importance of provisional patent applications, and creating a statutory limit of the ability to patent a human organism. Since many provisions of the AIA will not be in effect for 17 months, patent attorneys are speculating how they will change patent law. Despite the unknown effects, this is a brief foray into the confusing and uncertain world of patent law under the America Invents Act.

First to File

Under a ‘first to file’ system, even if an inventor is not the first person to create an invention, they may still receive a patent if they file with the Patent and Trademark Office (PTO) first, as long as they actually invented the device. A ‘first to file’ system will mean that if two scientists develop an idea independently (Sue and Bob), but Sue filed an application first she would receive the patent even though Bob first invented the process. This rule is used in European and other foreign patent rules. This change will make American patent law more similar to those around the world.

Prior to the AIA, America used a ‘first to invent’ system. Using this rule, Bob could invalidate or cancel Sue’s patent, even though she filed it first, as long as he could prove he was the first to invent the idea. In patent litigation, this would require courts to delve into the complicated world research journals and records proving who was the original inventor. This rule allowed inventors to consider whether their invention would produce financial benefit by allowing them to take time to assess the marketability of her invention. However, historically it also created some problems.  Under the old law some nefarious inventors would not make any move to put to use or patent their invention, and then later bring forward law suits claiming ownership to issued patents.

There have been recent concerns that the ‘first to file’ rule will favor larger companies and inventors with more capital to spend on the expensive patenting process. However, some patent attorneys disagree and believe that smaller groups will rely more on provisional applications, which provide them with an extra year to file a full application by retaining the earlier filing date  (see below). Luckily, rules for disclosing an invention have also changed to help alleviate complications from disclosing to the public what you have invented (also see below, prior art).

Provisional Applications

Patent applicants may use provisional applications to obtain an early patent application priority filing date. They do not require the same level of formality as a non-provisional or formal patent application, and are thus easier to receive. They allow a patent application to secure their “patent date” while continuing to work on drafting their claims of the full, non-provisional application for up to 12 months. If after 12 months the applicant does not file a non-provisional application they forfeit their reserved filing date.

With the change from “first to invent” to “first to file” more applicants are expected to provisional applications to protect patentability of their invention. Now, more than ever, there will be a race to the PTO to protect an inventor’s work. Increased use of this tool may help to assuage fears held by small companies and inventors, allowing them more time to secure the funds to pay for costly applications.

Disclosure and Prior Art

In patent law “prior art” is any information that has been disclosed to the public before the date of a patent application. It includes any articles, patents, or public demonstrations relating to the subject matter of a patent. Prior use is also used to judge whether an invention is obvious to anyone skilled in the subject matter (referred to as art) of the patent. Any third party disclosure prior to the inventor’s filing date was normally treated as prior art, and would act to bar an invention from being patented.

Pre-AIA patent law stated that “a person could not receive a patent if the invention was known or used in this country, or patented or described in a publication here and abroad; it is described in another patent application in the US before the invention by the applicant, with within a patent granted to another before the invention of the applicant; or was invented by another inventor who had not abandoned, suppressed, or concealed it” (among other requirements). Under these requirements, if the invention is released into the public domain in any form, including any oral or written communications of the development, a patent application will be barred.

The AIA changes these requirements, and secures the inventor a short grace period for third party disclosures within one year of the applicant’s filing date if (1) the inventor discussed the invention prior to the disclosure, or (2) the third party disclosure was derived from the inventors. This encourages applicants to disclose their invention to some extent, to act as a mechanism for defeating any prior art arguments. Patent lawyers think this will help to further the progress of science and technology by encouraging some disclosure of the invention. If fellow inventors know of concurrent projects an inventor will turn her inquiry elsewhere, possibly resulting in the production of more inventions and useful discoveries.

The AIA also creates a prior use defense infringement for prior commercial use.  If a company can prove they used a process (including machines, process of manufacture, composition of matter, or business process) within the company for internal commercial use, they are immune from patents that are filed more than a year later. It allows companies to continue to use the method without fear of infringing a patent.

Best Mode requirement

The “best mode” requirement requires that the inventor must include the best-known mode of carrying out her invention in the application. This allowed a person skilled in the art of the invention to perform or recreate the invention. The best mode requirement helps to protect the constitutional purpose of patents in “promoting the progress of science and the useful arts.” If an inventor were able to conceal the preferred embodiments of the patent from the public, yet still be granted a monopoly for the invention it would slow progress. Other inventors would be required to experiment to find the best use and embodiment of the patent, which may have been previously discovered by the patent holder. Due to its importance this requirement has not been removed by the America Invents act, but it has now been removed as a defense during litigation.

In a patent infringement cases a potential infringer could use this as a defense by invalidating an issued patent. If the inventor failed to disclose their best mode, it was a basis for invalidating, cancelling, or making a claim unenforceable if the inventor knew of a best mode and did not disclose it to the PTO. If the inventor did not know or realize the best mode prior to filing the application, the patent could not be invalidated. However, if they knew of the best mode concealment from the PTO would result in invalidation of the patent. Removal of the defense removes the tedious process of a subjective inquiry into the inventor’s state of mind. No longer may a fellow inventor assert that the patent holder knew of this embodiment, but did not disclose it to invalidate the patent. The purpose of this change was to do away with the troublesome subjective nature of this defense, while still requiring full disclosure in order to gain a monopoly over the invention.

Human Organisms

Lastly, the AIA has created a statutory bar for issuing a patent on a claim directed to or encompassing a human organism.  The concept of excluding human organisms from the scope of patentable subject matter is not new. Prior to the Act, it was policy under the USPTO that a human organism may not be patented. The act now codifies this requirement, writing it as a it law rather than a policy of the PTO. So if you were hoping to patent your clone, you are out of luck.

The above describes only a few changes the AIA will put into effect in patent law. Regardless of which version of patent law applies to an invention, the rules are complicated and confusing. Any inventor working to protect their idea should consult with an expert patent attorney. As technology becomes a more important aspect of daily life patents and the new ideas they protect will continue to gain importance. Hopefully will result in amazing new ideas and patent jobs for humble law students.

