Saturday, March 12, 2011
Friday, March 11, 2011
Digital recording tools are so cheap and simple to use that it's easy to deploy them without thinking through the consequences. A Nebraska mother and grandfather found this out the hard way last month when they were hit with a combined $120,000 penalty for wiretapping after sticking an audio recorder inside a young girl's favorite teddy bear.
Though the mother claimed only to be concerned with her child's welfare, the judge found that the indiscriminate use of the recording device had violated the privacy of numerous people, each of whom were entitled to $10,000.
Looking for abuse
Duke and Dianna married in 2001, had a baby girl in 2003, and separated less than four months after the child's birth. They were divorced in mid-2004 by a Nebraska state court, and Dianna received custody of the child. In late 2007, Duke challenged this order and asked that custody be awarded to him; in response, the state court gave Duke “unsupervised parenting time” with the child. A typically messy family breakup quickly became something else.
Just before Duke's first unsupervised visit, Dianna bought a small digital recorder online. Dianna unstitched a bit of her daughter's favorite teddy bear—known as "Little Bear"—and stuck the recorder inside, stitching the animal back up afterwards. The recorder never left the bear's guts after this, except when the animal was washed. With no voice activation feature, the gadget simply recorded everything that happened in its presence, and Dianna periodically unstitched the bear just enough to insert a USB cable and download the audio recordings to her computer.
She did it, she said, suspecting that Duke was abusing their daughter both physically and verbally. The recording took place from January through the middle of May 2008, when a court hearing over the daughter's custody approached. At that point, Dianna burned all of her stored recordings to compact discs and gave the set to her father, Sam, who transcribed them for her. Some of these recordings were unedited, though Dianna admitted in a later deposition that others were selected to show the “most severe and damaging verbal and physical abuse” of the daughter.
All of this material was then turned over to Dianna's lawyers, who submitted it to the state court and waited for a ruling on its legality. In the summer of 2008, the state judge decided that the recordings were not admissible as evidence in the custody trial, since they violated the Nebraska Telecommunications Consumer Privacy Protection Act and were therefore obtained illegally.
On the day the ruling came down, Dianna took the recording device out to her driveway and smashed it to bits with a sledgehammer. She claimed to delete the recordings from her computer, and her father said that he deleted the transcripts from his computer. Problem solved? Not quite.
A right to privacy
Duke was furious about all the surreptitious recording and he eventually sued Dianna and her father Sam in Nebraska federal court, alleging that she had violated not only Nebraska law but the federal Wiretap Act. Federal charges against one's ex-wife—especially charges that involve a teddy bear—aren't common, but the animosity had been building for years after the divorce.
In total, then, the case was brought by Duke and five other plaintiffs, all of whom alleged Wiretap Act violations against Dianna and her father. Defense lawyers argued that Dianna could give “vicarious consent” for recording on behalf of her daughter, which would give the recordings at least the consent of one party. But when federal magistrate judge F.A. Gosset III ruled on the case three weeks ago, he pointed out that this was immaterial; the bear had "recorded many oral communications made by each of the plaintiffs" and to which the daughter was not a party. Under federal law, this amounted to a wiretap, and one which the defendants had intentionally tried to use.
The Wiretap Act allows people to file civil lawsuits and to recover either actual damages or statutory damages of $10,000. In this case, the judge hit Dianna with a $10,000 damage award—one payable to each of the six defendants. Her father Sam received the same penalty, for a total payout of $120,000. No punitive damages were awarded, nor was anything given to the plaintiffs for invasion of privacy or mental suffering.
In his ruling, the judge noted that the Wiretap Act has a strict standard which prohibits all wiretapping—even that of a parent looking to hear conversations with her child—unless specifically exempted by the law.
Technology law attorney Evan Brown called the case a tough decision, as "a parent fearing for the safety of his or her child might have strong reasons to resort to eavesdropping to protect the child." Even the judge seemed to agree that there might be some merit to this argument, but he noted that it was for Congress to determine the law, and that the existing law here was clear.
Read more here.
The concept of work-spouses has seem to become established--is it a form of cheating?
Forty-five-year-old Patty Lewis and 37-year-old Tom Brister know a thing or two about this. The technology consultants each have their own legally married spouses, but have considered themselves "spouses" at work for nearly four years.
"From a psychological and emotional perspective, he is the person I can tell anything to, and share any perspective with, no matter how mean-spirited or politically incorrect," said Lewis.
"Patty hears many of the same things reserved for my spouse, including who is annoying me at work, my true assessment of some of the projects at work and my current satisfaction level with my job," said Brister.
The pair met four years ago at their company in Northbrook, Illinois, and say they know each other so well that they can finish each other's sentences in the context of work -- and know details about each other like how they like their coffee and what they like to eat when ordering at a restaurant.
The work spouse team said their friendship has helped them with their careers and is "not just a water-cooler relationship" used to pass the time at work.
Read more here.
Thursday, March 10, 2011
From the AP:
For women in the military, there's a cold, hard reality: Their marriages are more than twice as likely to end in divorce as those of their male comrades — and up to three times as likely for enlisted women. And military women get divorced at higher rates than their peers outside the military, while military men divorce at lower rates than their civilian peers.
