Pennsylvania Supreme Court Holds No Compelled Disclosure of Computer Passwords

On November 20, 2019, the Pennsylvania Supreme Court in Commonwealth v. Davis held that a defendant in a criminal case cannot be compelled to disclose a password protecting an encrypted computer under the so-called foregone conclusion exception to the doctrine of self-incrimination in the Fifth Amendment.

The case involved a defendant accused of disseminating child pornography and a laptop protected by Truecrypt 7.1 (an open source data encryption tool). [slip 3-4] (NOTE: In 2014 around the time of the Snowden situation, TrueCrypt was suddenly discontinued over allegedly unfixed data security  issues.) The defendant declined to disclose the 64 character password protecting the Truecrypt, encrypted volume.

The case involved important, broader constitutional issues ( in the context of child pornography) regarding the so-called foregone-conclusion exception to the Fifth Amendment privilege protecting against self-incrimination and testimonial evidence. The foregone-conclusion exception suggest that if documents are already substantially known to the government, then compelling production related to those documents does not violate the privilege against self-incrimination. [see slip 5-6] The Fifth Amendment further protects against compelled testimony—where testimony is typically statements by an accused or the accused’s “own mind” and root of the colloquial “taking the Fifth.” Courts have created all types of artifices to re-frame evidence as non-testimonial to undermine the Fifth Amendment. Both issues are important legal protections (but the revulsion to child pornography makes seeing the broader legal issues difficult).

Lower Superior Court’s Troubling Analysis in 2017

Putting the child pornography aside, the Superior Court, a lower court, held [Sup.Ct. slip 9-15]  that a password, in this case, was not testimonial. The lower court, in a somewhat crabbed, boot-strapped logic, raised the foregone conclusion exception. [Sup.Ct. slip 12-13]. The court focused on the password and concluded

disclosing the password at issue would not communicate facts of a testimonial nature to the Commonwealth beyond that which [the defendant] has already acknowledged to investigating agents.

[Sup.Ct. slip 13]. The lower Superior Court assumed a priori that the password itself could not be testimonial and instead focused on the disclosure “unlocked” by the password. Thus, according to the lower court, compelling disclosure of the password is not testimonial and the foregone conclusion exception applies. [Sup.Ct. slip 15] Again, a child pornography case does not elicit much sympathy, but the implications of the lower court’s flawed analysis should trouble anyone. The analysis allows double-boot-strapping. If the government suspects what might be on a computer, then the government can force someone to disclose the password to “unlock” the suspected contents and use the “discovered” evidence against the accused.

The analysis deeply troubled many who better understand electronic data. The password itself can be testimonial and the case suggests, but does not resolve, that the government can then simply compel the accused to enter the password—thus not disclose it (which raises authentication issues because the accused is the only one who presumably knows the password or assuming the password somehow uniquely allows access). The holding vastly expanded the foregone conclusion exception, which addresses disclosure of known documents, to any information.

2019 Pennsylvania Supreme Court Corrects—No Compelled Disclosure of Passwords

The Pennsylvania Supreme Court lays a foundation

  1. the law distinguishes between physical and testimonial production where only testimonial is protected;
  2. however, an act of production may be testimonial when the act expresses some explicit or implicit statement of fact that certain materials exist, are in the defendant’s custody or control, or are authentic and whether the government compels the defendant to use the “contents of his own mind” in explicitly or implicitly communicating a fact;
  3. the vast majority of compelled oral statements of facts will be considered testimonial, as they convey information or assert facts acknowledging the deeply rooted concern with the “cruel trilemma” ; and
  4. whether the government compels  the accused to “use the contents of their own mind,” seen as a critical distinction between disclosing a key to a lockbox versus disclosing a combination to a lock

[slip 18-19].

The Pennsylvania Supreme Court reminded that testimonial means more than a mere statement by an accused.

The primary policy undergirding the Fifth Amendment privilege against self-incrimination is our country’s “fierce ‘unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt’ that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury. … This being the case, “the definition of ‘testimonial’evidence articulated in Doe must encompass all responses to questions that, if asked of a sworn suspect during a criminal trial, could place the suspect in the ‘cruel trilemma.’

[slip 11-12](internal citations omitted]  The Supreme Court cites, at length, the origins of the so-called foregone conclusion exception emphasizing that the caselaw suggests a narrow exception related to known documents in possession of a third-party. [slip 12-14, 18-19, 21, 23-24] The Supreme Court also carefully analysis past constitutional law on the foregone conclusion exception distinguishing between physical acts and mental acts.

such compulsion is more like ‘be[ing] forced to surrender a key to a strongbox containing incriminating documents’ than it is like ‘be[ing] compelled to reveal the combination to [petitioner’s] wall safe.’

