How I Became a Member of the Bar of the U.S. Supreme Court


How I Became a Member of the Bar of the U.S. Supreme Court
by Susan Basko, esq.

Last month, I was honored to be sworn in as a member of the Bar of the U.S. Supreme Court.  The Bar members are the lawyers from the nation that are eligible to practice before the U.S. Supreme Court in Washington, D.C.  Bar members are allowed to write and argue the cases heard by the U.S. Supreme Court.  I've seen it estimated that there are 75,000 living Bar members.

Bar members attending Court arguments are allowed to sit in a special section of the courtroom, just behind the Counsel tables.  This section is referred to as being in front of the brass railing. There is a brass railing that divides this section of the Courtroom from the rear section allotted to the general public.  The Courtroom is surprisingly small and run with very strict decorum.  The center aisle is manned by elegantly attired, very polite Secret Service agents -- with the telltale earpieces. When an important case is being argued, there will usually be a long line to get in.  Bar members get their own line and the seating in front of the brass rail.  This can be a great advantage at getting in to be able to view an argument.  This can be most helpful if one writes about Supreme Court cases, or simply if one likes to watch them. Male Bar members are required to wear a suit and tie. Female Bar members must wear suits or dresses.  There is also a dress code for the general public that attend.   

Nearly all the Bar members, men and women, wear nice black suits.  It used to be that lawyers arguing a case before the U.S. Supreme Court were required to wear a morning coat with striped trousers.   Today, lawyers from the Solicitor General's office still wear this outfit.  These are the people arguing cases for the U.S. Department of Justice. On the day I was sworn in, one lawyer was dressed in this outfit.  The morning jacket is long and swoops down in back. The pinstriped trousers are long and slightly flared at the bottom.   This formal wear suits the sedate mood of the Courtroom, which is ornate, with original furnishings from 1935, when the building was constructed.

No electronics are allowed in the U.S. Supreme Court.  Phones, smart watches, ipods -- none of these can be brought in.  Most courts allow phones, but require them to be turned off or muted.  The U.S. Supreme Court does not allow them in.  No cameras of any kind are allowed into the Courtroom, even when court is not in session.  Thus, there are very few photos or videos of the inside of the Supreme Court.  These items can be stored in the hall by the restroom, where there are a few small rental lockers on a first-come basis.  I don't know what people do if they have such an item and cannot get a locker.  Coats are left at a coat check or on a coat rack. Security in the court is very tight.  Very few items are allowed in and those are, are put through a metal detector and then hand searched.

How did I come to be a U.S. Supreme Court Bar Member?  The Dean from my law school,  who was already a Bar member, invited me and said she would like to move for my membership.  I said yes.  She would be moving for the membership of a group of 12 lawyers.  We had to fill out the application.  Two sponsors, who were each already members of the U.S. Supreme Court bar, had to sign the application.  The sponsors had to vouch that they know us and our work personally and that we are of good character.  Thus, you can only become a member of the U.S. Supreme Court bar if you know people who are already members.

On an argument day, a group of 12 may be admitted in a group ceremony.  We were each allowed to bring one guest into the Courtroom.  On the morning we were to be sworn in, we were to meet at 8 a.m. at a special side door.  I got up early, got dressed, and walked the few blocks over to the Court.  I was excited and happy.

Conference Room at U.S. Supreme Court 
Our group gathered and we were ushered in to a lovely conference room.  The room was large with very high ceilings, wood paneled walls, a grand piano, a wood burning fireplace. The room was decorated with paintings of former justices of the Court.  The conference room was set with round tables with ivory tablecloths. We were served a buffet breakfast of coffee, teas, orange juice, pastries, croissants, bagels, and butter, jams, and cream cheese.  There was a platter of cut fresh melon, pineapple, and blueberries. The china and silver looked like they might also be original with the building.

Chandelier in Conference room
The Clerk of the Court came to the conference room to introduce himself and welcome us.  Another man then came and explained how the swearing-in ceremony would take place.  Many of us made an escorted trip to restrooms.  Some people posed for photos.  Soon, it was time to line up to go into the Courtroom.  We were told to leave our phones and other things in the conference room, which would be locked.  We had a few extra people with us beyond our one allotted guest each, such as family members, law students, and a few children.  We were told they would make room for everyone to have a seat in the Courtroom, at least for the swearing-in ceremony.

We were ushered in to the Courtroom and seated on rows of formal old chairs that are original with the building.  We were very near the front of the Court, so we had a perfect view for the arguments after the swearing in.  The Court sits on a raised marble platform with a long curved desk, called the bench. Each justice has a chair specially made for them, to their measurements and requirements.  When a justice retires, they get to take their chair home with them.  If I were a Supreme Court justice, I would want a chair with a built-in foot rest, and a cup holder built into the arm.  The assistants to the Court came out and placed the case brief booklets at each place.  Some assistants brought out water bottles and placed them by the Justices' places.  After everyone was seated, the Justices filed in and each took their designated seat.

Court was called to session.  The full Court of all the Justices were present.  The first order of business was the swearing in of new bar members.   Our Dean, who was moving to have us admitted, was announced and called to the podium.  She first read the short motion that is used verbatim by all movants for admittance.  Then she read each of our names, and we stood.  She made a few statements about being satisfied that we were qualified.   Chief Justice Roberts then announced that he was accepting the motion and that we were admitted. Then, another group of 12 did this same procedure.  We had seen them in another conference room across the hall from ours.  Next, we all stood and raised our right hands, while the Clerk of the Court read an oath and then we said, "I do."