About 220,000 women have served in Afghanistan and Iraq in roles ranging from helicopter pilots to police officers. Last year, 7.8 percent of women in the military got a divorce, compared with 3 percent of military men, according to Pentagon statistics. Among the military's enlisted corps, nearly 9 percent of women saw their marriages end, compared with a little more than 3 percent of the men.
Like all divorces, the results can be a sense of loss and a financial blow. But for military women, a divorce can be a breaking point — even putting them at greater risk for homelessness down the road.
It has an effect, too, on military kids. The military has more single moms than dads, and an estimated 30,000 of them have deployed in support of the wars in Iraq and Afghanistan.
Why military women are more burdened by divorce is unclear, although societal pressure is likely a factor.
"It's a strange situation, where there's a fair amount of equality in terms of their military roles, but as the military increasingly treats women the same as it treats men in terms of their work expectations, however, society still expects them to fulfill their family roles. And that's not equally balanced between men and women," said David Segal, director of the Center for Research on Military Organization at the University of Maryland.
One speculation is that while more traditional men join the military, women who are attracted to military life are less conventional — and perhaps less willing to stay in a bad marriage.
About half of all married women in the military are married to a fellow service member, compared with less than 10 percent of military men. While it can be an advantage to be married to someone who understands military life, balancing two military careers poses challenges.
Read more here.
From Florida Wires:
Read more here.
Wednesday, March 9, 2011
From the Baltimore Sun:
On the day before the House of Delegates was expected to begin debate on same-sex marriage, lawmakers received a letter from six gay colleagues.
"Vote yes because you know it is the right thing to do," the delegates wrote this morning. "Vote yes because you want to stand on the right side of history. Vote yes because every family in Maryland needs the protections that marriage provides."
This afternoon, opponents of gay marriage from Pennsylvania played bagpipes outside the lawmakers’ offices, displayed a banner that read: "God’s Marriage = 1 man & 1 woman," and encouraged like-minded motorists to honk.
As they prepare to open debate tomorrow on legislation that would allow gay couples to marry, members of the divided House are facing pressure from all sides.
The Senate has already approved the plan. House passage would send the bill to the governor’s desk, where Democrat Martin O’Malley has promised to sign it.
Delegates have heard from hundreds of constituents, received a flood of e-mails from supporters and opponents and, in some cases, struggled internally with how to vote. Several of them — including co-sponsors — have changed their positions. Dozens remain publicly uncommitted.
"The vote is close, probably an even split," said Del. Maggie McIntosh, the most senior of the six openly gay delegates. "A healthy handful of people are still making up their minds."
The Baltimore Democrat said that most of those delegates have told her they support same-sex marriage personally, but believe their constituents largely oppose it.
Because neither supporters nor opponents are confident in how the 141-member House will vote after what could be several days of debate, both sides have been laboring to convince the holdouts.
The Civil Marriage Protection Act would repeal the state’s legal definition of marriage as the union of a man and a woman, enabling officials to beging issuing marriage licenses to same-sex couples. The legislation attracted 59 co-sponsors; it needs 71 votes to pass.
The Senate voted 25-21 to approve the bill last month after several hours of discussion spanning two days. Senators on both sides of the issue congratulated themselves on the even tone of the debate.
Read more here.
From the Daily Caller:
Rastamouse, a reggae-singing, crime-solving rat puppet, has become a big hit with Britain’s children. But according to some parents and activists, the BBC character is a bad influence on the nation’s youth.
The rodent has also burrowed into the hearts of Britain’s pot enthusiasts, says The Guardian. Rastamouse often remarks upon his love of “cheese” –- a code word for marijuana.
Despite the squabble, the BBC says they stand by the character. “”Rastamouse is part of a rich and varied CBeebies schedule, which is dedicated to reflecting the lives of all children in this country,” they write in a statement. “Although Rastamouse has a particular appeal to young Afro-Caribbean children, its entertaining stories and positive messages – about friendship, respect and community – are intended to be enjoyed by all our young viewers, regardless of their backgrounds.”
See a clip of rastamouse and read more about it here.
Tuesday, March 8, 2011
Weaver: "The Principle of Subsidiarity Applied: Reforming the Legal Framework to Capture the Psychological Abuse of Children"
Jessica Dixon Weaver (SMU School of Law) has posted "The Principle of Subsidiarity Applied: Reforming the Legal Framework to Capture the Psychological Abuse of Children" (forthcoming Va. J. of Social Policy & the Law) on SSRN. Here is the abstract:
Psychological abuse is the most prevalent type of child abuse. It lies at the core of child maltreatment because it is embedded in and interacts with physical and sexual abuse, as well as physical neglect. It also has a more extensive and destructive impact on the development of children than any other type of abuse. Yet, the current child protection system fails to adequately address the problem because the normative framework of the child protection system does not always include the psychological abuse of children. For the majority of states, the physical health, safety, and well-being of children are focal points in determining whether abuse or neglect has occurred. Although federal law requires that “serious emotional harm” be included in the definition of abuse for all states, less than one third of all states in America allow for children to be removed from their parents due to psychological abuse alone.
