Law in a time of coronavirus

This has been a scary week, as we all scramble to stock our pantries, keep our families safe, and figure out what comes next. As everyone continues to grapple with the growing COVID-19 crisis, it is worth keeping an eye out for some of the legal issues that are likely to arise and shape the response along the way:

Pew Research: "Only a handful of states mandate paid sick leave"

Employees: Many people have already begun working from home, either at the encouragement of their employers or pursuant to remote-work HR policies. That is an important step to lessen transmission, but likely not the end of the story. Countless people have jobs that cannot be performed remotely or work for employers that do not offer paid sick leave. The availability of paid sick leave may be starting to change — at the federal, state, and company levels. In the meantime, employees may consider invoking other rights under the Family Medical Leave Act, the Americans with Disabilities Act and the Rehabilitation Act, applicable state statutes, and whistleblower statutes. For employees who are told to come into work in dangerous conditions or fired for working from home (or remaining on leave), there are potentially claims for wrongful termination and straight-up breach of contact. Anti-discrimination protections remain pertinent, for example in cases when more senior employees are suspended or terminated because of their age (as it relates to COVID-19 risks), or when Asian-American or Italian workers who face hostile work environments.

CDC slide on "keeping the workplace safe"

Startups and businesses: The Centers for Disease Control and Prevention (CDC)  released interim coronavirus guidance for businesses and employers, as has the Occupational Safety and Health Administration (OSHA). In addition to protecting the health of their employees and customers, a number of businesses in this pandemic may face significant economic problems, either directly health-related or as a byproduct of overall worsening market conditions. A range of commercial disputes will likely arise — for instance, stemming from closed stores or supply chain disruptions —  and some will hinge on questions of contract law involving force majeure, impossibility, frustration of purpose, and material adverse change clauses. Additionally, as a corollary to keeping workers and customers safe, companies may want to take a second look at premises liability and the scope of their insurance coverage. More generally, various forms of regulatory and tax relief may be available, for example through Small Business Administration loans, deferments from the Internal Revenue Service, and extensions at the Securities Exchange Commission.

Constitutional rights: Soon enough, the COVID-19 crisis will raise constitutional issues. In the last 24 hours alone, President Trump floated a travel ban upon the state of California and Mayor de Blasio had to quash rumors about a quarantine of Manhattan. Over the last week, the response has involved voluntary self-isolation, forced cancellations of certain events, quarantines, and a “containment area” around the entire town of New Rochelle, enforced by the National Guard. Quarantine, containment, and other public health measures are governed by a patchwork of federal and 50 state laws: each type of intervention involves its own legal authorities and limits. At the moment, many Americans would probably prefer more federal guidance and clarity and will, of course, comply with the instructions of public health and law enforcement officials. If the situation becomes more extreme, and more intensive measures are contemplated — like the use of guarded or physical barriers (called a “cordon sanitaire”) upon an entire city or state, enforced by threat of arrest or use of force — then the constitutional balance could start to change. There is already confusion about the scope of certain quarantines and it is not hard to imagine ethical and constitutional questions arising in cases of someone violating a quarantine trying to leave home to obtain life-saving treatment, or worse yet, getting shot attempting to cross a city line to get food. In a nutshell, there could eventually be substantial constitutional questions, e.g., under the Privileges and Immunities Clause (and freedom of movement), federalism and anti-commandeering concerns (when state and federal officials disagree), and perhaps even the Takings Clause (when the government seizes property in particular ways). In terms of commentary, look out for Georgetown Professor Lawrence Gostin, who has offered expert insights about forced quarantining and its constitutional implications.

