Law and Legal
Via LLRX – Pete Recommends – Weekly highlights on cyber security issues March 28, 2020 – Privacy and security issues impact every aspect of our lives – home, work, travel, education, health and medical records – to name but a few. On a weekly basis Pete Weiss highlights articles and information that focus on the increasingly complex and wide ranging ways technology is used to compromise and diminish our privacy and security, often without our situational awareness. Four highlights from this week: The battle against disinformation is global; Report: “‘Zoombombing’: When Video Conferences Go Wrong”; Could President Trump end lockdowns? Three legal issues; Putin’s Secret Intelligence Agency Hacked: Dangerous New ‘Cyber Weapons’ Now Exposed; and AG Shapiro: Amazon, Facebook, Ebay, Walmart, Craigslist Must Stop Site Price Gouging by Online Sellers.
US Conference of Mayors – “The survey described in this report illustrates the scope and severity of the need for COVID-19 emergency equipment in this nation’s cities. It shows that, despite their best efforts, most cities do not have and cannot obtain adequate equipment and supplies needed to protect their residents. This is a life-threatening crisis that will continue unless the federal government does everything in its power to help us safeguard our first responders and health care workers – our first line of defense – and the millions of other public servants in our cities whose work today puts them at risk.
- 91.5% (192) of the cities do not have an adequate supply of face masks for their first responders (including police, fire, and EMTs) and medical personnel.
- 88.2% (186) do not have an adequate supply of personal protective equipment (PPE) other than face masks to protect these workers.
- 92.1% (186) do not have an adequate supply of test kits.
- 85% (164) do not have an adequate supply of ventilators for use by health facilities in their city or area.
- 62.4% (131) have not received emergency equipment or supplies from their State.
- Of those receiving help from their State, 84.6% (66) say it is not adequate to meet their needs.
For emergency equipment, analysis of these responses by city size found little variation from largest to smallest cities in the percentages of adequacy of supplies. While a somewhat higher percentage of larger cities reported receiving equipment and supplies from their State, cities reporting inadequacy of these supplies did not vary by size. Across the survey cities able to provide estimates, needed are:
- 5 million face masks;
- 4 million PPE items;
- 9 million test kits; and
- 139,000 ventilators.”
“Great music. No limits. Now the longest-running music series in American television history, ACL showcases popular music legends and innovators from every genre. In addition to being honored by the Rock and Roll Hall of Fame and Museum as a rock and roll landmark, ACL is the only television program to ever receive the National Medal of Arts, the nation’s highest award for artistic excellence.”
JD Supra – “If you’re looking for a single place to find information concerning the federal government’s response to the coronavirus that impacts contractors, the General Services Administration (GSA) recently uploaded a webpage on the acquisition.gov website that aims to deliver: https://www.acquisition.gov/coronavirus. While it is not a comprehensive source, the site includes selected links to guidance and memoranda issued by the Office of Management and Budget (OMB), Department of Defense, Department of Homeland Security and the National Aeronautics and Space Administration, as well as links to other helpful sites…”
CRS Report – Federal Reserve: Emergency Lending, Updated March 27, 2020. “The 2007-2009 financial crisis led the Federal Reserve (Fed) to revive an obscure provision found in Section 13(3) of the Federal Reserve Act (12 U.S.C. 344) to extend credit to nonbank financial firms for the first time since the 1930s.”
See also CRS Report – Treasury’s Exchange Stabilization Fund and COVID-19, March 26, 2020. “As part of the U.S. government’s economic response to the corona virus disease 2019(COVID-19), the“third” COVID-19 stimulus package (H.R. 748), as passed by the Senate on March 25, would appropriate $500 billion to the U.S. Department of Treasury’s Exchange Stabilization Fund (ESF) to support loans, loan guarantees, and investments for businesses affected by COVID-19.In addition, the legislation would temporarily permit the use of the ESF to guarantee money markets, as occurred in the 2008 financial crisis. ESF assets have already been pledged in 2020 to backstop several emergency lending facilities created by the Federal Reserve (Fed) in response to financial turmoil caused by COVID-19.
