Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio,
Speaker 1: Rachel Holliman, do you risk your life for your son?
Speaker 1: Who are you as a car park at the corner
Speaker 1: of his block? That you start walking? Allow directions? You'll
Speaker 1: left through this? How are you seeing us right now?
Speaker 1: Somebody's had In the movie Eagle Eye, two people's lives
Speaker 1: are thrown into turmoil by calls from an unknown woman
Speaker 1: who knows their every move using information and communications technology.
Speaker 1: Big brother watching is a theme in many sci fi
Speaker 1: and action movies, but a recent hack of a massive
Speaker 1: trove of security cameras may show how close to reality
Speaker 1: that's becoming. A group of hackers who breed security cameras
Speaker 1: start up for Kanna were able to view the live
Speaker 1: feeds and archive videos of one fifty thousand cameras inside hospitals,
Speaker 1: police departments, prisons, schools, jails, factories, gyms, and corporate offices,
Speaker 1: and one of the hackers said they've found a user
Speaker 1: name and password for an administrator account publicly exposed on
Speaker 1: the internet. Joining me is Rena baje Vala, a partner
Speaker 1: and Ice miller. What kind of privacy do you have
Speaker 1: when you enter a public facility. Let's say you go
Speaker 1: to a hospital or a police station. Do you have
Speaker 1: any privacy rights when you're at in public The answer
Speaker 1: is it depends really on the place you are entering.
Speaker 1: For example, on one end of a spectrum, if you
Speaker 1: are in a correctional facility, your right to privacy is
Speaker 1: very limited there. The way that the privacy laws work
Speaker 1: in the United States is sector specific, so certain types
Speaker 1: of businesses have laws relating to the collection and disclosure
Speaker 1: of private information, but as a whole, the country doesn't
Speaker 1: have a national privacy law. So if you walk into
Speaker 1: a health care facility and you are seeking treatment, you
Speaker 1: are covered by HIPPA, But walking into a retail facility,
Speaker 1: you don't have that type of protection. You know, and
Speaker 1: businesses in this country do have the right to surveile
Speaker 1: for security purposes and other legitimate business purposes. I was
Speaker 1: shocked at some of the places where the video cam
Speaker 1: was were and some of the things that were exposed,
Speaker 1: For example, hospital staff ers pinning down a patient to
Speaker 1: a bed. Don't you have any privacy rights inside a hospital.
Speaker 1: HIPPA is one of the most protective privacy statutes that
Speaker 1: we have in the United States. And I've seen that
Speaker 1: the company that was tacked, Kato, had a case study
Speaker 1: on one of the hospital that they work with that
Speaker 1: we're saying that it's a Hippo compliant security system. So
Speaker 1: it's not that there are not privacy right. You know,
Speaker 1: the question will certainly be attracted through litigation in and
Speaker 1: I imagine regulators like the Department of Healthy Human Services
Speaker 1: Office for Civil Rights will be taking a close look
Speaker 1: at this situation and looking at Bocada and its relationships.
Speaker 1: But you know, hospital systems, other health facilities use vendors
Speaker 1: for a wide variety of purposes, and perhaps it's a
Speaker 1: internal risk recording to protect the health facility against legal liability. However,
Speaker 1: the relationship with the video surveillance company was that these
Speaker 1: are supposed to be secure videos. So in a situation
Speaker 1: like that, you know that information being exposed has created
Speaker 1: the liability. Let's say that the prison sues or the
Speaker 1: school sues. What would this suit be based on? I mean,
Speaker 1: does it depend on where they are and what the
Speaker 1: laws are, or does depend on the contract. It's going
Speaker 1: to depend on the contract between the parties. So they
Speaker 1: are going to be provisions and the contract between that
Speaker 1: correctional facility or that health care facility and vocata that
Speaker 1: indicate the scope of liability. There's there are likely detailed
Speaker 1: provisions relating to those privacy and security concerns that we're
Speaker 1: talking about, So it would be a breach of contract.
