Speaker 1: This is Bloombird Law with June Brusso from Bloomberg Radio.
Speaker 1: You can see them counting the ballots more than once, two, three, four,
Speaker 1: or five times. You would have to be a moron
Speaker 1: not to realize if that's voter fraud. Remember in the
Speaker 1: months after the presidential election, when Rudy Giuliani repeatedly claimed
Speaker 1: that the election had been stolen from former President Trump
Speaker 1: and that he had evidence of widespread fraud, and he
Speaker 1: wasn't alone. Other Trump attorneys like Sydney Powell made similar
Speaker 1: baseless claims. An algorithm that probably ran all over the
Speaker 1: country to take a certain percentage of votes from President
Speaker 1: Trump and flipped them to President Biden, which we might
Speaker 1: never have uncovered had the votes for President Trump not
Speaker 1: been so overwhelming in so many of these states that
Speaker 1: it broke the algorithm that had been plugged into the system.
Speaker 1: Giuliani has been temporarily barred from practicing law in New
Speaker 1: York and is facing possible disbardment. Powell could be disbarred
Speaker 1: after a suit brought by the State bar of Texas.
Speaker 1: So why don't lawyers lies have the same First Amendment
Speaker 1: protections as lies by others? Katherine Ross a professor at
Speaker 1: George Washington University Law School, has written about this in
Speaker 1: a Bloomberg Law opinion piece. Is the public getting inured
Speaker 1: to lawyers lying after We saw a host of lawyers
Speaker 1: from Rudy Giuliani to Sydney Powell repeatedly lying about the election,
Speaker 1: and sometimes with outrageous lies that have been proven false
Speaker 1: over and over. That is a huge problem. Following and
Speaker 1: even leading up to the election cycle. A lot of
Speaker 1: lawyers lied about what was going to happen, what had
Speaker 1: happened in terms of alleging voter fraud that did not
Speaker 1: occur at any level that could have effected the election outcome,
Speaker 1: and in at almost all of the very few substantiated
Speaker 1: cases of illegal voting were done by Republicans and could
Speaker 1: not have led to an overturning of the election results.
Speaker 1: We're also still seeing it among all the election deniers
Speaker 1: who are running for public office in many of the states,
Speaker 1: and quite a few of those are lawyers, because lawyers
Speaker 1: are very active in public life. So I'm hoping that
Speaker 1: the public is not getting inured to this as just
Speaker 1: the cost of doing business. And I also think it's
Speaker 1: very important that the bar associations and the bar disciplinary
Speaker 1: committees not simply say, you know, this is what everybody
Speaker 1: is doing and there's not much we can do about it.
Speaker 1: I think they really need to step up in the
Speaker 1: face of this flagrant and often proven round of lying
Speaker 1: about public affairs. You know, you have lawyers who come
Speaker 1: outside the courthouse and proclaim their clients innocence and say
Speaker 1: there will be a quit it. And lawyers who make
Speaker 1: arguments to the court and construe the facts or the
Speaker 1: law in their client's behalf. Perhaps not quite down the
Speaker 1: straight and narrow. Where's the line? Okay, First, let's start
Speaker 1: with what a lie is defined as in the law.
Speaker 1: A lie is a false statement of fact that the
Speaker 1: speaker knows to be false and wants other people to believe.
Speaker 1: So some of what you're talking about we might think
Speaker 1: about as spimming or embellishment or opinion. I believe my
Speaker 1: client is innocent. I'm going to try to prove my
Speaker 1: client is innocent. Is not exactly the same thing as
Speaker 1: saying it is a fact that my client did not
Speaker 1: murder this person. And that's a dramatic example, but a
Speaker 1: lot of things are, you know, in a greyer zone.
Speaker 1: Lawyers in almost every state operate under some version of
Speaker 1: the A b AS model rules of professional con up
Speaker 1: and those applied to attorneys who have clients, and that
Speaker 1: requires that the lawyer not lie to the court and
Speaker 1: also not lie to the public. And that second part
Speaker 1: is really important in terms of what's going on today.
