Author: TSA Press

At a bail hearing in Manhattan, prosecutors argued that Jeffrey Epstein is a flight risk and recommended no bail. From Courthouse News:

Pushing to keep Jeffrey Epstein behind bars, U.S. prosecutors said Monday that investigators have uncovered a foreign passport with the wealthy sex offender’s picture and an assumed name.

At a hearing this morning in Manhattan federal court, Assistant U.S. Attorney Alex Rossmiller also described “art and diamonds” that the government found in Epstein’s $77 million Upper East Side mansion.

“How much money does he have? Where is it?” Rossmiller said of Epstein’s suspected cache of undisclosed assets. “How much of it is in diamonds or art?”

Defense attorneys argued Epstein should be placed on house arrest… which is I guess the euphemism we’re going with to describe the gilded mansion attended by servants that constitutes Epstein’s “house.”

Look, let’s not waste time wondering if Epstein should be denied bail; of course he should be denied bail. Of course he shouldn’t be allowed to live in his mansion. Of course he poses a significant flight risk.

My question is: why didn’t he fly already?

Epstein was arrested at Teterboro Airport in New Jersey, coming back from Paris, France. One assumes he didn’t know the arrest was coming, despite months of hard reporting in the Miami Herald about his crimes.

His lack of anticipation seems like the ultimate hubris. Based on the evidence brought forth at his bail hearing today, it would certainly seem like Epstein was prepared to skip town at a moment’s notice. In addition to the fake passport, he had, you know, his real one. It’s mind boggling to me that this alleged sex trafficker was so sure he’d get away with his crimes that he likely had an international “go” plan, yet didn’t feel the need to put that plan into motion. How did he think this was going to work? Did he think he’d have buddies in the prosecutor’s office that would “tip him off” before the arrest warrant went out? Did he think Matt Damon from The Departed would send him a text?

Jeffrey Epstein could be on a beach in Phuket under an assumed named far away from accountability and retribution for his disgusting alleged crimes. Instead, he’s in jail, and should hopefully be there for the rest of his life.

Phony Epstein Passport, Plus Art and Diamonds, Unearthed [Courthouse News Service]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Why Law Firms Are Moving to the Cloud

Why Law Firms Are Moving to the Cloud

Clio

If you’ve seen The Princess Bride, you remember Vizzini the Sicilian and his cohort, Inigo Montoya, the Spanish swordsman (“Hello. My name is Inigo Montoya. You killed my father. Prepare to die.”). You’ll also remember Vizzini repeatedly describing unfolding events as “inconceivable.” In one scene, when the Dread Pirate Roberts does not plummet to his death after Vizzini cuts a rope the pirate is ascending on the side of a cliff, Vizzini exclaims, “Inconceivable!”

Inigo Montoya, having just watched the events unfold, turns to Vizzini and says, “You keep using that word. I do not think it means what you think it means.” The line has always been famous among cult followers of the film and even inspired a popular meme.

I think about (and almost use) Mr. Montoya’s line quite a bit because a lot of phrases in the employment law lexicon don’t mean what they sound like they’d mean.

For example, one of the baristas at my favorite coffee shop found out last week that I’m a labor and employment lawyer, and he asked me a few questions. He mentioned at one point that Georgia is a “right to work” state and that, as such, he understood that he has a right to his job and could only be fired for a good and legitimate reason.

I guess that’s a reasonable assumption. The term “right to work” certainly sounds like it has something to do with, well, someone’s right to a job. By logical extension, someone shouldn’t be able to take away that right without a good reason, right?

But that’s not the case.

Many states have enacted laws or even amended their constitutions to add provisions addressing the rights of workers to be employed without: (1) joining or maintaining membership in unions; or (2) paying dues or fees to unions that represent them for purposes of collective bargaining.

These are “right to work” laws, and they are typically designed to protect employees’ rights to work without affiliating with unions or contributing financial support to unions. These laws do not create a right to a job or a right to only be fired for cause.

More than half of our states have “right to work” laws of some kind. The following 23 states do not have such laws covering private sector employers: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.