Speaker 1: Lawsuits likely well. One of the issues be how secure
Speaker 1: the company kept the cameras and the video footage because
Speaker 1: apparently employees had super Redmond privileges and had unrestricted access
Speaker 1: to customers surveillance footage. Absolutely a critical question here is
Speaker 1: going to be access controlled and limiting those controls to
Speaker 1: the need to know basis of individuals. And you know
Speaker 1: that there's a principle called principle of least privilege where
Speaker 1: you manage your access controlled with the default assumption that
Speaker 1: people will not have privileges unless they are required to
Speaker 1: form their jobs. So that is going to get critical
Speaker 1: question going forward. Now, what about the people who have
Speaker 1: been filmed and exposed? What kind of a lawsuit can neighboring?
Speaker 1: So this is a unique situation because in addition to
Speaker 1: the video, there is from what I understand, some sort
Speaker 1: of people analytics service provided. So I don't know what
Speaker 1: the role of that is because that would also connect
Speaker 1: the video to a person and their history, and their
Speaker 1: vehicle history and all types of other publicly available information.
Speaker 1: But in terms of individuals, their main focus likely for
Speaker 1: potential lawsuit would be under tort law. So there are
Speaker 1: privacy tort that include things like unlawfully intruding into someone's
Speaker 1: private affairs or disclosing someone's private information. So you can
Speaker 1: see a scenario where if somebody was in, for example,
Speaker 1: a mental health facility and that video was exposed that
Speaker 1: had an individual in a sensitive situation that was had,
Speaker 1: that individual might be able to make a privacy tort
Speaker 1: claim in a lawsuit. And you know, in terms of
Speaker 1: who they might see, they might do all parties involved.
Speaker 1: I assume the company makes representations about the security of
Speaker 1: its cameras to potential customers. How much does it matter
Speaker 1: if the company fell short in that regard? For example,
Speaker 1: suppose it was actually quite easy for the hackers to
Speaker 1: get these admin privileges. If they fell short of their
Speaker 1: assurances of security, that would create liability under the contract
Speaker 1: for that company. Um, you know, one place to look
Speaker 1: is at what Bricada's advertising statements are. And you know,
Speaker 1: I took a look at their website. They have a
Speaker 1: section on security on their website that goes through in
Speaker 1: detail what their security measures are. Um. You know, companies
Speaker 1: have privacy policies where they indicate in terms of us,
Speaker 1: where they indicate how they will protect your information. All
Speaker 1: of these statements, certainly for your regulators like the FTC,
Speaker 1: will be of critical importance to determining well, if they
Speaker 1: made statements and they did not live up to those statements,
Speaker 1: that creates um exposure and liability both from a regulatory
Speaker 1: perspective and in lawsuits. What's the role of the FTC here?
Speaker 1: So the FTC in particular look at privacy policies and
Speaker 1: where companies have not satisfied their promises that are in
Speaker 1: a privacy policy. The FTC has jurisdiction to investigate and
Speaker 1: bring enforcement actions. What are the regulatory agencies might get involved?
Speaker 1: So the Department of Health and Human Services Office for
Speaker 1: Civil Rights has jurisdiction over healthcare entities, so they would
Speaker 1: be enforcing HIPPA and high tech the related law in
Speaker 1: connection with the health care realm. And then you have
Speaker 1: attorneys general, So the California Attorney General, you know this
Speaker 1: is a California company. We can certainly expect some investigation
Speaker 1: action from the California Attorney General. This conversation and sort
Speaker 1: of the piecemeal regulatory approach to this, heck, bring up
Speaker 1: the question do we need a federal privacy law. I
Speaker 1: think everyone agrees that we need a federal privacy law,
Speaker 1: and that's people on all ends of the spectrum of
Speaker 1: privacy advocacy or protectionism. There is a way to comprehensively
Speaker 1: manage data that does not focus on sector specific or
Speaker 1: state by state laws, and instance like this can help
Speaker 1: motivate legislators to move forward on a federal data privacy bill.
