1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,480 --> 00:00:14,560 Speaker 1: Florida's very conservative Supreme Court upheld the state's fifteen week 3 00:00:14,600 --> 00:00:18,599 Speaker 1: abortion ban, which now allows one of the nation's strictest 4 00:00:18,600 --> 00:00:22,040 Speaker 1: abortion bans to take effect on May first. In the state. 5 00:00:22,400 --> 00:00:26,720 Speaker 1: It makes abortion illegal after six weeks, before most women 6 00:00:26,800 --> 00:00:30,240 Speaker 1: know they're pregnant. But in a sort of split decision, 7 00:00:30,640 --> 00:00:33,440 Speaker 1: the court allowed a referendum that will let the state's 8 00:00:33,560 --> 00:00:37,120 Speaker 1: voters decide in Florida whether they want an amendment to 9 00:00:37,159 --> 00:00:42,080 Speaker 1: the state constitution allowing abortion until viability. With abortion now 10 00:00:42,080 --> 00:00:45,320 Speaker 1: on the ballot in Florida, Democrats are seeing a chance 11 00:00:45,360 --> 00:00:48,680 Speaker 1: to flip the state in the presidential election. The future 12 00:00:48,760 --> 00:00:53,720 Speaker 1: Republican presidential nominee Donald Trump, who often boasts about appointing 13 00:00:53,800 --> 00:00:57,360 Speaker 1: three of the justices who voted to overturn Roe v. Wade, 14 00:00:57,680 --> 00:01:00,560 Speaker 1: didn't want to talk to reporters about the Florida to ruling, 15 00:01:03,880 --> 00:01:07,800 Speaker 1: while President Joe Biden denounced the Florida ruling, calling it 16 00:01:07,840 --> 00:01:10,679 Speaker 1: outrageous and promising to codify Roe v. 17 00:01:10,800 --> 00:01:13,760 Speaker 2: Wade and as mag officials are calling on and not 18 00:01:13,880 --> 00:01:15,640 Speaker 2: for a national ban on the right to choose in 19 00:01:15,680 --> 00:01:19,800 Speaker 2: every state I promise you for the Democratic Congress, Tom 20 00:01:19,840 --> 00:01:21,800 Speaker 2: and I will make Rovy Wade the law of the 21 00:01:21,880 --> 00:01:22,560 Speaker 2: land again. 22 00:01:22,680 --> 00:01:23,240 Speaker 3: I promise. 23 00:01:24,600 --> 00:01:27,959 Speaker 1: Joining me is healthcare attorney Harry Nelson of Nelson Hardiman 24 00:01:28,520 --> 00:01:33,000 Speaker 1: Harry tell us about the Florida Supreme Court's decisions on Monday. 25 00:01:32,920 --> 00:01:36,039 Speaker 4: Then the repeal of Roe v. Wade in the DABS case. 26 00:01:36,360 --> 00:01:39,920 Speaker 4: Florida had had in place a fifteen week ban on 27 00:01:40,000 --> 00:01:44,959 Speaker 4: abortion that Governor Discentis proposed while the Supreme Court decision 28 00:01:45,160 --> 00:01:49,160 Speaker 4: was pending. In twenty twenty three, a much more restrictive 29 00:01:49,280 --> 00:01:53,440 Speaker 4: six week ban was passed by the Florida legislature, but 30 00:01:53,560 --> 00:01:58,120 Speaker 4: the Florida Supreme Court had briefly delayed its going into 31 00:01:58,120 --> 00:02:00,840 Speaker 4: effect while looked at the question of whether there was 32 00:02:00,880 --> 00:02:04,480 Speaker 4: a constitutional right to privacy that included a right to 33 00:02:04,520 --> 00:02:07,600 Speaker 4: abortion in Florida. And so what happened this week is 34 00:02:07,640 --> 00:02:10,519 Speaker 4: that the Florida Supreme Court essentially ruled by a four 35 00:02:10,560 --> 00:02:14,880 Speaker 4: to three vote that a proposed constitutional amendment that would 36 00:02:15,040 --> 00:02:18,480 Speaker 4: guarantee the right to abortion that it could go to 37 00:02:18,520 --> 00:02:22,280 Speaker 4: the ballot. But at the same time, it essentially did 38 00:02:22,280 --> 00:02:26,720 Speaker 4: not find that the existing state constitution included a protection 39 00:02:27,040 --> 00:02:29,799 Speaker 4: of the rights to abortion as part of the privacy right. 40 00:02:29,919 --> 00:02:33,280 Speaker 4: So in other words, the Florida Supreme Court basically allowed 41 00:02:33,639 --> 00:02:36,280 Speaker 4: the new six week band to go into effects, but 42 00:02:36,520 --> 00:02:40,480 Speaker 4: it also decided to allow the voters of Florida to 43 00:02:40,560 --> 00:02:43,400 Speaker 4: decide whether to amend the constitution. So we have these 44 00:02:43,520 --> 00:02:47,040 Speaker 4: kind of parallel decisions that are extremely confusing about how 45 00:02:47,080 --> 00:02:49,200 Speaker 4: Florida is grappling with abortion. 46 00:02:49,639 --> 00:02:52,800 Speaker 1: Yeah, because they didn't have to issue the decisions on 47 00:02:52,880 --> 00:02:54,760 Speaker 1: the same day. Do you think that they were trying 48 00:02:54,800 --> 00:03:00,440 Speaker 1: to placate the supporters of abortion or just that they 49 00:03:00,440 --> 00:03:01,400 Speaker 1: were even handed. 50 00:03:01,680 --> 00:03:05,040 Speaker 4: I mean, I do think they're wrestling with both their 51 00:03:05,120 --> 00:03:08,880 Speaker 4: personal beliefs about, you know, how far the right of 52 00:03:08,919 --> 00:03:11,160 Speaker 4: privacy extends. And we can see that it's a very 53 00:03:11,160 --> 00:03:14,320 Speaker 4: conservative court, you know, that was six to one in 54 00:03:14,440 --> 00:03:18,000 Speaker 4: finding that there was this right to ban abortion, but 55 00:03:18,040 --> 00:03:21,520 Speaker 4: at the same time recognizing that the ultimately, you know, 56 00:03:21,639 --> 00:03:24,840 Speaker 4: the constitutional process of Florida allows for the voters to 57 00:03:25,520 --> 00:03:28,520 Speaker 4: change the constitution. So I think they were trying to 58 00:03:28,560 --> 00:03:32,600 Speaker 4: sort of find a pass through that both expressed their 59 00:03:32,639 --> 00:03:37,040 Speaker 4: personal beliefs about how far abortion rights and privacy rights 60 00:03:37,160 --> 00:03:40,280 Speaker 4: go and also acknowledged, you know that there is a 61 00:03:40,320 --> 00:03:44,520 Speaker 4: process in place for their personal judgments being overridden by 62 00:03:44,520 --> 00:03:45,040 Speaker 4: the voters. 63 00:03:45,280 --> 00:03:49,160 Speaker 1: So the privacy clause in the Florida Constitution states, quote, 64 00:03:49,360 --> 00:03:52,160 Speaker 1: every natural person has the right to be let alone 65 00:03:52,200 --> 00:03:56,000 Speaker 1: and free from governmental intrusion into the person's private life. 66 00:03:56,560 --> 00:04:01,680 Speaker 1: How is that not protective of abortion rights? Right? 67 00:04:01,720 --> 00:04:04,640 Speaker 4: Obviously, we've had a number of state supreme courts that 68 00:04:04,800 --> 00:04:08,440 Speaker 4: have found that part of the right to privacy right, 69 00:04:08,480 --> 00:04:11,600 Speaker 4: which is really something that was not recognized until the 70 00:04:11,680 --> 00:04:14,120 Speaker 4: last sort of one hundred and twenty one hundred and 71 00:04:14,120 --> 00:04:16,280 Speaker 4: forty years, but did the right to privacy includes the 72 00:04:16,360 --> 00:04:18,359 Speaker 4: right to be left alone from the government and to 73 00:04:18,400 --> 00:04:23,440 Speaker 4: have personal autonomy over all kinds of choices, including healthcare choices, 74 00:04:23,520 --> 00:04:26,800 Speaker 4: including the right of a woman to terminate a pregnancy. 75 00:04:27,200 --> 00:04:31,440 Speaker 4: So we definitely have seen many many supreme courts, state 76 00:04:31,440 --> 00:04:34,760 Speaker 4: supreme courts take this issue on and find that implied rights. 77 00:04:34,800 --> 00:04:37,400 Speaker 4: And of course we also have a number of state 78 00:04:37,400 --> 00:04:41,640 Speaker 4: supreme courts that have either explicitly said so California did that, 79 00:04:41,720 --> 00:04:44,760 Speaker 4: Michigan did that, and a handful of restrictive states that 80 00:04:44,800 --> 00:04:48,160 Speaker 4: said our constitution absolutely does not include it. I mean, 81 00:04:48,200 --> 00:04:51,520 Speaker 4: I think this question of the right to privacy has 82 00:04:51,600 --> 00:04:54,240 Speaker 4: been a kind of a question that hasn't been fully 83 00:04:54,320 --> 00:04:57,359 Speaker 4: resolved globally. Right there still are seemed to be tensions 84 00:04:57,360 --> 00:05:00,200 Speaker 4: on both sides about how far how far go than 85 00:05:00,240 --> 00:05:02,880 Speaker 4: about the competing right of the unborn child on one 86 00:05:02,920 --> 00:05:05,640 Speaker 4: side and the rights of a pregnant woman on the 87 00:05:05,680 --> 00:05:06,480 Speaker 4: other side. 88 00:05:06,920 --> 00:05:10,919 Speaker 1: My favorite part of this that is facetious. A majority 89 00:05:10,920 --> 00:05:14,159 Speaker 1: of the justices said the voters didn't understand that the 90 00:05:14,200 --> 00:05:18,520 Speaker 1: privacy clause extended to abortion when they added to the 91 00:05:18,520 --> 00:05:21,000 Speaker 1: state constitution in nineteen eighty. 