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So you have an idea!  Maybe it’s a pirate-vampire-zombie-graphic novel or a perhaps it’s hand-crafted-vegan doughnuts.  But you have this idea and it’s occupying all of your time. You keep thinking about how well it would work, the profits you’d most definitely make, and how your friends and family would find you impressive when you put together a traveling exhibition of the global dispersion of your family over 100 years from a small village in Lithuania. The problem is, what do you do with this great idea? How do you turn an idea into a financed project? A business? A movement? Whether the 99% Movement inspires you, or you just want to sculpt filigree skulls, a new way of raising money is quickly becoming the hipster’s Wall Street. These platforms are connecting people with cool ideas to those who want to pledge money to the idea.

Photo: Matthew Field

And if I Share With You My Story, Would You Share Your Dollar With Me?

These platforms are part of a new movement that is growing in popularity, “crowdfunding.” Crowdfunding is a means of raising money from numerous investors through existing Internet social media platforms. By facilitating relationships through Web 2.0, entrepreneurs can tap this resource when seeking capital to start a new business. Crowdfunding is a way of generating smaller dollar investments from numerous investors. Crowdfunding has long been a source of investment dollars in the entertainment industry for movie projects, documentaries, and bands on tour. As credit remains scarce, crowdfunding has increasingly provided small business owners with new sources of capital. Currently, the money raised through crowdfunding is completed as a contribution only with rewards limited to cool perks and merchandise to avoid any violation of Federal Securities Regulations.

In a speech given by the President last month, the White House released the American Jobs Act. The American Jobs Act covers a variety of proposals meant to stimulate the economy, some even have bipartisan support. One of the proposals is to create policies that support entrepreneur and small business access to capital. In this economic climate, where traditional financing is hard to come by because of increased restrictions on loans, entrepreneurs have turned to creative sources for gathering capital. As funding sources have evolved for small businesses, investors and entrepreneurs have faced hurdles in existing regulations that have not kept up with the dynamic nature of investing. As part of the job-boost outlined by the President, the Obama Administration indicated that it would work with the Securities and Exchange Commission (SEC) to review securities regulations from the perspective of small business with the aim of reducing regulatory burdens and increasing access to capital.

Regulators, Mount Up.

While crowdfunding has bi-partisan support from Congress and support from the business community, the laws that regulate securities remain a hurdle. The Securities Act of 1933 (the Securities Act) requires those selling securities publicly to register a particular offering with the SEC, which includes providing certain financial information and documentation in the form of a registration statement and detailed prospectus. Section 5 of the Securities Act prohibits promotion or solicitation of securities without registering an offering. This registration process can be extremely costly to small business owners. Congress recognized this burden and provided exemptions from registration including private offerings under §4(2) of the Securities Act. The exemption was clarified in the safe harbor rule under Regulation D.  Congress never explicitly provided parameters for determining the difference between a private and public offering. The Supreme Court has said that the important factors in determining if an offer is private are the sophistication of the investors and their access to all relevant information rather than any limit on the number of investors or dollar amount. These private offerings also have definite prohibitions against general solicitations. Another provision within Regulation D, Rule 504, provides an exemption for an issuer to raise up to $1 million. By falling within certain parameters, a company can sell freely tradable public securities through general solicitations. In order to do so, the company must be a fully operating company, beyond the development stage, and must maintain current filings under a state registration system.

Regulation of securities was born out of a demand for federal protection of investors after the stock market crash of 1929. The purpose of the Securities Act was to provide investors with sufficient information to make informed investment decisions and to prevent fraud on the part of issuers. Following the Securities Act, the Securities Exchange Act of 1934 (the Exchange Act) provided further regulation regarding disclosure by publicly traded companies. The Exchange Act provides registration requirements in §12(g) based on a company’s number of shareholders and total assets.  A company with more than 500 shareholders and assets exceeding $10 million must register with the SEC under the Exchange Act. This registration imposes periodic disclosure requirements on a company including filing of an annual report, a quarterly report, and periodic reports.

Crowdfunding, as a source of investors rather than contributors, would not currently fall under any exemption to the Securities Act because it is not limited on the sophistication of purchasers, it is not private by nature, and the call to invest is a general solicitation. In addition, there is no limit on the number of investors, so the company would be required to register under the Exchange Act. Because raising investment capital through crowdfunding is not an exempted offering, an entrepreneur is required to meet the hurdles of registration.

The current guidelines of these crowdfunding forums provide for how a contributor can be rewarded. To avoid any implications of pledges being considered investments, the rules of the game are that you can offer rewards that are not financial incentives. The sites provide guidance on how to offer perks while making it clear that all funds are contributions rather than investments. With the changes in securities regulation being proposed, these sites would now be available to entrepreneurs seeking actual investors to buy a financial interest in the company. These crowdfunding forums would become investment domains to buy a security interest in startups.

The next obvious question is what is a security and how do I know that I am selling one? The 1933 Act defines a security in §2(a)(1) and includes under this definition, the investment contract. The Supreme Court adopted the Howey test for determining what constitutes an investment contract, and therefore, a security under the 1933 Act.  In SEC v. W.J. Howey Co., the Court looked at four factors in identifying transactions as those dealing in securities: “(1) an investment of money (2) in a common enterprise and (3) is led to expect profits (4) solely from the efforts of others.” Based on these definitions, for example, it is highly likely that selling shares of interest through an open invitation on the Internet in order to raise money for starting a new food-cart would fall under the 1933 Act Registration Requirements.

The Times, They Are a’Changin.

As part of the American Jobs Act, the Obama Administration indicated that it supported changes in securities regulations to provide for a crowdfunding exemption. The legislation, originally proposed by Representative Patrick McHenry, would provide an exemption from SEC registration requirements for businesses seeking to raise capital through lots of small investors. The exemption would cover businesses or entrepreneurs who raise up to $5 million in capital, with a limit on individual investments of the lesser of $10,000 or ten percent of an individual investor’s income. The limits on the numbers of unaccredited investors would be erased in favor of this dollar limit. These changes, called the Entrepreneur Access to Capital Act, would allow businesses to access capital through crowdfunding without having to meet the rigorous requirements of Federal Securities Regulations. On October 5, 2011, the House subcommittee responsible for the Entrepreneur Access to Capital Act forwarded the bill to the full committee for approval.