Courts: In order for the law to be an effective remedy, whether for individuals or businesses, the courts to remain functional in some form. There have already been a handful of closures, including yesterday at the U.S. Supreme Court. Initial reporting suggests federal courts are each deciding how to respond, and the “orders range from detailed to vague and confusing.” For example, the Ninth Circuit is letting attorneys file motions to appear remotely and the Administrative Office of the U.S. Courts is drawing up other plans (and a template). Assuming that the COVID-19 pandemic becomes more widespread and persists for some time, federal courts should have a uniform system in place to allow for live-streaming of courtroom audio and remote appearances. By comparison, across the Atlantic, the United Kingdom recently announced a plan for virtual courts. Otherwise, indefinitely delaying trials and rulings could seriously impede access to justice.

All told, coronavirus presents an uncertain and frightening moment for the private and public sector alike. At the same time, this pandemic is not a free-for-all, either: during a crisis, a thorough understanding of the laws and rights available to you can be a crucial tool to save lives, mitigate damage, and promote recovery. Please do your best to stay healthy, flatten the curve, and consider not just your own safety but the health of everyone else. If you have any COVID-19 related legal questions, please do not hesitate to reach out.

[Last updated circa 11 AM, March 13, 2020.]

Fair Use for Artists

Fair use has long been essential to artistic expression. That is a core theme of a brief we filed today on behalf of The Robert Rauschenberg Foundation and the The Andy Warhol Foundation for the Visual Arts in Google v. Oracle. The litigation, which is hailed as the “copyright case of the century,” involves a high-stakes dispute over the use of source code in smartphones — but it could also have significant implications for the doctrine of fair use as it applies to artistic expression. We urge the Court to be careful not to implicate fair use in the arts in this case. 

First, we lay out a variety of examples demonstrating that the use and re-use of other creative works are often vital to the visual, literary, and musical arts. For instance, the painter of an iconic portrait of George Washington, “borrowed freely” from other models — and even the designs of the Supreme Court building itself are “virtually identical” to prior designs. The visuals, reprinted in the brief, really are worth a thousand words:

We also address the First Amendment protections and public interest issues that undergird fair use, explain how software APIs are quite different than the arts, and argue why the Supreme Court should decline the invitation to wade into other areas of fair use law that are not properly presented. Carolyn Shapiro, who co-authored the brief, remarked, “the bottom line is that, whatever the justices choose to say about fair use in the software development context, they should be careful not to suggest that the same analysis necessarily applies to the arts context. The Court has made clear in the past that fair use analysis in the arts requires close attention to a case’s factual and artistic context. It should take care not to sweep so broadly in this software case that it inadvertently disrupts the work of an array of creative industries and professionals.”

Key Questions on Central Bank Digital Currencies

By JP Schnapper-Casteras and Misha Guttentag

Recent weeks have seen a surge of interest in Central Bank Digital Currencies (CBDCs), starting with China’s public plans to launch its own and culminating in the Federal Reserve Chairman’s letter to the Hill on the topic. The growing attention to CBDCs is a welcome sign — especially for tech-focused lawyers like us — but before everyone rushes in, we should start assessing some foundational issues.

As Congress and the Federal Reserve consider the possibility of launching a dollar-based CBDC, here are some key questions that they should find answers to first:

What is the problem that a CBDC in the United States is aiming to solve? To be sure, there are plenty of issues in our national financial infrastructure that CBDCs could partly address, for example: reducing transaction costs; ensuring all citizens have bank accounts; expanding the availability and speed of fund transfers; improving financial stability and oversight; or upgrading our banking software systems. (The Bank of Israel published a useful report laying out some of the different types of CBDCs and the tradeoffs among them.) This may be the most difficult question to answer, but it makes little sense to proceed on CBDCs without deciding our core purpose in doing so.

Who are the target users of the CBDC? With widespread and often conflicting reports on China’s new digital currency project, it’s not entirely clear who their CBDC will serve: banks, regular people, or both? Beyond China, there are important design tradeoffs on this front: Some versions of a CBDC could be “peer-to-peer” like bitcoin or e-mail, where anyone can participate and send or receive money. Other proposals would just give access to banks and major financial institutions, resulting in more mild but still potentially important efficiency improvements over today’s systems. A related question is who are the intended operators of the CBDC? The Federal Reserve, other federal agencies, some public-private partnership with banks, or technology companies?

