Warrantless Cell Phone Searches

The U.S. Supreme Court made a sweeping ruling on a piece of technology that is ubiquitous in society but has created new legal issues as its use has become widespread. Yesterday, the Supreme Court ruled in Riley v. California that a police officer cannot search a cell phone’s data after a lawful arrest without a warrant. While this opinion does not shield cell phone data from all warrantless searches, it is an opinion that will greatly affect whether and how digital data will remain private. Please call our toll-free number at (855) 977-1212 to see how one of our attorney members can provide you a FREE CONSULTATION on your Criminal Law issue.

An important distinction needs to be made prior to continuing with describing the Court’s decision in Riley. In this case, the Court only disallowed the police from looking at the data on a cell phone. The police are still able to locate and seize a person’s cell phone at the time of the arrest and are able to disable the phone in order to prevent any destruction of data. The Court’s holding only protects the data accessible by the cell phone and not the device itself.

The Court looked at the type of data that cell phones can carry and determined that the Fourth Amendment would not allow a warrantless search of a cell phone’s data as a result of an arrest. Both the majority and dissenting opinion described the long history of police being able to search after an arrest. Nonetheless, the Court felt that such a search was inappropriate here.  The majority cites Chimel v. California, which is the case upon which the modern law governing searches after an arrest are based. In Chimel, the police arrested a man in his home and then proceeded to search the entire three-bedroom home without obtaining a warrant. When they discovered incriminating evidence against Chimel, they tried to claim that the evidence was admissible according to a 1914 precedent, because the government can conduct a warrantless search as incidental to an arrest. The Supreme Court stated that a warrantless search after an arrest can only be of an arrestee’s person. Moreover, the Court said that warrantless searches incident to an arrest is justified by concerns over officer safety and the defendant destroying evidence.

Here, the Court stated that while there is a longstanding precedent that a police officer can search a person following his/her arrest, the nature of the data in a cell phone is qualitatively different than other items that an officer may find on an arrestee’s person. The Court reviewed the rationale of precedents like Chimel and found that cell phone data is too distinct from other types of information that the police can learn from searching an arrestee’s person. Unlike other items the police may find when they search an arrestee, cell phone data (especially from smartphones) cannot be a threat to officer safety and is it little danger of being destroyed by the person arrested once the phone is seized.  

Furthermore, the amount of data that a cell phone contains far outpaces the amount of other data that can be found on an arrestee’s person. Prior to the existence of cell phones, a person may keep a few photos on his/her person, but now all a person’s photos can be stored on his/her cell phone. Moreover, with smartphones and widespread internet access, a person’s e-mail correspondence, financial data, friend network and various other types of data are fully available on his/her cell phone. The Court felt that the police would invade too deeply into a person’s right to privacy if the police were able to access the amount of data on a cell phone without a warrant.

The Court held that cell phone data cannot be subject to a warrantless search after an arrest, but the Court did not deny the police any opportunity for a warrantless search of the cell phone’s data.  For example, the Court specifically said that the exigent circumstances exception to the Fourth Amendment may give the police the authority to search an arrested person’s cell phone data.  As more courts review this precedent, the public will learn which exceptions to the Fourth Amendment search clauses will apply to cell phone data.

The Riley holding will have long term effects on not just cell phones, but on all personal electronic devices. Most importantly though, the Supreme Court established a precedent that a person has a privacy right to his/her digital data. This decision could have far reaching effects, including such things like how data is protected on social media networks or whether photos on Tumblr or Instagram can be accessed by the police. The Supreme Court and lower courts will likely continue to hear cases that try to refine this privacy right to a person’s digital data. Continue to come to LA Jewish Lawyer blog for the latest legal news. And please call our toll-free number (855) 977-1212 for a FREE CONSULTATION about your legal matter from one of our network of attorneys.