This Article proposes a way to fill the gap by incorporating psychological abuse into the larger doctrinal equation of child abuse and neglect treatment and prevention. First, recognizing that a primary challenge to including psychological abuse within the legal standard is the ability to determine the level of psychological harm that warrants state intervention, this Article offers a uniform definition of psychological abuse in order to expand the scope of the emergency removal standard. Second, this Article borrows from the European theory of subsidiarity to address prevention and treatment of abuse in American communities. This bold new paradigm is a prescriptive process that carefully constructs the law such that necessary interventions in a child’s life are allowed to prevent further psychological damage so that victims can start the road to recovery. Ultimately, applying the principle of subsidiarity to the legal framework of the child protection system should reduce the number of children who experience psychological abuse as well as reduce the overall cycle of abuse and neglect in our country.
This article functions as an intellectual checklist for navigating community property issues in divorce cases where title to the family home has been taken in only one spouse’s name. The discussion includes potential claims, constructive and inquiry notice, and the evidence code presumption.
Stewart Baker over at the Volokh Conspiracy had an interesting post about data mining and dating, based on work done by OK Cupid. The gist of it is which questions to ask in order to get answers to the questions that you really wanted to ask but couldn't on the first date. Read it here.
Monday, March 7, 2011
Kay Hymowitz recently caused a stir with her editorial "Where Have the Good Men Gone?" in the Wall Street Journal:
Not so long ago, the average American man in his 20s had achieved most of the milestones of adulthood: a high-school diploma, financial independence, marriage and children. Today, most men in their 20s hang out in a novel sort of limbo, a hybrid state of semi-hormonal adolescence and responsible self-reliance. This "pre-adulthood" has much to recommend it, especially for the college-educated. But it's time to state what has become obvious to legions of frustrated young women: It doesn't bring out the best in men.
Read more here.
Sunday, March 6, 2011
TAKING STOCK: A SYMPOSIUM CELEBRATING THE NYS JUDICIAL COMMITTEE ON WOMEN IN THE COURTS
NYS STATE JUDICIAL COMMITTEE ON WOMEN IN THE COURTS AND THE NYU REVIEW OF LAW AND SOCIAL CHANGEAPRIL 5, 2011
9:00 AM TO 4:45 PM
NEW YORK UNIVERSITY SCHOOL OF LAW
GREENBERG LOUNGE, 40 WASHINGTON SQUARE SOUTH, NY NY 10012
TUESDAY, APRIL 5, 2011
8:30 - 9:00
HON. BETTYWEINBERG ELLERIN Chair, NYS Judicial Committee on Women in the Courts
HON. JONATHAN LIPPMAN Chief Judge of the State of New York (video)
HON. ANN PFAU Chief Administrative Judge of the State of New York
ELAINE JONES President and Director-Counsel Emeritus, NAACP Legal Defense and Education Fund, Inc (LDF)
IN THE BEGINNING: A QUICK LOOK BACK
HON. BETTYWEINBERG ELLERIN Chair, NYS Judicial Committee on Women in the Courts
LYNN SCHAFRAN Director, National Judicial Education Program, Legal Momentum
FERN SCHAIR Board Chair, Feerick Center for Social Justice at Fordham Law School
PANEL: ECONOMICS, FAMILY LAW, AND VULNERABLE MOTHERS
MARTIN GUGGENHEIM Fiorello LaGuardia Professor of Clinical Law, NYU Law School, Moderator
MELISSA L. BREGER Professor of Law, Albany Law School
SHERRY LEIWANT Executive Director, A Better Balance
BONNIE RABIN Founding Partner, Cohen Rabin Stine Schumann LLP
PANEL: VIOLENCE AGAINST WOMEN: Intimate Partner Abuse and Sexual Assault
AMY BARASCH Executive Director, NYS Office for the Prevention of Domestic Violence, Moderator
DORCHEN A. LEIDHOLDT Director of the Center for Battered Women’s Legal Services, Sanctuary for Families
JANE MANNING President, NOW-New York City
PANEL: VIOLENCE AGAINST WOMEN: Prostitution, Trafficking, and Commercial Sexual Exploitation
HON. FERNANDO CAMACHO Administrative Judge, Criminal Matters, Queens, Moderator
PAMELA CHEN Chief Civil Rights Unit (Criminal Division), Eastern District of New York
HON. TOKO SERITA Judge, NYC Criminal Court
GLORIA STEINEM Feminist Writer and Organizer
HON. BETTYWEINBERG ELLERIN
TAKING STOCK: A SYMPOSIUM CELEBRATING THE
NYS JUDICIAL COMMITTEE ON WOMEN IN THE COURTS
REGISTER BY MARCH 15, 2011
CLE CREDIT AVAILABLE
FOR FURTHER INFORMATION, CONTACT
Jill Laurie Goodman, Counsel, NYS State Judicial Committee on Women in the Courts
25 Beaver Street, Room 878, New York, New York 10004 • 212-428-2794