While the benefit of these changes would be increased access to capital, the potential danger would be exposure to precisely what securities regulations aim to protect against. By not requiring companies to disclose certain financial information, investors may be left in the dark as to the actual viability of a company. There is concern that by allowing unaccredited investors the ability to invest large amounts of capital without the protection that securities regulation requirements provide, there is room for fraud and impropriety. In response, those in favor of crowdfunding find that investor protection rests on a fundamental aspect of this financing, opening it to lots of people for investment. This “crowd” aspect creates transparency, which may temper the effects of deregulation. There is also a stronger sense of community support through this style of investing. Crowdfunding makes venture capital accessible to small-scale business owners.

The Obama Administration has indicated that a key component of its economic recovery policy will be supporting small business. Beyond making capital accessible to small enterprises, the Administration has announced new programs including public-private partnerships, mentorship programs, and increased lending to small businesses. The hope is that these programs combined will serve as a launching pad for economic growth and, in turn, fuel the economic recovery. Crowdfunding has already skyrocketed in popularity with numerous websites dedicated to providing this platform. With deregulation allowing the scope of these platforms to expand to providing investment opportunities, crowdfunding could revolutionize financing as we know it.

Laura Budd

Jake Day

Kevin Hollinshead

Amanda Klimczak

Camille Lafage

Lindsay Landstrom

Shaheen Shingu

Sarah Traynor

- the Legality

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Four years ago the economy sunk like a brick battle ship. Every industry and every part of the country has been affected, leaving an underemployed and cash-strapped populace ill equipped to spend its money on legal services. Traditionally a strong sector, the current recession hit the legal industry hard. Slow business growth has left transactional attorneys hurting for work, and government cutbacks have forced layoffs of public sector attorneys. Law schools compound the problem by charging future laywers exorbitant tuition fees and accepting more and more students who will eventually enter the market and further add to the surplus of labor.  But from the depths of depression, I mean recession, there may be hope. Lawyers and firms are learning to adapt to the changing market, and young attorneys may be in a unique position to take advantage of the new ways that the business is evolving.

Everybody’s got problems

Before we get into possible solutions, we need to get down to the nitty gritty of what the problems are. The main problem facing lawyers, and everyone else for that matter, is a sustained lack of work. While most firms made it through the dot com bubble relatively unscathed, the scope and length of the current recession is forcing everyone to tighten their belts. Evidence of this abounds, for example, the legal industry suffered a net loss of 4,900 jobs in the first half of 2011. Like most sectors of the economy, the main culprits behind job loss in the legal sector are a combination of slowdown in private business and government budget cuts. These two factors create a snowball effect that suffocates  hopeful job seekers in its path.

Another issue for lawyers, especially young lawyers, is the additional problem of massive debt that one must incur to even enter the market. Debt exacerbates the effects of unemployment and some people speculate that student loans will become the next economic bubble to burst. In fact, the price of law school has easily outpaced inflation for the last 20 years, rising nearly 200% since the late 1980’s. Mounting debt has not deterred prospective law students, as the availability of loans and the allure of a high paying job has resulted in increases in law school applications of over 35% over in the last decade. Naturally, all of these law students will be seeking jobs every year, crowding the market and making jobs all the more scarce.

Simply put the legal industry is facing some serious problems. But is that where the story ends? No, that would be too depressing. Fear not timid reader, a few rays of sunshine can be seen breaking through the oppressive-looking clouds of unemployment and debt.

Out with the old, in with the new

Although transactional practice and government work, the two mainstays of the legal profession, have been on the decline, some areas of legal practice are surviving and actually thriving. Growing practices are generally associated with areas of law that experience activity during economic down turns; such as transfers of property (i.e. foreclosures), employment law, bankruptcy, and tax law. In addition, lawyers who have civil litigation and intellectual property practices are finding work as more corporations and individuals use the legal system to protect their economic interests. Finally, the small field of environmental law is going strong as government regulations and popular demand are driving more and more corporations to “go green,” and renewable energy projects are expanding. History teaches us that a bad economy can lead to new possibilities; for example, the field of administrative law (and not to mention a large expansion of government employment) emerged from the depths of the Great Depression. Tough times can lead to moments of great opportunity.

With everyone pinching pennies, firms with traditional practices have been forced to change. For example, clients looking to save a buck have taken on the bread and butter of law firms, billable hours. While a firm’s billable hours have always drawn the suspicious eye of a client, some clients in this economy are insisting on a flat fee billing scale, refusing to compensate lawyers based on an hourly rate. However, when it comes to high stakes legal battles, clients are still willing to put up the big bucks to go all in.

The decline of the billable hour system, while troublesome for lawyers of all stripes, is even worse for new associates. One of the main advantages of the billable hour was the ability to shift the cost of training new lawyers to clients since new lawyers will inevitably bill more hours as they learn the job. When that option is taken away firms will look to hire lawyers that can produce instant results without expensive handholding. On the other hand, if firms are forced to charge flat fees the market could become more competitive and newer or smaller firms may have an opportunity to undercut their big law brethren.

Broken Dreams: An Exercise in Coping

With the recession in its third year, attorneys have begun to find ways to deal with the down turn. Some have adopted cutthroat tactics by looking for ways to make themselves more valuable than other attorneys at their firm; like hikers that are chased by a bear, they don’t need to outrun the bear, just the other hiker. Other attorneys have taken a different approach and turn to each other for support during tough times. The formerly employed have begun banding together to network, offer job leads, and support each other.

Still, other out-of-work lawyers are jumping ship from the legal sector altogether, finding non-traditional work to either tide them over or as part of a more lasting career change. Newly minted lawyers must use any or all of the preceding coping mechanisms. However, some young legal eagles have found a different way to deal with the woes of the recession, a way that it is both cathartic and potentially financially rewarding. That’s right, the one-two punch of debt and joblessness has motivated a group of recent law school grads to sue their alma maters for allegedly misrepresenting post-graduation employment figures. Current standards of employment reporting allow schools to include graduates employed in any profession, be it waiting tables or arguing cases. These standards also do not factor in salary information from graduates who do not report it. This is a problem as it can result in a skewed picture of earning power if one makes the fair assumption that those who do not report their salaries are probably not doing so well. Employment reporting was thrust into the spotlight last June when the U.S. Dept. of Education questioned whether law schools are taking adequate steps to collect job placement information from their graduates. The disgruntled grads suing their universities argue that they would have never gone to law school if they had known the grim reality that awaited them.

