1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio. 2 00:00:09,200 --> 00:00:12,440 Speaker 1: You can see them counting the ballots more than once, two, three, four, 3 00:00:12,520 --> 00:00:15,640 Speaker 1: or five times. You would have to be a moron 4 00:00:16,120 --> 00:00:19,360 Speaker 1: not to realize if that's voter fraud. Remember in the 5 00:00:19,440 --> 00:00:25,240 Speaker 1: months after the presidential election, when Rudy Giuliani repeatedly claimed 6 00:00:25,239 --> 00:00:28,840 Speaker 1: that the election had been stolen from former President Trump 7 00:00:29,040 --> 00:00:32,400 Speaker 1: and that he had evidence of widespread fraud, and he 8 00:00:32,520 --> 00:00:36,839 Speaker 1: wasn't alone. Other Trump attorneys like Sydney Powell made similar 9 00:00:36,960 --> 00:00:41,600 Speaker 1: baseless claims. An algorithm that probably ran all over the 10 00:00:41,640 --> 00:00:45,320 Speaker 1: country to take a certain percentage of votes from President 11 00:00:45,320 --> 00:00:48,519 Speaker 1: Trump and flipped them to President Biden, which we might 12 00:00:48,680 --> 00:00:51,839 Speaker 1: never have uncovered had the votes for President Trump not 13 00:00:51,960 --> 00:00:55,560 Speaker 1: been so overwhelming in so many of these states that 14 00:00:55,680 --> 00:00:59,680 Speaker 1: it broke the algorithm that had been plugged into the system. 15 00:01:00,000 --> 00:01:03,360 Speaker 1: Giuliani has been temporarily barred from practicing law in New 16 00:01:03,440 --> 00:01:07,360 Speaker 1: York and is facing possible disbardment. Powell could be disbarred 17 00:01:07,480 --> 00:01:10,360 Speaker 1: after a suit brought by the State bar of Texas. 18 00:01:11,040 --> 00:01:14,560 Speaker 1: So why don't lawyers lies have the same First Amendment 19 00:01:14,600 --> 00:01:18,680 Speaker 1: protections as lies by others? Katherine Ross a professor at 20 00:01:18,680 --> 00:01:22,200 Speaker 1: George Washington University Law School, has written about this in 21 00:01:22,240 --> 00:01:27,240 Speaker 1: a Bloomberg Law opinion piece. Is the public getting inured 22 00:01:27,319 --> 00:01:30,920 Speaker 1: to lawyers lying after We saw a host of lawyers 23 00:01:30,959 --> 00:01:36,040 Speaker 1: from Rudy Giuliani to Sydney Powell repeatedly lying about the election, 24 00:01:36,160 --> 00:01:40,520 Speaker 1: and sometimes with outrageous lies that have been proven false 25 00:01:40,640 --> 00:01:44,400 Speaker 1: over and over. That is a huge problem. Following and 26 00:01:44,520 --> 00:01:48,040 Speaker 1: even leading up to the election cycle. A lot of 27 00:01:48,120 --> 00:01:51,600 Speaker 1: lawyers lied about what was going to happen, what had 28 00:01:51,680 --> 00:01:55,200 Speaker 1: happened in terms of alleging voter fraud that did not 29 00:01:55,480 --> 00:01:59,480 Speaker 1: occur at any level that could have effected the election outcome, 30 00:01:59,520 --> 00:02:03,080 Speaker 1: and in at almost all of the very few substantiated 31 00:02:03,160 --> 00:02:07,520 Speaker 1: cases of illegal voting were done by Republicans and could 32 00:02:07,560 --> 00:02:10,320 Speaker 1: not have led to an overturning of the election results. 33 00:02:10,400 --> 00:02:13,919 Speaker 1: We're also still seeing it among all the election deniers 34 00:02:14,160 --> 00:02:17,400 Speaker 1: who are running for public office in many of the states, 35 00:02:17,600 --> 00:02:21,560 Speaker 1: and quite a few of those are lawyers, because lawyers 36 00:02:21,720 --> 00:02:25,520 Speaker 1: are very active in public life. So I'm hoping that 37 00:02:25,600 --> 00:02:28,800 Speaker 1: the public is not getting inured to this as just 38 00:02:29,200 --> 00:02:31,679 Speaker 1: the cost of doing business. And I also think it's 39 00:02:31,760 --> 00:02:35,800 Speaker 1: very important that the bar associations and the bar disciplinary 40 00:02:35,840 --> 00:02:39,400 Speaker 1: committees not simply say, you know, this is what everybody 41 00:02:39,480 --> 00:02:41,520 Speaker 1: is doing and there's not much we can do about it. 42 00:02:41,720 --> 00:02:44,280 Speaker 1: I think they really need to step up in the 43 00:02:44,320 --> 00:02:50,440 Speaker 1: face of this flagrant and often proven round of lying 44 00:02:50,680 --> 00:02:54,240 Speaker 1: about public affairs. You know, you have lawyers who come 45 00:02:54,240 --> 00:02:58,960 Speaker 1: outside the courthouse and proclaim their clients innocence and say 46 00:02:59,040 --> 00:03:01,960 Speaker 1: there will be a quit it. And lawyers who make 47 00:03:02,080 --> 00:03:05,880 Speaker 1: arguments to the court and construe the facts or the 48 00:03:06,000 --> 00:03:10,480 Speaker 1: law in their client's behalf. Perhaps not quite down the 49 00:03:10,520 --> 00:03:14,480 Speaker 1: straight and narrow. Where's the line? Okay, First, let's start 50 00:03:14,520 --> 00:03:17,800 Speaker 1: with what a lie is defined as in the law. 51 00:03:18,160 --> 00:03:21,680 Speaker 1: A lie is a false statement of fact that the 52 00:03:21,760 --> 00:03:25,960 Speaker 1: speaker knows to be false and wants other people to believe. 53 00:03:26,360 --> 00:03:28,679 Speaker 1: So some of what you're talking about we might think 54 00:03:28,720 --> 00:03:33,440 Speaker 1: about as spimming or embellishment or opinion. I believe my 55 00:03:33,520 --> 00:03:36,600 Speaker 1: client is innocent. I'm going to try to prove my 56 00:03:36,680 --> 00:03:40,600 Speaker 1: client is innocent. Is not exactly the same thing as 57 00:03:40,640 --> 00:03:44,800 Speaker 1: saying it is a fact that my client did not 58 00:03:45,000 --> 00:03:48,240 Speaker 1: murder this person. And that's a dramatic example, but a 59 00:03:48,240 --> 00:03:51,760 Speaker 1: lot of things are, you know, in a greyer zone. 60 00:03:52,400 --> 00:03:56,680 Speaker 1: Lawyers in almost every state operate under some version of 61 00:03:56,840 --> 00:04:00,200 Speaker 1: the A b AS model rules of professional con up 62 00:04:00,760 --> 00:04:04,880 Speaker 1: and those applied to attorneys who have clients, and that 63 00:04:05,080 --> 00:04:10,119 Speaker 1: requires that the lawyer not lie to the court and 64 00:04:10,280 --> 00:04:14,360 Speaker 1: also not lie to the public. And that second part 65 00:04:14,680 --> 00:04:17,600 Speaker 1: is really important in terms of what's going on today. 66 00:04:17,839 --> 00:04:21,159 Speaker 1: And let me draw distinction here because some of our 67 00:04:21,640 --> 00:04:26,919 Speaker 1: non legal listeners maybe thinking about some lawyer jokes that 68 00:04:27,040 --> 00:04:30,080 Speaker 1: are you know that the profession is offended by, But 69 00:04:30,120 --> 00:04:32,520 Speaker 1: there are a lot of jokes out there about lawyers 70 00:04:32,520 --> 00:04:36,320 Speaker 1: who don't tell the truth or aren't the epitomy of 71 00:04:36,600 --> 00:04:41,120 Speaker 1: virtue in practicing their profession. First of all, the reason 72 00:04:41,400 --> 00:04:45,680 Speaker 1: those are quote unquote funny is because we do hold 73 00:04:45,880 --> 00:04:49,000 Speaker 1: lawyers to a high standard, and lawyers hold themselves to 74 00:04:49,040 --> 00:04:52,200 Speaker 1: a high standard. And if that weren't the image that 75 00:04:52,279 --> 00:04:55,719 Speaker 1: lawyers were trying to project or trying to live up to, 76 00:04:56,440 --> 00:04:59,560 Speaker 1: I don't think those jokes would have a punchline. So 77 00:05:00,200 --> 00:05:03,479 Speaker 1: I hope that people won't be looking at these very 78 00:05:03,520 --> 00:05:06,840 Speaker 1: prominent laws about things that really affect the heart of 79 00:05:06,839 --> 00:05:10,920 Speaker 1: our democracy and say, well, lawyers always lie. No, lawyers 80 00:05:10,920 --> 00:05:15,200 Speaker 1: are not allowed to lie if they're representing clients, they're 81 00:05:15,200 --> 00:05:17,359 Speaker 1: not allowed to lie to the court, and they're not 82 00:05:17,400 --> 00:05:20,760 