EveryCRSReport – COVID-19: State and Local Shut-Down Orders and Exemptions for Critical Infrastructure, March 26, 2020 – “Since the onset of the Coronavirus Disease 2019 (COVID-19) pandemic in the United States, public officials have issued numerous emergency directives closing non-essential businesses and facilities and instructing non-essential workers to stay home. However, these directives have generally included exemptions for essential businesses and other facilities if they are part of a critical infrastructure sector or provide essential services. Some business leaders have invoked federal authorities and guidelines when contesting state or local orders that would affect their operations. Uncertainty about what systems, assets, and facilities are part of a federally recognized critical infrastructure sector, and what (if any) official status is conferred to a company that is a participant in such a sector, may complicate both administration of emergency directives and impact private-sector management of critical infrastructures and workforces. This Insight provides an overview of the federal critical infrastructure protection and resilience policy framework and discusses its relevance and potential application to the management of essential systems, assets, facilities, and workforces subject to state and local emergency orders.”
The New York Times – We’re Sharing Coronavirus Case Data for Every U.S. County – “With no detailed government database on where the thousands of coronavirus cases have been reported, a team of New York Times journalists is attempting to track every case. As the coronavirus has spread across the United States, killing hundreds of people and sickening tens of thousands more, comprehensive data on the extent of the outbreak has been difficult to come by. No single agency has provided the public with an accurate, up-to-date record of coronavirus cases, tracked to the county level. To fill the gap, The New York Times has launched a round-the-clock effort to tally every known coronavirus case in the United States…
Individual states and counties have tracked their own cases and presented them to the public with varying degrees of speed and accuracy, but those tallies provide only limited snapshots of the nation’s outbreak. A publicly available tracker from the federal Centers for Disease Control and Prevention, updated five times a week, includes only state-level data. Other entities have made efforts, including a notable one by Johns Hopkins University, to track cases worldwide or within the United States. In late January, not long after the first known case was reported in Washington State, The Times began tracking each known U.S. case as counties and states began reporting results of testing. Such testing, which had been delayed, gradually became more widely available. For the last eight weeks, a team of Times journalists has recorded an array of details — locations, dates, ages and conditions, when possible — about newly confirmed cases reported by state and local officials…”
The New Yorker – Can a fragile media ecosystem survive the pandemic? – “The shift to paywalls has been a boon for quality journalism. Instead of chasing trends on search engines and social media, subscription-based publications can focus on producing journalism worth paying for, which has meant investments in original reporting of all kinds. A small club of élite publications has now found a sustainable way to support its journalism, through readers instead of advertisers. The Times and the Post, in particular, have thrived in the Trump era. So have subscription-driven startups, such as The Information, which covers the tech industry and charges three hundred and ninety-nine dollars a year. Meanwhile, many of the free-to-read outlets still dependent on ad revenue—including former darlings of the digital-media revolution, such as BuzzFeed, Vice, HuffPost, Mic, Mashable, and the titles under Vox Media—have labored to find viable business models. Many of these companies attracted hundreds of millions of dollars in venture funding, and built sizable newsrooms. Even so, they’ve struggled to succeed as businesses, in part because Google and Facebook take in the bulk of the revenue derived from digital advertising. Some sites have been forced to shutter; others have slashed their staffs and scaled back their journalistic ambitions. There are free digital news sites that continue to attract outsized audiences: CNN and Fox News, for instance, each draw well over a hundred million visitors a month. But the news on these sites tends to be commodified. Velocity is the priority, not complexity and depth…”
Social distancing strategies for curbing the COVID-19 epidemic – “The SARS-CoV-2 pandemic is straining healthcare resources worldwide, prompting social distancing measures to reduce transmission intensity. The amount of social distancing needed to curb the SARS-CoV-2 epidemic in the context of seasonally varying transmission remains unclear. Using a mathematical model, we assessed that one-time interventions will be insufficient to maintain COVID-19 prevalence within the critical care capacity of the United States. Seasonal variation in transmission will facilitate epidemic control during the summer months but could lead to an intense resurgence in the autumn. Intermittent distancing measures can maintain control of the epidemic, but without other interventions, these measures may be necessary into 2022. Increasing critical care capacity could reduce the duration of the SARS-CoV-2 epidemic while ensuring that critically ill patients receive appropriate care…” This article – CC-BY-NC-ND 4.0 International license. It is made available under a author/funder, who has granted medRxiv a license to display the preprint in perpetuity. The copyright holder for this preprint https://doi.org/10.1101/2020.03.22.20041079
See also the WSJ [paywall] – Government Tracking How People Move Around in Coronavirus Pandemic – “Goal is to get location data in up to 500 U.S. cities to help plan response; privacy concerns call for ‘strong legal safeguards,’ activist says.”