Speaker 1: And let me draw distinction here because some of our
Speaker 1: non legal listeners maybe thinking about some lawyer jokes that
Speaker 1: are you know that the profession is offended by, But
Speaker 1: there are a lot of jokes out there about lawyers
Speaker 1: who don't tell the truth or aren't the epitomy of
Speaker 1: virtue in practicing their profession. First of all, the reason
Speaker 1: those are quote unquote funny is because we do hold
Speaker 1: lawyers to a high standard, and lawyers hold themselves to
Speaker 1: a high standard. And if that weren't the image that
Speaker 1: lawyers were trying to project or trying to live up to,
Speaker 1: I don't think those jokes would have a punchline. So
Speaker 1: I hope that people won't be looking at these very
Speaker 1: prominent laws about things that really affect the heart of
Speaker 1: our democracy and say, well, lawyers always lie. No, lawyers
Speaker 1: are not allowed to lie if they're representing clients, they're
Speaker 1: not allowed to lie to the court, and they're not
Speaker 1: allowed to lie to all of us. Explain why the
Speaker 1: First Amendment doesn't fit in here? Some might ask, well,
Speaker 1: doesn't a lawyer have First Amendment projections like everyone else? Actually,
Speaker 1: I can understand why people would think that, but it
Speaker 1: isn't true. When people apply for membership in the bar,
Speaker 1: which allows you to have a license to practice law,
Speaker 1: they undertake certain responsibilities. One is that they affirm that
Speaker 1: they're going to act as officers of the court and
Speaker 1: uphold the law and the integrity of the court system,
Speaker 1: and that subjects them to the discipline that can be
Speaker 1: applied by the Bar Association, which requires that the lawyers
Speaker 1: abide by the Code of Professional Conduct. And the Bar
Speaker 1: Association is not the government. The First Amendment only binds
Speaker 1: the government where they We're talking about the lowest level
Speaker 1: employee in a local government all the way up to
Speaker 1: Congress and the President of the United States. Those are
Speaker 1: the people the entity that cannot abridge our First Amendment rights.
Speaker 1: But when lawyers accept their license and use their license professionally,
Speaker 1: which allows them to earn a living, they submit to
Speaker 1: the bar's jurisdiction and the bar can hold them to
Speaker 1: account if they violate the code that says that they
Speaker 1: cannot lie to the court and they cannot lie in
Speaker 1: public about matters in which they are representing someone. Rudy
Speaker 1: Giuliani's law license was suspended. How did that happen? That
Speaker 1: happened because he was repeatedly flagrantly lying to the public
Speaker 1: by alleging road in elections in many many states. When
Speaker 1: his factual errors were pointed out, he refused to retract,
Speaker 1: and he doubled down. Uh, and he was warned, and
Speaker 1: ultimately there was a preliminary hearing and his law license
Speaker 1: was suspended pending a complete investigation with hearings and so forth.
Speaker 1: And he challenged that in court and the judicial opinion
Speaker 1: upholding the state bars temporary decision because the suspension, not
Speaker 1: a termination of his license was absolutely devastating. They laid
Speaker 1: out for dozens of pages his lives to the public,
Speaker 1: his list to the press, and indeed his skirting the
Speaker 1: truth in courtrooms, and the January six hearings by the
Speaker 1: House Select Committee, there was testimony to the effect that
Speaker 1: Giuliani had said, you know, paraphrasing, we don't have proof,
Speaker 1: but we have lots of a race. Well theories don't
Speaker 1: cut it for a lawyer speaking in court, or even
Speaker 1: a lawyer speaking in public about such things. And that
Speaker 1: was after the suspension of his license and the court decision.
Speaker 1: So that's a good example of discipline working. Giuliani is
Speaker 1: facing another full hearing in the District of Columbia with
Speaker 1: respect to his district license to practice law, and a
Speaker 1: number of other attorneys who have lied about the election
Speaker 1: are facing proceedings before their bar associations. And let me
Speaker 1: just say, to avoid seeming overly political, you know, one
Speaker 1: of the problems here is lies and the lies about
Speaker 1: moral lago which grow out of the whole Trump situation.
Speaker 1: You know, they're being told by Republicans, but Democrats are
Speaker 1: not immune to lying. So you may remember that President
Speaker 1: Clinton had problems with his Arkansas law license and ultimately
Speaker 1: reached a settlement because he had lied in a deposition
Speaker 1: under oath. And in one legal filing, Sidney Powell made
Speaker 1: the argument to the effect that her lies were so
Speaker 1: outrageous that no reasonable person would have found them to
Speaker 1: be statements of fact. It's a wonderful strategy for somebody
Speaker 1: who has no defense. Um, it is true that you
Speaker 1: know the first Amendment status of lies is not quite
Speaker 1: as clear as the status of many other kinds of speech.
Speaker 1: Lies were thought to be largely unprotected until twelve, when
Speaker 1: the Supreme Court issued a decision that said, no, they
Speaker 1: they're actually not outside the protection of the First Amendment,
Speaker 1: but suggested that there were some circumstances in which they
Speaker 1: could be regulated, and also that the scrutiny that a
Speaker 1: court would apply to something that inhibited lying might be
Speaker 1: less than what it would apply to. Choose the most
Speaker 1: matic example, political speech that was true, although the courts
Speaker 1: can't get involved in deciding what is true and false
Speaker 1: because that smacks of the state determines truth and falsehood,
Speaker 1: and maybe incorrectly. But there is a sub category of
Speaker 1: laws that are so preposterous that no one would believe them.