EPA Can’t . . . Can Regulate Greenhouse Gases

On June 23, 2014, the U.S. Supreme Court decided in Utility Air Regulatory Group v. Environmental Protection Agency that the Environmental Protection Agency (EPA) cannot regulate a stationary emitter of greenhouse gases (GHGs) unless the agency is already regulating the source for the emission of other air pollutants. This decision follows over half a decade of court decisions and administrative agency rulings over whether and how the agency will regulate GHGs. Please call our toll-free number at (855) 977-1212 to see how one of our attorney members can provide you a FREE CONSULTATION on your legal issue.

The Clean Air Act (CAA) and the amendments passed in 1990 requires that the EPA identifies air pollutants that can have a negative impact on human health and then regulate their emission. Chapter 1 of the law establishes that the agency will find and determine if an airborne substance constitutes a danger to public health. Once the agency has determined that an air pollutant is a danger to public health, then it follows the procedures established by Chapter 1 of the Act to regulate stationary sources. Chapter 2 governs how to regulate moving sources, such as motor vehicles. Chapter 5 creates a permitting process for the stationary sources in Chapter 1. Most relevant to the case above is that Chapter 1 states that a stationary source of an air pollutant must pollute between 100 to 250 tons of that air pollutant in order to have to obtain a permit.

In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the EPA must determine if GHGs are a danger to human health and if GHGs do endanger human health, then the EPA must regulate the moving sources of them under Chapter 2 of the Clean Air Act. Prior to the Court’s decision, the EPA refused to define and treat GHGs as air pollutants for the purposes of the Clean Air Act. Therefore, the Supreme Court in Massachusetts clarified that “air pollutant” in the endangerment section of the act means any substance in the air that can harm human health.  

As a result of the Supreme Court’s order in Massachusetts, the EPA investigated GHGs and in 2009 drafted an Endangerment finding that said that GHGs are a danger to human health. The agency next promulgated rules under Chapter 2 for moving sources of GHGs in 2010. When the EPA was investigating the danger of GHGs from moving sources, the agency found that any rule regarding moving sources of GHGs would require another rule for stationary sources as well.  

Therefore, the EPA started developing regulations for stationary sources of GHGs as well. Yet, the agency found that the triggering mechanism in Chapter 1 for stationary sources was too low for GHGs. As mentioned above, Chapter 1 of the CAA requires that a stationary source that emits over 100 to 250 tons of an air pollutant must be regulated by the EPA. Furthermore, the CAA mandates that the EPA ensure that the source of the air pollutant use the “best available control technology” (BACT) to reduce its emission of the pollutant. The problem with GHGs is the emission 100 to 250 tons is too low a threshold for complex permitting requirements in the CAA. If the EPA were to regulate all stationary sources that emit more than 100 tons of GHGs, the rule would require office buildings, malls, hospitals, schools and other low-level emitters of GHGs to obtain a permit through the complicated permitting process in Chapter 5.  Both the EPA and the Court acknowledged in this case that Congress wanted the CAA to govern major industrial sources of pollution and not the sources such as malls mentioned above.  Thus, the EPA created a new rule that tried to tailor regulations on GHGs to only cover industrial sources of GHG pollution.

To tailor the regulation of GHGs to the appropriate major sources of that pollution, the EPA drafted a new rule for stationary sources that would phase-in through three steps (Tailoring Rule). First, the EPA would require no new sources of GHGs to obtain a permit from January 2 to June 30, 2011. Instead, the agency would only require that a stationary sources of GHGs would only have to obtain a permit for GHGs if they are already required to obtain a permit due to emission of another air pollutant. Furthermore, those sources who are already required to obtain a permit (so-called “anyway” sources) because of emission of another air pollutant would only have to find BACT for GHGs if they emit over 75,000 tons of carbon dioxide (or an amount of another pollutant so that it would have the equivalent effect on climate change as 75,000 tons of CO2 (CO2e)). Step 2 stated that new sources of GHGs that were not already required to obtain a permit previously would have to go through the permitting process if they emitted more than 100,000 CO2e. This step would take place between July 1, 2011 through June 30, 2012. Step 3 states that the EPA might (or might not) lower the triggering amount for obtaining a permit to 50,000 CO2e after July 1, 2013.