[slip 15](emphasis in original) The testimonial aspect relates to the act of disclosure not to the contents of the documents themselves. [slip 16]

Using this four-part foundation, the Pennsylvania Supreme Court reversed the lower court and concluded that compelling disclosure of a password, an act of production, is testimonial. [slip 19] The Court concluded that the disclosure of a computer password is analogous to compelling disclosure of a wall safe combination and thus the product of his mind. Such compelled disclosure is protected by the Fifth Amendment and the foregone conclusion exception does not apply because such compulsion is testimonial (being the product of the mind).

Effects

The Pennsylvania Supreme Court’s analysis appears sound. Besides the implications for computer passwords, the Pennsylvania Supreme Court re-emphasized that the foregone-conclusion exception generally is “extremely limited” and arises only related to business and financial records (documents) specifically already known to the government. [slip 21]. The Court reminds:

the [s]tate which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple cruel expedient of forcing it from his own lips. [slip 22](internal citations omitted)

The government, even if a burden for the government, can expect little accommodation or latitude do to the foundational character of the Fifth Amendment. [slip 22, 23]

This case helps correct the concerns expressed by many over the increasing breadth of the so-called foregone-conclusion exception and double-bootstrapping approach suggested by government prosecutors. The government increasingly, using cases like those involving child pornography where there is no community sympathy for an accused, tried to expand the foregone-conclusion to effectively swallow the Fifth Amendment entirely. Yet, the same expanded rules apply to any case, not just child pornography. The inflated foregone-conclusion exception, until now corrected, could compel disclosure of business records, family records, copyright infringement, employment records, photos, website posts,hard drive contents,  etc. merely on government suspicion. For now, in Pennsylvania, that is not the case and the foregone-conclusion, while still problematic, is at least narrowed back to its constitutional boundaries.

 

 

 

 

 

 

 

 

 

 

Use Variances Remain a Challenging Process

The Pennsylvania Commonwealth Court in South Broad Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment affirmed that local governments must strictly apply the Municipalities Planning Code use-variance requirements. The Court also affirmed that a property owner does not possess a right to the allegedly “most productive use” of a property that outweighs application of even outdated zoning regulations. [20]

A developer sought a use-variance from the general zoning regulations. A use-variance effectively seeks an exception from the general zoning regulations for a specific property based on the applicant’s desire for a specific use contrary to the zoning regulations. Due to the Constitutional rights of neighboring properties and the community members, a use-variance is by design extremely rare.

Unnecessary in Unnecessary-Hardship Means Something

The Commonwealth Court re-emphasized the high-bar associated with variances. A variance applicant cannot merely establish some hardship or economic hardship. The applicant must establish unnecessary hardship. [13]

In this case, the applicant argued that general changing conditions in the zoning district supported multi-family uses and thus denial meant “unnecessary hardship.” The Commonwealth Court reminded that

[m]ere economic hardship, however, “will not of itself justify a grant of a variance.” … Evidence that the property’s legally allowed use is less profitable than the property’s proposed use is not sufficient to justify a variance. [13-14, citing Marshall v. City of Philadelphia].

Neighboring uses alone do not establish unnecessary hardship.[15] The Commonwealth Court does hint that evidence presented of significant physical characteristics of the property unique to the property might support unnecessary hardship in some cases, [18], or possibly significant evidence of extensive and expensive renovation (such as blighted properties) [19].

The Commonwealth Court thus summarized that local municipalities must recognize the extreme nature of variances and requires a higher-threshold than just hardship to establish a variance.

Modification of Prior Variances

South Broad Street also address modification of existing variances. The Court reminds:

a use variance is fundamentally a legislative determination that an otherwise nonconforming use, when approved under specific circumstances and subject to specific conditions, is entirely lawful.[11]

If a variance exists, the property owner may seek modification of the variance by demonstrating “absence of injury to the public interest” AND:

  1. meeting the criteria for a new, variance (unnecessary hardship) or
  2. changed circumstances [9].

