A former Georgia police sergeant, Nathan Van Buren, used his patrol car computer to access license plate information for cash. Clearly wrong for a bunch of good reasons, but the feds chose to prosecute him for a violation of the Computer Fraud and Abuse Act. The CFAA was an anticipatory law, enacted in 1986 at the dawn of public computer use in recognition of these new folks, hackers they were called, breaking in and wreaking havoc. It was, as one might expect, an endless source of confusion as to what the words meant and what constituted a crime.

The Supreme Court, in a 6-3 decision written by Justice Amy Coney Barrett, limited the reach, if not the grasp, of one of the CFAA’s most troubling vagaries, making it a crime to ““to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Barrett, going full textualist, hung the decision on the meaning of the word “so,” as if anyone in Congress put in that much thought as to the phraseology. Continue reading →

Why, one might reasonably wonder, would Grinnell College, the party school of Iowa, pick someone to be the Title IX sex adjudicator who they knew was flagrantly biased against male students? On the one hand, that’s apparently exactly what they wanted from their adjudicator, a person who would adeptly make sure that the guy would come out guilty. On the other hand, it was almost as if the college was handed someone so impervious to criticism that she was above reproach.

So Grinnell College made a big bet by retaining Marsha Ternus, former chief judge of the Iowa Supreme Court, to serve as their Title IX adjudicator. After all, who could question the bona fides, integrity or neutrality of the former chief judge? Continue reading →

When suit was brought, the two divergent views were as clear as possible. On the one side were lawyers and academics who both cared and knew about First Amendment law. On the other was the “revenge porn” crowd who pushed defrocked congresswoman Katie Hill to go after the Daily Mail for publishing naked pics of her with a staffer. She did, with Carrie Goldberg as her lawyer and the unduly passionate as her bankroll.

It did not go well. It has now gone worse. Continue reading →

Getting over the hump of Twombly/Iqbal pleading standards, that a complaint must present allegations of fact that not only establish the elements of a cause of action, but that they are “plausible” rather than merely conceivable, has long presented a high hurdle in campus Title IX litigation. On the fact side, there is rarely a smoking gun, where a college administrator says “we hate men” or “the man is guilty because he’s male.”

Sure, there are the now-routine allegations of the pressure brought to bear on universities from once-former-and-soon-to-be-again head of the DoE Office of Civil Rights Catherine Lhamon’s bureaucratic jihad to let no grievance go unpunished. There are the campus protests and demands that colleges protect women at all costs. There are the procedures carefully designed to deny due process to the accused while creating the appearance of fairness. And there are the determinations that ignore facts and exculpatory evidence to reach the conclusion that the male is guilty. But courts often found this insufficient to establish sex discrimination against men. Continue reading →

The treatment following her win against Serena Williams in 2018 was cruel. Naomi Osaka says that her anxiety and depression began with that cruel treatment, and it’s not hard to understand why she would have felt that way.

“I never wanted to be a distraction and I accept that my timing was not ideal and my message could have been clearer,” she added. “The truth is that I have suffered long bouts of depression since the US Open in 2018 and I have had a really hard time coping with that.” She did not indicate when she would return to tournament play.

After winning her first match in the French Open, Osaka failed to appear for the post-match press conference. She was fined $15,000 and then all hell broke loose. She withdrew from the grand slam tournament. Continue reading →

While Florida Gov. Ron DeSantis is roundly ridiculed by knowledgeable lawyers for his effort to dictate content to private internet enterprises, a New York state senator from Carle Place is trying her hand at re-imagining the First Amendment, including defining “hate speech.”

§ 394-CCC. SOCIAL MEDIA NETWORKS; HATE SPEECH PROHIBITED.

1. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) “HATE SPEECH” MEANS A PUBLIC EXPRESSION, EITHER VERBALLY, IN WRITING OR THROUGH IMAGES, WHICH INTENTIONALLY MAKES A STATEMENT ABOUT A GROUP OF PERSONS BECAUSE OF RACE, ETHNICITY, NATIONALITY, RELIGION OR BELIEFS, SEXUAL ORIENTATION, GENDER IDENTITY OR PHYSICAL, MENTAL OR INTELLECTUAL DISABILITY.

Continue reading →

There was outrage in some quarters about Vice President Kamala Harris’ twit last Saturday.

Enjoy the long weekend. pic.twitter.com/ilGOrod4AW

— Vice President Kamala Harris (@VP) May 29, 2021

How dare she? No, not gratuitously twit a pic of herself, because who doesn’t want to see another pic of Kamala as twitted by Kamala? No, because this isn’t just a long weekend, but Memorial Day weekend. It was a dumb grievance, and that’s coming from someone who has never had a good thing to say about Harris. There is nothing about wishing people enjoy the long weekend that precludes remembering our fallen servicemen and women, and it was an entirely normal thing to say, even if the pic was gratuitous. After all, it wasn’t yet Memorial Day and she’s still Kamala. Continue reading →

Mark Bennett gave himself 48 hours to mope, which was 24 more than I would have given him, but he had good reason. The Texas Court of Criminal Appeals reversed the ruling of the 12th District Court of Appeals, holding the state’s “revenge porn” law unconstitutional. It’s hard enough to get a court to hold a statute unconstitutional. It’s brutal to see that reversed.

But the hardest part is to have it reversed by a court that ignores the rule in favor of the want.

Whether the State or the defense is right depends on whether the United States Supreme Court really meant it when it said, in 2010’s Stevens, Continue reading →

With the Supreme Court’s grant of cert in Dobbs v. Jackson Women’s Health, speculation has run rampant that the Court is about to reverse or significantly undermine its decisions in Roe and Casey. Whether this will happen, and should it happen will place the Court in the very institutional jeopardy that Chief Justice Roberts has gone to enormous lengths to avoid, remains to be seen.

I’m disinclined to join in the speculation, not because it isn’t possible (perhaps even likely) that the Court will do damage to the right to an abortion, but because there is nothing to be done to change it if it’s in the offing, and because there will eventually be a decision that will put the speculation to rest. I will wait and see. Why waste good outrage before you have to? Continue reading →

Here’s the scheme. Open up a business with some sort of quasi-official name, like United States Private Vaults, and install a big, very secure looking vault just like one would find in an old bank. Line the walls with numbered boxes with keys you can hand out to customers with the promise that they could put their valuable belongings into the box and never have to worry that they’ll be stolen should a burglar break into their house. Hand them a key and tell them no one else will have that key and the ability to open that box.

Then wait until the boxes are filled and then…go through the boxes and take what you want. It’s not like they can prove what was in the boxes. It’s not like they can prove what isn’t there after you’ve taken what you want. Brilliant, right? Except I can’t take credit for the scheme, because the government beat me to it. Continue reading →