92 00:05:21,560 --> 00:05:24,680 Speaker 4: Yeah, it's I mean, it's really interesting, right, like privacy. 93 00:05:25,000 --> 00:05:27,800 Speaker 4: I don't know how they come to that decision. Obviously, 94 00:05:27,839 --> 00:05:32,200 Speaker 4: privacy is a much broader set of rights, about the 95 00:05:32,279 --> 00:05:35,400 Speaker 4: right to be you know, not monitored and have your 96 00:05:35,400 --> 00:05:38,279 Speaker 4: life intruded on, about the right to travel, and about 97 00:05:38,320 --> 00:05:39,880 Speaker 4: the right to live in the way that you want. 98 00:05:39,960 --> 00:05:43,479 Speaker 4: So I think it's confusing to understand how they came 99 00:05:43,520 --> 00:05:47,440 Speaker 4: to this, you know, definitive conclusion that abortion wasn't explicitly 100 00:05:47,520 --> 00:05:52,000 Speaker 4: contemplated or somehow was outside of privacy. As I said, 101 00:05:52,120 --> 00:05:55,080 Speaker 4: we already had multiple state supreme courts who have found 102 00:05:55,080 --> 00:05:58,440 Speaker 4: the opposite, And so how they sort of determined what 103 00:05:58,560 --> 00:06:00,920 Speaker 4: was in the mind of Florida voters is a mystery 104 00:06:00,960 --> 00:06:01,120 Speaker 4: to me. 105 00:06:01,360 --> 00:06:04,920 Speaker 1: And also in twenty twelve, Florida voters rejected an amendment 106 00:06:05,400 --> 00:06:10,240 Speaker 1: that would have exempted abortion from constitutional privacy protection. So 107 00:06:10,520 --> 00:06:13,840 Speaker 1: there were all kinds of indications they overturned decades of 108 00:06:13,920 --> 00:06:18,320 Speaker 1: legal precedent with this decision, didn't they? Because back in 109 00:06:18,400 --> 00:06:21,919 Speaker 1: nineteen eighty nine the Florida Supreme Court ruled that it 110 00:06:22,000 --> 00:06:23,040 Speaker 1: did apply to abortion. 111 00:06:23,960 --> 00:06:27,080 Speaker 4: Yeah, so they absolutely reversed that. And this was obviously 112 00:06:27,160 --> 00:06:30,159 Speaker 4: a major shift from the Florida Supreme Court's own previous 113 00:06:30,240 --> 00:06:33,640 Speaker 4: rulings on the state constitutional privacy right. It has not 114 00:06:33,880 --> 00:06:37,480 Speaker 4: escaped noticed that. I believe all but one of the 115 00:06:37,600 --> 00:06:40,880 Speaker 4: justices on the Supreme Court currently are appointees of the 116 00:06:40,880 --> 00:06:45,120 Speaker 4: current governor, who's taken a much more conservative position on this. 117 00:06:45,360 --> 00:06:49,200 Speaker 4: But yeah, clearly this is a major shift from the 118 00:06:49,240 --> 00:06:52,080 Speaker 4: way that the Florida Constitution was understood by its own 119 00:06:52,080 --> 00:06:53,560 Speaker 4: Supreme Court for a long time. 120 00:06:53,920 --> 00:06:57,799 Speaker 1: Does the argument they use that the past abortion cases 121 00:06:57,880 --> 00:07:01,880 Speaker 1: had been wrongly decided based on this overbroad interpretation of 122 00:07:01,920 --> 00:07:05,520 Speaker 1: the privacy clause in a state constitution, Is that similar 123 00:07:05,600 --> 00:07:08,880 Speaker 1: to the argument that the Supreme Court made in overturning 124 00:07:09,000 --> 00:07:10,200 Speaker 1: Row well, it's. 125 00:07:10,120 --> 00:07:12,760 Speaker 4: Look, in the case of the US Supreme Court decision 126 00:07:13,080 --> 00:07:17,240 Speaker 4: and the Federal Constitution, we do not have a explicit 127 00:07:17,320 --> 00:07:21,040 Speaker 4: right to privacy right. So in the US Constitution, over 128 00:07:21,120 --> 00:07:25,160 Speaker 4: a series of cases involving things like contraception and the 129 00:07:25,240 --> 00:07:28,520 Speaker 4: right of an interracial couple to marry, and the decision 130 00:07:28,560 --> 00:07:31,440 Speaker 4: over gay marriage, we had the Supreme Court of the 131 00:07:31,520 --> 00:07:35,040 Speaker 4: United States wrestling with finding a right to privacy. The 132 00:07:35,080 --> 00:07:38,160 Speaker 4: famous language was in the penumbra, meaning like sort of 133 00:07:38,440 --> 00:07:42,080 Speaker 4: hidden away or implied in the Fourth Amendment right of 134 00:07:42,120 --> 00:07:44,920 Speaker 4: the Bill of Rights the Federal Constitution to be free 135 00:07:44,960 --> 00:07:48,960 Speaker 4: from search and seizure and onreasonable government intrusion. So here 136 00:07:48,960 --> 00:07:50,600 Speaker 4: in the case of Florida, we have a much more 137 00:07:50,600 --> 00:07:54,680 Speaker 4: explicit reference to privacy right. Most of the state constitutions 138 00:07:54,760 --> 00:07:58,160 Speaker 4: were written at a much later period where privacy was 139 00:07:58,200 --> 00:08:01,000 Speaker 4: already an explicit concept. So in some ways there was 140 00:08:01,080 --> 00:08:05,200 Speaker 4: more room for conservative justices at the federal level to 141 00:08:05,360 --> 00:08:09,760 Speaker 4: question whether previous Supreme Court justices had gone too far 142 00:08:09,880 --> 00:08:13,160 Speaker 4: and been too aggressive in reading in a privacy right 143 00:08:13,520 --> 00:08:16,400 Speaker 4: and implying it without even the word privacy there. But 144 00:08:16,520 --> 00:08:20,560 Speaker 4: this is a more aggressive decision because privacy is very 145 00:08:20,640 --> 00:08:24,760 Speaker 4: clearly part of this state constitution, and it's hard to 146 00:08:24,800 --> 00:08:28,160 Speaker 4: see how a right to determine the management of a pregnancy, 147 00:08:28,200 --> 00:08:32,720 Speaker 4: including to terminate it, is not an essential part of privacy. 148 00:08:32,960 --> 00:08:35,800 Speaker 4: But obviously these justices appear to have been moved by 149 00:08:35,840 --> 00:08:40,080 Speaker 4: the sort of competing interest of the embryo of the fetus, 150 00:08:40,080 --> 00:08:42,560 Speaker 4: you know, of the privacy rights other than the rights 151 00:08:42,559 --> 00:08:45,319 Speaker 4: of the mother. So I think that's where this decision 152 00:08:45,360 --> 00:08:48,520 Speaker 4: comes down. But it's clearly more aggressive and more conservative 153 00:08:48,920 --> 00:08:50,880 Speaker 4: than the US Supreme Court's decision in my view. 154 00:08:51,080 --> 00:08:54,040 Speaker 1: And Harry, why is the sixth week ban able to 155 00:08:54,080 --> 00:08:56,880 Speaker 1: go into effect now that they've ruled on the fifteen 156 00:08:56,920 --> 00:08:57,480 Speaker 1: week ban? 157 00:08:58,280 --> 00:09:01,040 Speaker 4: I mean, this was a decision of the Florida legislature, right, 158 00:09:01,120 --> 00:09:04,960 Speaker 4: So when Governor Destantis proposed and the Florida Legislature enacted 159 00:09:05,200 --> 00:09:07,920 Speaker 4: the fifteen week ban, it appears that they chose that 160 00:09:08,160 --> 00:09:10,679 Speaker 4: time period because that was the law that was from 161 00:09:10,679 --> 00:09:13,000 Speaker 4: Mississippi that was before the Supreme Court. They tried to 162 00:09:13,080 --> 00:09:16,280 Speaker 4: match that law so that if that law stood, they 163 00:09:16,320 --> 00:09:18,880 Speaker 4: could pass it. And that law went into effect in 164 00:09:18,960 --> 00:09:21,480 Speaker 4: July of twenty twenty two, a few weeks after the 165 00:09:21,600 --> 00:09:25,280 Speaker 4: Supreme Court decision. But it became clear that the trend 166 00:09:25,440 --> 00:09:30,720 Speaker 4: among pro life advocates was for a much more restrictive time. Obviously, 167 00:09:30,920 --> 00:09:33,800 Speaker 4: those weeks between six and fifteen are massive difference. So 168 00:09:33,840 --> 00:09:37,240 Speaker 4: they came back. The Florida legislature came back and passed 169 00:09:37,240 --> 00:09:39,720 Speaker 4: a much more restrictive law. And the only reason it 170 00:09:39,720 --> 00:09:43,600 Speaker 4: hadn't gone into effectings was because of this older Florida 171 00:09:43,800 --> 00:09:46,760 Speaker 4: Supreme Court rulings that there was a right to privacy 172 00:09:46,800 --> 00:09:50,160 Speaker 4: here that prevented it. So it required the Florida Supreme 173 00:09:50,200 --> 00:09:53,320 Speaker 4: Court to come back revisit the issues you know in 174 00:09:53,360 --> 00:09:56,360 Speaker 4: this week, I mean make a different decision really to 175 00:09:56,520 --> 00:09:59,719 Speaker 4: revise their understanding of privacy so that the six week 176 00:09:59,760 --> 00:10:02,479 Speaker 4: ban could take effect and few. 177 00:10:02,480 --> 00:10:05,800 Speaker 1: Women realize that they're pregnant at six weeks. 