If proceeding on changed-circumstances, the applicant must establish by “substantial evidence” that conditions changed rendering the current/previous variance “no longer appropriate.”[10] Importantly, the applicant must demonstrate the changes during the time period from when the prior variance was granted and the time of application for modification. [12]

 

 

 

 

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/1454CD17_5-7-19.pdf?cb=1

Pennsylvania Short-Term Rentals Limited in Residential Areas

Commentary

Generally, property owners  may not assume that they can buy or convert homes in residentially zoned neighborhoods for purely short-term rental use (such as investment properties) as recently corrected by the Pennsylvania Supreme Court in Slice of Life v. Hamilton Township . (NOTE: Be cautious if looking up this case or when reading comments about “this” case. There are two reported appellate cases by the same name: a) the 2017 Commonwealth Court opinion (now overruled and ineffective) and b) the new, 2019, Pennsylvania Supreme Court opinion which represents the current law.)

For a short time (2016-2019), the lower Commonwealth Court suggested two “rules” about short-term rentals in residential zoning districts.

  1. The Commonwealth Court suggested an “owner-occupied rule” that appeared to require/support short-term rentals in residential zoning districts if the property was somehow owner occupied.
  2. The Commonwealth Court generally suggested a new, but deeply flawed, ‘allowed-unless-expressly-excluded’ rule about any uses, including short-term rentals, suggesting that a municipality must specifically and precisely exclude uses or those uses are automatically allowed. In short-term rentals, the “rule” required the municipality to expressly, specifically, and precisely “exclude” the short-term rental use in the a residential zoning district and rejected using the decades-old non-transient and family-unit language.

The prior cases, all addressing short-term rentals, launched a flurry of municipal ordinances trying to reign-in short-term rentals based on these murky, new “rules.” Both “rules” are now overruled by the Pennsylvania Supreme Court. Thus, we are back-to-square-one with short-term rentals allowing municipalities (and neighboring property owners) additional latitude in addressing these types of commercial uses in residential districts.

Summary of Short-Term Rental Uses in Pennsylvania (Mid-2019).

The Pennsylvania Supreme Court held in Slice of Life v. Hamilton Township that if a municipality defines a family as a “single housekeeping unit” for purposes of a residential neighborhood, then a property in that zoning district cannot be used purely for transient uses such as short-term rentals. The Supreme Court stated that residential zoning districts accommodate family units and a family unit implies some degree of functional permanency as a “single housekeeping unit.” The Court held that AirBnB and other short-term-rental situations, by definition, address transient accommodations. Thus, purely transient use of a residentially zoned property for short-term rental is not compatible with a residential zoning district. Slice of Life v. Hamilton Township (2019) expressly reverses and overrules Slice of Life (2017) (Commw. Ct. 2017)(reversed and overruled).

The Pennsylvania Supreme Court also took this opportunity in Slice of Life to overrule the Commonwealth Court’s prior and problematic Marchenko v. ZHB Pocono Township (Cmmw. Ct 2016)(overruled) and Shvekh v. Shroud Township (Commw. Ct. 2017)(overruled) cases that also addressed short-term rentals. These cases, now overruled, suggested that any owner occupancy meant that the commercial use was not “purely transient” due to the owner occupancy. The Commonwealth Court also stated the municipality had not precisely, expressly, and specifically excluded short-term rentals (even if the ordinance had similar language), and thus allowed short-term rentals must be allowed in residential districts regardless of family unit definitions, transience definitions, or similar-sounding exclusion (calling then vacation homes).

The overruling of the three cases appears to restore stability to municipal ordinances that limit commercial  transient-type uses  such as short-term-rentals in residential neighborhoods. The overruling also restores some practically to ordinance drafting by not requiring to exclude every possible and imaginable use or risk allowing that use. Short-term rentals pose, in legal terms, an extraordinarily fast-moving area of law. Most cases have not yet explored the fundamental constitutional rights of neighboring properties to quiet enjoyment or the constitutional duty to use property in a way that does not interfere with the quiet enjoyment of others. Short-term rentals, and the three reported cases illustrate this, do not qualify as statutory no-impact businesses and may improperly impair constitutional property rights of neighboring properties.

Factual Summary

In Slice of Life,  an out-of-state owner purchased a residential property in the Pennsylvania Poconos as an “investment property” and purely for short-term rental use. The owner did not reside at the property. [slip 8] The property, advertised as a six-bedroom that could accommodate seventeen people, drew noise and other complaints from neighbors about groups using the property. [slip 9-10] Neighbors needed to call police several times, sent letters to the owner about problems that included “public urination, fireworks, loud music, large bonfires in the heavily wooded area, nudity and lewd conduct.”