Speaker 1: There are a lot of people have these wireless home cameras.
Speaker 1: What do you have to do to make sure that
Speaker 1: this doesn't happen? Do you have any projection from someone
Speaker 1: accessing what's in the cloud? I think we're relying on
Speaker 1: the companies to have the security, so you know, I
Speaker 1: would I would take a look and vet um the companies,
Speaker 1: but unfortunately there's no guarantee that, uh, you know, anything
Speaker 1: that is connected can be hacked. And so that's really
Speaker 1: where we're going in terms of technology is everything is
Speaker 1: getting connected and interconnected, and we have Internet of things,
Speaker 1: so this is a real concern to push back against that. UM,
Speaker 1: and some states are legislating two ensure that reasonable security
Speaker 1: features are in the Internet of Things devices, like California
Speaker 1: has SP three, which is IoT law. UM. But I
Speaker 1: think that the things you can do is you can
Speaker 1: do as a consumer are make sure you understand what
Speaker 1: the access rights are to your account. So if they
Speaker 1: give you a default password, change that password. That is
Speaker 1: something that is maybe even the simplest. You know, you
Speaker 1: can inquire about what the security measures are, but you know,
Speaker 1: you can't expect every consumer to be an expert in security.
Speaker 1: So you know, the safest root is to not go connected, um,
Speaker 1: you know, and and to not have things stored in
Speaker 1: the cloud. If you can have a simpler camera that
Speaker 1: you know, records a certain amount of footage and then
Speaker 1: you know, rewrites over it. UH, that's a safer place
Speaker 1: to be from a security perspective. UM. But you know,
Speaker 1: convenience UH and technological innovation has has trended towards winning
Speaker 1: out on those on those battles. Thanks Rina. That's Rina
Speaker 1: baje Vala of Ice Miller. The Buying Justice Department is
Speaker 1: using a controversial statute that was a that did in
Speaker 1: nineteen sixty eight, at a time of civil rights demonstrations
Speaker 1: and anti war protests, to charge more than sixty people
Speaker 1: in the capital riots. The law had rarely been used
Speaker 1: since the Nixon administration until the Trump administration began using
Speaker 1: it to charge people in the Black Lives Matters protests.
Speaker 1: Joining me, as former federal prosecutor Michael Zelden tell us,
Speaker 1: the history of the Federal Anti Riot Act. The history
Speaker 1: of the statute, which is sort of dubious in many respects,
Speaker 1: was an effort, I think, to use the powers of
Speaker 1: law enforcement to arrest disrupt those who were engaged in
Speaker 1: acts of civil disobedience. I think that the history of
Speaker 1: this thing was to make sure that the police were
Speaker 1: able to ensure that those who blocked the bridges in
Speaker 1: Selma or involved themselves in protests that led to shit
Speaker 1: ins and closures of commercial establishments could be charged with
Speaker 1: an offense beyond the normal still disobedient type of statutes
Speaker 1: that already were in exist. So I think they have
Speaker 1: a very dubious history. Does that history matter in how
Speaker 1: the statute is used by law enforcement, Well, it doesn't
Speaker 1: matter in a technical legal sense. That is, if the
Speaker 1: statute was passed if its history is sort of for
Speaker 1: bad purpose, That is, they meant this as a statute
Speaker 1: to impose obedience to the state from those who are
Speaker 1: engaged in civil disobedience. That doesn't make the statute infirm legally,
Speaker 1: meaning that if someone chose to use the statute in
Speaker 1: the future for some other purpose other than what maybe
Speaker 1: the legislators had as their original meaning, it doesn't mean
Speaker 1: the statue can't be used. So put other words, it
Speaker 1: may be bad in its intention, but it may be
Speaker 1: legal in its effect. Now, this statute hadn't been used
Speaker 1: since the Nixon era until it was used in the
Speaker 1: Trump administration. Yeah, more or less. I mean, then you
Speaker 1: may find an odd case here or there. But as
Speaker 1: I said, these cases involved cases of civil disorder. The
Speaker 1: statute has a definition that says we shall use this
Speaker 1: when interstate commerce is interfered with in the course of
Speaker 1: a civil disorder, which means any public disturbance involving acts
Speaker 1: of violence or by assemblages of three or more people
Speaker 1: which causes immediate danger of or results in damage to
Speaker 1: injury of property your person. So these are intended to
Speaker 1: disrupt disturbances. And yes, of course, the Nixon administration used
Speaker 1: them against anti war protesters, and the Trump administration used
Speaker 1: them against what they called the Antifa civil disobedient gatherers
Speaker 1: in Portland and Seattle and Minneapolis and other such cities.