Speaker 1: allowed to lie to all of us. Explain why the 83 00:05:20,839 --> 00:05:25,080 Speaker 1: First Amendment doesn't fit in here? Some might ask, well, 84 00:05:25,480 --> 00:05:30,240 Speaker 1: doesn't a lawyer have First Amendment projections like everyone else? Actually, 85 00:05:30,480 --> 00:05:33,279 Speaker 1: I can understand why people would think that, but it 86 00:05:33,400 --> 00:05:37,680 Speaker 1: isn't true. When people apply for membership in the bar, 87 00:05:37,800 --> 00:05:40,240 Speaker 1: which allows you to have a license to practice law, 88 00:05:40,400 --> 00:05:45,840 Speaker 1: they undertake certain responsibilities. One is that they affirm that 89 00:05:45,880 --> 00:05:48,960 Speaker 1: they're going to act as officers of the court and 90 00:05:49,040 --> 00:05:51,960 Speaker 1: uphold the law and the integrity of the court system, 91 00:05:52,279 --> 00:05:55,880 Speaker 1: and that subjects them to the discipline that can be 92 00:05:55,920 --> 00:06:00,240 Speaker 1: applied by the Bar Association, which requires that the lawyers 93 00:06:00,520 --> 00:06:04,080 Speaker 1: abide by the Code of Professional Conduct. And the Bar 94 00:06:04,120 --> 00:06:09,080 Speaker 1: Association is not the government. The First Amendment only binds 95 00:06:09,560 --> 00:06:12,440 Speaker 1: the government where they We're talking about the lowest level 96 00:06:12,800 --> 00:06:16,560 Speaker 1: employee in a local government all the way up to 97 00:06:17,160 --> 00:06:21,280 Speaker 1: Congress and the President of the United States. Those are 98 00:06:21,360 --> 00:06:26,960 Speaker 1: the people the entity that cannot abridge our First Amendment rights. 99 00:06:27,000 --> 00:06:31,160 Speaker 1: But when lawyers accept their license and use their license professionally, 100 00:06:31,400 --> 00:06:34,200 Speaker 1: which allows them to earn a living, they submit to 101 00:06:34,240 --> 00:06:37,039 Speaker 1: the bar's jurisdiction and the bar can hold them to 102 00:06:37,080 --> 00:06:41,760 Speaker 1: account if they violate the code that says that they 103 00:06:41,800 --> 00:06:44,200 Speaker 1: cannot lie to the court and they cannot lie in 104 00:06:44,279 --> 00:06:48,679 Speaker 1: public about matters in which they are representing someone. Rudy 105 00:06:48,720 --> 00:06:52,520 Speaker 1: Giuliani's law license was suspended. How did that happen? That 106 00:06:52,680 --> 00:06:57,880 Speaker 1: happened because he was repeatedly flagrantly lying to the public 107 00:06:58,520 --> 00:07:04,039 Speaker 1: by alleging road in elections in many many states. When 108 00:07:04,160 --> 00:07:08,640 Speaker 1: his factual errors were pointed out, he refused to retract, 109 00:07:08,800 --> 00:07:12,520 Speaker 1: and he doubled down. Uh, and he was warned, and 110 00:07:12,720 --> 00:07:17,480 Speaker 1: ultimately there was a preliminary hearing and his law license 111 00:07:17,600 --> 00:07:22,000 Speaker 1: was suspended pending a complete investigation with hearings and so forth. 112 00:07:22,360 --> 00:07:26,640 Speaker 1: And he challenged that in court and the judicial opinion 113 00:07:26,880 --> 00:07:31,760 Speaker 1: upholding the state bars temporary decision because the suspension, not 114 00:07:31,880 --> 00:07:37,360 Speaker 1: a termination of his license was absolutely devastating. They laid 115 00:07:37,400 --> 00:07:41,840 Speaker 1: out for dozens of pages his lives to the public, 116 00:07:42,080 --> 00:07:46,040 Speaker 1: his list to the press, and indeed his skirting the 117 00:07:46,120 --> 00:07:50,520 Speaker 1: truth in courtrooms, and the January six hearings by the 118 00:07:50,960 --> 00:07:54,480 Speaker 1: House Select Committee, there was testimony to the effect that 119 00:07:55,080 --> 00:07:59,040 Speaker 1: Giuliani had said, you know, paraphrasing, we don't have proof, 120 00:07:59,080 --> 00:08:01,560 Speaker 1: but we have lots of a race. Well theories don't 121 00:08:01,600 --> 00:08:05,000 Speaker 1: cut it for a lawyer speaking in court, or even 122 00:08:05,080 --> 00:08:08,280 Speaker 1: a lawyer speaking in public about such things. And that 123 00:08:08,520 --> 00:08:12,960 Speaker 1: was after the suspension of his license and the court decision. 124 00:08:13,040 --> 00:08:16,760 Speaker 1: So that's a good example of discipline working. Giuliani is 125 00:08:16,800 --> 00:08:20,720 Speaker 1: facing another full hearing in the District of Columbia with 126 00:08:20,760 --> 00:08:24,480 Speaker 1: respect to his district license to practice law, and a 127 00:08:24,600 --> 00:08:28,040 Speaker 1: number of other attorneys who have lied about the election 128 00:08:28,240 --> 00:08:31,560 Speaker 1: are facing proceedings before their bar associations. And let me 129 00:08:31,640 --> 00:08:35,880 Speaker 1: just say, to avoid seeming overly political, you know, one 130 00:08:35,920 --> 00:08:39,319 Speaker 1: of the problems here is lies and the lies about 131 00:08:39,320 --> 00:08:43,960 Speaker 1: moral lago which grow out of the whole Trump situation. 132 00:08:44,480 --> 00:08:47,679 Speaker 1: You know, they're being told by Republicans, but Democrats are 133 00:08:47,720 --> 00:08:52,400 Speaker 1: not immune to lying. So you may remember that President 134 00:08:52,440 --> 00:08:57,440 Speaker 1: Clinton had problems with his Arkansas law license and ultimately 135 00:08:57,600 --> 00:09:01,239 Speaker 1: reached a settlement because he had lied in a deposition 136 00:09:01,320 --> 00:09:05,520 Speaker 1: under oath. And in one legal filing, Sidney Powell made 137 00:09:05,520 --> 00:09:09,440 Speaker 1: the argument to the effect that her lies were so 138 00:09:09,559 --> 00:09:14,080 Speaker 1: outrageous that no reasonable person would have found them to 139 00:09:14,120 --> 00:09:19,200 Speaker 1: be statements of fact. It's a wonderful strategy for somebody 140 00:09:19,240 --> 00:09:23,720 Speaker 1: who has no defense. Um, it is true that you 141 00:09:23,760 --> 00:09:27,360 Speaker 1: know the first Amendment status of lies is not quite 142 00:09:27,400 --> 00:09:31,240 Speaker 1: as clear as the status of many other kinds of speech. 143 00:09:32,080 --> 00:09:36,800 Speaker 1: Lies were thought to be largely unprotected until twelve, when 144 00:09:36,840 --> 00:09:40,679 Speaker 1: the Supreme Court issued a decision that said, no, they 145 00:09:40,880 --> 00:09:44,240 Speaker 1: they're actually not outside the protection of the First Amendment, 146 00:09:44,760 --> 00:09:47,760 Speaker 1: but suggested that there were some circumstances in which they 147 00:09:47,800 --> 00:09:51,760 Speaker 1: could be regulated, and also that the scrutiny that a 148 00:09:51,800 --> 00:09:56,040 Speaker 1: court would apply to something that inhibited lying might be 149 00:09:56,120 --> 00:09:59,720 Speaker 1: less than what it would apply to. Choose the most 150 00:10:00,040 --> 00:10:03,480 Speaker 1: matic example, political speech that was true, although the courts 151 00:10:03,520 --> 00:10:06,200 Speaker 1: can't get involved in deciding what is true and false 152 00:10:06,320 --> 00:10:12,439 Speaker 1: because that smacks of the state determines truth and falsehood, 153 00:10:12,480 --> 00:10:16,760 Speaker 1: and maybe incorrectly. But there is a sub category of 154 00:10:16,880 --> 00:10:21,040 Speaker 1: laws that are so preposterous that no one would believe them. 155 00:10:21,080 --> 00:10:24,040 Speaker 1: So if we go back to that legal definition of lying, 156 00:10:24,320 --> 00:10:28,520 Speaker 1: the speaker intends the listener to believe it. So if 157 00:10:28,559 --> 00:10:34,080 Speaker 1: you engage in satire that isn't immediately recognizable as funny, 158 00:10:34,360 --> 00:10:38,560 Speaker 1: like badly in satire, then one defense would be it's 159 00:10:38,600 --> 00:10:42,319 Speaker 1: so ridiculous nobody would believe it. And part of the 160 00:10:42,400 --> 00:10:46,240 Speaker 1: problem with that defense is that