Transient Uses Not Compatible with Residential Neighborhoods

The Supreme Court opinion focused first on transience and residential neighborhood character. The concept of transience versus neighborhood stability has deep roots in law. The Court cites:

The permanence and stability of people living in single-family residential zoning districts creates a sense of community, cultivates and fosters relationships, and provides an overall quality of a place where people are invested and engaged in their neighborhood and care about each other. This is a place where children can play together, neighbors can know each other and look out for one another, and people can enjoy the “quiet seclusion” of their homes. [slip 22-23](emphasis added)

The Court carefully notes that while generally one possesses a fundamental right to enjoy his property, those rights may be limited including by zoning and must recognize and respect the equal rights of quiet enjoyment of neighbors. [slip 19-23]. (Strangely, the Court does not cite to corresponding constitutional duties to use one’s property in a way that does not interfere with the property of another. That is, while one may enjoy his property, a string of long-standing cases reminds that such rights are limited by federal and commonwealth constitutional law in addition to simple neighborliness. The latter, neighborliness, seems less a factor with non-owner-occupied properties who have no personal incentive to maintain peace in a neighborhood.) The Court also recognizes that Pennsylvania’s Statutory Construction Act does not apply the zoning—although, the Court appears to apply similar principles.

Overruling Marchenko and Shvek

The Court also firmly admonished the prior and deeply flawed Commonwealth Court’s decision on this same case, Slice of Life (2017). [slip 23]. The Supreme Court stated:

In the case at bar [Slice of Life 2017], the Commonwealth Court failed to discuss, let alone interpret,the definition of “family”as defined in the Ordinance or its requirement of “a single housekeeping unit.” Indeed, it ignored entirely our decision in Miller and distinguished our decision in Albert without any discussion or analysis. Instead, it relied on its own factually inapposite and legally inaccurate decisions in Marchenko and Shvek [slip 23]

The Commonwealth Court in June 2017 had erroneously held, now overruled, that municipalities must strictly define every possible term in a zoning ordinance, must strictly apply a term expressly as written, and that no latitude for any interpretation exists—relying on a string of recent but problematic Commonwealth Court cases. [See Commw. Ct. slip 15, (overruled)]. The Commonwealth Court had embarked on a allowed-unless-expressly-and-precisely-excluded interpretation scheme that made writing zoning ordinances almost impossible. (A problem with the Commonwealth Court’s “interpretation” is apparent ignorance of basic property law that confers competing rights to other property owners of quiet enjoyment. The Commonwealth Court assumed supremacy of one individual’s rights, without any citation, to every other neighboring property owner and went so far as to hold that the apparently uncontroverted health, safety, and welfare concerns in Slice of Life were merely “speculative.” [Commw. Ct. slip 20]).

The Supreme Court in Slice of Life (2019) now expressly overrules the Commonwealth Court’s prior opinion in Slice of Life that relied on the Commonwealth Court’s problematic Marchenko and Shvekh. [slip 27]. The Supreme Court requires an “excluded-unless-expressly-included standard, combined with Miller’s ‘functional analysis’.” [slip 27]

Broader Implications

Slice of Life restores practicality to zoning ordinances and correctly recognizes the appellate function of the Zoning Hearing Board under the Muncipalities Planning Code. The Supreme Court restores the “excluded-unless-expressly-included standard, combined with Miller’s ‘functional analysis…. ” Municipalities must still be diligent in drafting zoning ordinances and keeping them current, but drafters do not need to “state every conceivable impermissible use.” [slip 27]. The functional analysis requires a fact-finder to analyze the use and determine whether the use functions as a family unit (e.g., a family with six foster children who are not related by blood are still a functional family unit). The functional analysis assesses the implications of the unit not just relationships. Also, the excluded-unless-expressly-included helps make drafting practical and restores constitutionally sound principles underlying zoning originally. Drafters no longer need to exclude every possible use of a property. [slip 27, “A single-family home (or other structure) can be used in as many ways as the imagination allows –for example,as a restaurant, a bakery, a bed and breakfast, a school, a store, a veterinary hospital, a halfway house or a pigeon sanctuary.The rule announced by the Commonwealth Court is impossible for drafters of zoning ordinances to execute.”)

Zoning has always allowed municipalities to limit commercial uses in residential zoning districts. Short-term rentals are commercial uses. Short-term rentals cannot qualify for the statutory (MPC) no-impact home business exception because, by definition, the users/clients of short-term rentals arrive at property. Thus, just as any other commercial uses typically dis-allowed, the municipality may exclude short-term rentals from residential properties.

