Student Blawg: The Costa Concordia

By: An Anonymous Student

During the night of January 13, 2012, the 955-foot Italian-flagged COSTA CONCORDIA struck rocks and capsized near the coast of Giglio, Italy, resulting in evacuation of the 4,252 people on board. Thirty-two people are known to have died during this tragic event, others were injured and two are still missing.

This tragedy raises a number of issues including cruise ship safety and the rights of cruise ship passengers, particularly pertaining to the matter of legal jurisdiction. A cruise ship ticket is also known as a “cruise ticket contract.” By purchasing the ticket, a passenger arguably enters a contract and agrees to its conditions, which include a series of limitations and waivers in case of dispute. Two clauses of concern on the Costa Concordia ticket address the jurisdiction and which laws apply for possible legal claims against the company. The “forum selection” clause stipulates the specific court in which a plaintiff may file a claim against Costa. The “choice of law” clause is where Costa names which country’s laws will apply to that claim. Despite the fact that the cruise ship has its headquarters in Miami, FL, the forum is in Italy and the choice of law is Italian law. According to Beard Stacey and Jacobsen, LLP, maritime injury law firm in Washington, this clause gives the passengers a huge disadvantage of bringing their lawsuits in Italy versus the US where it is typically easier to recover damages for pain and sufferings. Time limits on legal notices and actions are stated on the contract, and there is also a clause in the Costa contract barring the filing of a class action lawsuit.

At last report, Costa Concordia has said it will reimburse passengers for travel expenses and medical expenses. The company is also offering uninjured passengers about $14,460 each to compensate for lost luggage and psychological trauma. It is obvious that not all the passengers agree that this amount is sufficient to cover the terrifying experience of being on a sinking ship. Costa plans to address compensation to those with physical injuries and to the families of those who died on an individual basis. The Costa ticket contains a clause limiting its liability for the death or injury of a passenger to about $71,000, although that doesn’t apply in cases of recklessness and some legal experts say it could be successfully challenged.

Despite the terms on the Costa cruise ticket contract, lawsuits, including class action suits, by U.S. citizens and citizens of other countries are being filed in Florida and other states. The families of those who lost their lives fear that Italian law and courts will not appropriately address their losses. It is unclear whether the Florida court will keep the case or uphold the forum selection clause in favor of the Italian court. Even if the Florida court finds a way to keep the case on jurisdictional grounds, it may still uphold the choice of law clause stated in the cruise ticket contract. In such a case, damages would be governed by Italian law.

Student Blawg: Two thoughts about the Lower North Fork Fire

Lower North Fork Fire, Raise the Cap?

By, An Anonymous Student

On March 26 2012 a fire now known as the Lower North Fork fire raged near Conifer resulting in three deaths and the destruction of 23 homes.  Total damage amounts to at least $11.3 million.  However, since the Colorado State Forrest Service started the fire as a controlled burn, the state has a cap of $600K against lawsuits.  The Colorado Governmental Immunity Act limits the state’s combined claims to $600,000 and is divided among hundreds of claimants. The seemingly paltry sum would barely begin to compensate the victims against the states’ negligence. Governor Hickenlooper’s solution is to centralize the command by placing controlled burns under the authority of the Department of Public Safety, instead of Local Affairs and CSU. A special state commission was recently created by Republicans to review individual claims and pay out compensation on losses not covered by insurance.  Supporters of the commission state the legislation opens up an avenue for victims to collect more than the current immunity cap. Detractors state that it sets a dangerous precedent.  How do you compensate others for legitimate claims but are limited by the $600K cap?  For cash strapped Colorado, where does the money come from?  Are Colorado taxpayers now going to have to foot the bill for prescribed burns to protect the state from possible negligence claims? Do taxpayers need to pay for homeowner damages that choose to live in high-risk fire zones?

 

By, Another Anonymous Student

 

There have been several articles on the State’s liability to home owners and families that lost loved ones during the recent Lower North Fork Fire that have caused me to pause and ask “what is wrong here?”   The answer is that several things went wrong.

First, the Colorado State Forest Service under the direction of the Colorado State University set a “prescribed burn” on March 22, 2012 during one of the driest and windiest March’s that Colorado has seen in a long time.  Second, under proper procedures, any prescribed burn is supposed to be patrolled for three days after it has been extinguished.  The North Fork Fire was only patrolled for two days.  The Jefferson County Sheriff’s office in conjunction with the U.S. Department of the Interior, U.S. Bureau of Land Management and the U.S. Forest Service investigation indicated that even if the fire would have been patrolled on March 25, that the site did not seem (appear) to be dangerous.  But on March 26, 2012 the fire reignited because of dry conditions and 80 mph wind gusts and suddenly was out of control.