It felt quite special to have my name read into the record of the U.S. Supreme Court.  It felt special to be admitted to this Bar.  Among our group, everyone I spoke with is involved in practicing law for the good of the people.  One man works for an Appellate Defenders Office.  Another conducts litigation for a State Attorney General.  I have been involved in international Human Rights, such as Freedom of Assembly and Freedom of Speech and the Media.  One lawyer, who is blind, advocates for veterans. Every one of us has been busy using our law licenses to improve society and life.  People in our group have been lawyers for anywhere from about 10 years to over 30 years.  They seemed to be a rock solid group of fine people and good lawyers.  I felt so honored to be among them.

Immediately after the admittance ceremony, the Court heard two cases.  Each case is allotted exactly one hour for arguments.  There is a giant clock above the stage where the Justices sit. (This is a great blessing, considering there are no phones or smart watches allowed.)  In addition, there are timer clocks that flash when the lawyer arguing the case is out of time.  It was interesting to watch the style of arguments.  I have acted as a Moot Court Judge -- and if a Justice is going to be prepared, it takes a lot of time to read the case materials.  My experience in that position made me appreciate the work that goes into being a Supreme Court Judge.  Watching the arguments, my preference was toward the female Justices.  I thought they asked the most pertinent questions that brought out salient points.

One lawyer arguing for the defense in the second case was an exceptionally good arguer.  What made him so good was that he knew the law of his case extremely well.  He spoke very quickly in an animated way, with a lot of gestures and arm waving, which seemed to suit him well.  His arguments were very convincing, mainly because he seemed to know what he was talking about.  He seemed to be very in control and not the least bit intimidated by arguing before the Supreme Court. In contrast, there was a female lawyer who appeared to be arguing something off topic, and one of the Justices asked her if what she was arguing was even the question that the Court had agreed to decide.  It wasn't; she said she was concerned about what might happen on remand, having already accepted defeat in her mind.   I suppose one way to lose a case at the Supreme Court is to go in arguing about something else.

Justice Ruth Bader Ginsburg attended reception in our honor.
After the lawyers in the two court cases finished their arguments, we were ushered back to our conference room for a reception in our honor.  We took a lot of photographs.  The buffet table was set with more food and drinks.  Justice Ruth Bader Ginsburg, who had accepted the invitation to attend the reception, suddenly walked in with a young male assistant.  She spoke with us and answered questions.  When she was asked for words of advice for us, Justice Ginsburg told us to not just work for a paycheck, but instead to work to make a difference in the world.  She said we should join forces with like-minded people and make the world a better place, especially today.   Then, she graciously posed for pictures with us.  Justice Ginsburg is 84 years old and sharp as a tack.  She is witty and generous.  I treasure meeting her.

Next, those of us who wanted to attend were given a very special lecture about the Court.  This was held in the Courtroom and given by a highly knowledgeable docent. Only four of us attended.  I learned that there is a basketball court above the Courtroom, and ball bouncing is prohibited until after 4:30 pm on days when Court is in session.  I also learned that the Junior Justice, who is the newest member of the Court, has among his or her duties to answer the door and the phone in the conference room while the Justices are deciding a case. The Junior Justice is also in charge of the food in the Supreme Court Cafeteria, which is open to the public and very popular with people working on or visiting the Capitol.

After the lecture, a few of us went to the cafeteria to see the food.  Justice Elena Kagan was in charge then.  There was a lovely salad bar filled with fresh vegetables for 70 cents per ounce.  There were hot entrees that looked healthy and freshly made.  The day we were there, the entrees had a South American flare, with stuffed yams and a plaintain side dish.  Now that the Junior Justice is Neil Gorsuch, I wonder if he will bring in some specialties from his home state of Colorado, such as baked trout.  Yes, while most people are wondering how the presence of Justice Gorsuch will change the tenor of the Supreme Court rulings, I am wondering how his presence will change the cafeteria food.


Dome of the U.S. Capitol Building

We looked at the cafeteria food, but did not have time to eat, because our whole big group was scheduled shortly for a special tour of the Capitol Building, granted to us by a Congressman.  We walked across the street to the Capitol Building and went through security.  Unlike the Supreme Court building, which is quiet and subdued, the Capitol Building is very noisy and filled with groups of high school students and tourists.  It is also heavily guarded.  I saw one young army guard holding a machine gun at the ready.  He stood joking with his guard friends.  Giddy high school kids walked by.  The security level seemed commensurate with this being the U.S. Capitol in 2017.

Our group was told to meet by a certain statue. Once our group was gathered, we were taken into an auditorium where we watched a short film about the history of the U.S., the U.S. Constitution, Washington and the District of Columbia, and the Capitol Building -- all told in about 12 minutes.  It was like a semester of U.S. History all wrapped up in one quick little, attractive movie. Then, we climbed the stairs to the back of the auditorium and out into a hall.  We were introduced to our tour guide.  She gave each of us a set of headphones with a receiver on a lanyard to wear like a necklace.  We would walk through crowded halls, and past other group tours, but in our headphones we would hear only our own tour guide.  She was fantastic.  We were taken on a tour of the public parts of the building, which is quite impressive.  This tour included climbing about 1,000 stair steps.  There were benches for sitting and resting all over the building, all of which seemed to be filled with grade school kids, looking wiped out.