2019 NEPA Green Fair on April 27, 2019

The 2019 NEPA Green Fair is scheduled for Saturday, April 27, 2019, from 10AM to 3PM in Nay Aug Park in the City of Scranton. The NEPA Green Fair will kick-off with a 5K run starting at 9AM.

The 2019 free event will feature educational programs, sustainability demonstrations, eco-friendly vendors, live music, local food, hikes, yoga, and more. Planned events include wildlife demonstrations, honey extraction, edible landscaping, solar electric generation, a solar demonstration house, and hybrid vehicles.

The event is the largest event in northeastern Pennsylvania focused on sustainability. Major supporters include Toyota of Scranton, The Fuller Overlook Foundation, PPL, Honesdale Bank, along with dozens of vendors and exhibitors.

The Greenhouse Project (Scranton) and SEEDS (Honesdale) serve as the coordinating sponsors for the event with the same project management from the successful 2018 Green Fair (held in Blakely). Attorney Shannon Brown serves on the Steering Committee for the event.

Pennsylvania Clarifies Non-conforming Uses

In December 2018, the Pennsylvania Commonwealth Court of appeals in Renaissance Real Estate Holdings LLP v. City of Philadelphia Zoning Hearing Board reiterated that a property owner, who voluntarily destroys a non-conforming use and the municipality’s ordinance plainly bars reconstruction of a non-conforming use upon voluntary destruction, has no legal right to the non-conforming use. The decision helps protect fundamental property rights in Pennsylvania by avoiding interference with the Constitutional right to quiet enjoyment of property.

Summary of Facts

In Renaissance Real Estate, a property owner knowingly purchased a nonconforming property that was used as a three-unit rental house in a neighborhood zoned for single-family dwellings. The property owner decided to tear-down the three-rental-unit house and proposed replacing the house with a larger, 38-foot high, three story, side-by-side condo/rental complex. The proposed project knowingly required three variances, which required the property owner to prove a bona fide hardship under the Municipalities Planning Code and Constitutional law. When the ZHB denied the variances, the property owner then appealed twice.

No Right to Rebuild Nonconforming Use If Owner Voluntarily Destroys the Use

The Commonwealth Court distinguished this case from other cases argued by the property owner. The Commonwealth Court reiterated that

a landowner may be prohibited from resuming the use in a replacement structure, provided that the prohibition is specifically stated in the applicable ordinance. [10]

The material issue here is the voluntary destruction of a non-conforming use by the property owner. As long as the municipal ordinances specify that the voluntary destruction of a non-conforming use extinguishes the non-conforming use, the property owner cannot then complain of “confiscation” for his own, voluntary action.

Fundamental Constitutional Property Rights Protected

While the Commonwealth Court does not expressly discuss the root issues, a non-conforming use by definition raises Constitutionally-protected property rights of neighboring property owners. A non-conforming use is some use that typically does not comply with the compatible uses enumerated in the zoning district.

While often forgotten when discussing property rights cases like these, every property owner enjoys the fundamental Constitutional right to the quiet enjoyment of his property. Furthermore, fundamental Constitutional law imposes a duty on every property owner to use his property in a way that does not interfere with the rights of others to use and enjoy their property.

Thus, contrary to the argument by the property owner in
Renaissance Real Estate , the non-conforming property owner’s rights are not the only rights at issue when considering a non-conforming use. Compare [12], where the property owner cites only his alleged vested rights, with [23] citing Article I of the Pennsylvania Constitution relating to property ownership. A non-conforming use by definition may raise competing fundamental property rights of neighboring property owners and a duty on the non-conforming property not to interfere with the fundamental property rights of others.

Cannot Complain About Your Own Actions

The principle here is simple:

  • a non-conforming use may exist as long as maintained and thus addressing so-called vested rights by the property owner and avoiding “confiscation.”
  • But a non-conforming property owner possesses neither a “super-right” to expand the use nor a “super-right” to voluntarily destroy the non-conforming structure and then rebuild with another non-conforming use—addressing the fundamental property rights of neighboring property owners.

Pennsylvania Attorney Shannon Brown Uses SSL and HTTPS

Pennsylvania Attorney Shannon Brown secures in-transit data by using SSL and HTTPS for the Shannon Brown Law Website. Despite being a standard practice, very few Pennsylvania law firms provide SSL security for their websites.