Speaker 1: So if we go back to that legal definition of lying,
Speaker 1: the speaker intends the listener to believe it. So if
Speaker 1: you engage in satire that isn't immediately recognizable as funny,
Speaker 1: like badly in satire, then one defense would be it's
Speaker 1: so ridiculous nobody would believe it. And part of the
Speaker 1: problem with that defense is that she offered her statements
Speaker 1: in very serious contexts and continued to insist that they
Speaker 1: were true and to repeat them so it didn't look
Speaker 1: like I'm sort of making a joke, which is also
Speaker 1: one of Trump's occurring defenses for speech that might other
Speaker 1: wise be defamatory. Says oh, I was just joking, and
Speaker 1: we know he wasn't just joking. But in Sydney Pal's case,
Speaker 1: the judge said, no, you made this in too many places,
Speaker 1: and you offered it as truth. And you may not
Speaker 1: have submitted papers to the court making these exact claims,
Speaker 1: but your filings in court were in service of the
Speaker 1: lies you were telling outside of court. So you can't
Speaker 1: now say it was a joke or it was just
Speaker 1: an exaggeration. In fact, that judge sanctioned Powell, made her
Speaker 1: pay the city of Detroit and other people involved as
Speaker 1: a lawsuit, and referred her to the Texas Bar for sanctions,
Speaker 1: and that proceeding is ongoing. She's tried to have it
Speaker 1: dismissed in court and she failed, so those hearings are ongoing.
Speaker 1: So you mentioned Moral Lago, and at least one of
Speaker 1: the lawyers who represent former President Trump swore that there
Speaker 1: were no classified documents at Mara Lago and I think
Speaker 1: she added a term, to the best of my knowledge,
Speaker 1: something like that, after which, as we know, classified documents
Speaker 1: were seized by the FBI. Could the lawyers there be
Speaker 1: charged with perjury or obstruction of justice? Absolutely? First of all,
Speaker 1: it's a federal crime to lie to a federal officer,
Speaker 1: much less to submit a document certifying something. This was
Speaker 1: clearly during her representation of clients. She violated the strictures
Speaker 1: on her as an officer of the court. She misled
Speaker 1: the federal government in a very broad and important way.
Speaker 1: And adding to the best of my knowledge is kind
Speaker 1: of it's like putting vassaline all over yourself or teflon.
Speaker 1: I mean, you know, she's making clear I didn't really
Speaker 1: check this out and most recently or you know, I
Speaker 1: asked my client, but I didn't really press him. I
Speaker 1: didn't really look around. Subsequently, she said, um, well, it's
Speaker 1: really not my fault because other lawyers told me that
Speaker 1: all the documents have been submitted, and I signed the
Speaker 1: statement they told me to sign, or basically the statement
Speaker 1: based on their representations. I don't know whether she wrote
Speaker 1: it or they wrote it, but she's basically saying not
Speaker 1: my fault. No, when you represent a client, the lawyer
Speaker 1: has an obligation before certifying to the federal government or
Speaker 1: saying something in court, to find out whether what your
Speaker 1: client is telling you can be backed up by evidence. Now,
Speaker 1: sometimes clients do mislead their attorneys, but the attorney should
Speaker 1: be in a position to say, I did everything I
Speaker 1: could to try to verify what I was telling the
Speaker 1: court or the Department of Justice. You can't just go
Speaker 1: in and say, oh, you know, my client told me
Speaker 1: he didn't rob the bank, so I'm going to tell
Speaker 1: the court he didn't rob the bank, and I don't
Speaker 1: need to ask any questions but for documents. We have
Speaker 1: other responsibilities as members of the bar. And since that
Speaker 1: time she made some other absolutely amazing statements that are
Speaker 1: comparable to Paul saying, oh, what I was saying about
Speaker 1: the stolen election in the Venezuelan dictator capturing our voting machines,
Speaker 1: that was just a joke. Abba actually said, I think
Speaker 1: within the last two three days. Um, it's possible that
Speaker 1: the empty folders labeled confidential at Moral Lago that were
Speaker 1: in the boxes seized under warrant by the federal government
Speaker 1: contain invisible documents that no one can see. She said
Speaker 1: that in a cable interview, I really don't know how
Speaker 1: to respond to that one. Let's turn to the New
Speaker 1: York Bar associations tell us what they've done. So the
Speaker 1: first report was by the New York County Bar Association, which,
Speaker 1: while not a huge organization, has long been a leader
Speaker 1: in civic responsibility, and they pointed out that there were
Speaker 1: lawyers who were telling verifiable falsehoods, factual falsehoods that were
Speaker 1: resulting in violence and threats of violence, for example towards
Speaker 1: the federal magistrate who issued the warrant for the search
Speaker 1: of moral Lago and events leading up to the attack
Speaker 1: on the FBI building later that week. And then the
Speaker 1: New York City Bar Association, which is one of the
Speaker 1: largest bar associations in the country, issued a much more
Speaker 1: detailed report on lies about the search of moral Lago
Speaker 1: by attorneys and pointed out again that this can invoke
Speaker 1: violence against judges, FBI agents, everybody involved in law enforcement,
Speaker 1: and other public servants. And I would compare that as
Speaker 1: well to the ongoing attacks on election workers, although that
Speaker 1: was not part of the report, and they said it's
Speaker 1: it's really important that lawyers should not make claims of
Speaker 1: wrongdoing against officers of the court for which they have
Speaker 1: no factual basis, or which they know to be incorrect,
Speaker 1: or even if they're misleading, and they should not undermine
Speaker 1: the judicial process or the rule of law. Thanks so much, Catherine.