she offered her statements 161 00:10:46,280 --> 00:10:51,520 Speaker 1: in very serious contexts and continued to insist that they 162 00:10:51,559 --> 00:10:54,480 Speaker 1: were true and to repeat them so it didn't look 163 00:10:54,559 --> 00:10:57,959 Speaker 1: like I'm sort of making a joke, which is also 164 00:10:58,280 --> 00:11:03,520 Speaker 1: one of Trump's occurring defenses for speech that might other 165 00:11:03,600 --> 00:11:06,800 Speaker 1: wise be defamatory. Says oh, I was just joking, and 166 00:11:06,840 --> 00:11:09,680 Speaker 1: we know he wasn't just joking. But in Sydney Pal's case, 167 00:11:09,800 --> 00:11:12,359 Speaker 1: the judge said, no, you made this in too many places, 168 00:11:12,480 --> 00:11:16,080 Speaker 1: and you offered it as truth. And you may not 169 00:11:16,280 --> 00:11:21,640 Speaker 1: have submitted papers to the court making these exact claims, 170 00:11:21,679 --> 00:11:25,040 Speaker 1: but your filings in court were in service of the 171 00:11:25,120 --> 00:11:28,120 Speaker 1: lies you were telling outside of court. So you can't 172 00:11:28,160 --> 00:11:31,320 Speaker 1: now say it was a joke or it was just 173 00:11:31,640 --> 00:11:36,200 Speaker 1: an exaggeration. In fact, that judge sanctioned Powell, made her 174 00:11:36,320 --> 00:11:40,520 Speaker 1: pay the city of Detroit and other people involved as 175 00:11:40,520 --> 00:11:46,559 Speaker 1: a lawsuit, and referred her to the Texas Bar for sanctions, 176 00:11:46,600 --> 00:11:49,319 Speaker 1: and that proceeding is ongoing. She's tried to have it 177 00:11:49,400 --> 00:11:53,280 Speaker 1: dismissed in court and she failed, so those hearings are ongoing. 178 00:11:53,920 --> 00:11:57,520 Speaker 1: So you mentioned Moral Lago, and at least one of 179 00:11:57,520 --> 00:12:02,480 Speaker 1: the lawyers who represent former President Trump swore that there 180 00:12:02,520 --> 00:12:05,719 Speaker 1: were no classified documents at Mara Lago and I think 181 00:12:05,760 --> 00:12:08,360 Speaker 1: she added a term, to the best of my knowledge, 182 00:12:08,440 --> 00:12:12,679 Speaker 1: something like that, after which, as we know, classified documents 183 00:12:12,720 --> 00:12:17,040 Speaker 1: were seized by the FBI. Could the lawyers there be 184 00:12:17,280 --> 00:12:22,560 Speaker 1: charged with perjury or obstruction of justice? Absolutely? First of all, 185 00:12:22,600 --> 00:12:26,400 Speaker 1: it's a federal crime to lie to a federal officer, 186 00:12:26,960 --> 00:12:31,200 Speaker 1: much less to submit a document certifying something. This was 187 00:12:31,280 --> 00:12:37,199 Speaker 1: clearly during her representation of clients. She violated the strictures 188 00:12:37,280 --> 00:12:40,080 Speaker 1: on her as an officer of the court. She misled 189 00:12:40,080 --> 00:12:43,920 Speaker 1: the federal government in a very broad and important way. 190 00:12:44,200 --> 00:12:47,640 Speaker 1: And adding to the best of my knowledge is kind 191 00:12:47,880 --> 00:12:52,120 Speaker 1: of it's like putting vassaline all over yourself or teflon. 192 00:12:52,400 --> 00:12:55,720 Speaker 1: I mean, you know, she's making clear I didn't really 193 00:12:55,800 --> 00:13:00,760 Speaker 1: check this out and most recently or you know, I 194 00:13:00,800 --> 00:13:03,679 Speaker 1: asked my client, but I didn't really press him. I 195 00:13:03,720 --> 00:13:09,360 Speaker 1: didn't really look around. Subsequently, she said, um, well, it's 196 00:13:09,360 --> 00:13:14,080 Speaker 1: really not my fault because other lawyers told me that 197 00:13:14,160 --> 00:13:17,480 Speaker 1: all the documents have been submitted, and I signed the 198 00:13:17,600 --> 00:13:21,880 Speaker 1: statement they told me to sign, or basically the statement 199 00:13:22,040 --> 00:13:24,839 Speaker 1: based on their representations. I don't know whether she wrote 200 00:13:24,840 --> 00:13:27,679 Speaker 1: it or they wrote it, but she's basically saying not 201 00:13:27,760 --> 00:13:31,720 Speaker 1: my fault. No, when you represent a client, the lawyer 202 00:13:31,800 --> 00:13:35,720 Speaker 1: has an obligation before certifying to the federal government or 203 00:13:35,800 --> 00:13:39,760 Speaker 1: saying something in court, to find out whether what your 204 00:13:39,960 --> 00:13:43,720 Speaker 1: client is telling you can be backed up by evidence. Now, 205 00:13:44,080 --> 00:13:48,800 Speaker 1: sometimes clients do mislead their attorneys, but the attorney should 206 00:13:48,800 --> 00:13:52,040 Speaker 1: be in a position to say, I did everything I 207 00:13:52,080 --> 00:13:56,320 Speaker 1: could to try to verify what I was telling the 208 00:13:56,440 --> 00:13:59,120 Speaker 1: court or the Department of Justice. You can't just go 209 00:13:59,160 --> 00:14:01,800 Speaker 1: in and say, oh, you know, my client told me 210 00:14:01,840 --> 00:14:03,559 Speaker 1: he didn't rob the bank, so I'm going to tell 211 00:14:03,600 --> 00:14:05,440 Speaker 1: the court he didn't rob the bank, and I don't 212 00:14:05,480 --> 00:14:08,400 Speaker 1: need to ask any questions but for documents. We have 213 00:14:08,600 --> 00:14:13,760 Speaker 1: other responsibilities as members of the bar. And since that 214 00:14:14,000 --> 00:14:19,120 Speaker 1: time she made some other absolutely amazing statements that are 215 00:14:19,240 --> 00:14:22,560 Speaker 1: comparable to Paul saying, oh, what I was saying about 216 00:14:22,640 --> 00:14:27,360 Speaker 1: the stolen election in the Venezuelan dictator capturing our voting machines, 217 00:14:28,160 --> 00:14:31,360 Speaker 1: that was just a joke. Abba actually said, I think 218 00:14:31,480 --> 00:14:35,720 Speaker 1: within the last two three days. Um, it's possible that 219 00:14:35,880 --> 00:14:41,280 Speaker 1: the empty folders labeled confidential at Moral Lago that were 220 00:14:41,320 --> 00:14:46,120 Speaker 1: in the boxes seized under warrant by the federal government 221 00:14:46,560 --> 00:14:52,040 Speaker 1: contain invisible documents that no one can see. She said 222 00:14:52,080 --> 00:14:54,480 Speaker 1: that in a cable interview, I really don't know how 223 00:14:54,520 --> 00:14:57,320 Speaker 1: to respond to that one. Let's turn to the New 224 00:14:57,360 --> 00:15:01,600 Speaker 1: York Bar associations tell us what they've done. So the 225 00:15:01,720 --> 00:15:06,280 Speaker 1: first report was by the New York County Bar Association, which, 226 00:15:06,400 --> 00:15:10,560 Speaker 1: while not a huge organization, has long been a leader 227 00:15:11,280 --> 00:15:17,000 Speaker 1: in civic responsibility, and they pointed out that there were 228 00:15:17,200 --> 00:15:23,120 Speaker 1: lawyers who were telling verifiable falsehoods, factual falsehoods that were 229 00:15:23,160 --> 00:15:27,800 Speaker 1: resulting in violence and threats of violence, for example towards 230 00:15:27,840 --> 00:15:31,640 Speaker 1: the federal magistrate who issued the warrant for the search 231 00:15:31,680 --> 00:15:36,800 Speaker 1: of moral Lago and events leading up to the attack 232 00:15:36,880 --> 00:15:40,840 Speaker 1: on the FBI building later that week. And then the 233 00:15:40,880 --> 00:15:44,040 Speaker 1: New York City Bar Association, which is one of the 234 00:15:44,160 --> 00:15:47,600 Speaker 1: largest bar associations in the country, issued a much more 235 00:15:47,640 --> 00:15:52,320 Speaker 1: detailed report on lies about the search of moral Lago 236 00:15:52,720 --> 00:15:56,600 Speaker 1: by attorneys and pointed out again that this can invoke 237 00:15:56,720 --> 00:16:02,480 Speaker 1: violence against judges, FBI agents, everybody involved in law enforcement, 238 00:16:02,560 --> 00:16:05,160 Speaker 1: and other public servants. And I would compare that as 239 00:16:05,200 --> 00:16:09,000 Speaker 1: well to the ongoing attacks on election workers, although that 240 00:16:09,160 --> 00:16:13,640 Speaker 1: was not part of the report, and they said it's 241 00:16:13,640 --> 00:16:16,760 Speaker 1: it's really important that lawyers should not make claims of 242 00:16:16,800 --> 00:16:19,600 Speaker 1: wrongdoing against officers of the court for which they have 243 00:16:20,360 --> 00:16:24,960 Speaker 1: no factual basis, or which they know to be incorrect, 244 00:16:25,600 --> 00:16:30,560 Speaker 1: or even if they're misleading, and they should not undermine 245 00:16:31,240 --> 00:16:36,080 Speaker 1: the judicial process or the rule of law. Thanks so much, Catherine. 