178 00:10:06,400 --> 00:10:09,120 Speaker 4: Right, The difference between six weeks and fifteen weeks in 179 00:10:09,320 --> 00:10:12,400 Speaker 4: a woman realizing that she's pregnant, let alone making a 180 00:10:12,440 --> 00:10:16,360 Speaker 4: decision about whether to carry the pregnancy or whether to 181 00:10:16,480 --> 00:10:21,760 Speaker 4: terminate it is obviously those are crucial, crucial weeks. As 182 00:10:21,760 --> 00:10:24,400 Speaker 4: you say, you know, the likelihood is that many women 183 00:10:24,440 --> 00:10:28,040 Speaker 4: will not even realize that they're pregnant, let alone comes 184 00:10:28,040 --> 00:10:31,040 Speaker 4: to that kind of a decision in that time period. 185 00:10:31,120 --> 00:10:33,880 Speaker 4: So this is something that is it's practically a ban 186 00:10:34,000 --> 00:10:36,880 Speaker 4: on abortion when you make the time period that short. 187 00:10:37,440 --> 00:10:41,360 Speaker 1: And this decision has an effect outside Florida because it 188 00:10:41,559 --> 00:10:46,240 Speaker 1: was a place where women seeking abortions in other states 189 00:10:46,280 --> 00:10:50,440 Speaker 1: with more restrictive abortion laws came to get an abortion. 190 00:10:51,120 --> 00:10:51,320 Speaker 5: Yeah. 191 00:10:51,360 --> 00:10:55,000 Speaker 4: Absolutely, the whole issue of having Florida as a at 192 00:10:55,080 --> 00:11:00,920 Speaker 4: least still somewhat permissive jurisdiction for women who moved, you know, 193 00:11:01,040 --> 00:11:04,520 Speaker 4: with alacrity, who could move fairly promptly to come and 194 00:11:04,679 --> 00:11:07,120 Speaker 4: travel to the state was a good option for all 195 00:11:07,160 --> 00:11:10,680 Speaker 4: of the adjacents Southeastern states. I do think that this 196 00:11:10,800 --> 00:11:14,920 Speaker 4: decision is yet another driver for that those women that 197 00:11:15,000 --> 00:11:20,199 Speaker 4: will lead towards more use of medication and telemedicine. And 198 00:11:20,720 --> 00:11:22,920 Speaker 4: you know, I think this pressure will take away the 199 00:11:23,000 --> 00:11:26,160 Speaker 4: travel option to Florida at least until this the voters 200 00:11:26,200 --> 00:11:29,120 Speaker 4: of Florida have a chance to decide about whether to 201 00:11:29,160 --> 00:11:31,800 Speaker 4: sort of re it in state a longer option. And 202 00:11:31,840 --> 00:11:34,000 Speaker 4: I think it will move more people, more women to 203 00:11:34,160 --> 00:11:38,720 Speaker 4: utilize telemedicine and utilize medication which can be shipped into 204 00:11:38,720 --> 00:11:41,080 Speaker 4: the state, you know, whether the states approve of it 205 00:11:41,160 --> 00:11:41,360 Speaker 4: or not. 206 00:11:41,760 --> 00:11:44,000 Speaker 1: Coming up next on the Bloomberg Lawn Show. I'll continue 207 00:11:44,000 --> 00:11:48,200 Speaker 1: this conversation with healthcare attorney Harry Nelson, and we'll talk 208 00:11:48,240 --> 00:11:52,080 Speaker 1: about that ballot measure on abortion, which Florida voters will 209 00:11:52,080 --> 00:11:55,080 Speaker 1: decide on in November. I'm June Grasso. When you're listening 210 00:11:55,120 --> 00:12:01,120 Speaker 1: to Bloomberg. Florida Supreme Court issued to rulings on abortion 211 00:12:01,240 --> 00:12:04,520 Speaker 1: on Monday. One will allow the states six week abortion 212 00:12:04,679 --> 00:12:07,480 Speaker 1: band to go into effect, while the other will let 213 00:12:07,600 --> 00:12:11,400 Speaker 1: voters decide on a proposed ballot measure in November that 214 00:12:11,520 --> 00:12:15,640 Speaker 1: will protect access to abortion up until viability, which is 215 00:12:15,720 --> 00:12:19,480 Speaker 1: considered to be around twenty four weeks into pregnancy. Abortion 216 00:12:19,600 --> 00:12:23,840 Speaker 1: on the ballot could have major political implications. In every 217 00:12:23,880 --> 00:12:27,080 Speaker 1: state where abortion rights have appeared on the ballot, the 218 00:12:27,200 --> 00:12:31,320 Speaker 1: side of abortion rights has won, including in conservative states 219 00:12:31,360 --> 00:12:35,199 Speaker 1: like Kentucky, Ohio, and Kansas. I've been talking to healthcare 220 00:12:35,240 --> 00:12:40,000 Speaker 1: attorney Harry Nelson of Nelson Hardiman Harry. The ballot measure says, 221 00:12:40,120 --> 00:12:44,600 Speaker 1: in part that no law shall prohibit penalized delay or 222 00:12:44,679 --> 00:12:49,840 Speaker 1: restrict abortion before viability or when necessary to protect the 223 00:12:49,920 --> 00:12:54,560 Speaker 1: patient's health, as determined by the patient's healthcare provider. It's 224 00:12:54,559 --> 00:12:55,640 Speaker 1: pretty broad, isn't it. 225 00:12:56,320 --> 00:13:00,000 Speaker 4: Yeah, the ballot measure basically has the concept of fetale 226 00:13:00,120 --> 00:13:03,800 Speaker 4: ability built in, which I believe is understood to extend 227 00:13:03,840 --> 00:13:07,920 Speaker 4: to over twenty weeks, so essentially allowing women in the 228 00:13:07,920 --> 00:13:11,439 Speaker 4: first two trimesters more or less to have the option 229 00:13:11,480 --> 00:13:15,480 Speaker 4: of abortion. So it is a fairly broad and liberal ruling. 230 00:13:15,480 --> 00:13:18,839 Speaker 4: It would essentially give definitely a period of at least 231 00:13:18,880 --> 00:13:22,480 Speaker 4: eight plus the maybe nine weeks longer than the fifteen 232 00:13:22,520 --> 00:13:26,480 Speaker 4: week option, which is something that the pro choice advocates 233 00:13:26,480 --> 00:13:30,280 Speaker 4: have been wanting just to give women more time to 234 00:13:30,320 --> 00:13:35,400 Speaker 4: make choices. So yeah, it's a fairly liberal, permissive constitutional 235 00:13:35,440 --> 00:13:39,200 Speaker 4: amendments that will be before Florida voters on the ever ballot, 236 00:13:39,360 --> 00:13:41,680 Speaker 4: and it will be interesting to see how that plays 237 00:13:41,679 --> 00:13:45,720 Speaker 4: out alongside the presidential election and all the other really 238 00:13:46,000 --> 00:13:48,600 Speaker 4: very important decisions that Florida voters have to make this year. 239 00:13:48,840 --> 00:13:53,000 Speaker 1: Well, Republican lawmakers are arguing that it will allow abortions 240 00:13:53,120 --> 00:13:54,199 Speaker 1: late in pregnancy. 241 00:13:54,480 --> 00:13:57,280 Speaker 4: It's absolutely true. I mean, look, when going back to 242 00:13:57,320 --> 00:14:00,120 Speaker 4: the medication abortion option for a minute. You know, the 243 00:14:00,120 --> 00:14:03,480 Speaker 4: the approval for mes apristone, which we were talking about 244 00:14:03,559 --> 00:14:05,760 Speaker 4: only a couple of weeks ago when Spreme Court heard 245 00:14:05,880 --> 00:14:08,560 Speaker 4: argument only is allowed to be used up to eleven weeks. 246 00:14:08,559 --> 00:14:11,320 Speaker 4: So this is definitely certainly a much broader issue, and 247 00:14:11,960 --> 00:14:14,040 Speaker 4: you know, it'll be interesting to see how voters react. 