Governor John Hickenlooper commissioned an investigation into the cause and origin of the fire that resulted in the death of three people, destruction of 23 homes at an estimated value of $11.3 million, the destruction of thousands of acres of land and utilities, and an unstated cost to the state for the cost of extinguishing the fire.

The commission found that (i) there was no criminal wrong doing on the part of the Colorado State Forest Service, (ii) failure in communications delayed coordination of fighting the fire, and (iii) there were problems with the reverse notification system and getting residents evacuated in a timely manner.  Specifically, the first reverse notification did not go specifically to residents in the fire’s path, the second call was placed by a private company hired by Jefferson County with to a list of homes that did not include all of the homes in the path of the fire, and door to door evacuations were sporadic and did not include all of the homes that were destroyed.  But again no one seems to be responsible.

Under the Colorado Governmental Immunity Act the state’s liability is limited to $150,000 per individual up to a total of $600,000.  Up until 1987, the maximum liability was $400,000 until the then Governor Roy Romer increased the limit to $600,000 when the Colorado Department of Transportation loosened a boulder on Berthoud Pass that killed nine passengers in a bus.   Currently there have been nine notices of intent to file suit as a result of the Lower North Fork Fire.  IREA has filed a claim of $1.2 million for destruction of transmission lines.  The American Family Insurance company has also filed a “notice of claim.”

I can understand how the liability of the state must be limited to ensure that it has the funds to continue to serve the public.  But it is the public’s tax dollars that fund the government!  Errors were made and lives and homes were lost.  The general public is required to carry all kinds of insurance to replace their belongings due to destruction and to protect against claims of liability.  Corporations also carry all kinds of insurance including large “umbrella” policies to cover the unexpected and claims that exceed stated insurance policy limits.  Why can’t the State also carry these large umbrella policies?  A total of $600,000 is a drop in the bucket.  Most states run their state agencies like a corporation, and therefore, they should also have to carry that additional insurance to protect against instances like this.  This is especially true when the State seems to pursue any individual that can be found guilty of setting a fire, whether intentionally or not, and sending them the bill for the cost associated with the extinguishing of the fire.  If it is found that a fire was set intentionally, then criminal charges are also levied against the individuals.  The Lower North Fork Fire was “intentionally” set and resulted in lose of life and property.  Since Colorado is a heavily forested state and susceptible to droughts, the State’s legislature should pass legislation to ensure that the State has umbrella insurance policies to pay for its errors that result in lose of life and property because raising the maximum total by another $200,000 isn’t going to cut it.

 

Student Blawg: Oil and Gas Producers Don’t Belong in the Free Lunch Line

By: Anonymous Student

 

I applaud the U.S. Environmental Protection Agency for finalizing a rule which includes the first federal air pollution standards for hydraulic fracturing operations under the Clean Air Act. Now it is time for EPA to do the same for water quality standards under the Safe Drinking Water Act (SDWA) and Clean Water Act (CWA).

Oil and gas developers currently take advantage of a major exemption from the SDWA. Specifically, hydraulic fracturing operations are not subject to provisions relating to the Underground Injection Control (UIC) program. The UIC program regulates injection of fluids into the subsurface for purposes of disposing contaminated wastewater or storing gas. Even though hydraulic fracturing involves injecting fracking fluids into the subsurface, oil and gas developers are exempt from the UIC program. This means they do not have to monitor groundwater before, during, or after drilling operations.

Similarly, the entire oil and gas industry enjoys a broad exemption from the CWA. In this case, hydraulic fracturing operations are not required to obtain a NPDES permit for non-reportable storm water discharge. A 2007 study by EPA, which evaluates the impact of gas well sites on storm water runoff in City of Denton, Texas, concluded this exemption allows the industry to release, without a permit, storm water which contains high levels of total suspended and dissolved solids, chlorides, metals, alkalinity, and pH.

These exemptions allow oil and gas producers to operate with impunity. They are not being held accountable for groundwater and surface water contamination caused by their wells. This is most distressing because the Colorado Oil and Gas Conservation Commission plans to increase hydraulic fracturing permits, at a minimum, by 20% every year for the next three years. If oil and gas producers are allowed to increase production without monitoring groundwater or applying for storm water discharge permits, it is conceivable aquifers, wells, and tributary streams all over the country will become devastated.

A strong argument can be made hydraulic fracturing contaminates groundwater. The EPA is currently reviewing scientific evidence and reports from local water districts and residents which suggest a direct link between hydraulic fracturing operations and contaminated groundwater and surface water. It is my hope EPA, state agencies, and producers will take these findings seriously and adjust regulatory requirements and industry practices accordingly.

With that in mind, the time has come to eliminate the UIC and NPDES permit exemptions in the SDWA and CWA. Oil and gas producers can certainly afford compliance requirements, especially since modern hydraulic fracturing techniques have made oil and gas extraction much cheaper. In addition, the regulatory framework within the SDWA and CWA already exists, and the oil and gas industry exemption provisions need only be repealed.