Moving Forward

While the legal market is still facing some lean times, there is little doubt that the market will eventually recover. It has to, otherwise I will have to sue the University of Oregon and I am just not ready to go toe to toe with Phil Knight’s legal team. The recovery, when it comes, will necessitate that law firms and law schools learn to change the way they do business. The industry will not disappear; it will merely be different. After all, who can imagine a world without lawyers?

Written by: Matt Thompson

Deliberate indifference is a legal oxymoron that is used to categorize a behavior as specifically as possible.  It takes parts of negligence and expands on them, it takes parts of a harmful act or omission and reapplies the blame.  Deliberate indifference kicks in when you’re supposed to do something, because you created the potential of harm, and knew that there was potential harm, but chose to do nothing about it.

When the state takes a person into custody, a duty is formed.  The duty is formed because the state has limited your ability to ensure your own rights.  When a person is in the custody of the state, freedoms become limited.  This duty is formed by control.

So who is under state control?  Are prisoners under state control?  This is a solid yes.  Deliberate indifference is often, if not always applicable in prison scenarios.  It even applies all the way down to a “failure to train”.  The state prison system has a duty to ensure that its employees are trained correctly, should the prison fail to train an employee they are acting with deliberate indifference should an inmate’s rights be violated because of that lack of appropriate training.

On the lighter side of things, pseudofolliculitis barbae is not enough to qualify a deliberate indifference claim, that’s razor burn.  Seriously though, an inmate was forced to shave while he had razor burn and sought relief.  The Ninth Circuit found that this was not a significant medical need and did not grant relief.

But that is not to say that no medical relief is available.  In prison just as in outside life, legitimate medical needs arise.  When prison officials delay medical treatment, and the result is prolonged unnecessary, unreasonable pain, then deliberate indifference is triggered.  Similarly, if a prison official delays and renders the problem inoperable, or any number of additional negative side effects, deliberate indifference applies.

Prison isn’t the only place where deliberate indifference is the basis for relief.  Almost any state controlled interaction applies, with failure to train granting expansive access. Prosecutor’s Offices have been sued when their failure to train led to a man getting out of prison and murdering his family.  Foster care scenarios, where children have been taken out of their home and placed in greater harm have triggered deliberate indifference.   Places where the state has control, or should have had control and knew or had cause to know, triggers deliberate indifference.

(PDF Version of this article)

April 20, 2011, marked the one-year anniversary of the largest environmental disaster in US history – the BP oil spill.  While the news cycle forever churns forward and we face new global disasters, the sludge from the oil spill is now settling on the ocean floor and the long-term problems are beginning to be defined. The Deepwater Horizon oil rig, leased by BP and owned and operated by Transocean, exploded into a fiery mass on top of an active oil well, coughing up billowy gray smoke as it burned chemicals for two days. The explosion killed 11 people and injured 17 people before it sank to the bottom of the Gulf.  In its wake, the inferno left an uncapped oil well that rapidly discharged oil like a carbonated bottle that had been violently shaken and uncapped.  The gushing well was finally capped on July 15 and sealed on September 19.  Three months and 4.9 million barrels later, the Gulf has been severely impacted and scientists are just beginning to see how extensive the damage is.  Immediately following the explosion, lawsuits began springing up around this disaster and continue to be filed each month.  Though the lawsuits are from a variety of sources, seeking damages for different types of harm, they all share one common concern with regard to the disaster left by the oil in the Gulf -accountability.  Sorting out who is to blame and allocating financial responsibility will likely to take years.

Photo: Lars Gange

Types of Lawsuits

On March 3, 2011, the state of Louisiana filed a complaint under the Louisiana Oil Prevention Act and the Louisiana Environmental Quality Act in federal court, seeking declaratory judgment against BP, Anadarko, Transocean, MOEX Offshore, among others, asking that they be held jointly, severally, and strictly liable for unlimited removal costs.  The complaint alleges that BP and the other defendants disregarded safety procedures and regulations, from the design and building of the well to the operating procedures on the day of the explosion.  The state is demanding $1 million per day from the companies.  In the complaint, the state outlines the varied damages incurred as a result of the oil spill—the loss of wetlands, response costs, costs incurred by losses to the fishing industry, costs incurred to evaluate the safety of the fish and shellfish coming from the Gulf, and other environmental and economic damages.

In December, the Department of Justice (DOJ) filed a lawsuit against BP claiming willful negligence and seeking civil environmental damages under the Clean Water Act (CWA).  The DOJ sought penalties under the CWA at $1,000 to $4,300 per barrel of oil spilled.  With scientists estimating that oil spilled out of the well at the rate of 53,000 to 60,000 barrels per day, that could lead to damages totaling $4 billion to $20 billion.  BP filed a response this month claiming that they were not willfully negligent and that the CWA allows for calculation of damages at a per diem rate of days that oil was spilling into the Gulf.  This method of calculation would lead to total damages in the $2.8 to $4.9 million range.  Any fines that a court awarded under the CWA would be paid straight to the Federal Treasury.  Senators from Louisiana and Florida have introduced bills that would funnel all fines paid out under the Clean Water Act by BP to the restoration of the Gulf Coast, rather than going straight to the Federal Treasury.