Speaker 1: Bill Barr apparently he told his U S attorneys two
Speaker 1: pursue aggressive federal prosecution against protesters in the Black Lives
Speaker 1: Matters movement, and they used this particular statute to do that.
Speaker 1: When Jeff Sessions became Attorney General of the United States,
Speaker 1: he reversed the policy of the Obama administration, which was
Speaker 1: to use judgment in charging criminal offensive. Sessions wanted to
Speaker 1: charge the most serious charge available bar When he became
Speaker 1: Attorney general, also said that he believed that the most
Speaker 1: serious charge availables being used, and particularly he singled out
Speaker 1: the protesters in Oregon and Minneapolis and in Seattle as
Speaker 1: essentially inciting an insurrection. I think was some of the
Speaker 1: languages that he used during his um press statements. And
Speaker 1: so here we find prosecutors bringing this charge eight United
Speaker 1: States Code such as two thirty one, which is this
Speaker 1: charging of people of interfering with the police or firefighters
Speaker 1: who are trying to deal with a civil disturbance, and
Speaker 1: they cite that it had a negative impact on interstate
Speaker 1: commerce as they used weapons in order to do this,
Speaker 1: and that therefore this ANSI assemblage statute, the statute really
Speaker 1: had some sense of its origins, as I said, in
Speaker 1: targeting civil disobedient protesters. They've decided to use this statute
Speaker 1: that what they think most promperate charge in cases like this.
Speaker 1: I think that it's problematic from a a charging philosophy standpoint.
Speaker 1: I don't know why this would be the appropriate charge
Speaker 1: to bring when there are all sorts of more straightforward
Speaker 1: statutes like assault on a police officer, destruction of property,
Speaker 1: destruction of the federal property. There are a lot of
Speaker 1: great forward state and federal statutes that governed the behavior
Speaker 1: that they things should be criminalized, and why they're using
Speaker 1: this is not easily from understandable to my politics. So
Speaker 1: more than sixty of the rioters charged in the Capital
Speaker 1: riot have been charged with this civil disobedience charge. Does
Speaker 1: it seem appropriate there? Well? My view of the law
Speaker 1: is that if it's appropriate for one category, it should
Speaker 1: be appropriate for another category. If it's inappropriate for one
Speaker 1: category to be inappropriate for another category. So my politics
Speaker 1: is that if I were a federal prosecutor. I would
Speaker 1: not bring a charge that has this, you know, sort
Speaker 1: of terrible history behind it, and I wouldn't bring it
Speaker 1: in the Portland cases, and I wouldn't bring it in
Speaker 1: the Capital riot cases. I think that there are other
Speaker 1: statutes that get at what you want to charge people
Speaker 1: with without invoking a statue that as such a horrible
Speaker 1: history to it. So what other statutes would they could
Speaker 1: they use in the Capital riots? Illegal entry, staying beyond
Speaker 1: your entitlement to stay, destruction of property, assault on a
Speaker 1: police officer. There may be a murder charge that comes
Speaker 1: out of this as well. So though destruction of property
Speaker 1: and and and assault styled statutes are the most easily
Speaker 1: available for prosecutors to use. You know, I understand that
Speaker 1: what took place at the Capitol was unique, and maybe
Speaker 1: it requires a unique charge to be brought. And it's
Speaker 1: not that this is equivalent to what took place in Portland.