Almost immediately after the EPA made a final decision on the Tailoring Rule, several states and industry and corporate groups challenged the Tailoring Rule. The EPA successfully defended its rule before the D.C. Circuit Court. Several of the plaintiffs appealed to the U.S. Supreme Court and the Court decided to grant a hearing to six of the petitioners for an appeal.

The Court held that the EPA cannot promulgate rules for new stationary sources of GHGs because Chapter 1 and Chapter 5 which govern regulations of stationary sources and the permitting requirements do not govern GHGs. Also, the Court held that the Tailoring rule that the EPA created was either unworkable or impermissibly changed unambiguous language in the statute. First, the Massachusetts Court held that when the Act refers to “air pollutant” it could govern GHGs if they were found to be a danger to public health. Yet the Court in this case says that while an “[a]ct-wide definition of air pollutant” does cover GHGs, the term “air pollutant” in permitting chapter of the CAA does not refer to GHGs. The Court says that “air pollutant” in these sections have a narrower definition than the act-wide definition of air pollutant and therefore cannot authorize the EPA to require new stationary sources of GHGs to obtain a permit.

Furthermore, the Court held that the Tailoring Rule that the EPA established for new stationary sources of GHGs are either impractical or impermissibly changes the statute’s language. The Court, like the EPA, acknowledges that the triggering level of 100 to 250 tons of air pollution emissions from a stationary source is too low for GHGs. Yet the Court holds that the EPA cannot  attempt to circumvent that triggering level by increasing it by 1000 times its current level.  The Court states that to do so would impermissibly rewrite statutory language. Therefore, the Court struck down Step 2 and 3 of the EPA’s Tailoring Rule.

The Court though did not prevent the EPA from regulating GHG emissions from stationary sources entirely. Step 1 of the EPA’s Tailoring Rule requires that “anyway” sources of GHGs, or stationary sources that are already required to obtain a permit for another air pollutant, that have GHG emissions of more than 75,000 CO2e obtain the BACT for GHGs as well. The petitioners challenged this rule as well, but the Court held that this rule is permissible. The Court argues that this rule is permissible because the term “air pollutant” as referred to in the section governing BACT has a broad definition like the “act-wide” definition and unlike the definition of air pollutant concerning the permitting process. Thus, the Court held that requiring BACT for “anyway” sources was a permissible interpretation and upheld Step 1 of the Tailoring Rule.

Despite the Court’s striking down major portions of the Tailoring Rule and preventing regulation of new sources of emissions, the EPA’s Tailoring Rule still will have a major effect on GHG emission. The EPA and the Court asserted that 83% of the facilities that the Tailoring Rule was going to govern can still be regulated because they are “anyway” sources of GHGs.  Furthermore, the Solicitor General, who represented the EPA in this case, stated that Steps 2 and 3 would have only reached another 3% of stationary sources of GHG.  Therefore, the Court’s decision that narrows the authority of the EPA regarding GHGs but does not diminish the impact that the new Tailoring Rule will have on reducing GHG emissions.

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California Mental Parity Act and “Medically Necessary Treatment”

On June 10th, 2014, the Second District of the California Court of Appeal issued an opinion requiring that all California health insurance policies and health care plans provide all “medically necessary” treatments for mental health patients.  In Rea v. Blue Shield of California, the Second Appellate District clarified what the California Mental Parity Act, which was passed in 1999, requires health plans to provide for the nine specific mental illnesses covered by the Act.  The Second Appellate District’s opinion in Rea mirrors closely an opinion from the Federal Ninth Circuit Court of Appeals in Harlick v. Blue Shield of California.  Please call our toll-free number at (855) 977-1212 to see how one of our attorney members can provide you a FREE CONSULTATION on your legal issue.