Over 500 other claims have been filed in courts across the United States, mostly in the Fifth and Eleventh Circuits, including a variety of class actions. Some class action suits are based on the “commonality of plaintiffs” through industry.  For example, the loss of income to the fishing industry of each Gulf state and loss of revenue to commercial charter fishing guide businesses, provides commonality.  Some class actions were filed by commonality of location by state, and those suits present common factual and legal claims of property damage to coastal cities.  In addition to the numerous class actions brought, many individuals are also seeking relief.  Deepwater Horizon workers have filed personal injury claims and wrongful death actions are being pursued on behalf of workers killed during the explosion. Even local boat owners hired to conduct cleanup are seeking personal injury and property damage claims.  BP itself is now seeking to share the financial burden created by the explosion of Deepwater Horizon and has filed lawsuits against Transocean, Halliburton, and Cameron.  BP is seeking $40 billion in damages and contribution from Transocean as the operator of Deepwater Horizon alleging misconduct and violation of maritime law.  In addition, BP filed suit against Halliburton, alleging that it played a critical role in the disaster (Halliburton poured the cement for the well).  BP is also suing Cameron, manufacturer of the blowout preventer, alleging faulty design and negligence in the maintenance.

Beyond the litigation surrounding the environmental and economic disaster that was created by the Deepwater Horizon explosion, shareholder derivative suits are starting to multiply.  State pension funds have filed civil suits as shareholders of BP who are seeking compensatory and punitive damages.  The state pension funds of Ohio and New York claim that BP shares lost over $90 billion of value and that BP misled investors to believe that the company was less risky than it actually was.  Shareholders have also filed separate derivative suits against BP’s corporate executives for breach of fiduciary duty and corporate waste.

The Gulf Coast Claims Facility

As an alternative to litigation, the Gulf Coast Claims Facility (GCCF) was established under the Oil Pollution Act of 1990 as a means to provide monetary settlement of certain claims related to the oil spill.  The Oil Pollution Act of 1990 was established in the wake of the Exxon Valdez oil spill to establish strict liability to the party responsible for the facility from which oil is discharged and outlined requirements of government and industry. The BP Compensation Fund, which funds and administers the GCCF, is headed by Kenneth Feinberg, who was jointly appointed by BP and the White House as administrator. BP established GCCF after the oil spill to pay damages resulting from the oil spill.  Those affected by the spill may file claims in lieu of going to court.  The types of claims that the GCCF will provide compensation for are: removal and clean up costs; damages to real and personal property; lost earnings or profits; loss of subsistence use of natural resources; and physical injury or death.  The payment options vary from providing interim payments to other final payments with the attached condition that you give up your right to file a lawsuit.  BP’s response to the oil spill has been massive.  BP has set aside $20 billion to the BP Compensation Fund that funds GCCF as well as $500 million to an independent environmental impact research project.  At the height of the disaster, BP suspended dividend payments and began to sell assets to cover the costs incurred by the spill.  In addition to financial considerations, the company conducted oil-skimming operations, beach cleanup, wildlife rehabilitation, and recognition that environmental and economic restoration efforts will be long term.

Moving Forward

By the end of 2010, BP estimated that its costs related to the oil spill would total $40 billion.  Scientists estimate it will be years before the full effects will be known. Mr. Feinberg, for the BP Compensation Fund, on the other hand, estimates that the Gulf of Mexico will have fully recovered by the end of 2012.  NOAA recently reopened the last 1,000 square miles of the closed Federal Gulf waters to fishing after indications that there was no detectable oil.  At one point, 88,522 square miles of the Gulf of Mexico were closed around the spill.  Whatever the long-term consequences are from this egregious environmental and economic tragedy to the Gulf coast region, the extent of the impact is apparent, as claims seeking damages continue to be filed. The number of claims thus far has amassed a mountain of litigation in multiple venues, which is increasingly difficult to monitor.  People will be looking to BP and others involved in the failed operation of Deepwater Horizon, to provide reimbursement for the associated losses to the fishing industry, tourism, local business, marshes, wildlife, ocean waters, and countless other areas that were impacted.

(PDF version of this article)

In the Digital Age we live in now, everything you could want to know about a person is likely just a click away. From the TV shows “liked” on Facebook to today’s lunch as the latest tweet, there is a smorgasbord of information available out in the Interwebs; and for better or worse, more and more employers are mining that data. Some use it in their hiring decisions, but increasingly more companies are finding reasons to fire employees over what they’ve said online.

Hiring with Social Media

Photo Credit Johan Larsson

Social networking sites can be a gold mine for employers, assisting them in separating the wheat from the chaff of potential hires. A survey done last summer found that 83% of employers used social networking sites such as LinkedIn, Facebook, and Twitter in helping them evaluate job seekers. So does that mean you should lock up your online world so tight that potential employers can’t see how drunk you got last New Year’s? Well, maybe. Or, maybe not. Or even better yet, every law student’s favorite answer: it depends.

Even though hiring managers can peruse tweets and check out applicants’ Facebook walls, it might not be in their best interest to do so. They face potential liability from accusations of discriminatory hiring practices. Also, because Latinos and African-Americans are disproportionately underrepresented on social media sites like LinkedIn and Facebook, companies that use these sites face potential disparate impact claims. Title VII of the Civil Rights Act of 1964 prohibits employers from using policies that adversely impact a protected class, even if the employer did not intend any discrimination. So if an employer is only using LinkedIn to gather information about applicants, then the applicant pool may not be diverse enough due to the smaller number of minorities represented on LinkedIn. Thus, minority job seekers could be disparately impacted by this practice.

Another risk hiring professionals run while examining social media data is that they may stumble upon information they aren’t allowed to ask the applicant. Several topics, like age, religion, and family status, are off-limits in a job interview. Employers can try to mitigate the potential damage by creating a “wall” between the person who makes the hiring decision and the social media information. To accomplish this, another employee will gather the social media information, delete the protected information, and pass along what’s left to the hiring manager making the decision.

Firing with Social Media

While social media has many implications in the world of hiring, the firing over social media use is getting more recent attention. For instance, look to Aflac firing Gilbert Gottfried as the voice of the Aflac duck over his insensitive jokes on Twitter about the tsunami crisis in Japan. Also, there was a high profile firing of a social media firm used by Chrysler. The firm employee was let go after sending out a profane tweet via Chrysler’s Twitter account on accident (the employee meant to tweet the profanity on his personal account). Firing employees for their comments on the Internet is certainly not a new concept, but some studies estimate that the amount of employers firing over social media abuses is on the rise, from four percent in 2008 to eight percent in 2009.