Failure to Use HTTPS Results in a Browser Warning

HTTPS helps secure communications between a browser and a web server. By 2018, most major web browsers warn users about websites that do not use an SSL Certificate and the HTTPS protocol. In 2019, web search providers such as Google, StartPage, and Duck-Duck-Go, plan to provide a cautionary warning about websites identified in web-search results that still fail to provide HTTPS connections.

HTTPS A Standard Practice for Business

Securing the in-transit communications helps minimize interception of web communications by malicious parties. HTTPS stands as a standard practice for any logins, financial information, purchases, or passwords. Without HTTPS, information entered in web forms, web searches, or logins might be sent in clear-text.

Attorney Shannon Brown Uses HTTPS

Attorney Shannon Brown implemented HTTPS for the law firm’s website in January 2018. He offered encrypted email starting in 2010.

Attorney Brown provides cybersecurity law, data breach law, and information technology law legal services in Pennsylvania.

Pennsylvania Supreme Court Holds Employers Potentially Liable for Data Breaches

On November 21, 2018, the Pennsylvania Supreme Court held that employers in Pennsylvania owe a legal duty to employees to protect the employee’s data from data breaches. Dittman v. UPMC, No. 43 WAP 2017 (Pa. 2018).

The November 2018 opinion by the Pennsylvania Supreme Court corrected a strongly criticized opinion issued earlier by the Pennsylvania Superior Court. The lower Pennsylvania Superior Court had held that because data breaches will happen, an employer cannot be liable for any breach of employee data.

Dittman involves a class-action lawsuit against a healthcare company arising after an alleged data breach exposing 62,000 employee records including tax information and personal information.

Employers in Pennsylvania Still Owe a Duty to Employees to Protect the Employee’s Data

The Pennsylvania Supreme Court concluded that an employer  has a long-standing and pre-existing duty to protect an employees’ data because when an actor undertakes affirmative conduct, the actor must due so with reasonable care. [14, 16] Simply because the facts involve data or “computer technology”does not change that existing duty.

Also, the Pennsylvania Supreme Court held that third-party criminal acts do not alleviate a duty to exercise reasonable care if the criminal acts are foreseeable, likely, and “within the scope of risk” created by an employer. [See 17-18]  In other words, an employer cannot assert that a cybercriminal’s actions somehow alleviates the employer’s potential liability. [18-19]

Economic Loss Doctrine Finally Corrected

The Pennsylvania Supreme Court also took this opportunity explain and correct a myopic reading of Pennsylvania’s so-called “economic loss” doctrine.

Economic Loss Doctrine is a legal artifice that reputedly to limits filing tort claims in what are primarily contract actions. [E.g., see  28, “[i]f the duty arises independently of any contractual duties between the parties, then a breach of that duty may support a tort action.”] Economic Loss Doctrine basically holds that one cannot recover purely economic damages by pleading a tort claim. A tort claim may open additional remedies including punitive damages which are generally not available in contract. Also, corporations claim that the Economic Loss Rule protects them from run-away verdicts by artificially limiting damages to the contract amount (or contract losses).

For about ten years, some claimed that Excavation Technologies acted as a absolute prohibition for victims despite the the the Bilt-Rite rules [30-31]:

no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage.

[27]

The Pennsylvania Supreme Court explained that the specific facts in Excavation Technologies do not warrant a broad reading of the above citation. [27-30]  Excavation Technologies relies on the fact that applicable statutes imposed no statutory duty or liability under the facts in Excavation Technologies and that negligent misrepresentation, under Bilt-rite, did not apply because the defendant in Excavation Technologies was not in the business of providing information. [27-30]

Thus, the Pennsylvania Supreme Court in Dittman now resolves the so-called controversy in Bilt-rite and Excavation Technologies by stating that one can recover “purely economic damages” in tort when the claim arises interdependently from contract. How one distinguishes between independent remains unclear–see Concurring and Dissenting Opinion.

Future of Dittman?

The Pennsylvania Supreme Court provides an initial clarification of several issues bedeviling recent cases in Pennsylvania. However, because the original case was on appeal from preliminary objections, no allegations have been proven. Dittman will continue to have life as it proceeds to trial and will continue to be a much-watched case.

Expect to see employers start to demand that employees to enter into a “contract” for employee data to avoid or limit liability under Dittman or expect other artifices rather than employers simply taking reasonable actions to protect employee data.

Previous Comments

Attorney Shannon Brown works with cybersecurity and data law. Shannon previously criticized the lower court’s holding in Dittman in a post titled “Pennsylvania Court’s ‘Cest la Vie’ View of Data Breach Damages.”