Another very misunderstood employment law term of art is “harassment.” In my role as an employment lawyer, I frequently encounter individuals who believe that they have been harassed at work and that their rights have thus been violated.

It may be that someone feels his or her co-worker has been repeatedly (and deeply) insulting to them. It might be that a someone believes his or her supervisor has been bullying him or her. I see allegations of harassment in just about every workplace scenario you can imagine. While I usually don’t doubt the veracity of what individuals are saying, I’m usually skeptical about whether the harassment they’ve experienced is legally actionable.

Google Dictionary defines harassment as “aggressive pressure or intimidation.” This is the definition most people apply when they’re evaluating whether their rights have been violated at work. And while aggressive pressure and/or intimidation might be present when legally actionable harassment occurs, pressure and intimidation are ultimately insufficient on their own to satisfy the legal definition of harassment.

The definition of harassment applied by courts is typically unwelcome conduct that is based on a protected category. Protected categories include: race, color, religion, gender, pregnancy, national origin, age (specifically, 40 or older), disability, or genetic information.

In addition to the conduct needing to be because of or based on a protected category, unlawful harassment occurs only when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Conduct that’s better classified as petty slights or annoyances, or that are isolated incidents (unless extremely serious, and I mean very serious), will generally not rise to the level of illegality.

These are high legal thresholds to meet, while the satisfying the Google Dictionary is much easier. This has led to a lot of disconnect and misunderstanding. It is also why, I believe, employers win the vast majority of employment cases at the summary judgment stage.

So the next time someone mentions “right to work” laws or “harassment” at work, direct them to this article. This article can play the role of Inigo Montoya and tell them, “I do not think that word means what you think it means.”

Evan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

Donald Trump is trying to change the U.S. asylum laws, via executive action, in contravention of U.S. law, again. Again, Trump perceives that mistreatment of asylum seekers, in contravention of established principles of international law, will play well with his white supremacist base and the majority of white people who voted for him. Again, he’s probably not wrong.

The proposed change affects whether asylum seekers can even seek asylum. The new rule states that people who reach America cannot seek asylum if they passed through another country and did not seek asylum there first. Here are some of Trump’s evil henchmen explaining the anti-immigrant policy, on NBC News:

“Until Congress can act, this interim rule will help reduce a major ‘pull’ factor driving irregular migration to the United States and enable DHS and DOJ to more quickly and efficiently process cases originating from the southern border, leading to fewer individuals transiting through Mexico on a dangerous journey,” Department of Homeland Security Acting Secretary Kevin McAleenan said in the statement.

Attorney General William Barr called the interim final rule a “lawful exercise of authority provided by Congress to restrict eligibility for asylum.”

As with this racist administration’s other attempts to change asylum rules, this new gambit is illegal under U.S. law. We’re not talking about a norm, or a practice — there is actual statutory language here that makes Trump’s move illegal on its face:

8 U.S. Code § 1158 – Asylum

(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

That language does not authorize the Attorney General to deny asylum seekers; it authorizes him to remove them, on a case-by-base basis, only after determining that there is some third country that could hear the asylum-seeker’s claim without prejudice. The proposal here contemplates using that exceptional authority indiscriminately towards all asylum seekers without any notice about whether the pass-through countries are willing and capable of providing a fair, non-prejudicial adjudication of an asylum-seeker’s claims.

If laws are not your thing, we also have international practices that tell us Trump’s asylum proposal violates human rights conventions. From the International Justice Research Center:

The basic principle of refugee law, non-refoulement refers to the obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 1951 Convention relating to the Status of Refugees, art. 33(1). Non-refoulement is universally acknowledged as a human right.

Trump refuses to accord asylum seekers with the basic rights given to them by U.S. law and international conventions. His actions are consistent with a rogue state warlord, and not “the leader of the free world.” Yet white-wing Republicans continue to support these policies.

I wonder why.

Trump administration moves to end asylum protections for most Central American migrants [NBC News]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

You’ve probably seen them by now, and if you haven’t, you will probably ask yourself the same question everyone else does, which is:  how do they do it?  For the uninitiated, I am talking about “deepfakes” (an interesting combination of the phrase “deep learning” and the word “fake”).  Described as “a technique for human image synthesis based upon artificial intelligence,” deepfakes are altered photos or videos that are definitely not what they seem, and in the context of copyright law, disrupting more than you think.