Lastly, we were each given a pass to go see the House of Representatives that day and any day for two years.  These are called "Gallery Passes" and I could not help but think they are considered tickets to the peanut galley. When we arrived at the Chambers gallery, the House was in recess for an hour.  Some people in our group decided to go in and wait.  I have seen legislators in action many times and I was hungry and tired, so I left.

As a member of the Supreme Court bar, I will receive an impressive certificate for my wall.  A few years ago, I was asked by someone as he filed his case with the Supreme Court, if his case was selected, would I argue it?  At the time, becoming a member of the U.S. Supreme Court bar seemed insurmountable and I had to decline.  Now, I am a member.  If I am ever asked again, I can say yes.

U.S. Capitol Building

Derivative Work - "Play that Song"


 Derivative Work - "Play that Song"
by Susan Basko, esq.

Recently, a Facebook friend who is a talented pianist and composer posted this question:

"so the song "Play that Song" by the band Train.... to me, is essentially the classic "Heart and Soul"; the melody is pretty much verbatim, so... is there copyright infringement here?"

The question piqued my interest because I am a lawyer who works in music law and copyright.  Listen to the video above to hear "Play that Song," by Train.

First, I looked and found that "Heart and Soul" is an old song by Hoagy Carmichael.  Listen to that song in the video below.


My friend was right -- the two song melodies are undeniably the same.  Was this copyright infringement?

Next, I looked up the names of the songwriters on each of the songs.

"Heart and Soul" is listed as being written by Hoagy Carmichael and Frank Loesser.

"Play that Song" is listed as being written by Hoagy Carmichael, Frank Loesser, William Wiik Larsen, and Pat Monahan.  See-- the new song is naming Hoagy Carmichael and Frank Loesser, the two writers from "Heart and Soul," in its list of songwriters.

And who are Pat Monahan and William Wiik Larsen? Pat Monahan is the lead singer of Train and also an accomplished songwriter.  William Wiik Larsen is a long time songwriter and producer with many professional songwriting credits.  (Please note the correct spelling is William Wiik (two i's) Larsen, not William Wilk Larsen.)

Thus, "Play that Song" has four songwriters -- two of whom are alive, and two of whom died many years ago.

 "Play that Song" is what is known as a derivative work in Copyright Law.  The melodic tune created by Hoagy Carmichael and Frank Loesser was used with permission of the owners of the copyright of the songwriting on "Heart and Soul," which would be the publisher or the estates of the men, since both Mr. Carmichael and Mr. Loesser passed away many years ago.  Both men are also listed as songwriters on "Play that Song," which means their publishers and estates will share in the songwriter royalties on the new song.  This shows a perfect example of how registering copyright on songwriting can be of benefit even long after the death of the songwriter.

A work that is creative and original and set into a tangible medium can have copyright. Copyright gives a whole list of protections and rights.  One of those rights is the right to control who gets to make a  "derivative work."  A "derivative work" is a new work that is derived from one or more existing copyrighted works.  This pdf booklet gives a lot of information on derivative works.

If you wish to create a song that is a derivative work, you should have your music lawyer contact the owners of the copyright on the songwriting that you wish to use.  First, the lawyer will look up and see who the actual songwriters are on the song.  Next, the lawyer will try to locate all the current publishers for the song. Next, the lawyer will contact the publishers and seek permission for you to create the derivative song.  If the new song qualifies as a derivative work, it will then be copyright registered naming both you and the original songwriters as the songwriters.

If a songwriter creates a derivative work song without getting permission and without naming the original songwriter, that is copyright infringement and can lead to a lawsuit.  If you are borrowing from the songs of others, you must get their permission or risk legal trouble.

NOW THINK ABOUT THIS:  When a song is very old, it no longer has copyright protection.  Then, it is in the public domain.  If you create a new version of a song in the public domain, or use parts of it, or create a remix of several such songs, or create a new arrangement, you do not need permission.  If you do create such a work, you can register your name as the songwriter or arranger, along with the original songwriter.  For example, if you create a remix of Pachelbel's Canon in D, you can list yourself as the songwriter alongside Pachelbel, as many songwriters and composers have done.

Or, if you come up with an updated version of "Fur Elise," you can list your name as songwriter along with Ludwig van Beethoven.  Check out this version of "Fur Elise" created by Josh Vietti.


May this information help you to create.  Enjoy the music.




Chicago Street Performers Law --
Proposed Changes and Why they are Bad



RE:  02017-217  Changes to Street Performer law
IMPORTANT -- SCHEDULED FOR COUNCIL VOTE FEB. 22, 2017 10 AM

Alderman Reilly of Chicago has proposed a major amendment to the Street Performer Law.  This amendment would make it illegal for street performers on Michigan Avenue or State Street to make any sound that can he heard at 20 feet.  This, in essence, makes all or most music illegal on these two streets, since all or most music from any instrument can be heard at 20 feet.

WE ARE ASKING THAT THE VOTE BE DELAYED, AND THAT ALL HOLDERS OF STREET PERFORMER LICENSES BE CONTACTED BY THE CITY USING THE CONTACT INFORMATION THEY GAVE WHEN THEY PURCHASED THEIR LICENSES, AND INVITED TO SPEAK AT A PUBLIC HEARING.  Also, all constituents must be informed, including music organizations, tourist organizations, etc.

Please keep in mind that street performers and potential street performers are often NOT represented by any Alderman, since they may reside outside the City.  Also, many or most audience members for street performers are not represented by any Alderman as many are visitors to Chicago.