In 1975, California passed the Knox-Keene Act which provided for the regulation of individual and group health insurance plans, including those provided by Health Maintenance Organizations (HMOs) and structured Managed Care Organizations (MCOs).  The most important provision of that law for this case is the requirement that all health care plans provide “basic health care services.”  By 1999, many researchers, policy makers and legislators had discovered that health insurance policies treated mental illnesses differently than physical illnesses.  As one of the legislative findings of the Mental Parity Act states “[m]ost private health insurance policies provide coverage for mental illness at levels far below coverage for other physical illnesses.”  The legislature noted that the differences in coverage can lead to great societal problems, such as homelessness and involvement in the criminal justice system due to relapses of mental health patients.  To counteract the negative effects of the untreated mentally ill, the legislature passed the California Mental Parity Act in 1999.

The California Mental Parity Act was designed to ensure that private health plans provided greater coverage for treatment of severe mental illness.  The California Legislature limited the number of mental illnesses that were covered by the Act to nine specifically named illnesses.  These illnesses included the eating disorders anorexia nervosa and bulimia nervosa.  The Mental Parity Act stated that “every health plan providing hospital, medical or surgical coverage must also ‘provide coverage for the diagnosis and medically necessary treatment of severe mental illnesses of a person of any age’” (emphasis in original).  Although the Act does not define what “medically necessary treatment” is, it does provide a list of services that are included in what are “medically necessary treatment”.  Residential care is not specifically included in that list.

The plaintiffs in Rea suffer from anorexia nervosa and bulimia nervosa.  The plaintiffs’ doctors recommended that the plaintiffs receive treatment in a residential care facility.  Blue Shield of California, which administrates the plaintiffs’ health plans, did not cover residential care facilities for eating disorders. The plaintiffs sued Blue Shield for failing to provide coverage as mandated by the Mental Parity Act.  Blue Shield demurred to the plaintiffs’ complaint and was successful in having the suit dismissed by the trial court.  The plaintiffs appealed to the Second Appellate District.

The plaintiffs argued that the list of services in the Mental Parity Act (the one that did not include residential facilities) was not an exhaustive list of what California health plans were required to provide.  The plaintiffs said that the Act requires that the health plans provide “all medically necessary treatments” for the mental illnesses listed in the Act.  According to the plaintiffs, failure to provide residential care facilities for eating disorders would violate the intent of the Mental Parity Act since residential treatment for eating disorders is the widely accepted therapy for eating disorders.

Blue Shield, on the other hand, believes that the list of services provided in the Mental Parity Act constitutes an exhaustive list of all services that health plans are required to cover.  Furthermore, Blue Shield argues that since the Mental Parity Act was adopted as part of the statutory scheme created by the Knox-Keene Act health plans only need to provide “basic health care services.”  Finally, Blue Shield stated that providing coverage for residential facilities for eating disorders would lead to unlimited coverage for all mental illnesses.  Blue Shield asserted that unlimited coverage would lead to an explosion in health care premiums and other costs for health insurance policies.  

The Second Appellate District agreed with the plaintiff’s that the Mental Parity Act required coverage of residential care for eating disorders and reversed the trial court’s ruling on Blue Shield’s demurrer.  The Court notes that the diagnosis and treatment of mental and physical illnesses have a different method and scope. Thus, the Court states that the Legislature wrote the Mental Parity Act with less precision so that the differences between treating mental and physical illnesses would not distract from efforts at ensuring parity between the types of illnesses. Therefore, the Court held that treatments for physical and mental illnesses do not need to be identical to conform to the Mental Parity Act.  Furthermore, the Court provides a definition for parity that the statute lacks.  According to the Second Appellate District, “parity [as referred to in the Mental Parity Act] . . . requires treatment of mental illnesses sufficient to reach the same quality of care afforded physical illnesses.”  Continue to come to LA Jewish Lawyer blog for the latest legal news.  And please call our toll-free number (855) 977-1212 for a FREE CONSULTATION about your legal matter from one of our Los Angeles network of attorneys.