What is the desired impact on public policy? Domestically, could CBDCs have useful applications as a monetary tool to combat recessions or curb overheated economic growth? Should CBDCs constitute a sort of “public option” for certain banking services? Or are various policy considerations essentially secondary to finding a way to upgrade the “rails” that undergird our nation’s financial infrastructure? Internationally, are we worried about other digital currencies gaining traction and threatening the reserve currency status of the dollar? Representative Foster, whose letter spurred Chairman Powell’s CBDC comments, said that his inquiries were motivated by desire to preserve the “primacy of the U.S. dollar” against a “competitive disadvantage” if other countries move first. In any event, the form of the CBDC has to be driven by the impact the CBDC is designed to produce.

When do we (realistically) plan to launch a CBDC of some sort? The Federal Reserve Chairman has already indicated that he sees no need for the Fed itself to rush into this project and is “carefully monitoring the activities of other central banks.” Meanwhile, the newly-appointed head of the European Central Bank has advocated for CBDCs and the European Union appears to be progressing in that direction; private companies like Facebook, JP Morgan, and Coinbase are proceeding with digital currency systems of their own. Should Washington’s timing reflect a stance on whether the private sector or other countries could “get ahead” of the U.S. dollar? (On a separate, but related, track, the Federal Reserve is making slow progress on a plan to offer real-time gross settlement, which is at least five years off in the United States — but already available in many other countries).

Why take on the risks of a CBDC at scale? What if there is a cyber-security breach, technical malfunction, or poor deployment? What if a serious competitor to the dollar or SWIFT-based settlement emerges in the meantime or becomes preferred by banks or consumers? How do we assess the downsides and audit the integrity of new technology, against the costs and benefits of the status quo?

These are big questions with major political, economic, and legal ramifications — and different public and private sector stakeholders may view them quite differently. It is good to see the Federal Reserve taking this issue seriously (which we have suggested for some time now). Congress too, has a special role to play, since the Constitution grants it the power to oversee and regulate money, including the Federal Reserve and any CBDC efforts. Congress can shape this matter of national importance by conferring with constituents about their financial needs, holding hearings, and/or enacting statutes and allocating funds to further explore digital currency.

With CBDCs, we have the opportunity to consider major changes to monetary technology and policy. By tackling some of these basic issues first, we can chart a sensible course forward.

On Guantanamo

After nearly two years of litigation, we are pleased to have reached a favorable resolution in a constitutional challenge involving the U.S. Naval Station Guantanamo Bay. Schnapper-Casteras PLLC represents Mr. Richard Kammen, a prominent member of the Indiana Bar, who was appointed to serve as a lead defense counsel in Guantanamo and who faced arrest after he uncovered a concealed microphone in a meeting room for attorneys.

Mr. Kammen’s legal battle involves a troubling and extraordinary set of facts, which underscore how far the system in Guantanamo has strayed from basic principles of justice. In 2017, Mr. Kammen and his colleagues discovered a listening device, hidden in a smoke detector in a room reserved for attorney-client meetings.  Mr. Kammen raised this issue and other ethical concerns with U.S. Marine Corps Brigadier General John G. Baker and an outside legal ethics expert. The expert informed Mr. Kammen that, in order to adhere to the rules of professional conduct, he had no choice but to withdraw from his legal duties in Guantanamo. General Baker expressly approved of Mr. Kammen’s withdrawal. However, the military commission official overseeing the matter at the time, Col. Vance Spath, responded by pursuing the lawyers themselves, civilian and military alike.  Col. Spath sentenced General Baker to a term of confinement and threatened to have Mr. Kammen and his co-counsel arrested, to force them to continue work in Guantanamo, and/or to bring them to Virginia to hold them in contempt.