246 00:16:36,520 --> 00:16:40,720 Speaker 1: That's Catherine Ross, a professor at George Washington University Law School. 247 00:16:42,240 --> 00:16:44,960 Speaker 1: Congress looks like it's closed to preventing the kind of 248 00:16:45,080 --> 00:16:51,240 Speaker 1: constitutional crisis avoided during the presidential transition. In this week, 249 00:16:51,280 --> 00:16:55,440 Speaker 1: a Senate committee approved the revamp of an seven law 250 00:16:55,680 --> 00:17:00,520 Speaker 1: that sets out congressional procedures for certifying presidential election. The 251 00:17:00,600 --> 00:17:05,080 Speaker 1: legislation is intended to prevent a repeat of the presidential election, 252 00:17:05,359 --> 00:17:08,720 Speaker 1: when former President Donald Trump and his allies sought to 253 00:17:08,880 --> 00:17:12,240 Speaker 1: challenge the election results, leading to the insurrection at the 254 00:17:12,280 --> 00:17:16,040 Speaker 1: Capital on January six. Both the Senate Majority Leader Chuck 255 00:17:16,119 --> 00:17:19,639 Speaker 1: Schumer and the Senate Minority Leader Mitch McConnell support the bill. 256 00:17:20,359 --> 00:17:23,879 Speaker 1: Lawmakers are under pressure to find a compromise before the 257 00:17:24,000 --> 00:17:27,160 Speaker 1: end of the year because of the likelihood that House Republicans, 258 00:17:27,480 --> 00:17:30,960 Speaker 1: most of whom oppose the changes, will gain control of 259 00:17:31,000 --> 00:17:34,800 Speaker 1: that chamber. Joining me as elections law expert Richard brafalt 260 00:17:34,880 --> 00:17:37,960 Speaker 1: A professor at Columbia Law School, Rich tell us about 261 00:17:37,960 --> 00:17:41,159 Speaker 1: the current law, the Electoral Count Act. Yes, Well, the 262 00:17:41,160 --> 00:17:45,600 Speaker 1: Electoral Countact was passed by Congress which sets out the 263 00:17:45,600 --> 00:17:49,040 Speaker 1: procedure for the accounting of the electoral votes in Congress, 264 00:17:49,080 --> 00:17:52,480 Speaker 1: for the raising and handling of complaints or questions about 265 00:17:52,480 --> 00:17:55,480 Speaker 1: the electoral vote, and for the formal determination of who 266 00:17:55,560 --> 00:17:58,440 Speaker 1: has won the president into election by declaring who's the 267 00:17:58,480 --> 00:18:01,400 Speaker 1: winner of the electoral vote. And so the Senate bill 268 00:18:01,760 --> 00:18:06,880 Speaker 1: is a bipartisan effort Republican Susan Collins and Democrat Joe Mansion. 269 00:18:07,560 --> 00:18:11,600 Speaker 1: What does it do? In general? It does three or 270 00:18:11,640 --> 00:18:16,080 Speaker 1: four very significant things. First, it declares that the role 271 00:18:16,080 --> 00:18:18,679 Speaker 1: of the vice president, who is technically the president of 272 00:18:18,720 --> 00:18:21,600 Speaker 1: the Senate and who under the Constitution has to preside 273 00:18:21,600 --> 00:18:25,840 Speaker 1: over this process, has an entirely ministerial role. The vice 274 00:18:25,880 --> 00:18:28,600 Speaker 1: president says, as a stand up there and to clear 275 00:18:28,680 --> 00:18:31,359 Speaker 1: what happens next, and says, here's the result that the 276 00:18:31,440 --> 00:18:34,840 Speaker 1: vice president has no substantive role. May have called this 277 00:18:34,960 --> 00:18:37,159 Speaker 1: was one of the high points of the controversy the 278 00:18:37,560 --> 00:18:41,560 Speaker 1: less election, when then President Trump insisted that then Vice 279 00:18:41,600 --> 00:18:45,320 Speaker 1: President Pence had the authority to declare that certain electoral 280 00:18:45,400 --> 00:18:47,600 Speaker 1: votes were invalid and not to count them, and Pence 281 00:18:47,680 --> 00:18:50,160 Speaker 1: himself said he didn't have that authority. This makes it 282 00:18:50,200 --> 00:18:53,359 Speaker 1: clear that the vice president has no such authority, that 283 00:18:53,400 --> 00:18:57,280 Speaker 1: the vice president's role is just ministerial, like a secretary, 284 00:18:57,800 --> 00:19:00,160 Speaker 1: just there to say this is what it's a as, 285 00:19:00,200 --> 00:19:03,600 Speaker 1: here's the result. So that's probably a very important thing. 286 00:19:03,680 --> 00:19:06,480 Speaker 1: And everyone always thought that was the rule. But because 287 00:19:06,520 --> 00:19:09,240 Speaker 1: Trump made such a noise and his support is about 288 00:19:09,240 --> 00:19:12,080 Speaker 1: such a noise that the vice president could in effect 289 00:19:12,160 --> 00:19:16,160 Speaker 1: change the result, it's probably important that that be clarified. Second, 290 00:19:16,280 --> 00:19:19,720 Speaker 1: it rather dramatically raises the threshold for objections. Under the 291 00:19:19,800 --> 00:19:22,240 Speaker 1: current law. All you need to object to the electoral 292 00:19:22,320 --> 00:19:24,919 Speaker 1: vote of a state and stop the whole process, and 293 00:19:25,119 --> 00:19:27,240 Speaker 1: forced the two houses of Congress to meet separately to 294 00:19:27,240 --> 00:19:30,000 Speaker 1: debate the objections is one member of the House and 295 00:19:30,080 --> 00:19:32,639 Speaker 1: one member of the Senate, just one from each to 296 00:19:32,760 --> 00:19:35,800 Speaker 1: object to say a state like the vote from Arizona 297 00:19:35,920 --> 00:19:40,440 Speaker 1: or the vote from Michigan. The Senate bill raises the 298 00:19:40,480 --> 00:19:43,840 Speaker 1: threshold to one fifth of the House and one fifth 299 00:19:43,840 --> 00:19:46,200 Speaker 1: of the Senate. Tou you need to have twenty senators 300 00:19:46,440 --> 00:19:48,720 Speaker 1: an effect, and what would that be something like eighty 301 00:19:48,800 --> 00:19:51,879 Speaker 1: seven members of the House objecting to a particular state, 302 00:19:52,320 --> 00:19:55,760 Speaker 1: So that's a dramatic increase in the threshold. Those are 303 00:19:55,760 --> 00:19:58,960 Speaker 1: probably the two most prominent things. The bill narrows the 304 00:19:59,000 --> 00:20:02,320 Speaker 1: grounds of objections really just down to to one is 305 00:20:02,400 --> 00:20:05,119 Speaker 1: that the electoral winners weren't picked in the state in time, 306 00:20:05,600 --> 00:20:07,640 Speaker 1: and the other there was some impropriety in the way 307 00:20:07,680 --> 00:20:12,480 Speaker 1: an individual elector voted. And also creates a procedure for 308 00:20:12,840 --> 00:20:16,080 Speaker 1: judicial challenges to the outcome of the election in a 309 00:20:16,160 --> 00:20:18,959 Speaker 1: state to be done in an expedited way. And then 310 00:20:19,080 --> 00:20:21,280 Speaker 1: clarifies that, in light of all the talk about the 311 00:20:21,320 --> 00:20:24,840 Speaker 1: power of state legislatures, that any state legislative action that 312 00:20:24,880 --> 00:20:27,639 Speaker 1: applies the election will count only if it was passed 313 00:20:27,640 --> 00:20:31,200 Speaker 1: before election day. So you can't have state legislatures after 314 00:20:31,280 --> 00:20:34,159 Speaker 1: election day trying to pass laws that under the result 315 00:20:34,520 --> 00:20:37,400 Speaker 1: when those are probably the highways. A number of other 316 00:20:37,440 --> 00:20:41,199 Speaker 1: more minor things, but limiting the power, declaring the limited 317 00:20:41,440 --> 00:20:43,360 Speaker 1: the limited nature of the power of the vice president, 318 00:20:43,840 --> 00:20:48,000 Speaker 1: raising the threshold for objections, narrowing the categories of objections, 319 00:20:48,400 --> 00:20:51,560 Speaker 1: providing for expedited judicial review of challenges. Oh, and there's 320 00:20:51,640 --> 00:20:54,640 Speaker 1: one more thing. There's a language in the current law 321 00:20:54,680 --> 00:20:56,200 Speaker 1: that talks about what happens in the case of a 322 00:20:56,320 --> 00:21:00,280 Speaker 1: failed election, and that was clearly meant to be things 323 00:21:00,320 --> 00:21:03,200 Speaker 1: like an election was thrown off by a natural disaster. 