Author: TSA Press

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.

The U.S. is very competitive in CrossFit, so I would have zero chance to qualify as American, but I was able to qualify as an Iranian. It is pretty exciting for me to represent Iran and to be able to compete at the highest level of the sport.

I am heading down to Madison on July 27, which is four or five days before the competition even starts, just to get acclimated to the humidity, the time change. I realistically expect to be cut early on as they narrow the field down to the top competitors, but [am] hoping to do as well as I can on the first couple of days.

— Payam Saljoughian, 32, a senior counsel at Hanson Bridgett, commenting on his upcoming appearance at the Reebok CrossFit Games, where he’ll represent Iran. Saljoughian is a dual citizen of Iran and the U.S., and was only able to qualify for this year’s event because the qualifying system was changed to be based on citizenship instead of on location. “I don’t train as much as I would if I was not an attorney,” he says.” “But I like balancing both, it is just about time management and consistency.”

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

If transparency is an antiseptic, then more people should take time out during the day to wonder what’s been going on with the administration’s infamous Muslim Ban ever since the United States Supreme Court decided they could look past televised statements like “we want to ban Muslims” to find a neutral and non-discriminatory motive for the policy. Because the policy may have slipped from the headlines when officials stopped turning people away at the airports, but with the policy moving out of the headlines, the capacity for abuse has ramped up and exacerbated a human rights crisis.

The Center for Constitutional Rights wants America to start paying attention again.

CCR, continuing their historical mission of “hitting them where they ain’t” advocacy, largely sat out the original influx of Mulsim Ban cases, Executive Director Vince Warren told me this weekend at the Netroots Nation conference.

Other non-profits and major Biglaw pro se efforts were aligned against the government. More importantly, state attorneys general were leveraging their considerable resources against the policy. For CCR, its resources weren’t as critical to that immediate fight. After the White House changed the policy to include a “waiver process” to grant the policy a constitutional fig leaf — if someone can get in on a waiver, then it can’t possibly be a blanket policy! — CCR saw the opening for its patented brand of advocacy. “When we got to the third iteration with a waiver provision it became clear to us that this was something the Supreme Court would probably find constitutional,” Warren said.

So CCR works on matters that flag the administration’s “waiver policy” for the mostly empty promise that it is. What they found is a fully offshored initiative shutting down access to America at local embassies around the world that won’t return calls if they’re even open at all. It’s the focus that produced the study cited by Justice Breyer in his dissent focusing upon the “window dressing” that the waiver process afforded.

That point about not being open at all is the heart of the human rights crisis the Muslim Ban is causing in Yemen and Djibouti. The U.S. abandoned Yemen diplomatically as the civil war intensified and those seeking to leave the country — including in many cases those with direct familial ties to the U.S. — have had to sell everything and decamp to Djibouti as a way station on the path to America.

And Americans have almost no grasp of the financial costs these folks incur in the effort to come to America, many paying over $100K in the effort. It’s a price they’re willing to pay because in most cases CCR’s clients are in the situation of being the one or one of the few family members who are not already in America, if not American citizens themselves. That’s the key to the government’s initiative CCR’s Ibrahim Qatabi explained, “many times it’s just one family member left out. It’s used as a deterrent to keep the whole family from coming over.” If that sounds like the systematic family separation at the Southern border, it’s because this is just another component of a broader xenophobic policy.

For every important story from the border, there is another less heralded tale, like the one of a CCR client whose four Yemeni children were separated from their parents because the children secured their visas before their mother, forcing their father to stay behind rather than abandon her alone in Djibouti, a country foreign to her. They have finally, after the spotlight turned on the case, secured the final visa and been reunited. But again, the misplaced visa for a single family member isn’t as much about the law — it’s about deterring the whole, approved family from coming at all.

CCR’s fluid form of advocacy leads them to attack the crisis in a few different ways, Qatabi and Aliya Hana Hussain of CCR told me. On the one hand is advocacy work, filing cases to force the Trump administration to issue visas. In many cases, CCR is representing people who were actually approved before the ban. It’s a strategy that exposes the as applied unconstitutionality of the waiver process. But it’s also a tactic that has successfully secured multiple waivers from an administration that seems to understand that fighting these cases would undermine their fundamental constitutional argument. And yet, the government’s willingness to backtrack whenever confronted with a lawsuit also proves just how arbitrary and capricious the whole process is.

The group is also working on community empowerment initiatives, working with other groups on “Know Your Rights” efforts as well and media outreach profiling clients to bring a little more transparency to exactly who is being targeted by the Muslim Ban. Underscoring that litigation isn’t the only avenue for effective advocacy, CCR has seen success with the federal government backing off visa bans to blunt compelling human stories of separated families.

It’s a red flag when the government sees fit to back down whenever hauled into court or dragged on television. It’s just part of an overarching strategy — along with moving the ban’s operations overseas — of keeping the impact as shielded from the public as possible.

So we should all probably pay more attention.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Here at Above the Law we care a lot about increasing transparency at Biglaw firms — that’s why we spend so much time reporting on bonuses and salaries and benefits. And while reporting on the market standard and leaders will always be a part of our mission, we also want to hear about what it’s like to actually work in the halls of Biglaw.