I am confident the oil and gas lobby will claim this is an enormous regulatory burden, and I can already hear folks arguing federal environmental agencies should be dismantled, not empowered. To this I say: I do not want to be the oil and gas industry’s next victim in The Tragedy of the Commons. The oil and gas industry has never effectively regulated themselves in regards to minimizing their impact on the environment. We cannot expect them to start now.

The oil and gas industry should be held to the same standards as other industries. Producers have filed through the free lunch line long enough. When EPA and Congress are asked to repeal the oil and gas industry exemptions from SDWA and CWA, let’s support them.

Google and its Ever-Mounting Legal Issues

Google is moving backward from its slogan of “Don’t Be Evil.” Earlier this month, the technology giant was fined $25,000 for collecting sensitive information from Wi-Fi networks as it gathered photographs for its street-view feature on Google Maps. Also, a lawsuit claiming Google infringed on patents relating to voice control on mobile devices was filed in U.S. District Court in Denver this week.
Because it really is a technology giant, Google feels it has a right to take information belonging to others, whether it is personal information gathered over Wi-Fi networks or patents created and filed by very small companies several years ago. Google aims to make the world better by having all the information it can get, whether or not it shares that information with the world.
The FCC blames Google for collecting personally sensitive information over open Wi-Fi networks while building its “street view” feature on its mapping service. Google, of course, denies any wrong-doing, and claims the FCC took so long to complete an investigation on the issue that Google agreed to a months-long extension so the agency’s legal time limit for finishing the investigation wouldn’t end.
Potter Voice Technologies, a small company out of Brighton, Colorado, filed a patent more than ten years ago on voice control technologies for mobile devices. This technology is so similar to voice control features on Google devices that, Potter decided to sue Google (along with other technology giants Apple, Sony, and Samsung) for violating the patent on file when at least some of those companies knew of its existence.
Google’s main legal infraction is taking information that does not belong to it as a company. Whether personal information is involved or intellectual property is at stake, to keep its upper hand on the internet age, Google must learn to ask permission and play nice with others and their sensitive information. The company would probably pay less money to buy information and license an existing patent than it will in fines and lawsuit settlements.
Let me clarify: I am an avid Google user. Google organizes my life: I have my email, my calendar, a file of Google documents, the ability to shop on Google, and I find directions through Google Maps. I want Google to be around to keep my life together, but the company needs to get its behavior together to minimize the damage to its reputation and potential major loss of users. “Don’t be evil,” Google.

Articles used for this blog entry:
Google Fires Back on FCC WiFi Investigation

http://www.denverpost.com/nationworld/ci_20487525/google-fires-back-at-fcc-wi-fi-investigation

Tiny Brighton Company Sues Apple and Google over Siri

http://www.denverpost.com/breakingnews/ci_20490675/tiny-brighton-company-sues-apple-and-google-over

Righthaven hit with another marshal’s writ…

Glad to be a part of this! Let’s hope we can do something about it and gain something from it.

Vegas, Inc. Article

 

 

Social Media Decisions

I ran across these two court decisions recently.  Two very different interpretations of First Amendment Protection.

PFLAG v. Camdenton School Dist. III, out of the Western District of Missouri,the Court granted an injunction against the Camdenton school district when it prohibited students’ access to Lesbian and Gay friendly websites but allowed access to Anti-lesbian and gay websites.

The court ruled that the school district violated students’ First Amendment rights by intentionally blocking websites supportive of gays and lesbians using filtering software.PFLAG claimed the School District administrators intentionally blocked 41 websites based solely on their LGBT-supportive content, but allowed anti-LGBT websites through the filter. The Court ordered Camdenton to “discontinue its Internet-filtering system as currently configured, and any new system must not discriminate against websites expressing a positive viewpoint toward LGBT individuals.”

In another case,John Doe v. Bobby Jindal, out of the Middle District of Louisiana, the Court upheld a criminal defendant’s First Amendment rights when the government attempted to impose a state law prohibition against his use if Facebook while on sex offender probation. The Court ruled that the law imposed “a sweeping ban on many commonly read news and information websites,” as well as social networking sites. The definition of “chat room” in the law is so broad, for instance, the court’s own website could fall under the ban.

Righthaven: Nevermore!

After months of hard work, Righthaven, LLC has been cast adrift in Colorado. Judge Kane’s decision today (September 27, 2011) has taken the life from Righthaven which has now suffered defeats in both Nevada and Colroado.

As one of the trial team for Leland Wolf, we worked hard and focused our attacks against Righthaven, seeking relief from the U.S. District Court in Colorado to put an end to Righthaven’s infestation here.