324 00:21:03,800 --> 00:21:06,520 Speaker 1: But some people, again trying to make trouble, would argue 325 00:21:06,560 --> 00:21:08,520 Speaker 1: with the old election is one where we don't think 326 00:21:08,760 --> 00:21:11,040 Speaker 1: the election went the right way, or we think that 327 00:21:11,080 --> 00:21:13,920 Speaker 1: there were problems with the voting process. So the new law, 328 00:21:14,040 --> 00:21:17,280 Speaker 1: the law would very clearly indicate that a state election 329 00:21:17,800 --> 00:21:19,840 Speaker 1: would allow the state to delay the selection of the 330 00:21:19,840 --> 00:21:24,520 Speaker 1: electors something that results from an extraordinary and catastrophic event 331 00:21:24,760 --> 00:21:27,760 Speaker 1: um which I have to find by state law only. 332 00:21:27,800 --> 00:21:29,320 Speaker 1: That would be something along the lines of a major 333 00:21:29,400 --> 00:21:33,760 Speaker 1: hurricane or a flood. Surprisingly, got near unanimous approval by 334 00:21:33,760 --> 00:21:37,920 Speaker 1: the Rules Committee. Not surprisingly, the one objection came from 335 00:21:37,960 --> 00:21:41,439 Speaker 1: Senator Ted Cruz, who of course led an effort to 336 00:21:41,640 --> 00:21:45,520 Speaker 1: challenge Biden's election victory. He said, quote, this bill is 337 00:21:45,600 --> 00:21:48,920 Speaker 1: all about Donald J. Trump. It is about Donald Trump, 338 00:21:49,040 --> 00:21:52,320 Speaker 1: isn't it. Yes, I mean everyone agrees that the old 339 00:21:52,600 --> 00:21:56,720 Speaker 1: the current Electoral Account Act is flawed. It's very unclear. 340 00:21:57,080 --> 00:22:00,200 Speaker 1: There's a lot of inconsistencies in it. Uh, they're particular 341 00:22:00,280 --> 00:22:03,840 Speaker 1: problems if there's a disagreement from within a state as 342 00:22:03,880 --> 00:22:06,639 Speaker 1: to know one chief state official stating the winner was 343 00:22:06,680 --> 00:22:09,399 Speaker 1: one person. The governor says one thing, and maybe the 344 00:22:09,480 --> 00:22:12,400 Speaker 1: chief Justice of the state Supreme Court or the Secretary 345 00:22:12,400 --> 00:22:13,760 Speaker 1: of State of the state says something else. So there 346 00:22:13,800 --> 00:22:16,399 Speaker 1: are a lot of uncertainties in it. There was always 347 00:22:16,400 --> 00:22:20,119 Speaker 1: a problem with the that low, very low threshold of objections, 348 00:22:20,119 --> 00:22:22,480 Speaker 1: although until recently it had never been used, or it 349 00:22:22,520 --> 00:22:25,080 Speaker 1: had hardly been used, i should say, But certainly the 350 00:22:25,800 --> 00:22:30,160 Speaker 1: election of attack on Congress in January six just sort 351 00:22:30,200 --> 00:22:35,080 Speaker 1: of highlighted the significance of these uncertainties and the extreme 352 00:22:35,160 --> 00:22:39,160 Speaker 1: importance of getting them resolved. Did it surprise you that 353 00:22:39,720 --> 00:22:42,880 Speaker 1: Senate Minority Leader Mitch McConnell announced support of the bill 354 00:22:42,960 --> 00:22:46,679 Speaker 1: and a number of other Republicans. Not really. I mean, 355 00:22:46,720 --> 00:22:49,840 Speaker 1: I think everyone realizes that the current law is a mess, 356 00:22:50,119 --> 00:22:53,439 Speaker 1: that it creates more problems than it solves, that this 357 00:22:53,840 --> 00:22:56,920 Speaker 1: this surprising debate about the role of the vice president. 358 00:22:56,920 --> 00:22:59,960 Speaker 1: It really seems who could possibly believe that one person 359 00:23:00,080 --> 00:23:03,080 Speaker 1: could change the election, especially one person with an a 360 00:23:03,080 --> 00:23:05,680 Speaker 1: stake in the outcome, Since the vice president is either 361 00:23:05,680 --> 00:23:07,399 Speaker 1: going to be up for re election for vice president, 362 00:23:07,440 --> 00:23:09,360 Speaker 1: or also the vice president has been running for president. 363 00:23:09,840 --> 00:23:12,560 Speaker 1: You know, how one person could could legally change the outcome. 364 00:23:13,000 --> 00:23:14,919 Speaker 1: You know a lot of these things just didn't make 365 00:23:14,920 --> 00:23:17,359 Speaker 1: a lot of sense, but we saw how it could 366 00:23:17,400 --> 00:23:22,120 Speaker 1: be weaponized in January six. So I think it's important 367 00:23:22,160 --> 00:23:24,680 Speaker 1: to have it resolved. And it doesn't clearly help one 368 00:23:24,720 --> 00:23:27,919 Speaker 1: side or the other. I mean, in the vice president 369 00:23:27,960 --> 00:23:30,280 Speaker 1: is going to be a Democrat, you know, Kambel Harris 370 00:23:30,320 --> 00:23:31,679 Speaker 1: is the person is gonna be standing up there and 371 00:23:31,760 --> 00:23:35,320 Speaker 1: counting the results, So it doesn't necessarily help one side 372 00:23:35,359 --> 00:23:40,320 Speaker 1: or the other. The House passed a companion bill last week. 373 00:23:40,560 --> 00:23:43,800 Speaker 1: Does it differ from the Senate bill in many ways. 374 00:23:44,520 --> 00:23:48,320 Speaker 1: The most obvious difference is that raises even higher the 375 00:23:48,400 --> 00:23:51,600 Speaker 1: threshold for an objection to an electoral vote the Senate, 376 00:23:51,720 --> 00:23:54,359 Speaker 1: as just to remind you, the current law is one 377 00:23:54,440 --> 00:23:58,280 Speaker 1: person from each chamber. The Senate raises it to one 378 00:23:58,400 --> 00:24:01,080 Speaker 1: fifth of each chamber. The House would raise it to 379 00:24:01,119 --> 00:24:03,840 Speaker 1: one third of each chamber, which is a much higher threshold. 380 00:24:04,280 --> 00:24:06,320 Speaker 1: I think there are other differences, but that's probably the 381 00:24:06,359 --> 00:24:10,760 Speaker 1: most significant one. Let's discuss what it doesn't protect. So 382 00:24:11,200 --> 00:24:14,760 Speaker 1: the laws that have been passed in states making it 383 00:24:14,800 --> 00:24:18,679 Speaker 1: more difficult to vote. Have you kept track of you know, 384 00:24:18,720 --> 00:24:21,920 Speaker 1: how many states have done that a lot. I don't 385 00:24:21,920 --> 00:24:25,800 Speaker 1: have a specific number, but uh, and and and doing 386 00:24:25,800 --> 00:24:29,000 Speaker 1: it in many different ways, and making it harder to register, 387 00:24:29,080 --> 00:24:31,520 Speaker 1: and making it harder to vote, making it much harder 388 00:24:31,520 --> 00:24:36,080 Speaker 1: to vote absentee in certain states, changing the procedures for 389 00:24:36,240 --> 00:24:39,920 Speaker 1: challenging electors to make it easier for people to challenge voters. 