We all oppose the amendments to this law for the following reasons:

1. There has been no notice to the Street Performers and no opportunity to be heard. When selling the licenses, the City requires contact information of the licensees, including address, phone, and email.  Yet, the holders of Street Performers Licenses were not contacted by phone, mail, or email by the City about this proposed change to the law.   There was no public hearing about which they were personally notified and to which they were invited. It is absolutely illegal and outlandish that a business license would be so drastically changed as to become meaningless and no notice has been given.  This makes this process unconstitutional.

2. Street Performer Licenses are two year licenses, and so a minimum of 2 years should be the waiting period before such changes to the law can take effect. Otherwise, the licenses have been sold under false pretexts. The change to the law is to take effect immediately upon passage.  This makes the new law unconstitutional.

3. Treating those with Street Performer Licenses in this way is unconstitutional because it treats them in a way unlike the holders of other business licenses, as if they can be disregarded and maltreated.  

4. The change to the law is irrational, which makes it unconstitutional.  There is no rational basis for thinking "20 feet" is some magical number.  Almost any sort of music can be heard at over 20 feet by a person with normal hearing.  In effect, this law makes all music illegal on Michigan Avenue and State Street.  In many spots, the sidewalk itself is 20 feet wide.  What is "20 feet" based on?

5. The change to the law is irrational, which makes it unconstitutional.  There is no rational basis for thinking that removing music from Michigan Avenue and State Street will mean that the complainers will no longer hear music -- since the musicians will simply be able to go around the corner, for example, onto Randolph, and make the sound, which will still be heard by the complainers.

6. The law is unconstitutional because it is irrational, because if the complainers on Michigan Avenue and State Street "need" protection from music, don't the people on all the other streets also "need" to be protected from music?

7.  The law is unconstitutional because it is racist, because it will mainly or disproportionately in practice affect young Black male bucket drummers.  These young men should be encouraged to feel they are part of the City and that they are welcomed on the streets.  This is their chance to make the City their own, to feel pride in showcasing their talents.  They are greatly beloved by tourists and other visitors to the downtown areas.  Many depend on the money they make by street performing.  Under the proposed law, all this is lost.

8. The City of Chicago is already unconstitutionally barring street performers from all places in Millennium Park at all times.  This has been shown in litigation in other cities to be unconstitutional.  Barring a street performer's right to make music in a city's showcase park has been shown to be an unconstitutional violation of the First Amendment rights, not only of the Street Performer, but of the potential audience and the City dwellers.  There is a constitutional right to hear these messages as much as there is a right to give these messages.

9. Just as street performers have a constitutional right to perform in a city's showcase parks, they also have a constitutional right to perform on a city's showcase streets, including Michigan Avenue and State Street. And just as the buskers have the right to perform, the intended audience, the public, has the right to hear the messages/ music.  And restricting music that can be heard at 20 feet is essentially removing all music from the streets.

10. The City of Chicago Street Performers License Law is probably illegal in itself, in requiring licensing and payment from people to exercise their First Amendment rights on public streets.

Computer Genius Case Goes to Supreme Court


Computer Genius Case Goes to Supreme Court
by Susan Basko, esq.

The case of Eric Eoin Marques, the computer genius who invented Tormail and developed Freedom Hosting, an easy-to-use website hosting service for the Dark Web, is now before the Supreme Court of Ireland.  Mr. Marques faces extradition to the U.S., which is charging him with various crimes involved in being an internet service provider and hosting company on which some customers allegedly ran websites that trafficked in child abuse pornography.

If extradited to the U.S., Mr. Marques likely faces life in prison.  Therefore, Mr. Marques asked the Irish Courts to try him there.  He even offered to plead guilty.  The Irish Courts refused to try him in Ireland and gave no reasoning for the refusal.  Mr. Marques appealed this refusal to give a reason, but lost the appeal.  The Appeals Court stated that he was not entitled under law to be given a reason for the refusal.

The case has now been sent to the Irish Supreme Court, which has agreed to a stay in any extradition until after the Court either hears the case or declines to hear the case.

Charging an internet service provider with crimes based on the content  of websites owned and operated by the customers of the internet service provider is new, but not uncharted, territory for the U.S. Department of Justice.  This is akin to holding Amazon Web Services criminally responsible for the content of all websites hosted on its servers.  There has been no allegation that Mr. Marques himself ran the offensive websites.

This case stems out of the federal court in Maryland, USA.  This is the same location of the infamous Silk Road case, involving a Dark Web site that sold items for bitcoins.  In that case, some of the users of the site sold illicit drugs. The alleged Silk Road site owner, Ross Ulbricht, was held criminally responsible for the drug transactions on the site.  As it turned out, two or more of the investigators in the case, including Carl Mark Force IV, of the DEA, and Shaun Bridges of the Secret Service, were eventually charged with stealing large quantities of bitcoins from the Silk Road.  Both were charged with federal crimes and sentenced to prison terms.  The Maryland-based investigation into Freedom Hosting was in the same time frame as the Maryland-based investigation into Silk Road.  Note, the Silk Road case was eventually tried in New York, where the US DOJ claimed a parallel investigation had taken place.  The ties to New York are unclear and the main investigator present at the arrest and trial of Ross Ulbricht was Jared Der-Yeghiayan, from the Chicago office of the Department of Homeland Security.  