So, we’re asking our readers to fill out a brief survey about what they wish they knew about their firm before they started working there. We don’t care about the firm’s PR line, but about what associates really feel about the firm. We’ll be integrating the results of the survey into a new transparency project that’ll be launched later this summer.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Public records research is a crucial component of a broad range of legal matters — from litigation to transactional due diligence. Too frequently, lawyers are unaware of the possibilities of foregoing the hiring of private investigators in favor of other, more cost-efficient options, such as leveraging the right public records research platform.  Our friends at Thomson Reuters have put together a report, Law Firm Best Practices for Public Records Research, that explores less expensive alternatives that can yield the same or even superior research results.

For lawyers who need access to public and proprietary records, a modern search platform with public and proprietary records, such as Thomson Reuters’ PeopleMap, delivers what they need without an expensive private investigator. Moreover, the right platform can provide results faster as well, and without any of the ethical concerns that may complicate the engagement of a traditional PI.

Check out this white paper to learn how you could obtain better results faster, and at a drastically lower cost on your own.

It wasn’t exactly a carnival — there was only one mic, an accordion, and a hand-held drum. But the gathering of over 300 people along a lonely stretch of road beneath the Turnpike Friday night outside the Essex County Correctional Facility in Newark, New Jersey, was something to celebrate.

These people (me among them), ranging in age from teenagers to geriatrics (one grey-haired woman passed out copies of “CHALLENGE,” the “revolutionary communist paper” of progressive labor), chanted verses in call and response, sang songs from the 60s, and held aloft battery-powered candles as part of a nationwide vigil to protest ICE raids and the separation of immigrant children from their families.

People carried signs like “Cage-Free Children,” “Families Belong Together,” “Welcome Immigrants,” “No Hate, No Fear,” and “And We Vote.”  Speakers told stories of their border crossings.  Many excoriated the Trump administration.  Some blamed ICE and called for it to be abolished.  One man, who crossed the Rio Grande at age 14, blamed liberals for not being leftist enough.

At one point, a detainee inside the prison made a phone call out to us, which was held up to the mic. He’d been detained at Essex Correctional for 10 months and was fighting deportation.  He said he’d do whatever he could to help us — the guy inside, helping us outside — we who have jobs, homes, and are united with our families.

It was a hodge-podge of ideas and voices, and even though no media covered the gathering, it felt good just to be there and cheer as the 18-wheelers moseyed by, honking in solidarity.

We were doing something, no matter how fleeting, to counter the Trump administration’s objectification of immigrants as “the other,” as criminals, as undermining the “American” way of life.

Over the week, in anticipation of the much-threatened ICE raids that were supposed to target 10 cities, I received updates from immigration organizations — “ICE Kits” — equipping attorneys and communities to know what to do should ICE show up at the door.

Chief among the tips was “Don’t open the door.”   If ICE can’t get in, they can’t arrest without a court-ordered warrant.

Another tip — pay no attention to the “ruses,” a term of art used in ICE manuals to tell agents it’s okay to make up stories, pretend you’re someone else, like city police, looking for information, just wanting to have a photo identified, or check for a burglar.  Once the door opens, even a bit, ICE comes in.  They’ll search the home, ask everyone for identification, and if they find anyone undocumented, can detain them.

The tactics aren’t new.  They were being employed during the Obama years and before, just not with all the hoopla that President Trump used to roll out his plan.  He’s kicked hate and fear into high gear, most recently even attacking sitting congresswomen of color, telling them to “go back” and fix the “crime infested places” they “originally came from.”  (How to win friends and influence people.)

If I were an immigrant with an open deportation order, or an undocumented alien, having been duly warned, I’d have been laying low over the weekend.  And many were.  Reports said that open-air markets where immigrants usually shop in places like Queens, New York, and Passaic, New Jersey, were empty. “Ni siquiera una mosca (not even a fly),” one vendor said.

The anti-ICE raid campaign worked. According to initial reports, fewer houses were invaded and people arrested than anticipated. So maybe Trump’s bloviating served a good purpose — coalescing the opposition.

The reality is the U.S. has been on a roll, deporting non-citizens since the founding of the Department of Homeland Security in 2002 just after the terrorist attack on the World Trade Center.

Since its formation, DHS has deported over five million people – almost twice as many people than in the previous 100 years combined.  According to the Immigrant Defense Project:

The effective merger of the “homeland security state” and the prison industrial complex over the past 15 years has led to the normalization of mass deportation, one which relies heavily on the criminalization of immigrants. As a result, DHS — its underlying logic, the profound human suffering it has caused, its relationship with other agencies, and the political interests it serves —has not until recently received the kind of public scrutiny an institution of such magnitude and influence deserves.

That public scrutiny is coming now.

Insult, scare, and threaten enough people, and even those who never paid much attention to immigration are going to start watching.

If you really want to fix the system, Mr. President, tone down the rhetoric and figure out the cause of the tremendous influx of migrants crossing our borders.  They ain’t all murderers and rapists.

If the Trump administration did less arresting, criminalizing, and threatening, there might be more time to support the “crime-infested places” that people are running from.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.