248 00:14:14,080 --> 00:14:16,720 Speaker 4: I think that it does seem that in the vast 249 00:14:16,720 --> 00:14:20,080 Speaker 4: majority of places, a majority of voters support more permissive 250 00:14:20,120 --> 00:14:23,320 Speaker 4: abortion rights. But the question of whether the language here 251 00:14:23,760 --> 00:14:26,520 Speaker 4: is broader than will attract the majority will be interesting 252 00:14:26,560 --> 00:14:27,120 Speaker 4: to see. 253 00:14:27,280 --> 00:14:31,560 Speaker 1: Well. The three female dissentis appointees on the Court dissented 254 00:14:32,120 --> 00:14:35,280 Speaker 1: on the ballot measure due to concerns that the impact 255 00:14:35,360 --> 00:14:38,200 Speaker 1: of the amendment was far greater than what voters will 256 00:14:38,200 --> 00:14:41,280 Speaker 1: be led to believe at the ballot box. They really 257 00:14:41,360 --> 00:14:45,080 Speaker 1: don't give much credence to voters. They act like voters 258 00:14:45,120 --> 00:14:47,400 Speaker 1: don't understand what's right in front of them. 259 00:14:47,720 --> 00:14:50,640 Speaker 4: Yeah, it's an interesting point. Look, I think we've seen 260 00:14:50,920 --> 00:14:54,520 Speaker 4: that voters in states like Kansas have really given a 261 00:14:54,600 --> 00:14:59,800 Speaker 4: rebuke to extremely conservative positions taken by their legislators, by 262 00:15:00,000 --> 00:15:03,600 Speaker 4: same court jurists in those states. Personally, I have more 263 00:15:03,640 --> 00:15:06,600 Speaker 4: faith in the in the voters to make themselves heard, 264 00:15:06,720 --> 00:15:08,800 Speaker 4: and we've seen that when these issues go to the 265 00:15:08,840 --> 00:15:12,400 Speaker 4: ballot box, there's far more support and it's harder for 266 00:15:13,200 --> 00:15:17,760 Speaker 4: either side frankly to engage in legislative gamesmanship or the 267 00:15:17,800 --> 00:15:21,600 Speaker 4: sort of take advantage of headcounting on particular courts to 268 00:15:21,680 --> 00:15:24,880 Speaker 4: get their way. And so from my perspective, I think 269 00:15:24,920 --> 00:15:26,600 Speaker 4: it's a good thing that we're going to the voters, 270 00:15:26,600 --> 00:15:28,000 Speaker 4: but obviously not everybody. 271 00:15:27,640 --> 00:15:29,840 Speaker 1: Feels that way, and I have to get sixty percent 272 00:15:30,040 --> 00:15:33,160 Speaker 1: for it to pass. So now, abortion rights groups in 273 00:15:33,440 --> 00:15:36,280 Speaker 1: several states are trying to put measures on the ballot, 274 00:15:36,560 --> 00:15:40,800 Speaker 1: and anti abortion groups have deployed a wide range of 275 00:15:40,920 --> 00:15:46,600 Speaker 1: tactics to keep proposals off the ballot, including challenging the language. 276 00:15:47,240 --> 00:15:51,440 Speaker 4: Yeah, it's very interesting the way that popular referendu you 277 00:15:51,480 --> 00:15:54,880 Speaker 4: know that voter initiatives have become a threat to the 278 00:15:54,920 --> 00:15:59,000 Speaker 4: pro life movement and to advocacy for more restrictive abortion laws. 279 00:15:59,440 --> 00:16:01,880 Speaker 4: And it just know the extent to which the idea 280 00:16:01,920 --> 00:16:06,440 Speaker 4: of restricting women's choices and women's rights to reproductive healthcare 281 00:16:06,480 --> 00:16:10,720 Speaker 4: access is just fundamentally unpopular and not something that the 282 00:16:10,760 --> 00:16:14,280 Speaker 4: majority of Americans want, and yet something that has succeeded 283 00:16:14,720 --> 00:16:17,720 Speaker 4: by virtue of you know, this whole legal effort in 284 00:16:17,800 --> 00:16:20,960 Speaker 4: the courts and legislatures. And so its ironic in a 285 00:16:21,000 --> 00:16:24,240 Speaker 4: way that the most democratic process we have, which is 286 00:16:24,280 --> 00:16:27,280 Speaker 4: to let voters decide at the ballot box, is now 287 00:16:27,520 --> 00:16:30,600 Speaker 4: the threat to the same people, and it definitely should 288 00:16:30,760 --> 00:16:33,560 Speaker 4: give pause to anybody who really thinks that the issue 289 00:16:33,560 --> 00:16:38,600 Speaker 4: here has political support. You know that in Republican politics nationally, 290 00:16:38,680 --> 00:16:42,680 Speaker 4: we've now seen several cycles in which excessive restriction of 291 00:16:42,720 --> 00:16:47,640 Speaker 4: abortion has been politically unpopular and costly in numerous elections, 292 00:16:47,680 --> 00:16:50,760 Speaker 4: and so it's surprising that we continue to see this 293 00:16:50,920 --> 00:16:55,600 Speaker 4: resistance to acknowledging and honoring the will of the voters 294 00:16:55,920 --> 00:17:00,080 Speaker 4: to have some level of abortion protection and access the 295 00:17:00,160 --> 00:17:03,600 Speaker 4: reproductive healthcare choices available. And it seems like it's a 296 00:17:03,600 --> 00:17:06,640 Speaker 4: decision to try to restrict this beyond what voters want 297 00:17:06,920 --> 00:17:09,760 Speaker 4: is having a political cost that was continuing to see 298 00:17:09,800 --> 00:17:10,560 Speaker 4: play out for. 299 00:17:10,920 --> 00:17:14,200 Speaker 1: Helping him speaking about the costs of going too far 300 00:17:14,920 --> 00:17:18,080 Speaker 1: in the case that got national attention where a woman 301 00:17:18,160 --> 00:17:22,320 Speaker 1: in Texas was charged with murder, arrested, and spent three 302 00:17:22,400 --> 00:17:26,560 Speaker 1: days in jail in twenty twenty two after health officials 303 00:17:26,680 --> 00:17:30,480 Speaker 1: reported her to authorities for attempting to terminate her pregnancy. 304 00:17:30,680 --> 00:17:34,320 Speaker 1: She's now suing the Star County District Attorney's office for 305 00:17:34,400 --> 00:17:37,520 Speaker 1: more than a million dollars, claiming the fallout from the 306 00:17:37,560 --> 00:17:39,520 Speaker 1: case has changed her life forever. 307 00:17:40,320 --> 00:17:44,080 Speaker 4: Lazelle Gonzalez, she's doing the prosecutors now, saying that they 308 00:17:44,560 --> 00:17:48,879 Speaker 4: knowingly misrepresented the fact in order to arrest her and 309 00:17:48,960 --> 00:17:53,240 Speaker 4: charge her, and that they caused significant harm to her. 310 00:17:54,000 --> 00:17:59,040 Speaker 4: That's quite a fascinating case about sort of how local 311 00:17:59,080 --> 00:18:02,480 Speaker 4: prosecutors may have gone much too far in the way 312 00:18:02,480 --> 00:18:06,040 Speaker 4: that they really made the spectacle of this poor woman 313 00:18:06,359 --> 00:18:09,760 Speaker 4: having her spend time in jail, publishing her mugshot in 314 00:18:09,840 --> 00:18:13,760 Speaker 4: the paper, I mean, putting her private medical information into 315 00:18:13,760 --> 00:18:17,239 Speaker 4: the newspapers. And so, you know, just another chapter in 316 00:18:17,280 --> 00:18:20,320 Speaker 4: this is our case where she is now going after 317 00:18:20,440 --> 00:18:23,960 Speaker 4: them and essentially alleging that they violated her rights in 318 00:18:24,000 --> 00:18:26,640 Speaker 4: the way that they went after her for criminal liability 319 00:18:26,800 --> 00:18:31,840 Speaker 4: for her decision to take medication abortion. So it's just 320 00:18:32,200 --> 00:18:35,160 Speaker 4: yet another example of this like crazy back and forth, 321 00:18:35,320 --> 00:18:39,439 Speaker 4: chaotic situation wherein where literally, you know, a private healthcare 322 00:18:39,600 --> 00:18:43,800 Speaker 4: choice that this woman made led to such an extreme reaction, 323 00:18:44,200 --> 00:18:44,480 Speaker 4: and the. 324 00:18:44,440 --> 00:18:48,760 Speaker 1: District attorney was investigated by the state bar of Texas 325 00:18:48,800 --> 00:18:51,199 Speaker 1: over his handling of the case, and they reached a 326 00:18:51,240 --> 00:18:55,439 Speaker 1: settlement so that his office could continue prosecuting cases. The 327 00:18:55,480 --> 00:18:59,240 Speaker 1: settlement conditions included a twelve hundred and fifty dollars fine 328 00:18:59,600 --> 00:19:02,440 Speaker 1: and a year year long probation of his legal license. 329 00:19:03,000 --> 00:19:05,960 Speaker 1: He told the Associated Press, I made a mistake in 330 00:19:06,000 --> 00:19:10,040 Speaker 1: that case. We'll see if that translates into money damages 331 00:19:10,560 --> 00:19:13,720 Speaker 1: for Gonzalez. Thanks so much, Harry. As always, that's Harry 332 00:19:13,760 --> 00:19:17,240 Speaker 1: Nelson of Nelson Hardiman. Let's turn out to some surprising 333 00:19:17,440 --> 00:19:21,320 Speaker 1: admissions today in Fifth Circuit oral arguments over the Texas 334 00:19:21,400 --> 00:19:26,640 Speaker 1: law known as SB four that authorizes state officials to arrest, detain, 335 00:19:26,920 --> 00:19:31,040 Speaker 1: and deport non citizens who enter the country illegally. Joining 336 00:19:31,040 --> 00:19:34,719 Speaker 1: me is Bloomberg, Texas legal reporter Madelein Meckelberg. Was the 337 00:19:34,720 --> 00:19:37,960 Speaker 1: State of Texas on the defensive in these arguments. 