The argument was simple: Righthaven did not have the rights to sue as it claimed to have had. After countless hours of research and briefing, two court appearances, Jay DeVoy, Marc Randazza and I were able to take the wind out of Righthaven’s sails. For now, this Opinion closes the door on approximately 35 other pending cases Righthaven has in Colorado.

To quote from the first paragraph of Judge Kane’s opinion (you really don’t have to read much further, but it’s fun to):

The issue presented in this case, whether a party with a bare right to sue has standing to institute an action for infringement under federal copyright law, is one of first impression in the Tenth Circuit. After considering the parties’ written and oral arguments and analyzing the constitutional underpinnings of federal copyright law, the legislative history of the 1909 and 1976 Copyright Acts, and the meager precedent available from analogous situations in other Circuits, I hold that the answer to that question is a forceful, yet qualified, “no” …

 As it has done on countless other occasions, undoubtedly, Righthaven will appeal this recent opinion and see how the 10^th Circuit Court of Appeals deals with the argument.  This battle isn’t over. And just like the zombies at the end of a “B” movie, Righthaven might just come back to life. And when it does, we will be ready for it!

Read the opinion here!

AZ Shootings Spark 1st Amendment Debate

State Legislators in Arizona moved quickly to approve emergency legislation to head off picketing by a church near the funeral service for the 9-year-old girl who was killed in Saturday’s attack.

According to the Associated Press,

Unanimous votes by the Arizona House and Senate sent the bill to Gov. Jan Brewer, who signed it Tuesday night. It took effect immediately. Without specifically mentioning the Tucson shooting, the law prohibits protests at or near funeral sites.

The Westboro Baptist Church has made strides in its attempts to gain recognition for its cause, primarily by picketing military funerals to draw attention to its view that the deaths are God’s punishment for the nation’s tolerance of homosexuality. It plans to picket Thursday’s funeral for Christina Taylor Green because “God sent the shooter to deal with idolatrous America.”

I’ve mentioned this group in the past and one of my students wrote extensively on the subject. (Student Blawg – What Price Freedom of Speech).

I understand the issues here, but I don’t think that chipping away at one’s fundamental liberties is the proper response.  I don’t think it sends the right message to people.  Just because you don’t like, or want to hear, the message of the speaker at a certain location, doesn’t mean you pass a law to prohibit it. Make a special note here, the WBC was not singled out in the law.  So, the law applies to any person protesting under these circumstances. I’m still looking for a copy of the law itself, and will bring you more when I find it.

Generally, The Arizona legislation is modeled on an Ohio law that was upheld by the 6th U.S. Circuit Court of Appeals. The four-paragraph Arizona bill makes it a misdemeanor punishable by up to six months in jail to picket or conduct other protest activities within 300 feet of a funeral or burial service — about the length of a football field. The prohibition applies from one hour before the event to one hour after.

This will all boil down to whether this is a reasonable time, place and manner restriction on the location of the speech, since it doesn’t ban the speech in its entirety and is essentially content neutral. Our courts will decide…

Source

CA Supreme Court: No warrant needed to search cell phone

This disturbs me.  One’s expectation of privacy has been shattered in California. The California Supreme Court ruled Monday that police can search the cell phone of a person who’s been arrested — including text messages — without obtaining a warrant, and use that data as evidence.

This ruling opens up the flood gates of abuse by law enforcement, such as unfettered warrantless searches of e-mails, documents and contacts your IPhone or Blackberry.  Not to mention, that tablet and laptop computer you’re toting around.

The ruling involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz’s phone and found text messages that implicated him in a drug deal.  Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.

“The cell phone was an item (of personal property) on (Diaz’s) person at the time of his arrest and during the administrative processing at the police station,” the justices wrote. “Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant.”

What a bunch of junk. When are the courts going to stand up for the 4^th Amendment instead of chipping away at it?  Generally, the 4^th Amendment protects one from unreasonable searches and seizures without a warrant.  The CA Supremes here didn’t even carve out an exception to the warrant requirement, such as exigency or a crime in progress.  So, where does that leave us?  That makes this ruling the RULE, not the exception.

What’s the moral here?  Don’t have your cell phone in your pocket when you’re arrested.  Stick it in the trunk along with your gym bag; that seems to be the only place where the 4^th Amendment maintains a little dignity.

Read the opinion here!

MSNBC Link

E-MAIL gets 4th Amendment Protection

The Sixth Circuit United States Court of Appeals, Tuesday, ruled that e-mail is legally protected by the Fourth Amendment. It determined in a 3-0 vote that users still had a reasonable expectation of privacy online, that e-mail was similar to traditional communication and thus that the government still needed a search warrant to intercept and read e-mail.

The Court stated:

Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection…. It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve…. [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement….

Applying the Fourth Amendment sets the first legal precedent of its sort and could prevent the government from any further attempts to snoop civilian e-mail without a warrant.

Read the opinion here!