White People Like Yoga – No Whiteys Allowed

October 9, 2015

Everyone knows that White people love Yoga. (source) I guess.

I love yoga. Rich milfs in yoga pants. My fucking office is located next to the rich-white-lady-in-yoga-pants capitol of the Southwest – the Coffee Bean & Tea Leaf on Town Center Drive. I walk in that place and feel like a teenager on his way to the chalkboard sometimes.

But, doing yoga? I’ve tried it. I fucking hate it. But, maybe it’s that eggplant blood that Quentin Tarantino says I carry.

Oh, but wait, apparently I can be either while or black or whatever and still like yoga.

In fact, non-white people like yoga so much that there’s now a “safe space” for everyone except white people to do yoga. (source)

Rainier Beach Yoga in Seattle has a class called “yoga for people of color.” It started last week and runs once a month.

Teresa Wang, co-founder of the specialized class, said it was started by five queer people of color who came together to create a safe space for people of color who might otherwise be uncomfortable.

An email blast about the class says it’s aimed at people of color and of all sexualities, ages, body sizes, abilities, genders, and experience with yoga. It specifically identifies “lesbian, bisexual, gay, queer and trans-friendly/affirming,” plus people who self-identify as “African American/black/of the African Diaspora, Asian, South Asian, West Asian/Arab/Middle Eastern, Pacific Islander, First Nations/Alaskan Native/Native American/Indigenous, Chican/Latin, or Multiracial/Mixed-Race.” The email adds that “white friends, allies and partners are respectfully asked not to attend.” (source)

Some people say that this is just like a sign that says “blacks not welcome” or “jews and dogs need not apply.”


It is a lot more polite. See, if Jim Crow had just said “our negro friends are respectfully asked to not sit at the lunch counter” we wouldn’t have had all that talk about equality, discrimination, and such.

Besides, I can’t imagine how a gay Arab would feel “safe” if some white woman was doing yoga in the same room as him.

Mother Jones “wins” defamation suit, pays $2.5 million to get there

October 8, 2015

Do you see why we need Anti-SLAPP laws?

Mother Jones got sued by a censorious asshat. They kicked the living shit out of him. Won on everything.

Except one thing…

It cost them $2.5 million in defense costs – which they won’t get back. (source)

Will Idaho think about passing an Anti-SLAPP law now? This might be a wake up call.

Right to Be Forgotten Ruling Means that He Will Never Be Forgotten

October 8, 2015

In May 2014, the European High Court ruled that EU citizens had a right to data privacy that included a right to insist that Google de-list old or irrelevant links about them. (Case) It was mis-named a “right to be forgotten,” as there is no such right at all. While it is easy to sell the public on a newfound digital human right, what the Court really handed down was a duty on Internet search engines to de-list results.

Almost immediately, Google’s public relations team and a slew of other hysterics flew into a tizzy — the sky was, yet again, falling. The rallying cry was “this will break the Internet.” Whenever you hear someone say that something will “break the internet,” go get your bullshit detector. Put in fresh batteries, because it will go off the charts.

Repeat after me, “if someone says ‘this will break the Internet,’ there is a 99% chance that the person is either a) being paid by Google to say that, or b) simply has not thought it through.”

One of the most idiotic criticisms of the Google Spain case was the abject lie that ex-nazis could use this ruling to hide their participation in the holocaust. I wrote, at the time, that this would be impossible. (source) The Google Spain ruling ends with an admonishment. The “right to be forgotten” does not apply if it appears for “particular reasons”: if there is good cause to interfere with the citizen’s right to privacy, including “the role played by the data subject in public life,” and if a majority of the evidence shows that the general public has a right to that information.

In other words, the right to data privacy in the EU exists on a sliding scale. It has to be balanced with the right to free expression. Since the original decision came down, there have been a number of cases in which the RTBF has been very predictably narrowed. For example:

In May of 2012, a Dutch TV show titled “Crime Reporter” broadcast secretly recorded footage of the plaintiff in this case speaking with an alleged assassin. The plaintiff was subsequently convicted to six years in prison for “attempted incitement of a contract killing,” a conviction which is still under appeal. In the broadcast, the man was not identified by his full name, but it did display his first initial and his last name.

The plaintiff originally requested that Google remove links to online publications which reported the crime he had committed. Google was initially willing to comply with part of the results the plaintiff complained about, but refused to fully honor his request. The plaintiff then decided to bring a lawsuit to have other search results wiped as well.

To my knowledge, this was the first test of the “Right to Be Forgotten” since the Court of Justice of the European Union originally declared the right in the Google Spain case. However here, the Court of Amsterdam gave some clarity as to how this new right will be treated and rejected the plaintiff’s claims in favor of free speech and newsworthiness.

The Dutch Court stated that the Right to be Forgotten “judgement does not intend to protect individuals against all negative communications on the Internet, but only against being pursued for a long time by irrelevant, excessive, or unnecessarily defamatory expressions.”