Speaker 1: That's Catherine Ross, a professor at George Washington University Law School.
Speaker 1: Congress looks like it's closed to preventing the kind of
Speaker 1: constitutional crisis avoided during the presidential transition. In this week,
Speaker 1: a Senate committee approved the revamp of an seven law
Speaker 1: that sets out congressional procedures for certifying presidential election. The
Speaker 1: legislation is intended to prevent a repeat of the presidential election,
Speaker 1: when former President Donald Trump and his allies sought to
Speaker 1: challenge the election results, leading to the insurrection at the
Speaker 1: Capital on January six. Both the Senate Majority Leader Chuck
Speaker 1: Schumer and the Senate Minority Leader Mitch McConnell support the bill.
Speaker 1: Lawmakers are under pressure to find a compromise before the
Speaker 1: end of the year because of the likelihood that House Republicans,
Speaker 1: most of whom oppose the changes, will gain control of
Speaker 1: that chamber. Joining me as elections law expert Richard brafalt
Speaker 1: A professor at Columbia Law School, Rich tell us about
Speaker 1: the current law, the Electoral Count Act. Yes, Well, the
Speaker 1: Electoral Countact was passed by Congress which sets out the
Speaker 1: procedure for the accounting of the electoral votes in Congress,
Speaker 1: for the raising and handling of complaints or questions about
Speaker 1: the electoral vote, and for the formal determination of who
Speaker 1: has won the president into election by declaring who's the
Speaker 1: winner of the electoral vote. And so the Senate bill
Speaker 1: is a bipartisan effort Republican Susan Collins and Democrat Joe Mansion.
Speaker 1: What does it do? In general? It does three or
Speaker 1: four very significant things. First, it declares that the role
Speaker 1: of the vice president, who is technically the president of
Speaker 1: the Senate and who under the Constitution has to preside
Speaker 1: over this process, has an entirely ministerial role. The vice
Speaker 1: president says, as a stand up there and to clear
Speaker 1: what happens next, and says, here's the result that the
Speaker 1: vice president has no substantive role. May have called this
Speaker 1: was one of the high points of the controversy the
Speaker 1: less election, when then President Trump insisted that then Vice
Speaker 1: President Pence had the authority to declare that certain electoral
Speaker 1: votes were invalid and not to count them, and Pence
Speaker 1: himself said he didn't have that authority. This makes it
Speaker 1: clear that the vice president has no such authority, that
Speaker 1: the vice president's role is just ministerial, like a secretary,
Speaker 1: just there to say this is what it's a as,
Speaker 1: here's the result. So that's probably a very important thing.
Speaker 1: And everyone always thought that was the rule. But because
Speaker 1: Trump made such a noise and his support is about
Speaker 1: such a noise that the vice president could in effect
Speaker 1: change the result, it's probably important that that be clarified. Second,
Speaker 1: it rather dramatically raises the threshold for objections. Under the
Speaker 1: current law. All you need to object to the electoral
Speaker 1: vote of a state and stop the whole process, and
Speaker 1: forced the two houses of Congress to meet separately to
Speaker 1: debate the objections is one member of the House and
Speaker 1: one member of the Senate, just one from each to
Speaker 1: object to say a state like the vote from Arizona
Speaker 1: or the vote from Michigan. The Senate bill raises the
Speaker 1: threshold to one fifth of the House and one fifth
Speaker 1: of the Senate. Tou you need to have twenty senators
Speaker 1: an effect, and what would that be something like eighty
Speaker 1: seven members of the House objecting to a particular state,
Speaker 1: So that's a dramatic increase in the threshold. Those are
Speaker 1: probably the two most prominent things. The bill narrows the
Speaker 1: grounds of objections really just down to to one is
Speaker 1: that the electoral winners weren't picked in the state in time,
Speaker 1: and the other there was some impropriety in the way
Speaker 1: an individual elector voted. And also creates a procedure for
Speaker 1: judicial challenges to the outcome of the election in a
Speaker 1: state to be done in an expedited way. And then
Speaker 1: clarifies that, in light of all the talk about the
Speaker 1: power of state legislatures, that any state legislative action that
Speaker 1: applies the election will count only if it was passed
Speaker 1: before election day. So you can't have state legislatures after
Speaker 1: election day trying to pass laws that under the result
Speaker 1: when those are probably the highways. A number of other
Speaker 1: more minor things, but limiting the power, declaring the limited
Speaker 1: the limited nature of the power of the vice president,
Speaker 1: raising the threshold for objections, narrowing the categories of objections,
Speaker 1: providing for expedited judicial review of challenges. Oh, and there's
Speaker 1: one more thing. There's a language in the current law
Speaker 1: that talks about what happens in the case of a
Speaker 1: failed election, and that was clearly meant to be things
Speaker 1: like an election was thrown off by a natural disaster.