Speaker 1: What took place in Portland, I think is very different
Speaker 1: than what took place at the Capitol. I just don't
Speaker 1: like this statute. And we talked previously about beware of
Speaker 1: impending war on domestic terror and what would that mean
Speaker 1: in terms of the passage of new statutes with the
Speaker 1: application of old statutes to new conduct. This is what
Speaker 1: we talked about in an earlier conversation, and this is
Speaker 1: exactly what we're seeing. This is conduct that I think,
Speaker 1: in many respects has a free speech overlaid to it.
Speaker 1: It may not be exactly on point, but it is
Speaker 1: surely there. And I just don't like statutes that criminalize
Speaker 1: anything that has to do with a free speech, right
Speaker 1: to assemble, right to protest component to it. Is one
Speaker 1: of the reasons that prosecutors are using this is that
Speaker 1: it's a felony with up to five years in prison possible. Well,
Speaker 1: that's a great question, because you know, assault and and
Speaker 1: those types of statutes carry you hefty prison sentences as well.
Speaker 1: I think that their thought is, you know, psychoanalyzing people.
Speaker 1: I don't know, but I think their thought is that
Speaker 1: this is what these protesters did. They interfered with the
Speaker 1: application of police and fire authority in the context of
Speaker 1: a civil disobedience. So the statute is right on point,
Speaker 1: and so they're going to charge it. So I don't
Speaker 1: assert bad motives as to these people because I don't
Speaker 1: I don't know them. I think that they do think
Speaker 1: that this statute is what is most applicable to the behavior.
Speaker 1: I just wouldn't do it myself because I don't like yes,
Speaker 1: I said twice. Now, I don't like its history. I
Speaker 1: don't like what it's how it was intended, and I
Speaker 1: think that it may well be vague um from a
Speaker 1: First Amendment law enforcement standpoint, because you have to be
Speaker 1: part of a civil disorder um when this is taking place,
Speaker 1: and it's really not all that clear to me how
Speaker 1: one wants to define that or how one could have
Speaker 1: defined that as it relates to one's First Amendment right
Speaker 1: to address grievances, protests symbol speak. You know, there are
Speaker 1: several cases in Oregon and where there are similar allegations
Speaker 1: to some of the cases in the Capital, and the
Speaker 1: defense there is challenging the use of this statute is
Speaker 1: their legal challenge. But as I understand it, as I
Speaker 1: best understand it, it is again that this statute, the
Speaker 1: application of this statute to this conduct is inappropriate. That
Speaker 1: what this person did is not a violation of of
Speaker 1: of two one, that he may be chargeable with some
Speaker 1: type of assaultive conduct with respect to spraying the bare spray,
Speaker 1: But it wasn't an effort to disrupt the police in
Speaker 1: the context of a civil disorder implicating interstate and foreign commerce.
Speaker 1: I think that they're taking a technical defense. This statute
Speaker 1: doesn't apply, and in addition, if it were to apply,
Speaker 1: it is unconstitutionally vague. And what's the prosecution's response. The
Speaker 1: prosecution is saying that we are using this statute in
Speaker 1: a very narrow context, that it is the application of
Speaker 1: the statute in respective conduct as relates to the federal
Speaker 1: government business being conducted. There was an assault on the
Speaker 1: federal courthouse, and so they're saying that in this case
Speaker 1: has narrowly applied in the circumstances. The statute is legitimate,
Speaker 1: it's not overly broad, and it's appropriately targeted to the
Speaker 1: type of violent conduct that the individual charge with it
Speaker 1: engaged in. And they have photos of him with pepper
Speaker 1: spray and with a knife and things of that sort.