There are numerous parallels between the Silk Road case and the Freedom Hosting case.  Both services were started by young men with a knack for creating lucrative internet businesses.  Both services operated on the Dark Web.  Both ran minimal operations -- though the operator of Silk Road, known as DPR (Dread Pirate Roberts) had a few helpers running forums and such things, Eric Eoin Marques ran Tormail and Freedom Hosting entirely by himself.  The Freedom Hosting website assured customers it was not a one-man operation, but it was.  Freedom Hosting also assured its customers, in writing on the site,  that their sites would not be visited or supervised by the hosting company.  The Freedom Hosting Terms Of Service had forbidden the users from using the sites for any illegal purposes.

The Freedom Hosting site offered anyone, for a small cost, the ability to start a Dark Web site with the same ease and familiarity as one might start a Google or Wordpress blog.  Tormail offered anonymous email accounts.  Both services were innovative and made the highly technical usable by the average person.  Both services have been shut down by the U.S. government.

Eric Eoin Marques is autistic, has dual U.S.- Irish citizenship, and lived with his father in Dublin until his arrest several years ago.  Mr. Marques was extremely quiet and stayed hidden in his bedroom, where he invented Tormail, founded Freedom Hosting, and ran his businesses.  He allegedly left the bedroom once each day to go out to eat at McDonald's.  If Mr. Marques is extradited to the U.S., this will impose a great hardship upon his father, who has never been to Maryland and does not know anyone there, but wishes dearly to be there for his autistic son.  The father hopes that the Irish Supreme Court will allow this matter to be handled in Ireland.   That decision is now in the hands of the Irish Supreme Court.

Illinois Cyberstalking Law


Illinois Cyberstalking Law
by Susan Basko, esq.

Illinois has laws about stalking and harassment and you can read about those here:
http://suebasko.blogspot.com/2013/10/cyberstalking-illinois.html

The following law is the Illinois Cyberstalking Law:

 (720 ILCS 5/12-7.5) 
    Sec. 12-7.5. Cyberstalking. 
    (a) A person commits cyberstalking when he or she engages in a course of conduct using electronic communication directed at a specific person, and he or she knows or should know that would cause a reasonable person to:
        (1) fear for his or her safety or the safety of a
    
third person; or
        (2) suffer other emotional distress.
    (a-3) A person commits cyberstalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions, harasses another person through the use of electronic communication and: 
        (1) at any time transmits a threat of immediate or
    
future bodily harm, sexual assault, confinement, or restraint and the threat is directed towards that person or a family member of that person; or
        (2) places that person or a family member of that
    
person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint; or
        (3) at any time knowingly solicits the commission of
    
an act by any person which would be a violation of this Code directed towards that person or a family member of that person.
    (a-5) A person commits cyberstalking when he or she, knowingly and without lawful justification, creates and maintains an Internet website or webpage which is accessible to one or more third parties for a period of at least 24 hours, and which contains statements harassing another person and:
        (1) which communicates a threat of immediate or
    
future bodily harm, sexual assault, confinement, or restraint, where the threat is directed towards that person or a family member of that person, or
        (2) which places that person or a family member of
    
that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement, or restraint, or
        (3) which knowingly solicits the commission of an act
    
by any person which would be a violation of this Code directed towards that person or a family member of that person.
    (b) Sentence. Cyberstalking is a Class 4 felony; a second or subsequent conviction is a Class 3 felony. 
    (c) For purposes of this Section:
        (1) "Course of conduct" means 2 or more acts,
    
including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person's property or pet. The incarceration in a penal institution of a person who commits the course of conduct is not a bar to prosecution under this Section.
        (2) "Electronic communication" means any transfer of
    
signs, signals, writings, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. "Electronic communication" includes transmissions through an electronic device including, but not limited to, a telephone, cellular phone, computer, or pager, which communication includes, but is not limited to, e-mail, instant message, text message, or voice mail.
        (3) "Emotional distress" means significant mental
    
suffering, anxiety or alarm.
        (4) "Harass" means to engage in a knowing and willful
    
course of conduct directed at a specific person that alarms, torments, or terrorizes that person.
        (5) "Non-consensual contact" means any contact with
    
the victim that is initiated or continued without the victim's consent, including but not limited to being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim; entering onto or remaining on property owned, leased, or occupied by the victim; or placing an object on, or delivering an object to, property owned, leased, or occupied by the victim.
        (6) "Reasonable person" means a person in the
    
victim's circumstances, with the victim's knowledge of the defendant and the defendant's prior acts.
        (7) "Third party" means any person other than the
    
person violating these provisions and the person or persons towards whom the violator's actions are directed.
    (d) Telecommunications carriers, commercial mobile service providers, and providers of information services, including, but not limited to, Internet service providers and hosting service providers, are not liable under this Section, except for willful and wanton misconduct, by virtue of the transmission, storage, or caching of electronic communications or messages of others or by virtue of the provision of other related telecommunications, commercial mobile services, or information services used by others in violation of this Section. 
    (e) A defendant who directed the actions of a third party to violate this Section, under the principles of accountability set forth in Article 5 of this Code, is guilty of violating this Section as if the same had been personally done by the defendant, without regard to the mental state of the third party acting at the direction of the defendant. 
(Source: P.A. 96-328, eff. 8-11-09; 96-686, eff. 1-1-10; 96-1000, eff. 7-2-10; 96-1551, eff. 7-1-11; 97-303, eff. 8-11-11; 97-311, eff. 8-11-11; 97-1109, eff. 1-1-13.)