338 00:19:38,320 --> 00:19:41,840 Speaker 5: They definitely were. They knew coming into the arguments today 339 00:19:41,840 --> 00:19:45,440 Speaker 5: that they were facing an uphill battle. This same three 340 00:19:45,520 --> 00:19:48,720 Speaker 5: judge panel of the Fifth Circuit just last week had 341 00:19:48,920 --> 00:19:52,440 Speaker 5: ruled to block this law while they consider the full appeal. 342 00:19:52,880 --> 00:19:55,679 Speaker 5: So I think what we saw from Texas today was 343 00:19:55,840 --> 00:19:58,879 Speaker 5: a more nuanced position on what they'd be willing to 344 00:19:58,960 --> 00:20:02,640 Speaker 5: accept from the court. At one point, remarkably, we heard 345 00:20:02,680 --> 00:20:06,879 Speaker 5: the Texas Solicitor General suggests that perhaps Texas had gone 346 00:20:07,080 --> 00:20:11,320 Speaker 5: too far in trying to pass this statute right, and 347 00:20:11,359 --> 00:20:14,000 Speaker 5: that they'd be willing to if the court decided that 348 00:20:14,040 --> 00:20:16,240 Speaker 5: they wanted to block the law from going into effects, 349 00:20:16,320 --> 00:20:19,240 Speaker 5: they asked that they still let some provisions of the 350 00:20:19,280 --> 00:20:21,919 Speaker 5: measure go into effect, specifically one that would let the 351 00:20:22,000 --> 00:20:25,000 Speaker 5: state order the removal of people who they've identified as 352 00:20:25,040 --> 00:20:26,159 Speaker 5: being here illegally. 353 00:20:26,600 --> 00:20:28,920 Speaker 1: What part of the law did they think went too far? 354 00:20:29,480 --> 00:20:31,960 Speaker 5: Well. The way that he framed that idea was that 355 00:20:32,320 --> 00:20:36,120 Speaker 5: Texas crafted this statute as a whole with the intention 356 00:20:36,240 --> 00:20:38,679 Speaker 5: of going right up to the line of what Supreme 357 00:20:38,720 --> 00:20:42,200 Speaker 5: Court precedent has allowed up to this point, which, as 358 00:20:42,280 --> 00:20:45,520 Speaker 5: I'm sure you and your listeners know, is basically one 359 00:20:45,560 --> 00:20:48,080 Speaker 5: hundred and fifty years of the federal government being the 360 00:20:48,080 --> 00:20:52,600 Speaker 5: one responsible for immigration enforcement and the border. And so 361 00:20:52,640 --> 00:20:55,720 Speaker 5: Texas was trying to take as much authority as possible 362 00:20:55,800 --> 00:20:59,200 Speaker 5: with this statute while not running afoul of that precedent, 363 00:20:59,520 --> 00:21:01,439 Speaker 5: because they knew that this law would get challenged in 364 00:21:01,480 --> 00:21:03,520 Speaker 5: the courts and that they'd end up here right now. 365 00:21:04,040 --> 00:21:07,240 Speaker 5: But it seemed that Texas was willing to allow the 366 00:21:07,280 --> 00:21:10,240 Speaker 5: court to temporarily put on hold. So that's important to 367 00:21:10,280 --> 00:21:12,960 Speaker 5: note too, Like the conversation that's happening right now is 368 00:21:13,040 --> 00:21:15,800 Speaker 5: all over a preliminary injunction. This is not the last 369 00:21:15,840 --> 00:21:19,119 Speaker 5: word on the matter. But they seemed okay for now 370 00:21:19,240 --> 00:21:22,159 Speaker 5: for most of the statute to be blocked by the 371 00:21:22,160 --> 00:21:24,920 Speaker 5: court if they could keep on the books that provision 372 00:21:24,960 --> 00:21:26,439 Speaker 5: that would let them remove people. 373 00:21:26,880 --> 00:21:30,159 Speaker 1: How did the judges on the Fifth Circuit on the 374 00:21:30,200 --> 00:21:31,800 Speaker 1: panel react to that? 375 00:21:32,520 --> 00:21:34,600 Speaker 5: It was a little bit like deja vous since it 376 00:21:34,640 --> 00:21:36,840 Speaker 5: was the same three judges that had heard this case 377 00:21:36,880 --> 00:21:40,359 Speaker 5: a few weeks ago. We had Judge Andrew Oldham, who 378 00:21:40,440 --> 00:21:43,200 Speaker 5: was the one that was clearly in support of this 379 00:21:43,359 --> 00:21:45,480 Speaker 5: law and thought it should go into effects. He had 380 00:21:45,520 --> 00:21:48,720 Speaker 5: a lot of questions and concerns for the DOJ attorney 381 00:21:48,800 --> 00:21:51,359 Speaker 5: that was there, asking about whether the court had the 382 00:21:51,400 --> 00:21:54,640 Speaker 5: authority to block this law in totality before it's been 383 00:21:54,680 --> 00:21:57,479 Speaker 5: allowed to go into effect. But the other judges were 384 00:21:57,520 --> 00:22:00,879 Speaker 5: a little more quiet. Judge Erma Ramirez hardly spoke at 385 00:22:00,920 --> 00:22:03,640 Speaker 5: all during the hearing, but we know that she previously 386 00:22:04,160 --> 00:22:06,639 Speaker 5: wanted to block the law. And I think the swing 387 00:22:06,720 --> 00:22:09,639 Speaker 5: vote here that everyone's paying attention to is Chief Judge 388 00:22:09,640 --> 00:22:13,520 Speaker 5: Priscilla Richmond, she has been on the fence in the past. 389 00:22:13,720 --> 00:22:17,520 Speaker 5: She did rule in favor of blocking the law previously. 390 00:22:17,560 --> 00:22:20,720 Speaker 5: In this case, she raised some of the same concerns 391 00:22:20,760 --> 00:22:23,200 Speaker 5: today that she did in that opinion, which is basically 392 00:22:23,240 --> 00:22:26,320 Speaker 5: this idea that President up to this point has been 393 00:22:26,480 --> 00:22:29,360 Speaker 5: that immigration is the responsibility of the federal government. 394 00:22:30,680 --> 00:22:35,520 Speaker 1: And just explain what happened last week when this same 395 00:22:35,640 --> 00:22:38,000 Speaker 1: three judge panel made a decision. 396 00:22:38,800 --> 00:22:42,479 Speaker 5: So this case has been bouncing back and forth between 397 00:22:42,520 --> 00:22:45,520 Speaker 5: the courts, and in doing so, the courts of let 398 00:22:45,520 --> 00:22:47,359 Speaker 5: the law go into effect, block the law, let it 399 00:22:47,400 --> 00:22:50,720 Speaker 5: go into effect. Last week, this same three judge panel 400 00:22:50,760 --> 00:22:53,760 Speaker 5: of the Fifth Circuit, they basically said that they were 401 00:22:53,800 --> 00:22:56,960 Speaker 5: going to allow a district court order blocking the law 402 00:22:57,080 --> 00:23:01,480 Speaker 5: to remain in effect while they paid the full appeal 403 00:23:01,760 --> 00:23:04,840 Speaker 5: of that order. So what we heard today were arguments 404 00:23:04,880 --> 00:23:07,760 Speaker 5: on the merits of the case, the appeal of the 405 00:23:07,800 --> 00:23:11,800 Speaker 5: district judge ruling. Previously, all they were doing was deciding 406 00:23:11,840 --> 00:23:14,200 Speaker 5: whether or not the law should go into effect while 407 00:23:14,200 --> 00:23:15,040 Speaker 5: they weigh this case. 408 00:23:15,200 --> 00:23:17,359 Speaker 1: And this case already went to the Supreme Court. Tell 409 00:23:17,440 --> 00:23:18,639 Speaker 1: us what happened there. 410 00:23:18,680 --> 00:23:20,280 Speaker 5: When the case got to them. They said it was 411 00:23:20,320 --> 00:23:23,800 Speaker 5: too early for them to get involved. Because the Fifth 412 00:23:23,840 --> 00:23:28,680 Speaker 5: Circuit had not issued a stay pending appeal, They issued 413 00:23:28,880 --> 00:23:32,520 Speaker 5: an administrative stay to hang the decision while they decided 414 00:23:32,560 --> 00:23:36,200 Speaker 5: on a stay pending appeal while they decided the appealed. 