In November 2017, Mr. Kammen filed a petition in the Southern District of Indiana against the U.S. Secretary of Defense and military commission officials seeking to prevent his imminent arrest. Following an emergency hearing, the District Court suspended any and all warrants and travel requirements held against Mr. Kammen.  Mr. Kammen subsequently amended his petition, advancing claims under the First Amendment, due process under the Fifth and Fourteenth Amendments, and Sixth Amendment. The U.S. Department of Justice, while not disputing most of the facts, argued that a federal court could not hear the case because Mr. Kammen was jurisdictionally equivalent to an alien, non-citizen enemy combatant. Although the Justice Department ultimately acknowledged the existence of the concealed microphone, it sought to downplay it as a “legacy” device.  Separately, General Baker and the other civilian lawyers filed lawsuits against the Government (represented by Jenner & Block LLP, and Michel Paradis et al., respectively). 

The record is clear: every federal court to have reached the merits on this episode has ruled against the Government. In 2017, the U.S. District Court for the District of Columbia granted General Baker’s habeas petition and vacated his conviction for contempt.  In April 2019, the U.S. Court of Appeals for the D.C. Circuit issued a sweeping opinion, tossing out years’ worth of Col. Spath’s military commission rulings in light of revelations that he had engaged in conduct giving rise to the appearance of judicial bias.  In its holding, the D.C. Circuit took the remarkable step of praising the conduct of Mr. Kammen and his co-counsel: 

“Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for [the] defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the CMCR to the judge himself— failed to live up to that responsibility.” 

The D.C Circuit opinion effectively nullified Col. Spath’s order that Mr. Kammen return to Guantanamo or else be held in contempt. In May 2019, Mr. Kammen, still living under the specter of being arrested or forced back to Guantanamo, urged the Southern District of Indiana to take judicial notice of the D.C. Circuit’s ruling. In July 2019, the Department of Justice confirmed that it would “not seek further review” of the D.C. Circuit ruling and acknowledged that the decision was dispositive in the Indiana litigation.  In August 2019, Mr. Kammen and the Justice Department agreed to resolve the Indiana case by voluntarily dismissing it, a request the District Court granted yesterday.

In light of yesterday’s resolution, Mr. Kammen stated that he felt “vindicated by the result and relieved that his co-counsel no longer have to live under the cloud of uncertainty.”  Mr. Kammen added that:

“JP [Schnapper-Casteras] was instrumental in the success we had convincing the military and civilian courts that government misconduct directly required me to be excused as the lawyer for Abdul Rahim al-Nashiri. More importantly, his wise counsel and aggressive litigation, helped persuade the federal judge in Indiana that the government could not have me arrested and forced to represent al-Nashiri when that would have been both illegal and unethical.”

JP Schnapper-Casteras, who represented Mr. Kammen alongside Jessie A. Cook and Robert W. Hammerle, remarked: “In the United States of America, we should extol attorneys for acting ethically — not arrest them.” 

Welcome Professor Shapiro

I am thrilled to announce that Professor Carolyn Shapiro is joining the firm as Of Counsel.  As the former Solicitor General of Illinois, a constitutional law scholar, and a former Supreme Court clerk, she shares her tremendous appellate experience and acumen.  Moreover, I deeply admire Carolyn’s long-standing commitment to public interest work and all she’s done to stand up for the rule of law in recent years — and consider myself very fortunate to be able to collaborate with her in this new capacity.  You can find her full biography here, select publications on SSRN, and her Tweets @cshaplaw.

Hello world!

Here is where we will be periodically sharing articles and links, mostly about frontier technologies, new and emerging areas of law, and the Supreme Court. Feel free to let us know what you think in the comments or on Twitter (@jpscasteras; @MishaGuttentag). Please forgive our lawyerly disclaimers — the gist is that the content in this blog is just commentary and does not constitute legal advice nor create an attorney-client relationship.