NLRB Getting it Done

The employment law community’s interest recently spiked in social media firings thanks to the National Labor Relations Board (NLRB) stepping into the arena in two recent cases involving employees who were fired or disciplined for their comments on Facebook and Twitter. The NLRB filed a complaint last November against an employer who fired an employee for posting negative comments about her supervisor on Facebook. That case recently settled. Almost two weeks ago, the NLRB notified Thomson Reuters that it planned to file a complaint for disciplining an employee who tweeted that the company could improve the workplace by dealing honestly with the union.

The NLRB is a federal agency empowered by the National Labor Relations Act (NLRA) to protect the rights of employees and employers. The NLRA protects an employee’s right to discuss working conditions and unionization with other employees. In both the Facebook and Twitter cases, the NLRB found the employers at fault for impinging on this right.

In the Facebook case, a medical technician had criticized her supervisor in a Facebook status update. Other employees chimed in, supporting the employee’s negative remarks. The employer defended the firing, saying that she was not fired for the comments, but instead due to complaints from patients and other staff members. The NLRB stepped in because the company’s social media policy was overly broad and had been used to prohibit employees from discussing working conditions. The case settled in February, with the employer agreeing to change its social media policy so that it no longer restricts employees from engaging in protected concerted activities.

In the Twitter case, a supervisor invited employees to tweet about how the company could improve working conditions, so the employee replied via her twitter account that the company could deal better with the union. The next day, she received a call from management advising her that the company’s social media policy prohibited her from saying anything online that would damage the company’s reputation. The employee felt intimidated, but the employer defends the action by saying that it did not discipline her. Again, the NLRB stepped in to defend the worker’s right to discuss working conditions and unionization. This case is ongoing (Update 5/7/2011: it settled).

Is MySpace a SafeSpace?

Employers need not only be concerned about firing over social media postings if the posting could be construed as discussing working conditions, but they should also be careful how they obtain social media postings. Many people use privacy settings to control who can see what they’ve posted on Facebook, Twitter, or other social media sites, and some sites are better at ensuring privacy than others. If an employee locks up his/her social media presence, it’s probably a bad idea for an employer to find other means of getting at that data.

In Pietrylo v. Hillstone Restaurant Group, two employees set up a MySpace group (yes, MySpace still exists!) for past and current employees to vent about their employer. The group was password-protected and invite-only. Eventually, a manager learned of the group and with the help of another manager, convinced an employee with access to give them her login and password. The employees were then fired. Because of the manner in which the managers gained access to the group, the court found that the company had violated the Stored Communications Act (a really complicated act that most judges don’t even understand, but is essentially violated if you don’t have authorization to access stored data). The bottom line for employers: don’t snoop where you’re not allowed.

What up, Privacy Controls

With more and more companies monitoring social media sites for employee misconduct and to assist in recruiting efforts, employees and job seekers need to be aware of what they are saying online and who can access that information. Employers may not be able to fire you over what you say regarding working conditions, but that doesn’t mean that everything said online is protected from an employer’s action.

The news isn’t all bad, though. Since more employers are glancing at your online profile, you can use this to your advantage as an applicant. Companies have been successful at branding themselves with social media, and so can the employees. Each social media platform can be used to maximize one’s presence within a field of expertise. In this way, a public profile can actually help you find a job!

The Pietrylo case provides good news for employees and job seekers. If you don’t authorize your employer (or the company you’re seeking employment from) to access your private site, then the company faces liability if they try to access it through other means. However, publicly available information is fair game, so make sure your privacy settings are secure. Also, even if your tweets are protected or your Facebook privacy settings are maximized, if your boss is a Facebook friend or following you on Twitter, then what you say is available for their use. Don’t become this person.  Of course, it also can’t hurt to remember Thumper’s law when interacting with others online: “If you can’t say something nice, don’t say nothing at all.”

Setting the Stage

While Perezhilton.com is vehemently covering the conflict between Charlie Sheen and his own brain, every other news source is closely following the escalating situation in Libya. If Perez happens to be your only news source, let’s get you up to speed.

(PDF version of this article)

Perhaps inspired by the recent overthrows in the neighboring countries of Tunisia and Egypt, Libya too has found itself in the midst of civil war. By the end of February, a full-scale protest had begun. Many Libyans are up in arms over leader Muammar el-Qaddafi’s more than forty-year reign and are ready to pull the plug. Since the commencement of the rebellion, Qaddafi has used military force to suppress opposition to his regime. Qaddafi has ordered a multitude of attacks on opposition-supporting towns and cities, producing the loss of hundreds of civilian lives. Somehow in the crux of this turmoil, Qaddafi has become quite the media-junkie, using various news outlets to publicly threaten to “crush” the rebellious movement.

Qaddafi’s media savvy certainly comes at a price, and the world is collectively responding to his actions. The UN and its allies have spoken out fervently against the inhumane treatment of Libyan citizens. The United Nations Human Rights Council has even gone so far as to expel Libya from the Council. Many human rights organizations support the U.N. in promulgating its vivid message that those world leaders who “commit crimes against humanity will be punished”. Aside from the UN’s efforts, collective retaliation also involves the United States, along with Australia and Canada, all of whom have imposed economic sanctions against Libya.

As the protests continue in Libya, President Obama has inserted United States military forces directly into the country, characterizing U.S. intervention as a “humanitarian mission” to end social unrest in the country. The U.S. Constitution and international law doctrines, all of which proscribe legal limits on the President’s military authority, govern the United State’s participation in Libya. These doctrines are likely one of the many sources of controversy as the United States continues its involvement in Libya.

There is this Document… You Might Have Heard of It… The U.S. Constitution…

As the situation in Libya escalates, the United States must use its discretion in determining the level of its involvement, so as to not run afoul of international governance and to stay in compliance with our own U.S. Constitution.  Our “law of the land” describes the President as the Commander-in-Chief of the Army and Navy of the United States. This provision also confers to the President the power to lead the military in war once Congress has declared it.