390 00:24:40,240 --> 00:24:43,480 Speaker 1: I mean, there's a lot of different of pushbacks in 391 00:24:43,480 --> 00:24:45,119 Speaker 1: many states that are going to make it harder for 392 00:24:45,119 --> 00:24:49,800 Speaker 1: people to vote than it was in This doesn't address 393 00:24:49,800 --> 00:24:53,560 Speaker 1: any of that. Senator Schumer early on had wanted to 394 00:24:54,119 --> 00:24:59,000 Speaker 1: fold the electoral college reform, the electoral account reform into 395 00:24:59,080 --> 00:25:02,600 Speaker 1: a broader voting bill, voting rights bill, but which did 396 00:25:02,640 --> 00:25:05,520 Speaker 1: pass the House but was filipbustered in the Senate. So he, 397 00:25:06,280 --> 00:25:08,919 Speaker 1: you know, ultimately agreed that it was absolutely crucial to 398 00:25:08,920 --> 00:25:11,840 Speaker 1: deal with these electoral college problems, and so you know, 399 00:25:11,960 --> 00:25:15,119 Speaker 1: kind of exceeded to the Republican objections in Congress to 400 00:25:15,280 --> 00:25:19,199 Speaker 1: federal law protecting the rights of voting in elections. And 401 00:25:19,240 --> 00:25:21,879 Speaker 1: so this this bill, either both the House and the 402 00:25:21,920 --> 00:25:26,800 Speaker 1: Senate bill only dealing with the procedures for accounting the 403 00:25:26,840 --> 00:25:33,000 Speaker 1: electoral votes come the November elections. There may be next 404 00:25:33,080 --> 00:25:36,800 Speaker 1: year many election deniers who will be in positions of 405 00:25:36,880 --> 00:25:45,480 Speaker 1: power over elections. This Electoral Count Act doesn't address that either. No, no, no, 406 00:25:45,560 --> 00:25:47,760 Speaker 1: not at all. I mean they're like this. The electoral 407 00:25:47,760 --> 00:25:51,400 Speaker 1: contact proceeds from what happens after the states have had 408 00:25:51,440 --> 00:25:56,119 Speaker 1: their election and their results are announced. I mean what 409 00:25:56,160 --> 00:26:00,159 Speaker 1: happened in is we had the elections were held, who 410 00:26:00,200 --> 00:26:04,000 Speaker 1: results were announced? Uh, they were challenged, the challenges were 411 00:26:04,000 --> 00:26:07,159 Speaker 1: all rejected. Uh, the elector of the electors met and 412 00:26:07,240 --> 00:26:10,240 Speaker 1: cast their votes, and you still had objections. So this 413 00:26:10,400 --> 00:26:16,040 Speaker 1: doesn't really address anything really before that leading up to 414 00:26:15,880 --> 00:26:19,400 Speaker 1: the decision who has won at the state level. This 415 00:26:19,480 --> 00:26:22,920 Speaker 1: is addressed is solely all what happens in Washington, which 416 00:26:23,119 --> 00:26:27,960 Speaker 1: again really until had never seen anything like this in 417 00:26:28,040 --> 00:26:31,320 Speaker 1: terms of the level of uncertainty of objections. So it 418 00:26:31,400 --> 00:26:33,800 Speaker 1: does get rid of a number of the issues that 419 00:26:34,240 --> 00:26:39,200 Speaker 1: surprisingly uh kind of emerged his big issues in January one, 420 00:26:39,720 --> 00:26:42,240 Speaker 1: thanks for being on the show. Rich that's Professor Richard 421 00:26:42,520 --> 00:26:47,199 Speaker 1: Fault of Columbia Law School. Since the ruling by the 422 00:26:47,280 --> 00:26:51,040 Speaker 1: Third Circuit Court of Appeals in Philadelphia In August, at 423 00:26:51,119 --> 00:26:54,240 Speaker 1: least nine new class action suits have been filed in 424 00:26:54,280 --> 00:26:59,240 Speaker 1: Pennsylvania against well known companies such as Zillo, Lowe's, Expedia, 425 00:26:59,400 --> 00:27:02,800 Speaker 1: Auto Zone, and Chewies and Michael Stores, accusing them of 426 00:27:02,880 --> 00:27:07,080 Speaker 1: violating the state's Wire Tapping and Electronic Surveillance Control Act 427 00:27:07,280 --> 00:27:10,080 Speaker 1: by the use of software that allows them to monitor 428 00:27:10,119 --> 00:27:15,280 Speaker 1: their customers website browsing, recording mouse movements, keystroke search terms, 429 00:27:15,440 --> 00:27:20,240 Speaker 1: information input into the websites, and content viewed. The providers 430 00:27:20,280 --> 00:27:23,360 Speaker 1: of the software say it helps their customers tweak their 431 00:27:23,359 --> 00:27:27,360 Speaker 1: websites to provide a better experience for users, and reject 432 00:27:27,400 --> 00:27:30,800 Speaker 1: the claim that it creates privacy risks. My guest is 433 00:27:30,840 --> 00:27:34,240 Speaker 1: Adam Cook of Hogan Levels, So first of all, tell 434 00:27:34,359 --> 00:27:40,520 Speaker 1: us about this session replace software what it does? Sure, so, 435 00:27:40,760 --> 00:27:45,800 Speaker 1: Session Replaced software is a particular technology that is used 436 00:27:46,320 --> 00:27:53,159 Speaker 1: by a number of websites, everything from retailers to manufacturers 437 00:27:53,160 --> 00:27:55,159 Speaker 1: and all sorts of other companies. Basically any company that 438 00:27:55,200 --> 00:27:59,320 Speaker 1: has some type of web presence where they interact with 439 00:27:59,400 --> 00:28:05,320 Speaker 1: consumers in some way, and the software enables companies and 440 00:28:05,320 --> 00:28:08,720 Speaker 1: other entities and organizations that host these websites to learn 441 00:28:08,760 --> 00:28:11,439 Speaker 1: a little bit more about how consumers are interacting with 442 00:28:11,480 --> 00:28:14,840 Speaker 1: their websites and services they offer online, and so one 443 00:28:14,880 --> 00:28:19,280 Speaker 1: of the key features is to gather more information about 444 00:28:19,280 --> 00:28:22,359 Speaker 1: their websites or how their websites are being useful. In 445 00:28:22,480 --> 00:28:26,240 Speaker 1: other ways, they can redesign or retool their website to 446 00:28:26,320 --> 00:28:30,240 Speaker 1: make them more accessible and useful tent consumers. So it's 447 00:28:30,240 --> 00:28:35,080 Speaker 1: effectively trying to kind of capture how a consumer navigates 448 00:28:35,440 --> 00:28:39,920 Speaker 1: on the website. So if someone, for example, goes onto 449 00:28:40,840 --> 00:28:44,600 Speaker 1: X website and um is looking to purchase the product, 450 00:28:45,320 --> 00:28:47,880 Speaker 1: but you know, gets a certain way in the process, 451 00:28:47,880 --> 00:28:51,440 Speaker 1: but then kind of drops it and leaves it and 452 00:28:51,440 --> 00:28:54,200 Speaker 1: and doesn't continue with the purchase, the entity they host 453 00:28:54,280 --> 00:28:56,520 Speaker 1: the websites will kind of want to know, Okay, well, 454 00:28:57,080 --> 00:28:59,840 Speaker 1: was was the process by which a consumer has to 455 00:29:00,160 --> 00:29:03,160 Speaker 1: to purchase so complicated? And they have to jump through 456 00:29:03,280 --> 00:29:07,520 Speaker 1: various different pages and enter some information one page and 457 00:29:07,600 --> 00:29:09,360 Speaker 1: other information on the page. So we make it so 458 00:29:09,400 --> 00:29:11,200 Speaker 1: hard for the consumer that they just kind of threw 459 00:29:11,280 --> 00:29:13,440 Speaker 1: up their hands and gave up. And can we redesign 460 00:29:13,440 --> 00:29:17,920 Speaker 1: our website in a way that makes the consumer experience 461 00:29:18,040 --> 00:29:21,040 Speaker 1: more smooth? And so that's kind of a kind of 462 00:29:21,040 --> 00:29:23,960 Speaker 1: typical use case for this type of software is to 463 00:29:24,600 --> 00:29:29,760 Speaker 1: kind of improve organizations ability to interact with end users 464 00:29:29,760 --> 00:29:32,600 Speaker 1: who are navigating to their websites and trying to take 465 00:29:32,600 --> 00:29:36,720 Speaker 1: advantage or utilize whatever service or products they're they're offering. 466 00:29:37,160 --> 00:29:40,240 Speaker 1: Do they also use this to let's say, do some 467 00:29:40,560 --> 00:29:46,240 Speaker 1: companies use this to sell the information to marketing firms, etcetera. 