- CVUSD meeting falls victim to “Zoombombing”
- Vice – Zoom Removes Code That Sends Data to Facebook – The change comes after Motherboard found the Zoom iOS app was sending analytics information to Facebook when users opened the apps
- See also The Web Around [I do not have one but it may be of interest] – “The first webcam backdrop that attaches to the back of any chair and fits into a travel bag. One size and color doesn’t fit all when it comes to green screens. Your setup will vary from the next creator. Select the right sized green screen for you…”
- See also Yale Experts Address Latest Coronavirus Developments in Virtual Town Hall Video – March 19, 2020.
- N.Y. Warns Medical Supplies Running Low as Governors Plead for Help – Updates: Deaths Jump as Mayor Warns Supplies May Last a Week
Roger Cohen’s essay in the NYT: A Silent Spring Is Saying Something – The eerie inhumanity of Donald Trump. “This is the silent spring. The planet has gone quiet, so quiet you can almost hear it whirling around the sun, feel its smallness, picture for once the loneliness and fleetingness of being alive.This is the spring of fears. A scratchy throat, a sniffle, and the mind races. I see a single rat ambling around at dusk on Front Street in Brooklyn, a garbage bag ripped open by a dog, and experience an apocalyptic vision of vermin and filth. Scattered masked pedestrians on empty streets look like the survivors of a neutron bomb. A pathogen about one-thousandth the width of a human hair, the spiky-crowned new coronavirus, has upended civilization and unleashed the imagination. From my window, gazing across the East River, I see a car pass now and then on F.D.R. Drive. The volume of traffic reminds me of standing on the Malecón, the seafront promenade in Havana, a dozen years ago and watching a couple of cars a minute pass. But that was Cuba and those were finned ’50s beauties!
This is Trump’s world now: scattered, incoherent, unscientific, nationalist. Not a word of compassion does he have for America’s stricken Italian ally (instead the United States quietly asks Italy for nasal swabs flown into Memphis by the U.S. Air Force). Not a word from a United Nations Security Council bereft of American leadership. Not a word of plain simple decency, the quality Camus most prized. In their place, neediness, pettiness and boastfulness. The only index Trump comprehends is the Dow. I have experienced physical shock in recent weeks watching leaders like Angela Merkel in Germany, Justin Trudeau in Canada and Emmanuel Macron in France speak about the pandemic. We Americans do not grasp how insidiously Trump has accustomed us to malignancy. A germophobe, he has spread the germ of untruth. That self-satisfied, nasal and plaintive presidential voice has become a norm. And so merely to hear a sane, caring, scientific response to the virus from other leaders is riveting and reorienting…”
- See also “The US response will be studied for generations as a textbook example of a disastrous, failed effort. What’s happened in Washington has been a fiasco of incredible proportions.” The Guardian: The missing six weeks.
- See also The Atlantic – The Curve Is Not Flat Enough – “Hospitals are poised to face the kind of life-and-death decisions that industrialized countries typically encounter only in times of war and natural disaster.”
Special Coverage – Coronavirus – Leading and working through a pandemic. The Harvard Business Review is offering free access to its coronavirus coverage.
The federal Environmental Protection Agency has issued a Memo announcing that it will temporarily exercise enforcement discretion for certain violations where the non-compliance was a result of the COVID-19 pandemic.
EPA’s enforcement discretion policy which is retroactive to March 13th applies to civil violations that occur during the COVID-19 pandemic. It does not apply to intentional criminal violations of law. The policy also does not pertain to remedial activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments. EPA will address these matters in separate communications.
The temporary enforcement discretion policy does relieve any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants as required by federal law.
The policy addresses different categories of noncompliance differently. For example, the EPA will not seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request. However, the agency expects operators of public water systems to continue to ensure the safety of our drinking water supplies.
During the COVID-19 crisis, EPA said it will focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment.
The policy describes the general steps that regulated facilities should take to qualify for enforcement discretion for civil violations.