Speaker 1: But some people, again trying to make trouble, would argue
Speaker 1: with the old election is one where we don't think
Speaker 1: the election went the right way, or we think that
Speaker 1: there were problems with the voting process. So the new law,
Speaker 1: the law would very clearly indicate that a state election
Speaker 1: would allow the state to delay the selection of the
Speaker 1: electors something that results from an extraordinary and catastrophic event
Speaker 1: um which I have to find by state law only.
Speaker 1: That would be something along the lines of a major
Speaker 1: hurricane or a flood. Surprisingly, got near unanimous approval by
Speaker 1: the Rules Committee. Not surprisingly, the one objection came from
Speaker 1: Senator Ted Cruz, who of course led an effort to
Speaker 1: challenge Biden's election victory. He said, quote, this bill is
Speaker 1: all about Donald J. Trump. It is about Donald Trump,
Speaker 1: isn't it. Yes, I mean everyone agrees that the old
Speaker 1: the current Electoral Account Act is flawed. It's very unclear.
Speaker 1: There's a lot of inconsistencies in it. Uh, they're particular
Speaker 1: problems if there's a disagreement from within a state as
Speaker 1: to know one chief state official stating the winner was
Speaker 1: one person. The governor says one thing, and maybe the
Speaker 1: chief Justice of the state Supreme Court or the Secretary
Speaker 1: of State of the state says something else. So there
Speaker 1: are a lot of uncertainties in it. There was always
Speaker 1: a problem with the that low, very low threshold of objections,
Speaker 1: although until recently it had never been used, or it
Speaker 1: had hardly been used, i should say, But certainly the
Speaker 1: election of attack on Congress in January six just sort
Speaker 1: of highlighted the significance of these uncertainties and the extreme
Speaker 1: importance of getting them resolved. Did it surprise you that
Speaker 1: Senate Minority Leader Mitch McConnell announced support of the bill
Speaker 1: and a number of other Republicans. Not really. I mean,
Speaker 1: I think everyone realizes that the current law is a mess,
Speaker 1: that it creates more problems than it solves, that this
Speaker 1: this surprising debate about the role of the vice president.
Speaker 1: It really seems who could possibly believe that one person
Speaker 1: could change the election, especially one person with an a
Speaker 1: stake in the outcome, Since the vice president is either
Speaker 1: going to be up for re election for vice president,
Speaker 1: or also the vice president has been running for president.
Speaker 1: You know, how one person could could legally change the outcome.
Speaker 1: You know a lot of these things just didn't make
Speaker 1: a lot of sense, but we saw how it could
Speaker 1: be weaponized in January six. So I think it's important
Speaker 1: to have it resolved. And it doesn't clearly help one
Speaker 1: side or the other. I mean, in the vice president
Speaker 1: is going to be a Democrat, you know, Kambel Harris
Speaker 1: is the person is gonna be standing up there and
Speaker 1: counting the results, So it doesn't necessarily help one side
Speaker 1: or the other. The House passed a companion bill last week.
Speaker 1: Does it differ from the Senate bill in many ways.
Speaker 1: The most obvious difference is that raises even higher the
Speaker 1: threshold for an objection to an electoral vote the Senate,
Speaker 1: as just to remind you, the current law is one
Speaker 1: person from each chamber. The Senate raises it to one
Speaker 1: fifth of each chamber. The House would raise it to
Speaker 1: one third of each chamber, which is a much higher threshold.
Speaker 1: I think there are other differences, but that's probably the
Speaker 1: most significant one. Let's discuss what it doesn't protect. So
Speaker 1: the laws that have been passed in states making it
Speaker 1: more difficult to vote. Have you kept track of you know,
Speaker 1: how many states have done that a lot. I don't
Speaker 1: have a specific number, but uh, and and and doing
Speaker 1: it in many different ways, and making it harder to register,
Speaker 1: and making it harder to vote, making it much harder
Speaker 1: to vote absentee in certain states, changing the procedures for
Speaker 1: challenging electors to make it easier for people to challenge voters.