Patent Law in Age of the Interactive User

Today, the United States Supreme Court delivered an opinion that rules that a person cannot induce patent infringement by conducting some of the elements of the patent and then encouraging its customers to complete the rest of the elements of the patent. In Limelight Networks, Inc. v. Akamai Technologies, Inc., et al., the Court held that Limelight did not violate the patent of Massachusetts Institute of Technology (MIT) or its licensee Akamai.

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Both Akamai and Limelight are content delivery networks (CDN) which means that they contract with “content providers” (website owners) to deliver large files, like music or video files, at high speeds to individual internet users. Limelight has contracted with partners such as Microsoft, NBC, CBS to help deliver content such as Microsoft’s Internet Properties, the 2008 Summer Olympics and the 2009 NCAA Men’s Basketball Tournament. Akamai has contracts with companies such as Facebook, Twitter, Hulu and Netflix to help provide their content. The issue in this case is that Akamai licensed a patent from MIT and Limelight uses the same process except for one element which it encourages the individual internet user to do. Akamai licensed from MIT a patent that enables for the delivery of large files by high speeds through a number of steps, including “tagging” which is the designation of certain components of those files to be stored on Akamai’s server. Limelight conducts several of the elements of the MIT patent, except for the “tagging” which it encourages the individual internet user to do on his/her own. Akamai claimed that Limelight’s conduct induces infringement on the patent that it licenses from MIT.

In 2006, Akamai and MIT sued Limelight for patent infringement.  A jury found that Limelight was infringing on MIT’s patent, but the jury’s finding was overturned in light of a new precedent from the Federal Circuit Court. In Muniauction, Inc. v. Thompson Corp., the Federal Circuit ruled that a person cannot infringe on a patent unless a single person conducts all the elements of the patent or exercises “control or direction” over the entire process. The Federal District Court, on a motion for reconsideration from Limelight, found that the jury’s verdict could not be upheld since Muniauction precluded a finding of liability based on Limelight’s conduct. A panel of the Federal Circuit affirmed the District Court’s holding.  Yet on reconsideration by all the judges of the Federal Circuit Court, the Court held that while Limelight’s conduct could not be considered an infringement, it did constitute induced infringement and therefore Limelight could be held liable on that theory. Limelight appealed to the U.S. Supreme Court and the Supreme Court decided to hear the case.

The Supreme Court in today’s decision reversed the holding of the Federal Circuit Court and held that Limelight’s conduct cannot be considered induced infringement. First, the Supreme Court restates the law that a person cannot be held liable for inducing infringement if there was no direct infringement. While the Supreme Court does not affirm Muniauction, which is only a Federal Circuit precedent, the Court does state that neither Limelight nor the individual internet users directly infringed on the patent. Supreme Court precedent requires that a person perform all elements of a patent in order to be liable for directly infringing on the patent. Here, neither Limelight nor the individual internet users carried out all elements of the patent, because Limelight does not “tag” and the individual internet users only “tag.” Akamai argued that Limelight’s conduct under alternative circumstances would constitute infringement, but the Court found that argument unpersuasive. The Court dismisses Akamai’s argument of infringement under alternative circumstances because the Court feels that it would lead to perverse circumstances in which a person is held liable for inducement when not even all the elements of the patent are performed by the person or his/her agent. The Court also rejected attempts to apply legal theories from Tort or Criminal Law to this issue of inducing patent infringement. Therefore, the Court held that a person cannot induce patent infringement unless direct infringement occurs through the induced person performing all the elements of the patent.

The Supreme Court’s decision in Limelight Networks will have far-reaching effects on the use of the internet and beyond.  Most immediately, this decision will allow Limelight to continue its conduct without liability for patent infringement and without paying MIT a license fee. The Limelight Networks precedent will expand the use of internet tools in which one person performs some of the elements of a patented procedure and the consumer performs the other elements. This practice will continue to allow some people to get around patents created by the inventors of these processes unless Congress decides to act to deal with this new situation in Patent Law.

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