Speaker 1: But the defendant is saying, this is an overly broad statute,
Speaker 1: it's unconstitutional, doesn't shouldn't apply to me. It should be
Speaker 1: struck down as an illegal statute, as a government saying no, no, no,
Speaker 1: as it was applied to you in this case with
Speaker 1: respect to the conduct that you engaged in at that
Speaker 1: point in time. It's perfectly appropriate, lawfully applied, and framed
Speaker 1: in a constitutionally adequate way. So our federal prosecutors in
Speaker 1: d C concerned about what happens, what the ruling is
Speaker 1: in Oregon as far as the statute is concerned. Yeah.
Speaker 1: Of course, if this case were to go forward and
Speaker 1: the court were to rule, for example, that the statute
Speaker 1: was unconstitutionally vague, it was overbroad, or it was inappropriately
Speaker 1: applied in some way, that would have a ripple effect
Speaker 1: on the charges that were brought against the January six insurrectionists. So,
Speaker 1: because they're used in both places, any case that goes
Speaker 1: first had become president for how it's interpreted down the line.
Speaker 1: So Yes, and UM not sure that this case will
Speaker 1: continue to go forward, that the U. S. Attorney will
Speaker 1: continue to prosecute under this statute because of that the
Speaker 1: ripple effect that they may decide and as they're doing
Speaker 1: with many other cases in Oregon, which is dismissing them
Speaker 1: and allowing the state to bring the more appropriate charges
Speaker 1: that we've been talking about, the type of assault charges,
Speaker 1: destruction of property, UH charges, failure to obey a police
Speaker 1: officer type of charge. Those federal cases are being dismissed
Speaker 1: in favor of the more direct state cases. And we've
Speaker 1: seen this before. We've seen this. For example, in the
Speaker 1: Rodney King case, they were assault charges brought under the
Speaker 1: state laws of California. When those cases didn't proceed well,
Speaker 1: they then decided that they would bring a federal Civil
Speaker 1: Rights Act violation charge against the officers. So normally you
Speaker 1: start with the statutes that apply most directly, in my
Speaker 1: opinion as a prosecutor, and then though in this case,
Speaker 1: those would be the state styled charges, and then you'd
Speaker 1: see how it evolved if, for example, you were able
Speaker 1: to convict the individuals that you want to convict or
Speaker 1: assault on a police officer, destruction and government five year plus,
Speaker 1: Why we do then need to bring a federal charge
Speaker 1: using this statue. It's terrible past and possibly aspect to
Speaker 1: it when you don't have to. So I like to
Speaker 1: proceed from that which is most easily proved, most directly chargeable,
Speaker 1: and leave these more obscure statutes to another day. Despite
Speaker 1: that your preference, and you're right, the U. S. Attorney
Speaker 1: important has dropped more than thirty of the nine cases.
Speaker 1: If they decide to go forward. Is this an uphill
Speaker 1: battle for the defense to get the charges dismissed on
Speaker 1: this basis? I think so yes, Because remember what we
Speaker 1: said at the very outset of our conversation was, while
Speaker 1: the statute has a sort of bad history, and while
Speaker 1: the proponents of it I think had bad political motives
Speaker 1: and enacting a statute like this, those motives don't in
Speaker 1: and of themselves make the statute legally infirm. And so
Speaker 1: if the statute is legally correct, the defense citing the
Speaker 1: history of it doesn't win. They maybe win in a
Speaker 1: court of public opinion, but they don't win in a
Speaker 1: courtroom that is determining whether the statute is constitutional or unconstitutional. Usage.
Speaker 1: Thanks for being on the Bloomberg Lawn Show. Michael. That's
Speaker 1: former federal prosecutor Michael Zelden, and that's it for the
Speaker 1: sedition of the Bloomberg Law Show. Remember you can always
Speaker 1: at the latest legal news on our Bloomberg Lawn Podcast US.
Speaker 1: You can find them on Apple Podcasts, Spotify, and at
Speaker 1: www dot Bloomberg dot com, Slash podcast Slash Law. I'm
Speaker 1: June Grosso. Thanks so much for listening. Please tune into
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