- Entities should make every effort to comply with their environmental compliance obligations.
- If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
b. Identify the specific nature and dates of the non-compliance;
c. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
d. Return to compliance as soon as possible; and
e. Document the information, action, or condition specified in items (a) through (d).
The policy then discusses requirements for specific categories of non-compliance.
Administrative Settlements- If parties to an EPA administrative settlement agreement anticipate missing enforceable milestones or obligations set forth in these documents as a result of COVID-19, EPA said they comply with the notice procedures set forth in the agreement, including notification of a force majeure where applicable. The notification should provide the information required by the agreement. EPA staff will review these notifications and may contact a party to seek adjustments to a proposed plan of action, pursuant to the agreement.
Consent Decrees- Parties to judicial consent decrees are advised to comply with the notice procedures set forth in the consent decree, including notification of a force majeure where applicable for any noncompliance alleged to be caused by COVID-19. EPA staff will coordinate with U.S. Department of Justice (DOJ) to exercise enforcement discretion for stipulated penalties for the routine compliance obligations. However, EPA cautioned that courts retain jurisdiction over consent decrees and may exercise their own authority.
EPA said parties should proceed as proposed in their notice to the EPA (and to DOJ for consent decrees) unless and until contacted by the agency (if an EPA administrative settlement) or DOJ (if a judicial consent decree).
Hazardous Waste Generators
If a facility is a generator of hazardous waste and is unable to transfer the waste off-site due to disruptions caused by the COVID-19 pandemic within the time periods required under RCRA to maintain its generator status, EPA said the facility should continue to properly label and store such waste and take the general steps identified above.
If these general steps are met, the EPA will, as an exercise of enforcement discretion, treat such entities to be hazardous waste generators, and not treatment, storage and disposal facilities. In addition, the EPA will continue to allow Very Small Quantity Generators and Small Quantity Generators to retain their status even if the amount of hazardous waste stored on site exceeds a regulatory volume threshold due to the generator’s inability to arrange for shipping of hazardous waste off of the generator’s site due to the COVID-19 pandemic.
Failure of Pollution Controls–
If a facility suffers from failure of air emission control or wastewater or waste treatment systems, or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases, the facility should notify the implementing authority as quickly as possible. The notification also should include the following information:
- pollutants emitted, discharged, discarded, or released;
- comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and
- the expected duration and timing of the exceedance(s) or releases.
The EPA will consult with authorized states or tribes, as applicable, in accordance with the July 11, 2019 memorandum on “Enhancing Effective Partnerships Between EPA and States in Civil Enforcement and Compliance Assurance Work” to determine the appropriate response.
Where the EPA implements the program directly, the EPA will evaluate whether the risk posed by the exceedance, disposal, or release is acute or may create an imminent threat to human health or the environment.
Facility Non-Compliance Posing Acute Risks or Imminent Threats
EPA said it expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment. However, if facility operations are impacted by the COVID-19 pandemic and the non-compliance may create an acute risk or an imminent threat to human health or the environment, the facilities should contact the appropriate implementing authority (EPA region, authorized state, or tribe). Even where a facility is located in an authorized state, EPA strongly encourages facilities and states to consult with their EPA regional office about the non-compliance that poses a potential for acute risks and imminent threats.
When EPA becomes aware of noncompliance that could result in an acute risk or an imminent threat to human health or the environment, the memo says EPA will act as follows.
- In authorized states, EPA will first consult with the state or tribe to determine if the state-issued permit or regulations have provisions that address the situation and result in a return to compliance.
- Where EPA administers the regulatory program, the agency will take the following actions:
a. The EPA regional office will evaluate whether an applicable permit, statutory, or regulatory provision addresses the situation;
b. If there is no permit/regulatory provision that addresses the situation, the EPA will work with the facility to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance and obtain a return to compliance as soon as possible;
c. EPA will inform the relevant state or tribe of any acute threats and actions taken in response to the noncompliance; and
d. The EPA will consider the circumstances, including the COVID-19 pandemic, when determining whether an enforcement response is appropriate.
EPA indicated that absent exigent circumstances, it would not require facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual or annual basis, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports when the policy is no longer in effect.