468 00:29:47,320 --> 00:29:49,680 Speaker 1: I think there are a host of different uses for this. 469 00:29:50,200 --> 00:29:56,080 Speaker 1: I'm not specifically aware of particular entity that um use 470 00:29:56,160 --> 00:30:02,080 Speaker 1: it for that particular reason, but it's that's certainly utilized 471 00:30:02,160 --> 00:30:05,800 Speaker 1: for a lot of reasons to understand more about consumer 472 00:30:05,880 --> 00:30:09,760 Speaker 1: engagement and the like. So what are the specific complaints 473 00:30:10,040 --> 00:30:14,360 Speaker 1: the plaintiffs are making in these lawsuits that are based 474 00:30:14,400 --> 00:30:18,640 Speaker 1: on wire tap laws? So what kind of initial point 475 00:30:18,760 --> 00:30:23,000 Speaker 1: is that? You know? These suits are not a vintage 476 00:30:23,480 --> 00:30:26,400 Speaker 1: type of action. These dates back a couple of years 477 00:30:26,440 --> 00:30:30,200 Speaker 1: at least um and they cover a range of different 478 00:30:30,320 --> 00:30:33,000 Speaker 1: entities that have been sued. So again, kind of many 479 00:30:33,040 --> 00:30:37,200 Speaker 1: different industry sectors that all have some type of connection 480 00:30:37,280 --> 00:30:40,640 Speaker 1: to kind of end users and consumers. And I would 481 00:30:40,640 --> 00:30:46,800 Speaker 1: say everything from companies that are selling various home improvement 482 00:30:46,840 --> 00:30:52,280 Speaker 1: products to companies that are involved in real estate transactions 483 00:30:52,520 --> 00:30:56,320 Speaker 1: and everything kind of in between have been have been 484 00:30:56,360 --> 00:31:00,000 Speaker 1: targeted in the kind of the essence of these claims 485 00:31:00,320 --> 00:31:05,280 Speaker 1: is that this session replay software is violative of state 486 00:31:05,320 --> 00:31:12,000 Speaker 1: wire tap laws because they purportedly intercept communications between the 487 00:31:12,120 --> 00:31:16,080 Speaker 1: end consumer and the web you know, the entity that 488 00:31:16,080 --> 00:31:19,840 Speaker 1: they're navigating to ABC dot com or x y Z 489 00:31:19,960 --> 00:31:24,400 Speaker 1: dot com. And so they're they're basically alleging that, hey, 490 00:31:24,440 --> 00:31:26,560 Speaker 1: I was trying to navigate to this website and was 491 00:31:26,680 --> 00:31:29,600 Speaker 1: trying to you know, learn more information or purchase some product. 492 00:31:30,080 --> 00:31:33,719 Speaker 1: And the fact that some of my information about what 493 00:31:33,760 --> 00:31:37,400 Speaker 1: I was doing on the website was shared with a 494 00:31:37,440 --> 00:31:41,040 Speaker 1: third party service provider that helps a company set up 495 00:31:41,080 --> 00:31:44,000 Speaker 1: and kind of run these tools. That that is the 496 00:31:44,080 --> 00:31:47,360 Speaker 1: quote unquote violation of the wire Tap Act. And those 497 00:31:47,400 --> 00:31:51,520 Speaker 1: wire tap statutes are of course decades old, um and 498 00:31:51,640 --> 00:31:55,280 Speaker 1: both under both the federal version and the state law version. 499 00:31:55,320 --> 00:31:58,400 Speaker 1: And these studes that really arise into the state law versions. 500 00:31:58,440 --> 00:32:04,280 Speaker 1: They've been primarily brought under Florida in California law, and 501 00:32:04,480 --> 00:32:07,800 Speaker 1: um most recently under Pennsylvania law. Of course, there's some 502 00:32:07,840 --> 00:32:11,080 Speaker 1: others out there, but that's the main thrust of them, 503 00:32:11,080 --> 00:32:15,080 Speaker 1: i'd say, or is under those three states. So before 504 00:32:15,080 --> 00:32:18,440 Speaker 1: we got to this Third Circuit decision, or when lower 505 00:32:18,480 --> 00:32:22,640 Speaker 1: courts have thrown these out pretty consistently, what's the legal 506 00:32:22,680 --> 00:32:25,520 Speaker 1: basis that they throw them out under. Yeah, it's a 507 00:32:25,560 --> 00:32:30,520 Speaker 1: great question. So it's actually been a number of different factors, 508 00:32:30,560 --> 00:32:34,320 Speaker 1: one of which is that the wire tap law simply 509 00:32:34,400 --> 00:32:40,960 Speaker 1: doesn't apply because it was not meant to effectively impose 510 00:32:41,040 --> 00:32:44,920 Speaker 1: liability for this type of activity. Basically it's an analytic 511 00:32:45,000 --> 00:32:47,640 Speaker 1: you know, some type of analytics on consumers interaction with 512 00:32:47,720 --> 00:32:51,120 Speaker 1: a website. There's also been um some decisions that have 513 00:32:51,280 --> 00:32:56,720 Speaker 1: found effectively consent, so that consumers appliedly or otherwise have 514 00:32:56,880 --> 00:33:02,520 Speaker 1: consented to this type of thought where um based on 515 00:33:02,640 --> 00:33:06,640 Speaker 1: disclosures and in their own conduct regarding what was going 516 00:33:06,680 --> 00:33:09,280 Speaker 1: on on the website they were navigating to. So there's 517 00:33:09,600 --> 00:33:12,520 Speaker 1: kind of a host of different reasons that in which 518 00:33:12,520 --> 00:33:16,280 Speaker 1: courts have found that these these claims just simply lack 519 00:33:16,520 --> 00:33:20,720 Speaker 1: merit at the pleading stage. So now let's talk about 520 00:33:20,960 --> 00:33:23,920 Speaker 1: what happened at the Third Circuit. One of these lawsuits 521 00:33:24,000 --> 00:33:28,160 Speaker 1: was dismissed by the lower court judge. And what did 522 00:33:28,160 --> 00:33:31,760 Speaker 1: the third circuits say? Yeah, so the I believe the 523 00:33:32,880 --> 00:33:36,920 Speaker 1: lower court rejected the claim at the summary judgment phased 524 00:33:37,080 --> 00:33:42,920 Speaker 1: finding that the Pennsylvania wire tap Statute effectively did not 525 00:33:43,040 --> 00:33:48,480 Speaker 1: apply to this alleged conduct and was inapplicable because you know, 526 00:33:48,520 --> 00:33:52,680 Speaker 1: the plaintiff plaintiff conduct just simply didn't fall under the 527 00:33:52,840 --> 00:33:58,360 Speaker 1: statutory definition of a lot of an actionable interception, and 528 00:33:58,480 --> 00:34:03,000 Speaker 1: the Third Circuit reverse first that District Court decision and 529 00:34:03,080 --> 00:34:08,600 Speaker 1: remanded it um effectively holding that the Pennsylvania statute could 530 00:34:08,680 --> 00:34:13,960 Speaker 1: impose liability for these particular allegations. Although I'll note that 531 00:34:14,200 --> 00:34:17,680 Speaker 1: the Third Circuit was careful to say that there could 532 00:34:17,760 --> 00:34:23,920 Speaker 1: be other defenses to this alleged violation of the Pennsylvania statute, 533 00:34:23,960 --> 00:34:28,040 Speaker 1: including consent, and it was remanding the case back to 534 00:34:28,080 --> 00:34:31,719 Speaker 1: the district court to consider those issues in the first instance. 535 00:34:31,920 --> 00:34:35,760 Speaker 1: So it was very much a kind of statutory interpretation 536 00:34:35,880 --> 00:34:41,040 Speaker 1: driven decision, interpreting the Pennsylvania wiretap law and based on 537 00:34:41,080 --> 00:34:45,320 Speaker 1: that decision, finding that the District Court had, in its view, 538 00:34:46,160 --> 00:34:50,440 Speaker 1: misread the statute and then remanding it for further basically 539 00:34:50,480 --> 00:34:55,360 Speaker 1: further analysis and consideration, including for other defenses that defendants 540 00:34:55,400 --> 00:35:00,279 Speaker 1: had raised below. So the Third Circuit It's decision only 541 00:35:00,320 --> 00:35:04,319 Speaker 1: apply or only hold the Third Circuit courts. Could this 542 00:35:04,400 --> 00:35:09,360 Speaker 1: decision have implications outside the Third Circuit? Good question, I 543 00:35:09,360 --> 00:35:13,920 Speaker 1: think because the decision is so specific to the Pennsylvania 544 00:35:14,040 --> 00:35:20,000 Speaker 1: statute and analyzing the language under that law and you 545 00:35:20,040 --> 00:35:23,040 Speaker 1: know what is a both what is an interception under 546 00:35:23,080 --> 00:35:28,279 Speaker 1: that law and then effectively, um, you know what is 547 00:35:28,320 --> 00:35:32,359 Speaker 1: actionable under that statute. I think that the you know 548 00:35:32,440 --> 00:35:37,239 Speaker 1: it's important and impact beyond Pennsylvania law and the Third 549 00:35:37,280 --> 00:35:40,839 Speaker 1: Circuit will likely be limited because again it's so it's 550 00:35:40,840 --> 00:35:44,480 Speaker 1: so specific to the statute. That said, I would expect 551 00:35:44,520 --> 00:35:48,880 Speaker 1: Plaineft lawyers in other courts dealing with other statutes to 552 00:35:49,120 --> 00:35:53,480 Speaker 1: potentially try to cite it as persuasive authority and interpreting 553 00:35:53,480 --> 00:35:57,760 Speaker 1: other state laws. But I think that will have limited impact, 554 00:35:57,800 --> 00:36:02,520 Speaker 1: again because it's so sewet interrest to the Pennsylvania statute. So, 555 00:36:02,560 --> 00:36:05,879 Speaker 1: since companies who do business on the internet are doing 556 00:36:05,920 --> 00:36:09,840 Speaker 1: business in every state, could plaintet's just bring these suits 557 00:36:09,880 --> 00:36:17,600 Speaker 1: in Pennsylvania, as they've done in recent lawsuits against Zilo Lowe's, Expedia, AutoZone, Chewies, 558 00:36:17,640 --> 00:36:24,000 Speaker 1: and Michael Stores. There's certainly a challenge for defendants in 559 00:36:24,120 --> 00:36:26,960 Speaker 1: light of the Third Circuit decision here and that they 560 00:36:27,000 --> 00:36:31,080 Speaker 1: are likely to see additional lawsuits, and that actually is 561 00:36:31,200 --> 00:36:34,920 Speaker 1: definitely seems to be the case. An office today or 562 00:36:35,000 --> 00:36:39,560 Speaker 1: late last week, UM the defendants in the third Circuit 563 00:36:39,600 --> 00:36:42,759 Speaker 1: case just about a notice of supplemental authority to the 564 00:36:42,800 --> 00:36:47,759 Speaker 1: Third Circuit, pointing out that I believe it was ten um. 565 00:36:47,920 --> 00:36:51,719 Speaker 1: District court cases have been filed since the Third Circuit's 566 00:36:51,760 --> 00:36:56,319 Speaker 1: decision alleging violations the state wiretap law, including by the 567 00:36:56,400 --> 00:36:59,279 Speaker 1: same name plain of Um at issue in the third 568 00:36:59,280 --> 00:37:04,120 Speaker 1: Circuit case Ashley Popa or Papa, and so UM this 569 00:37:04,200 --> 00:37:09,160 Speaker 1: does this does appear to be triggering additional litigation, and 570 00:37:09,160 --> 00:37:13,400 Speaker 1: it includes several cases by the same firm litigating the 571 00:37:13,480 --> 00:37:17,600 Speaker 1: third Circuit case, again bringing claims into the Pennsylvania statute. 572 00:37:17,640 --> 00:37:21,000 Speaker 1: So this does seem like it is leading to a 573 00:37:21,200 --> 00:37:24,799 Speaker 1: kind of rush of additional litigation here. Time will tell 574 00:37:24,960 --> 00:37:29,120 Speaker 1: whether the Third Circuit either kind of reconsiders its decision 575 00:37:29,400 --> 00:37:33,279 Speaker 1: and light of the um petition for for rehearing or 576 00:37:33,280 --> 00:37:37,560 Speaker 1: rehearing on bank, and also whether kind of how disrecords 577 00:37:37,600 --> 00:37:40,680 Speaker 1: deal with this. Perhaps consent um will be an issue 578 00:37:40,719 --> 00:37:43,720 Speaker 1: that kind of dooms these additional cases. And there obviously 579 00:37:43,719 --> 00:37:46,200 Speaker 1: are a bunch of other arguments open to defendants. So 580 00:37:46,280 --> 00:37:49,120 Speaker 1: it's unclear how much what legs these cases will have, 581 00:37:49,200 --> 00:37:52,319 Speaker 1: but it certainly is not stopping plain offs from from 582 00:37:52,320 --> 00:37:56,439 Speaker 1: testing the waters here and fling filing additional cases. And 583 00:37:56,520 --> 00:38:00,200 Speaker 1: when we talk about consent, are they talking about that 584 00:38:01,400 --> 00:38:05,520 Speaker 1: check mark that almost every website you go to requires 585 00:38:05,560 --> 00:38:08,960 Speaker 1: you to check I agree just to get on the site. 586 00:38:09,239 --> 00:38:12,080 Speaker 1: Is that the consent that they're talking about. I think 587 00:38:12,360 --> 00:38:15,960 Speaker 1: consent can take many different forms. I think certainly one 588 00:38:16,080 --> 00:38:20,120 Speaker 1: form of consent would be a consumer agreeing to terms 589 00:38:20,120 --> 00:38:24,719 Speaker 1: own conditions or terms of use that apply to the 590 00:38:24,800 --> 00:38:29,439 Speaker 1: website and you know, the purchase products or services through 591 00:38:29,480 --> 00:38:33,480 Speaker 1: that website. And yeah, I think often it will be 592 00:38:33,680 --> 00:38:37,640 Speaker 1: effectively UM some type of either it's kind of part 593 00:38:37,719 --> 00:38:40,560 Speaker 1: of the purchase flow that a consumer goes through where 594 00:38:40,600 --> 00:38:43,080 Speaker 1: they'll see a reference to those or have to click 595 00:38:43,160 --> 00:38:48,880 Speaker 1: through them um, and it'll it'll likely be included in 596 00:38:49,000 --> 00:38:52,600 Speaker 1: one of the terms in that And that's so I 597 00:38:52,640 --> 00:38:55,480 Speaker 1: think that is certainly in a possibility for how consent 598 00:38:55,520 --> 00:38:57,840 Speaker 1: would arise. But there are certainly other ways in which 599 00:38:58,600 --> 00:39:02,560 Speaker 1: consumers can manifest um consent to terms and these types 600 00:39:02,640 --> 00:39:07,040 Speaker 1: of scenarios. And is the concern of privacy advocates also 601 00:39:07,840 --> 00:39:14,240 Speaker 1: that some important personal information of consumers could be leaked 602 00:39:14,239 --> 00:39:18,520 Speaker 1: by mistake or by a breach. Yeah, that's a good question. 603 00:39:18,560 --> 00:39:23,320 Speaker 1: I think there is an important distinction here between UM 604 00:39:23,520 --> 00:39:27,239 Speaker 1: kind of the session replay and related types of software 605 00:39:27,840 --> 00:39:33,600 Speaker 1: and data UM considered security concerns more generally. I think, UM, 606 00:39:33,840 --> 00:39:37,640 Speaker 1: the any any time you navigate onto a website, data 607 00:39:37,719 --> 00:39:40,359 Speaker 1: is moving back and forth and everything like that, And 608 00:39:40,400 --> 00:39:44,359 Speaker 1: simply because data is kind of in motion and going 609 00:39:44,400 --> 00:39:50,120 Speaker 1: around doesn't mean that there's that that itself creates kind 610 00:39:50,120 --> 00:39:55,080 Speaker 1: of an existential data security threat. I think whether session 611 00:39:55,120 --> 00:40:01,879 Speaker 1: replay software collects and logs s data about consumer interactions 612 00:40:01,880 --> 00:40:07,840 Speaker 1: with websites, UM does not mean that, you know, ifso facto, 613 00:40:08,000 --> 00:40:12,840 Speaker 1: that that creates data securities challenges for the entities that collected. 614 00:40:12,920 --> 00:40:16,239 Speaker 1: And I'll give you one example would be, say a 615 00:40:16,280 --> 00:40:22,400 Speaker 1: session replay software is collecting information about user interactions with 616 00:40:22,560 --> 00:40:26,520 Speaker 1: a some third party website that it's helping to set 617 00:40:26,520 --> 00:40:30,040 Speaker 1: this up for. You know that third party vendor may 618 00:40:30,120 --> 00:40:36,279 Speaker 1: very well have very robust data security controls and have 619 00:40:37,200 --> 00:40:39,759 Speaker 1: a number of factors in pace that is going to 620 00:40:39,880 --> 00:40:44,400 Speaker 1: mitigate the risk of any anything happening to that data, 621 00:40:44,480 --> 00:40:47,320 Speaker 1: so I don't I don't see a kind of direct 622 00:40:47,360 --> 00:40:53,040 Speaker 1: tie between session replay software and kind of data security concerns. 623 00:40:53,880 --> 00:40:57,480 Speaker 1: Um more. Generally, thanks for being on the show. Adam. 624 00:40:57,520 --> 00:41:00,759 Speaker 1: That's Adam Cook of Hogan Levels, And that's it for 625 00:41:00,800 --> 00:41:03,400 Speaker 1: this edition of The Bloomberg Law Show. Remember you can 626 00:41:03,440 --> 00:41:06,680 Speaker 1: always get the latest legal news on our Bloomberg Law Podcast. 627 00:41:06,960 --> 00:41:09,960 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 628 00:41:10,160 --> 00:41:15,160 Speaker 1: www dot bloomberg dot com slash podcast Slash Law, And 629 00:41:15,239 --> 00:41:17,959 Speaker 1: remember to tune into The Bloomberg Law Show every week 630 00:41:18,080 --> 00:41:21,680 Speaker 1: night at ten p m. Wall Street Time. I'm June Grossow, 631 00:41:21,760 --> 00:41:23,360 Speaker 1: and you're listening to Bloomberg