Password Protection Act: “There are two things you don’t want to see being made – sausage and legislation”

Pictured Above: Senator Blumenthal (D-CT) (Left) & Congressman Heinrich (D-N.M.) (Right)

Plainly put – this draft legislation is farcical, and hopefully, as written, is dead on arrival! 

First, there is no realistic enforcement mechanism.  The proposed legislation is a series of amendments to the Computer Fraud & Abuse Act, and the sole enforcement mechanism is a criminal prosecution by the United States, and, upon conviction, the sole remedy is a fine.  

Second, the language of one section articulates a defense that is dependent on the employer establishing “good cause” for discharge or other discipline.  While, for years, I have advocated a simple, unitary, federal law establishing just cause as the standard for termination, a “stealth” or, probably, just less than thoughtless piece of legislation like this does little good in that regard, and a whole lot of bad.

Third, the exemptions for federal employees with access to classified information seem excessively broad.

Fourth, presumably, as drafted, the provisions of the Computer Fraud & Abuse Act authorizing civil actions do not apply to this proposed new substantive prohibition.  And, in any event, the damages preconditions to a civil action under the CFAA could hardly ever, to the point of never, be fulfilled by an employee.  And, the relief would simply be an injunction and, as there is no fee-shifting provision, there is no incentive for the private bar to take such cases.  

Finally, the retaliation provisions are thoughtlessly lifted from other statutes, and, as written, presumably would only come into play if one “causes” the United States to institute a civil action or if one testified or “is about to” testify in such civil action. 

Whoever drafted this bill needs to be taken to the woodshed.  Sausage like this, we do not need!

Please be sure to visit our website at http://RobertBFitzpatrick.com

Supreme Court Holds that a Verbal Complaint Constitutes "Filing" Under the FLSA in a 6-2 Majority (Kagan, J., not participating)

In Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834, 563 U.S. ___ (March 22, 2011), the Supreme Court held that the anti-retaliation provision of the Fair Labor Standards Act (FLSA) applies to both oral and written complaints.  In an opinion written by Justice Breyer, the Court found that 29 U.S.C. § 215 (a)(3) of the FLSA, its anti-retaliation provision, should be broadly construed to protect an employee who "has filed any complaint" . . . under or related to [the Act] . . ." Slip op. at 1. Justice Scalia, with whom Justice Thomas joined, vigorously dissented.

In so holding, Justice Breyer states: ". . . The phrase 'filed any complaint' contemplates some degree of formality, certainly to the point where the recipient has been given fair notice that a grievance has been lodged and does, or should, reasonably understand the matter as part of its business concerns." Slip op. at 11.  This frames a new jury instruction to ask jurors to determine whether Justice Breyer's "formality" test has been satisfied.  Following the articulation of that test, Justice Breyer states: "And it is difficult to see how an employer who does not (or should not) know an employee has made a complaint could discriminate because of that complaint." Id.

Finally, Justice Breyer states that the Court agrees with the government's statement at oral argument that a complaint is "filed" when "a reasonable, objective person would have understood the employee" to have "put the employer on notice that [the] employee is asserting statutory rights under the [Act]."  Id. at 12.  Do I hear Justice Breyer again framing the jury instruction?  Justice Breyer goes on to say the following: "To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection."  Id.  More fodder for jury instructions.

Justice Breyer and Justice Scalia (with Justice Thomas opting out of Justice Scalia's sarcastic footnote number 6 about Skidmore deference) cross swords over whether any deference should be given to the fact that the Secretary of Labor had consistently construed the statute to encompass oral complaints.  Justice Breyer finds the agency views to be reasonable, consistent with the statute, to reflect careful consideration rather than post hoc rationalization, and to consequently "add force" to the Court's ultimate ruling.

Interestingly, even though a violation of the anti-retaliation provision of the FLSA can subject the violator to criminal prosecution, see 29 U.S.C. § 216(a), Justice Breyer refuses to apply the "rule of lenity" that applies to the interpretation of criminal statutes, finding that the statute does not "remain[] sufficiently ambiguous to warrant application of the rule of lenity here."  Id. at 14.  This holding by the Court may very well be transported into civil litigation under the Computer Fraud and Abuse Act, which from its inception was a criminal statute and only later a civil statute also.

The Court, of course, declines to address the underlying, unresolved issue in this case, that is, whether internal corporate complaints are entitled to protection in any event.  So, bottom line, we know for certain that oral complaints that satisfy Justice Breyer's "formality" test are protected under the FLSA, but given the deep division that exists within the federal courts, we do not know whether complaints, whether they be oral or written, within a company about FLSA violations constitute protected activity under the anti-retaliation provisions of the FLSA.  That issue remains for another day, and Justice Scalia makes it unequivocally plain that he would find internal corporate complaints to not be encompassed by the statute.  Certainly, in those circuits that have held internal corporate complaints to be protected, employers will now need to institute procedures to receive oral complaints and to alert the chain of supervision to advise management of oral complaints.

While I am only beginning to think through the implications of the opinion, it seems to me that it would be wise for employers to put in writing in its employee handbook where and how one can orally complain within the company.  One would think that if the company has articulated a specific process and specific persons to whom one can and should complain, alleged oral complaints outside of that process may not meet Justice Breyer's "formality" rule and thus may not be entitled to protection under the FLSA.

Please be sure to visit our website at http://RobertBFitzpatrick.com

Warning: Use of the Wayback Machine Can Result In Expensive Litigation

On July 20, 2007, Judge Kelly of the Eastern District of Pennsylvania issued his decision in the much discussed wayback machine litigation, see Healthcare Advocates, Inc. v. Harding, Early, Follmer & Frailey, 2007 U.S. Dist. LEXIS 52544(E.D. Pa., July 20, 2007). The wayback machine, in its simplest terms, allows one to locate screen shots of websites that have subsequently been revised or deleted. The wayback machine reviews archived images, and makes them available to the searcher unless the website owner has blocked access to the archived web pages. The lawyers at the Harding firm had web research done on Plaintiff's historic websites. Unbeknownst to Harding, Plaintiff had followed the procedures to block access, but the blocking mechanism, over which the Harding firm had no control, malfunctioned and allowed them access to archived images of the Plaintiff's website. Plaintiff sued alleging that this violated the Digital Millenium Copyright Act, the Computer Fraud and Abuse Act as well as being a copyright infringement. After some 39 pages of analysis, Judge Kelly granted the Harding firm's motion for summary judgment. Anyone who intends to use the wayback machine for web research needs to carefully parse Judge Kelly's opinion to hopefully avoid the assertion by the website owner of potential claims.