First, some understanding of deepfakes would be helpful.  Altering images and video to be something other than originally intended is nothing new, but these altered images and videos are not your garden-variety staple — these are (usually) created by using a machine learning construct known as generative adversarial network.  Essentially, it involves two artificial neural networks working off each other based on a specific training objective (say, the creation of an image indistinguishable from the original), with the generative network creating new images compared by the discriminative network until the generative network meets the objective.  Of course, that is a gross simplification, but you get the gist — deepfakes are very convincing computer-generated “fakes.”  Don’t believe me?  Look at an example here.  Make no mistake — although there is still some room for improvement, there will likely come a time when such deepfakes will be extremely hard, if not impossible, to detect.

Such convincing fakes are an amazing feat of technology, but present a host of thorny issues when it comes to their use. Although an interesting means for parody, the Mark Zuckerberg deepfake demonstrates how this technology can be used to create a false narrative attributable to a person who never said it.  It can also be used to morph existing images into ones that may depict the original content (or the copyright owner) in manner that is disparaging if not extremely damaging to the work itself.  In a nod to conspiracy theorists, it may not be outside the realm of possibility in the near future that such deepfakes could be used to induce anything from stock market instability to all-out war.  It’s not hard to imagine bad actors using this technology to further their own objectives, and unfortunately, the law has a lot of catching up to do.

The issues presented by deepfakes under copyright and privacy laws are troubling, and here are a few examples that should invoke particular concern:

• Fair Use.  Although the owners of copyrighted works enjoy certain exclusive rights to those works, the fair use doctrine allows for freedom of expression by permitting the unlicensed use of copyrighted works by others under limited circumstances, such as for criticism, comment, news reporting, teaching, scholarship, and research.  Section 107 of the Copyright Act outlines these criteria, as well as four factors for consideration in the fair use analysis. It should come on little surprise that many deepfakes may fit squarely within enumerated exceptions, but when it comes to weighing the four factors, whether the deepfake is sufficiently transformative or one whether the use would have a negative effect on the market for the work are far more complicated elements to consider. Needless to say, deepfakes can take the fair use analysis to a whole new level, much to the chagrin of the copyright owner.

• Digital Millennium Copyright Act (DMCA).  Enacted in 1998, the DMCA provides (among other things) a mechanism for copyright owners to request a “takedown” of their copyrighted content from websites, but this mechanism is not perfect.  For example, the fair use doctrine listed above would be a valid defense to such a takedown request. Further, such DMCA take down notices are only as valid as the country that recognizes them, so they are not much help if the website hoisting the infringing work is based in a far-off jurisdiction that does not recognize them.  Moreover, it is not a stretch to assume that many deepfakes will be posted through social media channels such as YouTube and Facebook to name a few.  Given the recent postings of deepfakes on social media platforms already, there does not seem to be any universally accepted way of handling such deepfakes, so each social media platform will handle it differently.

• State Privacy Torts.  Most states either recognize at common law or have enacted laws that address violations of individual privacy, generally addressing (i) intrusion upon seclusion or solitude, or into private affairs; (ii) public disclosure of embarrassing private facts; (iii) publicity which places a person in a “false light” in the public eye; and (iv) misappropriation of one’s name or likeness for commercial gain.  To the extent a deepfake crosses the threshold of liability under an applicable state tort, the individual damaged by the deepfake may seek redress.  That said, not all states recognize all the aforementioned privacy torts.  Moreover, redress may rest with the individual(s) depicted in the work as opposed to the copyright owner.

Whether we like it or not, deepfakes are here to stay, and are only going to get better and more convincing. As a result, the issues presented will need to be handled in more solid ways than through the existing copyright framework or patchwork of state laws.  Only time will tell if this will be accomplished through updates to the Copyright Act or through other federal legislative measures.  Let’s just hope it is sooner rather than later — until then, it seems that the law just may be faking it itself.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.