In screening cases for referral to DOJ for potential criminal violations, EPA said it will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law. EPA indicated its Criminal Investigative Division would remain vigilant and is prepared to pursue violators who demonstrate a criminal intent.
Finally, EPA said it may provide additional enforcement guidance applicable to specific regulatory programs on an ongoing basis. The agency also reminded the regulated community that the EPA’s self-disclosure program remains available for violations that are voluntarily reported .
Coronavirus Resource Guide – March 20, 2020 by Margaret Wood – “This is intended as a guide to laws, regulations and executive actions in the United States, at both the federal and the state level, and in various countries with respect to the new coronavirus and its spread. We are also including links to Congressional Research Service (CRS) reports that provide information to Congress about the novel coronavirus. In addition, we provide links to relevant federal agency websites. We intend to update this guide on at least a weekly basis for the immediate future.”
Perry, Ronen, The Law and Economics of Online Republication (March 10, 2020). Iowa Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3552301
“Jerry publishes unlawful content about Newman on Facebook, Elaine shares Jerry’s post, the share automatically turns into a tweet because her Facebook and Twitter accounts are linked, and George immediately retweets it. Should Elaine and George be liable for these republications? The question is neither theoretical nor idiosyncratic. On occasion, it reaches the headlines, as when Jennifer Lawrence’s representatives announced she would sue every person involved in the dissemination, through various online platforms, of her illegally obtained nude pictures. Yet this is only the tip of the iceberg. Numerous potentially offensive items are reposted daily, their exposure expands in widening circles, and they sometimes “go viral.”
This Article is the first to provide a law and economics analysis of the question of liability for online republication. Its main thesis is that liability for republication generates a specter of multiple defendants which might dilute the originator’s liability and undermine its deterrent effect. The Article concludes that, subject to several exceptions and methodological caveats, only the originator should be liable. This seems to be the American rule, as enunciated in Batzel v. Smith and Barrett v. Rosenthal. It stands in stark contrast to the prevalent rules in other Western jurisdictions and has been challenged by scholars on various grounds since its very inception..”
Make Use Of: “If you’re new to remote working or trying to figure out how to work from home, the internet has your back. These tips, tools, and articles will help you be productive from anywhere. The Coronavirus threat has led to a surge in the number of people working from their homes. It’s not a normal environment for many, but hey, remote working isn’t a new concept. People have been doing it for a long time, and you can draw upon their experience and advice. In fact, even if you have been a non-office worker for some time, you can still gain a lot from the new tools and tips cropping up in the wake of this outbreak.
The WFH Manual is a newly put-together website aimed at helping those who have no prior experience of remote working. It aims to get the best guides on the web, robust tool and resource kits, and it also highlights the best tweets. Since the outbreak, experienced remote workers have been sharing many of their best tips and tricks through Twitter. From setting up workstations to forming productive habits and routines, the WFH Manual has curated insightful tweets and threads. The page only has the first tweet in the chain, so make sure you click to read the full thread and check comments from other users for additional tips. WFH Manual has two other sections: Practices and Resources. In Practices, you’ll find articles and guides by both managers and employees about working remotely and staying productive. Resources focuses on app curation and software stashes, along with a few tweets gathering recommendations for apps…”
- How to practice social distancing, from responding to a sick housemate to the pros and cons of ordering food.
- How people cope and create new customs amid a pandemic.
- What it means to contain and mitigate the coronavirus outbreak.
- How much of the world is likely to be quarantined?
- Donald Trump in the time of coronavirus.
- The coronavirus is likely to spread for more than a year before a vaccine could be widely available.
- We are all irrational panic shoppers.
- The strange terror of watching the coronavirus take Rome.
- How pandemics change history.
The New York Times: Your Money: A Hub for Help During the Coronavirus Crisis – “If your income has fallen or been cut off completely, we’re here to help. This guide will connect you to the basic information you’ll need to get through this, including on government benefits, free services and financial strategies.”
Law in the Time of COVID-19 / Mary Whisner – “This guide collects resources to support Law in the Time of Coronavirus (LAW 599, a special topics class offered Spring 2020) and to inform anyone interested in the wide array of legal issues related to COVID-19. Because of limitations on visiting libraries in person, the guide emphasizes resources that are available online. Some resources are limited to UW users. Bloomberg Law, Lexis, and Westlaw are licensed only for the UW Law community…”