Speaker 1: I mean, there's a lot of different of pushbacks in
Speaker 1: many states that are going to make it harder for
Speaker 1: people to vote than it was in This doesn't address
Speaker 1: any of that. Senator Schumer early on had wanted to
Speaker 1: fold the electoral college reform, the electoral account reform into
Speaker 1: a broader voting bill, voting rights bill, but which did
Speaker 1: pass the House but was filipbustered in the Senate. So he,
Speaker 1: you know, ultimately agreed that it was absolutely crucial to
Speaker 1: deal with these electoral college problems, and so you know,
Speaker 1: kind of exceeded to the Republican objections in Congress to
Speaker 1: federal law protecting the rights of voting in elections. And
Speaker 1: so this this bill, either both the House and the
Speaker 1: Senate bill only dealing with the procedures for accounting the
Speaker 1: electoral votes come the November elections. There may be next
Speaker 1: year many election deniers who will be in positions of
Speaker 1: power over elections. This Electoral Count Act doesn't address that either. No, no, no,
Speaker 1: not at all. I mean they're like this. The electoral
Speaker 1: contact proceeds from what happens after the states have had
Speaker 1: their election and their results are announced. I mean what
Speaker 1: happened in is we had the elections were held, who
Speaker 1: results were announced? Uh, they were challenged, the challenges were
Speaker 1: all rejected. Uh, the elector of the electors met and
Speaker 1: cast their votes, and you still had objections. So this
Speaker 1: doesn't really address anything really before that leading up to
Speaker 1: the decision who has won at the state level. This
Speaker 1: is addressed is solely all what happens in Washington, which
Speaker 1: again really until had never seen anything like this in
Speaker 1: terms of the level of uncertainty of objections. So it
Speaker 1: does get rid of a number of the issues that
Speaker 1: surprisingly uh kind of emerged his big issues in January one,
Speaker 1: thanks for being on the show. Rich that's Professor Richard
Speaker 1: Fault of Columbia Law School. Since the ruling by the
Speaker 1: Third Circuit Court of Appeals in Philadelphia In August, at
Speaker 1: least nine new class action suits have been filed in
Speaker 1: Pennsylvania against well known companies such as Zillo, Lowe's, Expedia,
Speaker 1: Auto Zone, and Chewies and Michael Stores, accusing them of
Speaker 1: violating the state's Wire Tapping and Electronic Surveillance Control Act
Speaker 1: by the use of software that allows them to monitor
Speaker 1: their customers website browsing, recording mouse movements, keystroke search terms,
Speaker 1: information input into the websites, and content viewed. The providers
Speaker 1: of the software say it helps their customers tweak their
Speaker 1: websites to provide a better experience for users, and reject
Speaker 1: the claim that it creates privacy risks. My guest is
Speaker 1: Adam Cook of Hogan Levels, So first of all, tell
Speaker 1: us about this session replace software what it does? Sure, so,
Speaker 1: Session Replaced software is a particular technology that is used
Speaker 1: by a number of websites, everything from retailers to manufacturers
Speaker 1: and all sorts of other companies. Basically any company that
Speaker 1: has some type of web presence where they interact with
Speaker 1: consumers in some way, and the software enables companies and
Speaker 1: other entities and organizations that host these websites to learn
Speaker 1: a little bit more about how consumers are interacting with
Speaker 1: their websites and services they offer online, and so one
Speaker 1: of the key features is to gather more information about
Speaker 1: their websites or how their websites are being useful. In
Speaker 1: other ways, they can redesign or retool their website to
Speaker 1: make them more accessible and useful tent consumers. So it's
Speaker 1: effectively trying to kind of capture how a consumer navigates
Speaker 1: on the website. So if someone, for example, goes onto
Speaker 1: X website and um is looking to purchase the product,
Speaker 1: but you know, gets a certain way in the process,
Speaker 1: but then kind of drops it and leaves it and
Speaker 1: and doesn't continue with the purchase, the entity they host
Speaker 1: the websites will kind of want to know, Okay, well,
Speaker 1: was was the process by which a consumer has to
Speaker 1: to purchase so complicated? And they have to jump through
Speaker 1: various different pages and enter some information one page and
Speaker 1: other information on the page. So we make it so
Speaker 1: hard for the consumer that they just kind of threw
Speaker 1: up their hands and gave up. And can we redesign
Speaker 1: our website in a way that makes the consumer experience
Speaker 1: more smooth? And so that's kind of a kind of
Speaker 1: typical use case for this type of software is to
Speaker 1: kind of improve organizations ability to interact with end users
Speaker 1: who are navigating to their websites and trying to take
Speaker 1: advantage or utilize whatever service or products they're they're offering.
Speaker 1: Do they also use this to let's say, do some
Speaker 1: companies use this to sell the information to marketing firms, etcetera.
Speaker 1: I think there are a host of different uses for this.