Oakland Warehouse fire: What Caused It

Oakland Ghost Ship before the fire:
old rugs, musical instruments, lanterns,  lots of paper and wooden decorations

Oakland Warehouse Fire: What Caused It
by Susan Basko, esq.

December 3, 2016.  Last night, there was a devastating fire in the Fruitvale area of Oakland, California, U.S.A., in a warehouse that had been turned into an artist live/work space.  The artists called the space Ghost Ship.  Some called it Satya Yuga, or in Hindi,  सत्य युग, which translates into English  as "truth era."  So far, reports are that 9 people died in the fire and many more are dead in the rubble.

Our thoughts and prayers go out for the families and friends of those who died and for those who survived.  May those who died rest in peace.

The Oakland fire department has stated that the building was a maze with many alcoves built in by the artists. The building owner was recently reported or cited for building code violations. To call the Ghost Ship a "fire trap" would be putting it mildly, as seen in the photos posted below.

The photos below show several themes: Misuse of fire, fire hazards, an enormous amount of clutter, dangerous fire trap interior building divisions into small cubbyhole spaces, many lanterns and candles, no clear or easy exits.  This building was the definition of "fire trap."

If you would like to read a basic primer on Venue Safety, please see:
http://suebasko.blogspot.com/2014/02/basic-venue-safety-for-festivals.html

If you would like to donate to a fund to help the fire victims:
https://www.youcaring.com/firevictimsofoaklandfiredec232016-706684

All photos below are inside or in the outside yard at the Ghost Ship/ Satya Yuga Artist Cooperative Live / Work Space in  Oakland, California, where a terrible fire occurred on December 2, 2016, tragically killing many young adults.  All photos are used Copyright Fair Use, owner not known, dates not known, all photos obviously taken at some time before the fire on December 2, 2016, possibly weeks, months, or even years before the fire. Click on any photo to enlarge.


This undated photo appears to be the outside yard of the Oakland Ghost Ship. In it, a fire dancer uses a very high flame while standing on or near an old carpet, amid clutter and overhanging tree branches.  This is, obviously, extremely dangerous.


The photo above shows what appear to be lit candles placed amid
 an altar of antlers, skulls, arrows, and other clutter.


This photo above shows what appears to be a ritual fire burning
 on what appears to be a container on the floor.


This photo above shows an upper and lower deck built into the cluttered space.


Photo above shows unlit candles on an altar.


Photo above shows a hodgepodge of lanterns, a jukebox, clocks, chairs, wood, 
a bicycle hanging from the rafters.  This is fascinating to look at, but is quite a fire trap.


Decaying wood, what looks like an old sled, old music organs, and an array of clutter
 look like a fire could easily start and spread.


Imagine trying to find your way out to an exit during a fire.  


Copyright Fair Use on all photos for the fair use purposes of analysis and review for news.  

Protests: International Standards 2016



Protests: International Standards 2016
by Susan Basko, esq.

The expert panel of OSCE ODIHR has issued, Human Rights Handbook on Policing Assemblies, its latest guidebook on international standards for protests. You can download a pdf of the guidebook HERE.   Previous versions in earlier years have leaned toward vague and euphemistic wording and idealistic expectations.  This 2016 version is more specific and useful, perhaps because of the addition of 10 panelists from police departments worldwide.

On this panel from the U.S., there is Ralph Price, General Counsel of the Office of the Superintendent from the Chicago Police Department.  Chicago has an excellent recent track record of large protests with no major trouble.  Chicago has also been able to hold huge non-protest events with only minor expected problems.  These events have included the November 2016 rally and parade for the Chicago Cubs World Series win, which the City of Chicago estimates had an attendance of 5 million people, making it the largest gathering ever in the United States and the seventh largest gathering in world history.  By any measure, this makes the Chicago Police experts at handling crowds. This sort of real world expertise helps make this new guidebook quite useful.

Note: OSCE ODIHR stands for Organization for Security and Cooperation in Europe, Office of Democratic Institutions and Human Rights. OSCE has 57 participating nations on 3 continents of Europe, North America, and Asia.

In this guidebook, "assembly" specifically means a protest of some sort.  These guidebook lists "meetings, rallies, pickets, demonstrations, marches, processions, parades and flash mobs."  Glaringly absent is almost any mention of camping or tent protests, which have been prevalent worldwide over the past 5 years.  Page 13 of the guidebook makes this statement, but fails to call it "camping," and fails to mention tents: "Though they (protests) are usually of temporary nature, they may also last for considerable time, with their semi-permanent structures in place for several months." After this brief mention, the topic of camping as a protest is dropped.  In fact, since the Occupy protests, camping protests have become popular worldwide.

Also missing is any mention of a sit-in, which is a short or long term residence inside a building.

Camping and sit-in protests involve the occupation and exclusive use of space meant to be shared by others.  These protests are often highly effective at galvanizing dissent and thus, are highly useful to a democracy.  They are also where law enforcement most needs to be guided and restrained.  If you have been paying attention to the recent police actions against the Standing Rock Sioux Tribe and allied protesters of the Dakota Access Pipeline that proposes to send oil through several U.S. States, you have seen protesters sprayed with water in freezing temperatures, attacked with chemical weapons, and injured with projectiles shot from guns. The "No DAPL" protesters have a huge groundswell of support and appear to be holding ground on land that rightly belongs to their tribe.  Yet, stories of abuse by law enforcement against the protesters are cropping up daily.  The photos and videos are hard to deny.