Attorney Brown’s Research Cited by a National Legal Treatise on eDiscovery & Digital Evidence

The forthcoming eDiscovery & Digital Evidence legal treatise by Jay E. Grenig & William C. Gleisner, III, favorably cites Pennsylvania Attorney Shannon Brown’s 2016 article on eDiscovery: Peeking Inside The Black Box: A Preliminary Survey of Technology Assisted Review (TAR) and Predictive Coding Algorithms for eDiscovery (21 Suffolk J. Trial & App. Advoc. 221 (2016)).

In Section §7.18 of eDiscovery & Digital Evidence, the authors discuss technology-assisted review (TAR) and cite Brown twice. The authors cite:

[Brown’s article] is a lengthy and daunting article containing 350 footnotes, and it is just a “preliminary survey.” Having said that, it is a very good primer on the subject of TAR and predictive coding…. This article will go a long way to acquainting lawyers with the technical aspects of TAR and predictive coding and should also make it clear why expert assistance is a must when dealing with TAR related issues. (emphasis added).

In Section §10:7, regarding computer forensics, the authors cite Brown’s caution that attorneys must become more technically aware:

A number of eDiscovery articles and books address the procedural and case law aspects of eDiscovery. Very few articles, however, address the technical aspects of technology assisted review (TAR) and predictive coding eDiscovery tools. Yet, as will become evident, the ‘technical’ aspects of eDiscovery raise important legal issues and reflect the transformation of the legal profession into one where attorneys will need both technical and legal skills to competently represent clients. Simply stated, attorneys can no longer uncritically rely on outside advisors or blindly accept ‘black box’ results.

The new treatise joins a growing list of citations to Attorney Brown’s research on the technologies used in predictive coding, technology-assisted review, and document analysis.

  • Seth Katsuya Endo, Technological Opacity & Procedural Injustice, 59 B.C. L. Rev. 821, 834 n.64 (2018).
  • Shannon H. Kitzer, Garbage in, Garbage Out: Is Seed Set Disclosure A Necessary Check on Technology-Assisted Review and Should Courts Require Disclosure?, U. Ill. J.L. Tech. & Pol’y, 197, 198 n.5 (Spring 2018).
  • Curtis E.A. Karnow, The Opinion of Machines, 19 Colum. Sci. & Tech. L. Rev. 136, 141, n.18 (2017).

Pennsylvania attorney Shannon Brown served as a Chief Information Officer (CIO), computer executive, and information architect, and has over 25 years of work as a senior technology professional, software developer, cybersecurity professional, and consultant on information technologies. Attorney Brown personally wrote the Prolorem eDiscovery software using predictive coding algorithms and with a novel ability to perform multi-classification classifications (that is, not limited to responsive/non-responsive). Attorney Brown previously taught the eDiscovery Technologies law school course at Widener Commonwealth School of Law as an adjunct professor of law and served as a guest lecturer on eDiscovery technologies at Pace University School of Law.

 

Attorney Brown Admitted to the Federal District Court for Eastern Pennsylvania

On October 12, 2018, the United States District Court for the Eastern District of Pennsylvania admitted Attorney Shannon Brown. Attorney Brown now maintains admissions to the federal Eastern and Middle Districts of Pennsylvania and the United States Court of Appeals for the Third Circuit.

Judge Joseph Leeson, Jr. of the Eastern District granted the motion for admission. Attorney Sean P. McDonough in the Scranton-area moved for Attorney Brown’s admission.

The admission was part of the first, federal, joint-admission program for the region. The federal joint-admission program allowed qualified attorneys to move for admission to any of the Eastern District, Middle District, or Third Circuit Courts in one place—otherwise, attorneys may need to travel to each court. A judge from each court came to Scranton and heard petitions for admission and administered oaths. The Lackawanna Bar Association helped coordinate the innovative event.

Ag Community Cautioned on Cybersecurity Threats to Precision Agriculture

On October 3, 2018, US-CERT cautioned agricultural producers about “Cybersecurity Threats to Precision Agriculture.” US-CERT cited a report produced by the Department of Homeland Security (DHS) about “Threats to Precision Agriculture” (PDF). The report recognizes

  • the complexity of today’s agriculture,
  • the use of potentially vulnerable embedded systems in agriculture,
  • the use of drones and similar equipment, and
  • massive amounts of data generated by agricultural systems including tracking ag product sources.