415 00:23:36,480 --> 00:23:40,760 Speaker 1: Congratulations, I'm keeping all that straight. I see that the 416 00:23:40,840 --> 00:23:44,639 Speaker 1: Chief Judge, who most people do say is the swing 417 00:23:44,760 --> 00:23:48,840 Speaker 1: vote here, towards the end of the argument, emphasized that 418 00:23:49,040 --> 00:23:53,000 Speaker 1: states aren't permitted to remove non citizens, and the Supreme 419 00:23:53,040 --> 00:23:56,879 Speaker 1: Court decided that striking down an immigration law in Arizona 420 00:23:57,000 --> 00:24:01,280 Speaker 1: in twenty twelve. Quote it's on the books. So did 421 00:24:01,320 --> 00:24:04,480 Speaker 1: she appear to be leaning against this law? 422 00:24:04,920 --> 00:24:08,359 Speaker 5: I would say so, and that language is coming basically 423 00:24:08,520 --> 00:24:11,320 Speaker 5: directly from the order they issued last week on this 424 00:24:11,760 --> 00:24:14,840 Speaker 5: and the Arizona decision is key here, and it's what 425 00:24:15,040 --> 00:24:18,479 Speaker 5: the US government has been turning to frequently in arguing 426 00:24:18,520 --> 00:24:21,760 Speaker 5: against letting this law go into effect. But I think 427 00:24:21,800 --> 00:24:24,879 Speaker 5: that per point also raises a bigger question here that 428 00:24:24,920 --> 00:24:27,679 Speaker 5: I think a lot of people have, which is, how 429 00:24:27,800 --> 00:24:30,439 Speaker 5: is Texas actually going to enforce this law? This is 430 00:24:30,440 --> 00:24:33,880 Speaker 5: something they talked about today, and that removal proceedings specifically 431 00:24:34,240 --> 00:24:36,879 Speaker 5: because people who come to the country have certain rights 432 00:24:36,920 --> 00:24:40,520 Speaker 5: of asylum. There's processes in place from the federal government, 433 00:24:40,680 --> 00:24:44,000 Speaker 5: and it's not clear at this point how this Texas 434 00:24:44,080 --> 00:24:48,800 Speaker 5: law might impact federal immigration enforcement activities that are ongoing, 435 00:24:48,880 --> 00:24:51,880 Speaker 5: and that's something that I think Judge Richmond appeared concerned 436 00:24:51,880 --> 00:24:52,680 Speaker 5: about today too. 437 00:24:53,119 --> 00:24:54,960 Speaker 1: It appears that the writing is on the wall, but 438 00:24:55,160 --> 00:24:59,480 Speaker 1: we'll see. Thanks Madeline. That's Madeline Meckelberg, Bloomberg, Texas Legal 439 00:24:59,520 --> 00:25:03,040 Speaker 1: reporter coming up next. Why Google is deleting billions of 440 00:25:03,119 --> 00:25:08,440 Speaker 1: data records. This is Bloomberg. Google has agreed to delete 441 00:25:08,520 --> 00:25:12,760 Speaker 1: billions of records containing personal information collected from more than 442 00:25:12,880 --> 00:25:15,800 Speaker 1: one hundred thirty six million people in the US who 443 00:25:15,920 --> 00:25:19,720 Speaker 1: surfed the Internet through its Chrome web browser. It's part 444 00:25:19,760 --> 00:25:23,000 Speaker 1: of a settlement in a class action lawsuit accusing the 445 00:25:23,040 --> 00:25:27,480 Speaker 1: search giant of illegal surveillance. The lawsuit accused Google of 446 00:25:27,600 --> 00:25:31,920 Speaker 1: tracking Chrome user's Internet activity even when they had switched 447 00:25:31,960 --> 00:25:35,840 Speaker 1: the browser to the incognito setting that's supposed to shield 448 00:25:35,880 --> 00:25:39,040 Speaker 1: them from being shadowed by Google. The details of the 449 00:25:39,080 --> 00:25:42,280 Speaker 1: deal emerged in a court filing on Monday, more than 450 00:25:42,359 --> 00:25:45,600 Speaker 1: three months after Google and the attorney's handling the class 451 00:25:45,640 --> 00:25:49,359 Speaker 1: action case disclosed they had resolved the June twenty twenty 452 00:25:49,440 --> 00:25:54,959 Speaker 1: lawsuit targeting Chrome's privacy controls. Consumers represented in the class 453 00:25:54,960 --> 00:25:58,520 Speaker 1: action lawsuit will not receive any damages or any other 454 00:25:58,600 --> 00:26:02,200 Speaker 1: payments in the settlement. Joining me is data privacy expert 455 00:26:02,280 --> 00:26:06,200 Speaker 1: Austin Chambers, a partner at Dorsey and Whitney. For those 456 00:26:06,200 --> 00:26:11,480 Speaker 1: who are not familiar, tell us about the incognito browsing 457 00:26:11,600 --> 00:26:12,640 Speaker 1: mode on Google. 458 00:26:13,000 --> 00:26:15,560 Speaker 3: Google. It has the Chrome browser, and through the Chrome Browser, 459 00:26:15,600 --> 00:26:18,000 Speaker 3: it has several settings and pug up into the corner 460 00:26:18,240 --> 00:26:21,240 Speaker 3: there's the incognito mode. It's a very popular thing. I 461 00:26:21,240 --> 00:26:24,200 Speaker 3: think many people use it thinking that they're protecting their privacy. 462 00:26:24,480 --> 00:26:26,800 Speaker 3: It basically what it does is it's a tool that 463 00:26:27,160 --> 00:26:29,440 Speaker 3: Chrome makes available, and many other browsers have similar sorts 464 00:26:29,480 --> 00:26:32,399 Speaker 3: of functions. It doesn't store cookies in your browser, it 465 00:26:32,440 --> 00:26:35,760 Speaker 3: doesn't store your browsing history. So many people use this 466 00:26:35,800 --> 00:26:37,800 Speaker 3: if they just want to again sort of hide their 467 00:26:37,840 --> 00:26:40,639 Speaker 3: browsing history on a device that's maybe shared among the 468 00:26:40,640 --> 00:26:42,280 Speaker 3: family or something along those lines. 469 00:26:42,560 --> 00:26:45,240 Speaker 1: So the suit that was filed in twenty twenty, what 470 00:26:45,440 --> 00:26:47,560 Speaker 1: did it accuse Google of? 471 00:26:48,080 --> 00:26:51,399 Speaker 3: So the original suit claimed that this incognito mode was 472 00:26:51,920 --> 00:26:55,400 Speaker 3: essentially deceptive. So when users begin to use they start 473 00:26:55,440 --> 00:26:58,959 Speaker 3: a session in incognito, they would see this character. They 474 00:26:59,080 --> 00:27:02,040 Speaker 3: called him a spy. It looked like he was hidden 475 00:27:02,040 --> 00:27:05,240 Speaker 3: behind sunglasses with a little hat. They've made these disclosures 476 00:27:05,280 --> 00:27:07,639 Speaker 3: that stated that you're not being tracked, that your session 477 00:27:07,680 --> 00:27:10,560 Speaker 3: will be private, and that Google wouldn't collect any information 478 00:27:10,600 --> 00:27:13,160 Speaker 3: about you. The problem is that as people go about 479 00:27:13,160 --> 00:27:17,240 Speaker 3: the Internet, really all incognito does is prevent your browser, 480 00:27:17,320 --> 00:27:20,159 Speaker 3: that instance that you have installed on your computer of Chrome, 481 00:27:20,480 --> 00:27:23,600 Speaker 3: from collecting data about your browsing history. And it made 482 00:27:23,600 --> 00:27:25,880 Speaker 3: delete some of the cookies. But what it wasn't doing 483 00:27:26,080 --> 00:27:29,240 Speaker 3: was blocking other of Google's technologies like Google Analytics or 484 00:27:29,240 --> 00:27:31,639 Speaker 3: their ad services, all the things where they make their money, 485 00:27:31,800 --> 00:27:34,399 Speaker 3: as well as other things. So of course different parties 486 00:27:34,400 --> 00:27:36,560 Speaker 3: can also see your web traffic. Your ISP could always 487 00:27:36,560 --> 00:27:38,760 Speaker 3: see your traffic, your employer might be able to see 488 00:27:38,760 --> 00:27:42,120 Speaker 3: your traffic, and again different advertising vendors could probably see 489 00:27:42,119 --> 00:27:44,359 Speaker 3: your traffic. All these parties are of course able to 490 00:27:44,400 --> 00:27:46,600 Speaker 3: do with it what they want. And importantly, Google was 491 00:27:46,640 --> 00:27:51,320 Speaker 3: taking information about incognito browsers and they were continuing to 492 00:27:51,359 --> 00:27:55,359 Speaker 3: perform analytics and essentially track incognito users across the web 493 00:27:55,800 --> 00:27:58,360 Speaker 3: and even though the Chrome browser said that Google wasn't 494 00:27:58,359 --> 00:28:01,720 Speaker 3: collecting this information, really only that Chrome browser wasn't Google 495 00:28:01,760 --> 00:28:05,320 Speaker 3: itself was fundamentally still collecting data about all users as 496 00:28:05,320 --> 00:28:07,600 Speaker 3: they browsed the Internet using the incognitive browser. 497 00:28:08,119 --> 00:28:13,400 Speaker 1: Google vigorously fought the lawsuit until the district judge rejected 498 00:28:13,400 --> 00:28:16,400 Speaker 1: a request to dismiss the case last August, which would 499 00:28:16,440 --> 00:28:18,959 Speaker 1: set up a potential trial. Is it just that Google 500 00:28:19,000 --> 00:28:21,919 Speaker 1: fights every lawsuit or was there anything in particular about 501 00:28:21,920 --> 00:28:24,280 Speaker 1: this lawsuit that it feared. 