Speaker 1: I'm not specifically aware of particular entity that um use
Speaker 1: it for that particular reason, but it's that's certainly utilized
Speaker 1: for a lot of reasons to understand more about consumer
Speaker 1: engagement and the like. So what are the specific complaints
Speaker 1: the plaintiffs are making in these lawsuits that are based
Speaker 1: on wire tap laws? So what kind of initial point
Speaker 1: is that? You know? These suits are not a vintage
Speaker 1: type of action. These dates back a couple of years
Speaker 1: at least um and they cover a range of different
Speaker 1: entities that have been sued. So again, kind of many
Speaker 1: different industry sectors that all have some type of connection
Speaker 1: to kind of end users and consumers. And I would
Speaker 1: say everything from companies that are selling various home improvement
Speaker 1: products to companies that are involved in real estate transactions
Speaker 1: and everything kind of in between have been have been
Speaker 1: targeted in the kind of the essence of these claims
Speaker 1: is that this session replay software is violative of state
Speaker 1: wire tap laws because they purportedly intercept communications between the
Speaker 1: end consumer and the web you know, the entity that
Speaker 1: they're navigating to ABC dot com or x y Z
Speaker 1: dot com. And so they're they're basically alleging that, hey,
Speaker 1: I was trying to navigate to this website and was
Speaker 1: trying to you know, learn more information or purchase some product.
Speaker 1: And the fact that some of my information about what
Speaker 1: I was doing on the website was shared with a
Speaker 1: third party service provider that helps a company set up
Speaker 1: and kind of run these tools. That that is the
Speaker 1: quote unquote violation of the wire Tap Act. And those
Speaker 1: wire tap statutes are of course decades old, um and
Speaker 1: both under both the federal version and the state law version.
Speaker 1: And these studes that really arise into the state law versions.
Speaker 1: They've been primarily brought under Florida in California law, and
Speaker 1: um most recently under Pennsylvania law. Of course, there's some
Speaker 1: others out there, but that's the main thrust of them,
Speaker 1: i'd say, or is under those three states. So before
Speaker 1: we got to this Third Circuit decision, or when lower
Speaker 1: courts have thrown these out pretty consistently, what's the legal
Speaker 1: basis that they throw them out under. Yeah, it's a
Speaker 1: great question. So it's actually been a number of different factors,
Speaker 1: one of which is that the wire tap law simply
Speaker 1: doesn't apply because it was not meant to effectively impose
Speaker 1: liability for this type of activity. Basically it's an analytic
Speaker 1: you know, some type of analytics on consumers interaction with
Speaker 1: a website. There's also been um some decisions that have
Speaker 1: found effectively consent, so that consumers appliedly or otherwise have
Speaker 1: consented to this type of thought where um based on
Speaker 1: disclosures and in their own conduct regarding what was going
Speaker 1: on on the website they were navigating to. So there's
Speaker 1: kind of a host of different reasons that in which
Speaker 1: courts have found that these these claims just simply lack
Speaker 1: merit at the pleading stage. So now let's talk about
Speaker 1: what happened at the Third Circuit. One of these lawsuits
Speaker 1: was dismissed by the lower court judge. And what did
Speaker 1: the third circuits say? Yeah, so the I believe the
Speaker 1: lower court rejected the claim at the summary judgment phased
Speaker 1: finding that the Pennsylvania wire tap Statute effectively did not
Speaker 1: apply to this alleged conduct and was inapplicable because you know,
Speaker 1: the plaintiff plaintiff conduct just simply didn't fall under the
Speaker 1: statutory definition of a lot of an actionable interception, and
Speaker 1: the Third Circuit reverse first that District Court decision and
Speaker 1: remanded it um effectively holding that the Pennsylvania statute could
Speaker 1: impose liability for these particular allegations. Although I'll note that
Speaker 1: the Third Circuit was careful to say that there could
Speaker 1: be other defenses to this alleged violation of the Pennsylvania statute,
Speaker 1: including consent, and it was remanding the case back to
Speaker 1: the district court to consider those issues in the first instance.