The Judge further added that, “The conviction for a serious crime such as the one at issue and the negative publicity as a consequence thereof, in general provide information about an individual that will remain relevant. The negative qualifications that may be involved will only be ‘excessive’ or ‘unnecessarily defamatory’ in very exceptional cases, for instance when the offense committed is brought up again without a clear reason, apparently for no other purpose than to damage the individual involved, if reporting is not factual but rather a ‘slanging-match’.”

In addition, this case gave a bit of insight as to how Google is implementing requests for removals. Because Google partially accommodated the plaintiff’s request for removal of information, he complained that now when his name was entered into Google, the search engine displayed a disclaimer which said “Some results may have been removed on the basis of European data protection legislation.” The Court rejected the plaintiff’s complaints in this respect finding that the disclaimer Google displayed was indeed accurate and lawful information about the data subject. (source)

In another ‘RTBF’ case decided in favor of Google, The Court of Amsterdam yet again ruled in favor of free speech and newsworthiness. This time instead of a grave criminal offense, a KPMG partner tried to employ the ‘Right to be Forgotten’ as a tool to erase a personal news story. According to outlets that reported on this, the KPMG partner and his contractor got into a dispute which forced the KPMG partner to live in a container on his country estate for an extended period. After refusing to pay his contractor’s bill, the contractor changed the locks at which point local media outlets picked up on this story. The KPMG partner was not pleased by the fact this this private dispute was subject to press coverage and sought to end this by employing the Google Spain ruling.

However, the Court of Amsterdam made clear that this is not the proper use of the ‘RTBF’. It stated, “When applying the so-called ‘right of removal’ this particularly relates to – briefly put – the relevance of the search results found, rather than whether the contents of (in this case) the articles found are themselves inadequate, irrelevant or excessive”.

The KPMG contractor took the position that his dispute was no longer relevant as it was a private matter that occurred roughly two and a half years prior to the case being heard. However, the judge made note that the RTBF may not be used to suppress news articles when she stated: “The [right of removal] is not meant to remove articles which may be unpleasant, but not unlawful, from the eyes of the public via the detour of a request for removal to the operator of a search machine.”

The judge further ruled that the search results are not irrelevant as the articles were published between 2012 and 2014. However, the judge left the door open for a future, renewed request for removal and distinguished this case from Google Spain as Costeja (plaintiff) in that case was seeking removal of search results that dated back 16 years.

In addition the KPMG partner asserted that he had other serious grounds that warranted removal of the search results in that his friends and business associates were made aware of his spat in the headlines. Supporting freedom of speech over the personal embarrassment the story may cause the KPMG partner the judge ruled, “The fact that the claimant does not like it that he is still confronted by his acquaintances or business contacts with the ‘container story’ is very understandable. However, this does not outweigh the right of freedom of information of Google Inc.” (source)

However the most recent case is one that shows exactly how little the sky really is falling — and how life can be a real puta.

Mr. Costeja, the Google Spain plaintiff, came back to the Spanish authorities, seeking a de-listing of articles about him and his case against Google. The Spanish Data Protection Authority, Agencia Española de Protección de Datos (AEPD), denied his request to suppress links to comments about the Google Spain case itself. The Agency found that given the importance and widespread attention of the CJEU’s ruling, articles and commentary discussing the case and facts behind it are considered of public interest. (decision)

All of these rulings show that the “right to be forgotten” is not the end of free speech on the internet. No kittens died. No Nazis got their past removed from the Internet. And no, the Internet is not broken.

We should all thank Mr. Costeja for doing his part to bring about the right to be forgotten, and now we should thank him again for showing that the decision is probably one that strikes the right balance.

Lanham Act doesn’t get you around the First Amendment

October 2, 2015

RLG just got a summary judgment order in Tobinick v. Novella. In that case, we first got an Anti-SLAPP order against a California plaintiff who filed a SLAPP suit in Florida (perhaps hoping that Florida’s courts wouldn’t realize that a CA plaintiff can’t run away from his anti SLAPP law). (Order here)

However, the Plaintiff maintained that our client’s articles on a medical practice were actually “commercial speech.” Court slapped that down today. (Order here)

Since there is a little more to do in the case, I’m not going to comment further. But, the Order should go in any First Amendment lawyer’s files — because this isn’t the first time I’ve seen a plaintiff try and get creative with the Lanham Act in free speech cases.

And I’m certain it won’t be the last.


September 24, 2015

The Federal Trade Commission has come after the lovely Roca Labs, Don Juravin, and George C. Whiting.  Complaint here.

Entire docket here.

Denali Ain’t Just a River in Egypt

August 31, 2015

by Jay Marshall Wolman, CIPP/US

I hate to admit it, but I first learned the term “Denali” when reading the Twilight series.  My wife and I had taken a vacation to the Pacific Northwest and visited the Olympic peninsula.  Edward and Bella references were everywhere, and we had no clue what it was all about.  So, I read the books.  And I have a problem with leaving a series unfinished (I’m looking at you George R.R. Martin).