502 00:28:25,400 --> 00:28:27,600 Speaker 3: I think this is one of the Google I think 503 00:28:27,840 --> 00:28:30,879 Speaker 3: vigorously fights a lot of cases, especially these privacy cases. 504 00:28:30,960 --> 00:28:33,960 Speaker 3: I think they tend to create negative case law. There's 505 00:28:34,000 --> 00:28:36,280 Speaker 3: not been it's been sort of slow to develop in 506 00:28:36,320 --> 00:28:39,520 Speaker 3: the US the sort of common law or various case 507 00:28:39,560 --> 00:28:43,280 Speaker 3: law around privacy claims, especially in the advertising space. And 508 00:28:43,360 --> 00:28:45,280 Speaker 3: I think that's sort of the risk in this case 509 00:28:45,360 --> 00:28:48,360 Speaker 3: is that it's sort of exposed to an extent what 510 00:28:48,480 --> 00:28:51,000 Speaker 3: Google was doing through its other products and the ability 511 00:28:51,120 --> 00:28:55,040 Speaker 3: and capabilities they had to track users through Google Analytics, 512 00:28:55,040 --> 00:28:58,680 Speaker 3: through ads, and sort of how pervasive the web tracking was. 513 00:28:58,720 --> 00:29:00,600 Speaker 3: And it's not as simple as people think. It's not 514 00:29:00,640 --> 00:29:03,480 Speaker 3: so simple to stay private on the Internet as opening 515 00:29:03,520 --> 00:29:05,720 Speaker 3: up in browser, and I think that this is one 516 00:29:05,760 --> 00:29:08,640 Speaker 3: of those things. It's very negative, you know, for I 517 00:29:08,640 --> 00:29:12,440 Speaker 3: think their reputation and presented a risk. And obviously in 518 00:29:12,480 --> 00:29:14,560 Speaker 3: this particular claim, they were leging I think five billion 519 00:29:14,560 --> 00:29:17,080 Speaker 3: in damages. We never got to exactly whether or not 520 00:29:17,080 --> 00:29:19,520 Speaker 3: that number would hold up, but in any event, it 521 00:29:19,560 --> 00:29:20,600 Speaker 3: was a very large number. 522 00:29:20,880 --> 00:29:23,200 Speaker 1: Yeah, So now tell us. As part of the settlement, 523 00:29:23,440 --> 00:29:26,200 Speaker 1: Google has to delete billions of data records. 524 00:29:26,640 --> 00:29:30,640 Speaker 3: So Google agreed basically to four key things. The first 525 00:29:30,640 --> 00:29:33,360 Speaker 3: thing is that they had to change this this disclosure 526 00:29:33,360 --> 00:29:35,520 Speaker 3: as I mentioned, the spy guy or it's saying in 527 00:29:35,520 --> 00:29:38,000 Speaker 3: this idea that you know your session is private, So 528 00:29:38,040 --> 00:29:41,080 Speaker 3: they basically said that other people can track you, including Google, 529 00:29:41,320 --> 00:29:44,880 Speaker 3: across the internet. They basically clarified these disclosures to say 530 00:29:45,040 --> 00:29:47,280 Speaker 3: just as much that it's just your browsing history. Essentially, 531 00:29:47,320 --> 00:29:49,520 Speaker 3: it's not being stored here. They also had to disable 532 00:29:49,600 --> 00:29:52,720 Speaker 3: what are called third party cookies, which are basically advertising 533 00:29:52,720 --> 00:29:55,000 Speaker 3: tools they can track you across the internet, so those 534 00:29:55,000 --> 00:29:58,600 Speaker 3: are disabled by default. And then, as you suggested, they 535 00:29:58,640 --> 00:30:01,560 Speaker 3: have to delete the ex data that was collected from 536 00:30:01,560 --> 00:30:05,360 Speaker 3: incognito users over the years, and what's somewhat interesting is 537 00:30:05,360 --> 00:30:08,240 Speaker 3: that Google was able to identify all of the records 538 00:30:08,240 --> 00:30:11,360 Speaker 3: that were related to incognito users, which really isn't supposed 539 00:30:11,400 --> 00:30:13,160 Speaker 3: to be the case, but they were able to do it. 540 00:30:13,440 --> 00:30:15,560 Speaker 3: And this results in i think they said, hundreds of 541 00:30:15,560 --> 00:30:17,920 Speaker 3: billions of records and again a ton of work in 542 00:30:17,960 --> 00:30:21,320 Speaker 3: identifying that data and ultimately deleting it from their records. 543 00:30:21,520 --> 00:30:24,200 Speaker 1: So it's going to cost Google a certain amount to 544 00:30:24,240 --> 00:30:24,719 Speaker 1: delete that. 545 00:30:25,160 --> 00:30:25,720 Speaker 3: Absolutely. 546 00:30:26,160 --> 00:30:28,600 Speaker 1: Is this a trend, This is a settlement, but our 547 00:30:28,720 --> 00:30:34,040 Speaker 1: courts also where data collection is found to be illegal, 548 00:30:34,520 --> 00:30:38,520 Speaker 1: our courts forcing companies to delete data. 549 00:30:38,760 --> 00:30:40,760 Speaker 3: Yes, this is a trend. We've been watching for a 550 00:30:40,800 --> 00:30:44,520 Speaker 3: few years now. In particular, the FTC has been particularly active. 551 00:30:44,600 --> 00:30:47,600 Speaker 3: So the FTC is probably the most robust enforcer of 552 00:30:47,720 --> 00:30:51,400 Speaker 3: privacy laws under the general consumer protection frameworks. So over 553 00:30:51,440 --> 00:30:54,920 Speaker 3: the last few years, as they've explored different companies sort 554 00:30:54,920 --> 00:30:58,320 Speaker 3: of unfair or deceptive practices that have resulted in unlawful 555 00:30:58,400 --> 00:31:01,760 Speaker 3: data collection, the remedies that they've been seeking are fundamentally 556 00:31:01,760 --> 00:31:05,000 Speaker 3: and not just fines, but really coming in requiring them 557 00:31:05,000 --> 00:31:08,480 Speaker 3: to delete source data and beyond that, any data derived 558 00:31:08,560 --> 00:31:11,320 Speaker 3: from the source data that was collected lawfully and any 559 00:31:11,360 --> 00:31:14,360 Speaker 3: models or algorithms that were built using that data, so 560 00:31:14,480 --> 00:31:16,920 Speaker 3: relatively robust remedies. And then you know, kind of looking 561 00:31:16,920 --> 00:31:19,080 Speaker 3: forward as we look at sort of how AI is 562 00:31:19,160 --> 00:31:21,800 Speaker 3: blowing up across the industry, this is a real potential 563 00:31:21,840 --> 00:31:24,920 Speaker 3: risk for companies that are sort of building these models 564 00:31:24,920 --> 00:31:26,040 Speaker 3: and collecting data. 565 00:31:26,400 --> 00:31:28,440 Speaker 1: You know, as you mentioned, Google for the next five 566 00:31:28,560 --> 00:31:33,960 Speaker 1: years will allow private browsing users to block third party cookies. 567 00:31:34,360 --> 00:31:36,800 Speaker 1: So that's just for five years. It seems like something 568 00:31:36,800 --> 00:31:38,240 Speaker 1: you should always be able to block. 569 00:31:39,160 --> 00:31:41,160 Speaker 3: And there are there are tools that have been available 570 00:31:41,200 --> 00:31:43,920 Speaker 3: on the market for probably fifteen or more years at 571 00:31:43,920 --> 00:31:46,440 Speaker 3: this point. I'm sure many people are familiar with ad 572 00:31:46,480 --> 00:31:49,400 Speaker 3: blocker plus or you know, the similar Ghostry I think 573 00:31:49,480 --> 00:31:52,040 Speaker 3: is another popular when there's a several of these out 574 00:31:52,080 --> 00:31:54,640 Speaker 3: on the marketplace that are basically they're ad blockers, and 575 00:31:55,000 --> 00:31:57,880 Speaker 3: these are basically tools that you can install in your browser. 576 00:31:58,200 --> 00:32:01,720 Speaker 3: They run off of lists have lists of all basically 577 00:32:01,760 --> 00:32:04,000 Speaker 3: all known third party trackers, at least the common ones, 578 00:32:04,200 --> 00:32:06,600 Speaker 3: and they simply strip the code out of the website. 579 00:32:06,800 --> 00:32:10,280 Speaker 3: So if you've ever been browsing with an ad blocker, 580 00:32:10,280 --> 00:32:12,960 Speaker 3: you've probably seen the pop ups that come up and say, 581 00:32:13,080 --> 00:32:15,920 Speaker 3: you know you're blocking our ads. We can't make money. 