Flash mobs are also listed in the "Types of Assemblies"  (pg 15), but are only minimally addressed thereafter.  This may be because a peaceful flash mob will usually be over and gone before there can be any police response.

Another topic that is missing from the guidebook is the manner of making arrests.  This is glossed over.  In the U.S., there has developed a widespread practice of police forcing a person to the ground to arrest the person.  This has led to many cases of injury and to physical abuse committed by police.  The arrestee is often ordered or forced to the ground, usually for no apparent reason.  Often, a police officer places a knee into the back of the person on the ground.  This surely causes injury to anyone and has been known to cause severe injury and death. Numerous videos show multiple police officers piling onto a person on the ground. Many videos show the person on the ground being kicked, beaten, or even shot (though shooting is usually in individual encounters and not in protest situations.)  The method and manner of arrest is an issue of dire, immediate importance in human rights with regard to policing.  The guidebook would have been far more balanced if the panel had included those who plan and participate in protests, rather than such a theory-only based panel.  It is way past time for any groups interested in human rights to address the manner and method of making an arrest.

Another topic that is missing is the widespread practice of targeting peaceful leaders for arrest.  Again, including panelists with real protest experience would have been useful.  Leaders of protests are often "picked off" by police in what are essentially random kidnappings.  Again, there is often video to show that such arrests come about with no provocation or need.

Another major topic that the guidelines do not address is the jamming or other interference with wifi or phone signals, and/or the use of stingrays to gather data from devices.  These actions by police to sabotage personal and journalistic media and communications should be prohibited.

 Thus, I suggest that in future versions of such OSCE ODIHR guidebooks on policing for protests:
  1.  That additional panelists be included to reflect a more well-rounded viewpoint, including those who plan and participate in protests;
  2.  That camping protests be addressed;
  3. That sit-in protests be addressed;
  4. That the specific method and manner of arrests be addressed and that police be prohibited from requiring or forcing any person to lie on the ground;
  5. That the practice of targeting peaceful leaders for arrest be prohibited.
  6. That police should be prohibited from jamming or interfering with wifi or phone signals or from using stingrays to gather data.

Among the positive highlights of the guidebook as the topics relate to the protesters or those engaged in the assembly , I have found these things (These are being numbered for use in referencing them; they are not in any order of importance.)

1. Freedom of peaceful assembly is a fundamental human right and, as such, is considered one of the cornerstones of a democratic society. (pg 12)

2. That protests often block traffic or cause inconvenience: "Many assemblies will also cause some degree of disruption to routine activities; they may occupy roads and thoroughfares or impact traffic, pedestrians and the business community. Such disruption caused by the exercise of fundamental freedoms must be treated with some degree of tolerance. It must be recognized that public spaces are as much for people to assemble in as they are for other types of activity, and thus the right to assemble must be facilitated. (pg 13)

3. That there must be a balancing act between the different people wishing to use the space: "Where peaceful protest interferes with the rights and freedoms of others it will often be the responsibility of the police to balance respect for of those rights with the right to freedom of assembly." (pg 14)

4. That there is a human right to peaceful assembly, but not to engage in violence against property or people:  "The right to assemble is a right to assemble peacefully. There is no right to act in a violent manner when exercising one’s right to assemble. If an individual acts violently while participating in an assembly, then that individual is no longer exercising a protected human right. However, violent acts by isolated individuals do not necessarily affect the right to assemble of those who remain peaceful." (pg 15)

5. Even if the protesters fail to comply with regulations (such as local regulations that may require a permit) police should still facilitate the protest:  "It should be noted that even though an assembly organizer or individual participants may fail to comply with legal requirements for assemblies, this alone does not release the police from their obligation to protect and facilitate an assembly that remains peaceful." (pg 15)

6. What is "peaceful assembly"?   "Peaceful Assembly: An assembly should be deemed peaceful if the organizers have professed peaceful intentions and the conduct of the participants is non-violent. Peaceful intention and conduct should be presumed unless there is compelling and demonstrable evidence that those organizing or participating in that particular event themselves intend to use, advocate or incite imminent violence. The term “peaceful” should be interpreted to include expressive conduct that may annoy or give offence, and even conduct that temporarily hinders, impedes or obstructs the  activities of third parties. 2 An assembly should be considered peaceful, and thus facilitated by the authorities, even if the organizers have not complied with all legal requirements. Lack of such compliance should not be an excuse to inhibit, disrupt or try to prevent an assembly." (pg. 14-15)

7. What is not "peaceful assembly"? "Assemblies that incite hatred, violence or war, aim to deliberately restrict or deny the rights of others or aim to intimidate, harass or threaten others, in violation of applicable law, are not considered to be protected assemblies. Article 20 of the International Covenant on Civil and Political Rights states that “any propaganda for war shall be prohibited by law, and that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” (pg 15)

8. If some of the protesters are violent, police should deal with those individuals and not deny the whole group the right to assemble: "If individuals or small groups of people engage in acts of physical violence during an assembly, the police should always ensure that their response is proportionate and focuses on those who are engaged in violent behaviour rather than directed at the participants in the assembly more generally. This is true whether the violence is directed against the police, individuals, property, people within the assembly or those perceived to be in opposition."  (pg 18)

Example from recent news: Such a situation was seen at a recent protest in Portland, Oregon, after the 2016 presidential election.  A very large protest took place.  A small subset of individuals came armed with bats and metal bars, and broke windows on shops and smashed the windows and metal on cars.  The Portland police were heard on videos telling those not engaged in the violence to separate themselves from the violent protesters and go protest at a different location where peaceful protests were being held.  The police then declared the area a riot and stated that all present were under arrest.  Overall, it appeared that the Portland police did a good job of protecting the rights of the peaceful protesters while being able to arrest a significant number of the violent protesters.