However, the President’s powers are also constrained under the Constitution. Nowhere in the document is the President given express powers to declare war. In fact, that power resides solely within the province of Congress. Because the President must overcome these Congressional hurdles in order to go to war, the United States has only formally declared war on another country five times. You might ask: “What about our involvement in Iraq?” Fair enough. The War on Terrorism is considered an “undeclared war.”  Presidents have often sent the military into other countries under the guise of “undeclared wars” in order to avoid running afoul of the U.S. Constitution. Thus, a President who has reservations about Congress’s support might refrain from entering a country with express intentions of war. A President might instead enter a country under the auspices of a humanitarian mission or an intervention. (hint: the current president and the country this article is about).

I Do What I Want!

While the Constitution clearly – or not so clearly, depending on interpretation – enumerates the President can only lead a war, that belief has certainly gone to the wayside in the last fifty years. Since the end of World War II, there has been a steady shift in attitudes favoring the President’s power to wage war. Experts in constitutional law have taken note that after WWII, Presidents continue to develop the notion that “they can go to war whenever they want and ignore Congress.”  Given this purported leeway, it may seem that President Obama could to go to war anytime he sees fit. However, it’s not quite that simple, Article 1 Section 8 of the Constitution still says that Congress holds the war powers and no one else.  But if the Constitution is a living and breathing document, can’t things be molded to fit different interpretations? Yes, to an extent.

There Are Rules to Be Followed

There is no question that times, views, and opinions have changed since 1789, when the framers of the Constitution divided the war powers between the President and Congress. Some say this division was created with the intention that they would work together on the matters of war and that no one branch would have more power than another. Others argue that because the Constitution bestows the duty of Commander-in-Chief to the President, he would have the power to order the military to engage in hostile action, including war.  Even if it is widely believed that the President can declare war unilaterally, it does not necessarily follow that the President will receive support for the war. Congress ultimately has the ability to defund military operations ordered by the President. Thus, even though the President has already sent troops to Libya, Congress can jump in at any point and cut off funding.

The United Nations – of which the United States is a member – has initiated a no-fly zone in Libya and has “stressed the need to intensify efforts to find a solution to the crisis”. The UN Security Council has also authorized joint efforts that include the use of military force. However, the UN authorization does not supersede that of the United States Congress. Some citizens are questioning whether the UN’s authorization is enough to compel America to aid the efforts in Libya, let alone possibly engage in war. These critics contend that Congress – as a more accurate voice of the people – should have a say in when the U.S. is thinking about going to war.

President Obama has legally sent military forces to Libya under the War Powers Resolution (WPR). The Resolution states that “the President’s powers as Commander-in-Chief to introduce U.S. forces into hostilities or imminent hostilities, are exercised only pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its forces.”  However, even under the WPR, time is slipping away.  Congress must either declare war or authorize military action within sixty-days of the commencement of the recent U.S. military action; otherwise the President’s actions will be a constitutional violation.

Why Libya? Why Now?

Some have also criticized the United States’ decision to engage in Libya, when there are many countries facing similar social unrest. Some argue that there are alternative motives for the U.S.’s involvement in the Libyan revolution, while many echo the President’s rationale for supporting U.S. involvement in this foreign matter.Some argue along the lines of economic efficiency, urging that the U.S. only has so many resources and cannot be in every country at the same time. Others allege that the U.S. is acting selfishly. For example, there have been calls for the government to intervene in Yemen, where just last week, pro-Yemen governmental forces killed fifty protesters. Still, others speculate that the U.S. is hesitant to involve itself in these matters because Yemen and Bahrain are United States’ allies. Yemen is a key player in the war with al-Qaeda, and the fear is that the war on terrorism would be jeopardized by a U.S. intervention. Finally, some argue that the U.S. is keeping the involvement in Libya minimal because entering into a war with Libya would raise the U.S. tally of wars in the Middle East to three, which might objectively indicate that the United States has overreached itself in foreign affairs.

In an address to the nation, President Obama openly stated the U.S. involvement in Libya is for both “strategic and moral” reasons.  The President stood firm, stating that the U.S. will only take a supporting role to the UN in the efforts in Libya. Similarly, President Obama believes that to take no action in Libya would be a blatant disregard for the very morals and traditions the United States was built upon. But maybe some traditions should be changed? That is the sentiment from at least some Americans.

More Team America, Less World Police

Perhaps ironically, many of the critiques of U.S. involvement in Libya come from the same people who played a significant role in getting the President elected – the Millennials. The Millennials are the generation born between the years 1980 – 2005 and will be the next leaders of the country. The Millennials, by in large, are against foreign involvement. According to a new study by the Brookings Institution, the Millennials will likely be less “world power-ish” than our current government leaders and will err on the side of isolationism instead of globalism. Many of the young people who were surveyed felt the U.S. is too heavily involved in foreign conflicts. Many expressed a desire to scale back the military reach of the United States.

It’s possible the Millennial generation has taken notes from the history books and will not repeat the mistakes of its predecessors. Instead, it can be anticipated that the Millennials will look to the past to ensure that they intervene only where human rights are being grossly violated and where they are of the upmost concern. One thing we certainly know about this generation is that they are technologically savvy – just like Qaddafi. And whatever the future holds for Libya-like situations, you can be sure the Millennials will at least be tweeting about their generation’s constitutional controversies.

.pdf version of this article here

Take a second to think about how many times each day you use a computer to complete routine tasks.  Now, imagine that a government-instituted “Internet blackout” blocked all access to the Internet – no broadband, no Wi-Fi – not even a dial up connection. Without the Internet, you would lose the ability to read news, access Skype, Facebook, or Twitter, chat or email, and purchase products through Amazon or eBay. The recent events in Egypt have generated a lot of buzz about a government’s ability to regulate and potentially shut down the Internet.  On January 27, 2011, thousands of Egyptian citizens flooded the streets of Cairo to protest against the Egyptian government.  Two days later, Internet access began to dwindle, until service was no longer available in Egypt.  This Internet blackout continued for five days.  Why would a government order a shut down of the Internet?  Put simply, the Egyptian protesters were using social-networking sites such as Twitter and Facebook to organize the massive protests.  In an attempt to stop the demonstrations, the Egyptian government ordered the country’s four major Internet service providers to shut down service.  Meanwhile, in the U.S., the Cybersecurity and Internet Freedom Act (“CIFA”), aptly nicknamed the “Internet kill switch,” has been introduced in the Senate as a means to combat another kind of cyber threat.