582 00:32:16,080 --> 00:32:18,240 Speaker 3: You know obviously it's impacting revenue. Please turn your ad 583 00:32:18,240 --> 00:32:20,320 Speaker 3: blocker off. So we see these sorts of things. These 584 00:32:20,480 --> 00:32:23,760 Speaker 3: the tools are relatively powerful. Another interesting piece really is 585 00:32:23,760 --> 00:32:27,040 Speaker 3: the Google itself is moving away from third party cookies 586 00:32:27,080 --> 00:32:30,000 Speaker 3: as a tracking tool, and they're moving to different different 587 00:32:30,040 --> 00:32:33,360 Speaker 3: methods of sort of tracking and delivering ads to users. So, 588 00:32:33,640 --> 00:32:36,240 Speaker 3: in one sense, even though it's only for five years, 589 00:32:36,280 --> 00:32:38,640 Speaker 3: the trend has been away from third party cookies into 590 00:32:38,640 --> 00:32:40,160 Speaker 3: alternative tracking methods. 591 00:32:40,320 --> 00:32:43,960 Speaker 1: A Google spokesperson said, the company is pleased to settle 592 00:32:44,000 --> 00:32:47,480 Speaker 1: this lawsuit, which we always believe was merit list. We 593 00:32:47,560 --> 00:32:52,360 Speaker 1: never associate data with users when they use incognito mode. 594 00:32:53,200 --> 00:32:53,960 Speaker 1: Is that true? 595 00:32:54,440 --> 00:32:56,960 Speaker 3: Certainly, the claims alleged that there was an ability to 596 00:32:57,320 --> 00:33:01,080 Speaker 3: identify or make its users identifiable. Interesting to understand what 597 00:33:01,120 --> 00:33:05,280 Speaker 3: they meant by i'd never identify users. This is something 598 00:33:05,320 --> 00:33:09,440 Speaker 3: that oftentimes in the advertising space, you don't necessarily identify 599 00:33:09,480 --> 00:33:12,480 Speaker 3: someone by name, but what you can do is track 600 00:33:12,560 --> 00:33:15,479 Speaker 3: their device or track their browser or a similar session 601 00:33:15,560 --> 00:33:17,720 Speaker 3: something like that. So it's not to say that they 602 00:33:17,760 --> 00:33:20,000 Speaker 3: know who you are and link that to a profile. 603 00:33:20,120 --> 00:33:23,120 Speaker 3: Necessarily tied to your name, but they can certainly sort 604 00:33:23,120 --> 00:33:26,680 Speaker 3: of impact your experience, and they do know how your 605 00:33:26,760 --> 00:33:28,520 Speaker 3: devices are used on the web. 606 00:33:28,680 --> 00:33:31,720 Speaker 1: Yeah, he said, we are happy to delete old technical 607 00:33:31,800 --> 00:33:35,200 Speaker 1: data that was never associated with an individual and was 608 00:33:35,280 --> 00:33:39,880 Speaker 1: never used for any form of personalization. So Google tried 609 00:33:39,920 --> 00:33:42,840 Speaker 1: to sort of downplay this whole thing, said that, you know, 610 00:33:42,880 --> 00:33:46,680 Speaker 1: the plaintiffs originally wanted five billion dollars in this class 611 00:33:46,720 --> 00:33:49,800 Speaker 1: action and they're not getting any money. But the attorneys 612 00:33:49,800 --> 00:33:53,320 Speaker 1: who represented the Google users said that this was a 613 00:33:53,360 --> 00:33:57,120 Speaker 1: major victory for personal privacy. Do you agree? Is this 614 00:33:57,200 --> 00:33:58,120 Speaker 1: a major victory? 615 00:33:58,440 --> 00:34:00,680 Speaker 3: I wouldn't characterize it as a major vigo. I do 616 00:34:00,720 --> 00:34:03,600 Speaker 3: think it's an important milestone. I think it really does 617 00:34:03,960 --> 00:34:06,240 Speaker 3: make I would say two key points. First is that 618 00:34:06,280 --> 00:34:09,359 Speaker 3: this is a case where Google was forced to change 619 00:34:09,400 --> 00:34:11,840 Speaker 3: their disclosures about how data is collected. People have to 620 00:34:11,880 --> 00:34:15,000 Speaker 3: become more transparent about their data collection practices, and I 621 00:34:15,000 --> 00:34:18,160 Speaker 3: think pushing the industry in that direction and setting that 622 00:34:18,200 --> 00:34:21,400 Speaker 3: milestone is important. And then, second, as I mentioned, requiring 623 00:34:21,480 --> 00:34:24,280 Speaker 3: data deletion, even though this didn't necessarily reach the models 624 00:34:24,400 --> 00:34:27,320 Speaker 3: or the algorithms that Google may have built using this data, 625 00:34:27,440 --> 00:34:30,239 Speaker 3: it does force companies to really think about how they 626 00:34:30,280 --> 00:34:31,640 Speaker 3: collect data and the rights that they'll have in it 627 00:34:31,680 --> 00:34:34,120 Speaker 3: long term. You know, forcing them to delete data is 628 00:34:34,160 --> 00:34:35,360 Speaker 3: still an impactful remedy. 629 00:34:35,800 --> 00:34:39,520 Speaker 1: The Planeff's lawyers valued the settlement at four point seventy 630 00:34:39,520 --> 00:34:43,000 Speaker 1: five billion dollars to seven point eight billion, and they 631 00:34:43,080 --> 00:34:47,400 Speaker 1: calculated that on the potential ad sales that the personal 632 00:34:47,440 --> 00:34:51,920 Speaker 1: information collected through Chrome could have generated in the past 633 00:34:52,040 --> 00:34:55,760 Speaker 1: and future without the new restrictions. Is that a difficult 634 00:34:55,760 --> 00:34:59,279 Speaker 1: I mean, is that calculation difficult to make? Is that 635 00:35:00,040 --> 00:35:00,479 Speaker 1: sort of. 636 00:35:01,920 --> 00:35:02,000 Speaker 5: Not? 637 00:35:03,719 --> 00:35:06,840 Speaker 3: Yeah, it does. It does seem like an interesting number. Obviously, 638 00:35:06,840 --> 00:35:09,040 Speaker 3: they you know, sort of dispute that number in different ways. 639 00:35:09,040 --> 00:35:12,040 Speaker 3: There's sort of valuing the settlement at that amount. Of course, 640 00:35:12,080 --> 00:35:14,600 Speaker 3: the users were I think the original claimant said that, 641 00:35:14,680 --> 00:35:17,239 Speaker 3: you know, the five billion dollar number came from a number. 642 00:35:17,280 --> 00:35:20,160 Speaker 3: I think that Google originally had agreed to pay users 643 00:35:20,200 --> 00:35:22,839 Speaker 3: for their browsing history, so they had, you know, set 644 00:35:22,840 --> 00:35:25,399 Speaker 3: it at some number of dollars per user, per per 645 00:35:25,440 --> 00:35:28,319 Speaker 3: time period or something like that. So interesting how they 646 00:35:28,320 --> 00:35:30,320 Speaker 3: come up with these numbers, but I think it always 647 00:35:30,360 --> 00:35:31,800 Speaker 3: involves a degree of creative accounting. 648 00:35:32,080 --> 00:35:35,480 Speaker 1: Fair enough, Thanks so much, Austin that's Austin Chambers of 649 00:35:35,560 --> 00:35:39,120 Speaker 1: Dorsey and Whitney. Google may have settled this lawsuit, but 650 00:35:39,160 --> 00:35:42,960 Speaker 1: it's still facing legal threats on the regulatory frontier that 651 00:35:43,080 --> 00:35:46,400 Speaker 1: could have a far bigger impact on its business depending 652 00:35:46,440 --> 00:35:50,320 Speaker 1: on the outcomes. During a trial last fall, the Justice 653 00:35:50,360 --> 00:35:55,080 Speaker 1: Department outlined its allegations that Google is abusing the dominance 654 00:35:55,120 --> 00:35:58,920 Speaker 1: of its search engine to thwart competition and innovation, and 655 00:35:59,000 --> 00:36:02,239 Speaker 1: a federal judge schedule to hear closing arguments in the 656 00:36:02,280 --> 00:36:06,480 Speaker 1: case on May first before issuing a ruling. Google is 657 00:36:06,520 --> 00:36:10,440 Speaker 1: also facing potential changes to its app store for smartphones 658 00:36:10,480 --> 00:36:14,360 Speaker 1: powered by the Android software that could undercut its revenue 659 00:36:14,360 --> 00:36:18,080 Speaker 1: from commissions after a federal jury last year concluded the 660 00:36:18,080 --> 00:36:22,520 Speaker 1: company was running an illegal monopoly. A hearing examining possible 661 00:36:22,560 --> 00:36:25,200 Speaker 1: revisions that Google may have to make to its play 662 00:36:25,200 --> 00:36:28,400 Speaker 1: store is scheduled for late May. And that's it for 663 00:36:28,440 --> 00:36:31,440 Speaker 1: this edition of the Bloomberg Law Podcast. Remember you can 664 00:36:31,520 --> 00:36:34,480 Speaker 1: always get the latest legal news by subscribing and listening 665 00:36:34,480 --> 00:36:38,160 Speaker 1: to the show on Apple Podcasts, Spotify, and at Bloomberg 666 00:36:38,239 --> 00:36:42,319 Speaker 1: dot com Slash podcast Slash Law. I'm June Grosso and 667 00:36:42,400 --> 00:36:43,680 Speaker 1: this is Bloomberg