9. Costs of Policing should not be charged to protesters or organizers.  Insurance coverage should not be required: "The costs of providing adequate security and safety (including policing and traffic management operations) should be fully covered by the public authorities. The state must not levy any financial charge for providing adequate policing. Organizers of non-commercial public assemblies should not be required to obtain public-liability insurance for their event." (pg 21)

NOTE:  I would like to see this expanded to say that a City should open its available public restrooms for use by those in an assembly or protest.  Other nearby facilities, such as park benches, picnic tables, public transportation stations and bus stops, drinking fountains and water spigots, electrical outlets, bicycle racks, and other existing facilities should be open and their use not denied to protesters.

10. Police should not interfere with or restrict media journalists.  No distinction should be made between media organizations and independent journalists.  People should be allowed to video or photograph the police.  Police should not confiscate or damage cameras, cell phones, or other equipment of the journalists. (pgs 33-34)

11. That police officers may never act as agents provocateurs: "That officers must not act as agents provocateurs and may never instigate, participate or incite illegal actions within the assembly." (pg 71)  This topic is limited to a single sentence, but should instead be printed in huge bold letters taking up an entire page.  There are many stories of police acting as agents provocateurs and trying to incite violence or entrap protesters.  It is heartening to see this despicable practice prohibited by OSCE ODIHR.

12. Policing Strategy:  Part II of the guidebook, which is pages 42-125, deals with the police planning and strategy.  Topics include the use of water cannons, chemical agents, impact round (less than lethal weapons), and firearms.  Notably absent is discussion of the use of a sound cannon or LRAD.   If you are involved in planning protests or in giving legal advice or assistance to those who do plan protests, you should read this entire section.  It will give you a picture of the details of planning, infrastructure, and expense that go into running a police force that can properly handle public assemblies. (pgs 42-125)  It can also help you understand the rights of protesters and how to protect them from harm.  Although each city in the U.S. and each city worldwide all have different specific laws regarding public assembly, there is a commonality to the approach.  This guidebook is an attempt to get the OSCE member nations all on the same framework of respect for human rights in peaceful assemblies.

NOTE: My personal observation has been that the more organizers and protesters or participants in public assemblies are aware of the laws, rules, regulations, and practices of the police and city, the more likely the protest is to be peaceful.   The more people can engage in peaceful protest, the better the democracy.  Protest and assembly are basic human rights that lead to better government.

So, too, the more aware that people are of the possibility that there may be people who show up at a peaceful protest with the intent of disrupting it with violence or chaos, the more likely the peaceful ones are to separate themselves from the violence.  Knowledge is a powerful thing.


More about OSCE:

The OSCE has 57 participating States from Europe, Central Asia and North America:
    • Albania
    • Andorra
    • Armenia
    • Austria
    • Azerbaijan
    • Belarus
    • Belgium
    • Bosnia and Herzegovina
    • Bulgaria
    • Canada
    • Croatia
    • Cyprus
    • Czech Republic
    • Denmark
    • Estonia
    • Finland
    • France
    • Georgia
    • Germany
    • Greece
    • Holy See
    • Hungary
    • Iceland
    • Ireland
    • Italy
    • Kazakhstan
    • Kyrgyzstan
    • Latvia
    • Liechtenstein
    • Lithuania
    • Luxembourg
    • Malta
    • Moldova
    • Monaco
    • Mongolia
    • Montenegro
    • Netherlands
    • Norway
    • Poland
    • Portugal
    • Romania
    • Russian Federation
    • San Marino
    • Serbia
    • Slovakia
    • Slovenia
    • Spain
    • Sweden
    • Switzerland
    • Tajikistan
    • the former Yugoslav Republic of Macedonia
    • Turkey
    • Turkmenistan
    • Ukraine
    • United Kingdom
    • United States
    • Uzbekistan









 




About my involvement with OSCE ODIHR: Susan Basko, the author of this article, is a lawyer in the United States of America. Among other things, she assists those who want to plan a protest.  She is open in helping people from the wide spectrum of political and personal viewpoints.  IN 2012, she assisted OSCE ODIHR in a study of protests throughout the world, with her expertise being lent to the U.S. protests taking place in New York, Chicago, Los Angeles, and Oakland, California.  Ms. Basko was invited by OSCE ODIHR to participate in a summit of leaders and activists from around the globe.  That meeting was held in Vienna, Austria. Ms. Basko contributed by making proposals for international laws to require nations not to interfere with internet or phone signals during a protest.  That proposal was accepted by the assembly and became part of the recommendations for laws sent to the 57 participating nations.  Ms. Basko sees OSCE ODIHR as the organization making the biggest impact worldwide to protect the human rights of freedom of speech, freedom of assembly, and freedom of the media.

Leonard Cohen on Why you Need a Music Lawyer



Leonard Cohen on Why you Need a Music Lawyer
by Susan Basko, esq.

Listen to the first 55 seconds of this video to find out why you need to have a music lawyer read over an contracts before you sign them.  Before.