Picture by Mike Licht, NotionsCapital.com

IS THE CIFA AN “INTERNET KILL SWITCH”?

In January, Senate Majority Leader Harry Reid and other congressional members put forth a placeholder bill named the “Cybersecurity and American Cyber Competitiveness Act of 2011,” and stressed that cybersecurity should be a top priority for the 112th Congress. Senators Lieberman, Collins, and Carper introduced the CIFA on February 17, 2011.  The objective of the bill is to give the government the power to limit Internet traffic in the event of a cybersecurity emergency.  It would grant the President the power to “authorize emergency measures to protect the nation’s most critical infrastructure, if a cyber vulnerability is being exploited or is about to be exploited.”  Any system or resource is considered to be part of the “critical infrastructure” if its destruction or disruption would cause a national or regional catastrophe.  The Department of Homeland Security and members of the private sector would work together to create a list of the systems and resources that would be part of the “critical infrastructure.”  This list would include both government and private sector facilities, such as banks, power plants, telephone companies, and Internet service providers.  In fact, 85% of the nation’s “critical infrastructure” is likely to be operated by the private sector. Also, the President could demand that access to any part of the “critical infrastructure” be shut off in the face of a significant threat. However, the exact meaning and scope of this language is being fiercely debated.

CENSORSHIP CONCERNS

Opponents of the CIFA range from civil liberties groups to owners and operators of the “critical infrastructure.”  They oppose the CIFA because they believe that the bill’s language is ambiguous. A letter written by the ACLU to the bill’s sponsors outlined three perceived risks with the CIFA.  First, the bill seems to grant the President a broad expansion of power over private companies, especially those deemed a part of the “critical infrastructure.”  Although the expansion of power would not authorize the President to take over the “critical infrastructure,” it would give him the authority to take undefined actions, such as limiting the public’s access for 30-day periods that may be renewed indefinitely.  The second concern is the ambiguity over which parts of the Internet would qualify as “critical infrastructure,” and to what extent these facilities would be shut down during a “cyber emergency.”  The ACLU is worried that the emergency actions taken by the President may shut down or limit Internet communications, which would limit systems that are necessary for the economy to function and for the public to communicate and access information.

Finally, the ACLU claims that the bill lacks an adequate definition for the term “cyber emergency.”  The CIFA does not define this term, but authorizes the Department of Homeland Security to “develop and coordinate the emergency measures necessary to preserve the reliable operation of the critical infrastructure.”  The underlying fear is that the government could use this bill to declare a cyber emergency in order to silence free speech or censor parts of or the entire Internet. Although the intention behind the CIFA may not be to stifle free speech, the bill will provide the government the ability to limit Internet traffic, and critics like the ACLU caution that this power has the potential to be abused.  In summary, the ACLU have asked that the power authorized under the CIFA be properly defined and restricted.

THE RESPONSE FROM THE SENATE: MYTH VS. REALITY

After the ACLU’s letter was sent to the committee, the Senators who authored the bill released a myth vs. reality fact sheet to address the concerns.  The fact sheet insists that the CIFA would not give the government the power to shut off all access to the Internet.  In support of this claim, it points to a provision in the CIFA which states, “neither the President . . . [n]or any other officer or employee of the United States Government shall have the authority to shut down the Internet.”  The Senators rebut the contention that the bill is an “internet kill switch” that will be used to regulate free speech or silence anti-government sentiment.  Instead, they view it as legislation intended solely to protect the U.S. from cyber attacks that would wreak havoc on the U.S. network.  They also argue that the bill is essential, because a cyber attack on certain areas of the “critical infrastructure” could affect a wide range of crucial components that are required to run the day-to-day activities of the US.

Each year, cyber attacks cost the government and private sector a significant amount of money. So far in 2011, attacks on US government facilities have cost over $1.8 billion per month. In addition, American businesses employing more than 500 people lose an average of $3,8000,000 per year to cyber attacks.  The attacks may worsen.  A quick Internet search of “hacked government websites” produces numerous articles and the details of the latest government sites that have been compromised. Every government site from the military to NASA has been hacked, and on the black market anyone with $500 can buy access to a hacked government site of their choosing.  The fear fueling the bill’s passage is that the next major cyber attack on either government or private sector facilities could prove to be disastrous.

The fact sheet also addressed the opponents’ concerns regarding the expansion of the President’s power over Internet traffic.  The Senators point to a provision that requires the President to use the “least disruptive means feasible” to respond to the threat, but does not authorize the government to take over the “critical infrastructure.”  In addition, the President would only be able to invoke this authority when a cyber attack results in mass casualties, severe economic consequences, long-term mass evacuations, or the severe degradation of national security capabilities.  Lastly, the fact sheet argues that the CIFA is actually a restriction of the President’s power, and they refer back to 1942, when Japan attacked Pearl Harbor.  In response to government fears about future foreign invasions, Congress passed legislation that gave President Franklin Roosevelt the authority to take over the telephone and telegraph networks.  After almost 70 years, the law is still on the books. Section 706(d) of the Communications Act grants the President broad authority to shutdown “any facility or station for wire communication,” when there is a war or a threat of war.  Although there is no mention of the Internet, this outdated provision would arguably extend the President’s ability to shut down the Internet any time there is a threat of war.  Thus, the provision in the CIFA stating that no government official will have the “authority to shut down the Internet” would actually limit the power the President currently has to control Internet traffic.  However, the effect that the CIFA would actually have on Section 706(d) is not clear.

THE FATE OF THE CIFA

The bill’s future is uncertain, and it has been referred to the Committee on Homeland Security and Governmental Affairs before it goes before the full Senate in the coming months.  Is the CIFA really an “Internet kill switch”?  Although it is unlikely that the President could actually shut down the Internet, there is always potential for abuse.  Ultimately, people have a right to speak freely without fear of government suppression, and the Internet is vital to communication.  But is governmental control of a private sector entity, even during a cyber emergency, what the U.S. needs?  Would it hurt the economy and stifle the free speech?  Or would it preserve the economic infrastructure for the greater good?  Regardless of your stance, one thing is for sure: any hint of a government-induced Internet blackout is bound to cause a ruckus.