Speaker 1: So it was very much a kind of statutory interpretation
Speaker 1: driven decision, interpreting the Pennsylvania wiretap law and based on
Speaker 1: that decision, finding that the District Court had, in its view,
Speaker 1: misread the statute and then remanding it for further basically
Speaker 1: further analysis and consideration, including for other defenses that defendants
Speaker 1: had raised below. So the Third Circuit It's decision only
Speaker 1: apply or only hold the Third Circuit courts. Could this
Speaker 1: decision have implications outside the Third Circuit? Good question, I
Speaker 1: think because the decision is so specific to the Pennsylvania
Speaker 1: statute and analyzing the language under that law and you
Speaker 1: know what is a both what is an interception under
Speaker 1: that law and then effectively, um, you know what is
Speaker 1: actionable under that statute. I think that the you know
Speaker 1: it's important and impact beyond Pennsylvania law and the Third
Speaker 1: Circuit will likely be limited because again it's so it's
Speaker 1: so specific to the statute. That said, I would expect
Speaker 1: Plaineft lawyers in other courts dealing with other statutes to
Speaker 1: potentially try to cite it as persuasive authority and interpreting
Speaker 1: other state laws. But I think that will have limited impact,
Speaker 1: again because it's so sewet interrest to the Pennsylvania statute. So,
Speaker 1: since companies who do business on the internet are doing
Speaker 1: business in every state, could plaintet's just bring these suits
Speaker 1: in Pennsylvania, as they've done in recent lawsuits against Zilo Lowe's, Expedia, AutoZone, Chewies,
Speaker 1: and Michael Stores. There's certainly a challenge for defendants in
Speaker 1: light of the Third Circuit decision here and that they
Speaker 1: are likely to see additional lawsuits, and that actually is
Speaker 1: definitely seems to be the case. An office today or
Speaker 1: late last week, UM the defendants in the third Circuit
Speaker 1: case just about a notice of supplemental authority to the
Speaker 1: Third Circuit, pointing out that I believe it was ten um.
Speaker 1: District court cases have been filed since the Third Circuit's
Speaker 1: decision alleging violations the state wiretap law, including by the
Speaker 1: same name plain of Um at issue in the third
Speaker 1: Circuit case Ashley Popa or Papa, and so UM this
Speaker 1: does this does appear to be triggering additional litigation, and
Speaker 1: it includes several cases by the same firm litigating the
Speaker 1: third Circuit case, again bringing claims into the Pennsylvania statute.
Speaker 1: So this does seem like it is leading to a
Speaker 1: kind of rush of additional litigation here. Time will tell
Speaker 1: whether the Third Circuit either kind of reconsiders its decision
Speaker 1: and light of the um petition for for rehearing or
Speaker 1: rehearing on bank, and also whether kind of how disrecords
Speaker 1: deal with this. Perhaps consent um will be an issue
Speaker 1: that kind of dooms these additional cases. And there obviously
Speaker 1: are a bunch of other arguments open to defendants. So
Speaker 1: it's unclear how much what legs these cases will have,
Speaker 1: but it certainly is not stopping plain offs from from
Speaker 1: testing the waters here and fling filing additional cases. And
Speaker 1: when we talk about consent, are they talking about that
Speaker 1: check mark that almost every website you go to requires
Speaker 1: you to check I agree just to get on the site.
Speaker 1: Is that the consent that they're talking about. I think
Speaker 1: consent can take many different forms. I think certainly one
Speaker 1: form of consent would be a consumer agreeing to terms
Speaker 1: own conditions or terms of use that apply to the
Speaker 1: website and you know, the purchase products or services through
Speaker 1: that website. And yeah, I think often it will be
Speaker 1: effectively UM some type of either it's kind of part
Speaker 1: of the purchase flow that a consumer goes through where
Speaker 1: they'll see a reference to those or have to click
Speaker 1: through them um, and it'll it'll likely be included in
Speaker 1: one of the terms in that And that's so I
Speaker 1: think that is certainly in a possibility for how consent
Speaker 1: would arise. But there are certainly other ways in which
Speaker 1: consumers can manifest um consent to terms and these types
Speaker 1: of scenarios. And is the concern of privacy advocates also
Speaker 1: that some important personal information of consumers could be leaked
Speaker 1: by mistake or by a breach. Yeah, that's a good question.
Speaker 1: I think there is an important distinction here between UM
Speaker 1: kind of the session replay and related types of software
Speaker 1: and data UM considered security concerns more generally. I think, UM,
Speaker 1: the any any time you navigate onto a website, data
Speaker 1: is moving back and forth and everything like that, And
Speaker 1: simply because data is kind of in motion and going
Speaker 1: around doesn't mean that there's that that itself creates kind
Speaker 1: of an existential data security threat. I think whether session
Speaker 1: replay software collects and logs s data about consumer interactions
Speaker 1: with websites, UM does not mean that, you know, ifso facto,
Speaker 1: that that creates data securities challenges for the entities that collected.
Speaker 1: And I'll give you one example would be, say a
Speaker 1: session replay software is collecting information about user interactions with
Speaker 1: a some third party website that it's helping to set
Speaker 1: this up for. You know that third party vendor may
Speaker 1: very well have very robust data security controls and have
Speaker 1: a number of factors in pace that is going to
Speaker 1: mitigate the risk of any anything happening to that data,
Speaker 1: so I don't I don't see a kind of direct
Speaker 1: tie between session replay software and kind of data security concerns.
Speaker 1: Um more. Generally, thanks for being on the show. Adam.
Speaker 1: That's Adam Cook of Hogan Levels, And that's it for
Speaker 1: this edition of The Bloomberg Law Show. Remember you can
Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.
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Speaker 1: night at ten p m. Wall Street Time. I'm June Grossow,
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