This past Friday, with formal announcement yesterday, the Secretary of the Interior renamed Mt. McKinley, “Denali”.  Apparently, we have something called a U.S. Board on Geographic Names that was asked in 1975 to rename the mountain. It is authorized to establish uniform name conventions.  43 U.S.C. sec. 364, et seq.   The whole park was already called Denali, but the mountain itself was left unchanged.  Because the question was pending perennially before Congress, in a perpetual battle between Alaskans (Republicans and Democrats), who wanted it renamed and Ohioans, who wanted it to remain named for their native son (born in Niles, Ohio), the Board deferred action.  The Secretary declared that with 40 years of inaction, he had the authority to do it himself; I will assume he does.

In looking at the law, I was first taken by the odd language, that the Board, with the Secretary,  gets to resolve questions regarding the “standard name”.  See, 43 USC 364b.  I figured it already had a standard name, promulgated when the park was created in 1917.  But, 64.Pub.L. 253 only establishes the Mt McKinley National Park and did not name the mountain itself.  Since the park was redesignated in 1980 as the Denali National Park ( Alaska National Interest Lands Conservation Act Dec. 2, 1980, P.L. 96-487, Title II, § 202(3)(a), 94 Stat. 2382), it does seem that the name of the mountain itself was non-standard.

Chalk this one up to things that you didn’t know Congress had delegated to the executive branch.

Ashley Madison and Standing

August 21, 2015

by Jay Marshall Wolman, CIPP/US

Recently, this blog has published posts on a new Connecticut law and a 7th Circuit ruling on data breach, both of address the issue of standing in class action data breach suits.  Standing, in plain terms, means having a legal right to sue based on an injury to you.  The Sierra Club may have standing to sue for environmental damages because its members are specifically harmed; even if many of those members also belonged to Susan Boyle Fans International, Inc., the fan club would not have standing because the organization as a whole is not harmed.

Actual harm is key.  In many data breach cases, it is hard to show actual harm; identity theft may very well not occur and free credit monitoring eliminates the direct consumer cost.  Thus, a lot of litigation has focused on the right to sue in the event of a data breach.

Now, we have the Ashley Madison hack and data dump.  Ashley Madison, as you may know, is a matchmaking service for adultery.  Unlike prior breaches, the hackers are not merely keeping the information to themselves, but they are releasing information that identifies people, including public figures and federal employees.  Divorces will occur because of the data dump.  This is not a case of “maybe someone will open a credit card in my name”; it is a case of “I have to pay alimony and child support for the foreseeable future”.  Data breach victims now have tangible harm.

Class action attorneys will still litigate questions of typicality and commonality, for not every victim will suffer the same harm.  But class certification is likely, even in such instances.  In the Black Farmers Case, the class was certified even where different class members had widely varying economic losses as a result of allegations of discrimination in USDA loan programs.  The question in this matter will not be whether to certify, then, but rather how to establish class member damages.  Although this is probably the least sympathetic data breach class, it will be one of the best cases.

I should also note that liability seems pretty decent.  In the Neiman Marcus case, the plaintiffs alleged:

negligence, breach of implied contract, unjust enrichment, unfair and deceptive business practices, invasion of privacy, and violation of several state data breach acts.

That case lacked something this case does–an express guarantee.  Take a look:

100% Secure?  Nope.  Completely Anonymous?  Negative.  Their privacy policy states:

We treat data as an asset that must be protected against loss and unauthorized access. To safeguard the confidentiality and security of your PII, we use industry standard practices and technologies including but not limited to “firewalls”, encrypted transmission via SSL (Secure Socket Layer) and strong data encryption of sensitive personal and/or financial information when it is stored to disk.

That just seems to be another broken promise.  Section I of their Terms and Conditions states:

Privacy & Use of Information

Use of the Service is also governed by our Privacy Policy. You agree that by registering a Profile or using our Service you have agreed to our Privacy Statement. You acknowledge that although we strive to maintain the necessary safeguards to protect your personal data, we cannot ensure the security or privacy of information you provide through the Internet and your email messages.  Our privacy policy is incorporated into the Terms by this reference.  You agree to release us, our parent, subsidiaries and affiliated entities and ours and their shareholders, officers, directors, employees and agents, successors and assigns from all claims, demands, damages, losses, liabilities of every kind, know and unknown, direct and contingent, disclosed and undisclosed, arising out of or in any way related to the release or use of such information by third parties.  If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

This is a pretty weak effort at a release and may well not be enforceable.  Of course, the Terms and Conditions does have a choice of law provision, New York, which is pretty strong in their favor.  It also has a mandatory arbitration clause, though there is a class action waiver and a damages cap of $5,000.  I expect significant litigation over the enforceability of these terms.


Get every new post delivered to your Inbox.

Join 3,814 other followers