Agricultural producers suffer risks similar to any other manufacturing and production facility from cybersecurity threats. Similarly, agricultural producers need to take cybersecurity seriously including:

  • robust and tested data backups;
  • segmenting or isolating operational data, from financial data, from business operations data;
  • practicing good computer systems discipline (regular updates, limit software used, keeping current anti-malware, good password and access practices, etc.); and
  • developing an actionable cybersecurity detection and incident-response plan.

All of these preventing and mitigation measures require careful legal analysis as well as technical implementation (and relying on your whiz-kid nephew is likely not legally defensible).

The report also details a growing concern among cybersecurity and data protection attorneys—integrity of systems. In addition to data losses, data breaches and system compromises may result in extremely damaging events by disrupting the integrity of data. Imagine an undetected, long-term breach that silently alters information about soils, biocide/pesticide application rates, animal breeding, feed mixtures, or other data to the point where the data can no longer be trusted—and with serious regulatory, livestock loss, or human health consequences.  Or even more chilling, altering herbicide spraying rates destroying orchards or killing workers (or family members) or disrupting breeding programs resulting in the loss of valuable livestock or plants.

Just as with any other agricultural decision, good advice, planning, and awareness may help prevent or mitigate cybersecurity issues in agriculture.

 

 

 

Workplace Noise Again Linked to Heart Disease and High Blood Pressure

Centers for Disease Control & Prevention (CDC) researchers confirm that workplace noise can negatively effect health for workers. While traditionally, workplace noise focused on hearing loss, current research shows a litany of other, serious, adverse health effects such as high blood pressure and high cholesterol.

The study concluded:

  • 12% had hearing difficulty with 58% attributed to occupational noise,
  • 24% had hypertension with 14% attributed to occupational noise, and
  • 28% had elevated cholesterol with 9% attributed to occupational noise exposure.

Notably, the researchers stated that “nine percent of high cholesterol and 14 percent of high blood pressure cases among workers could be linked to loud noise on the job.”

The long-term effects or workplace noise remain unknown as does the effects of noise pollution in our communities. But with 22 million workers exposed to noise pollution every year, the long-term costs of noise pollution astound. Likewise, current research shows links between noise pollution and serious medical issues beyond hearing loss.

 

Original Article:

Workplace Noise: More than just “All Ears”

Program on Pennsylvania Noise Ordinances & Noise Law

On September 19, 2018, Attorney Shannon Brown presented on noise ordinances in Pennsylvania. Current scientific and medical research links noise to significant adverse health effects such as high blood pressure, heart disease, diabetes, annoyance, stress, and learning impairment in children. As research shows, noise need not be “loud” to be associated with adverse health effects.

Pennsylvania municipalities may use an easy-to-administer and sensible “plainly audible” standard to craft noise ordinances as opposed to the cumbersome, sound-level or “decibel-level” noise ordinances. A plainly audible standard allows almost anyone to determine whether a potential noise violation exists based on “can you hear the sound beyond the originating property lines.”

The presentation identified the controlling legal rights at issue such as the fundamental constitutional right to the quiet enjoyment of property and the related obligation of all persons to use their property in a way that does not interfere with the rights of others. The presentation also stressed that municipalities should enact three types of noise control ordinances to avoid potential liability for the municipality itself under 5th Amendment Takings for example. Each municipality should have:

  1. a noise ordinance to address immediate noise issues such as loud parties, animals, and other disruptive acts;
  2. a public nuisance ordinance to address threats to public health and the community arising from noise and other nuisances such as dilapidated buildings; and
  3. zoning ordinances to provide adequate buffers, setbacks, and zoning districts to separate potentially noise-conflicting uses.

Unfortunately, many municipalities still have no noise control ordinances, despite the threat to health and community quality-of-life, or only have a public nuisance ordinance—which is largely ineffective to address most noise problems in a community whereas a noise ordinance can. Others mis-classify public nuisance or zoning ordinances as noise ordinances.

Properly drafted noise ordinances encourage neighbor cooperation, minimize noise encroachments on private property, protect health, enhance quality-of-life, and maintain community peace.

Sample Model Pennsylvania Noise Ordinance

https://www.shannonbrownlaw.com/getting-help/community-law/model-community-ordinances

Pennsylvania Noise Ordinance PowerPoint Slides

2018-09-19 Noise Ordinances Presentation

Attorney Brown Scheduled for Penn State Extension Program on Noise Ordinances

Penn State Extension scheduled Attorney Shannon Brown to speak at a statewide webinar on Pennsylvania noise ordinances on September 19, 2018. Attorney Brown focuses on community development, community engagement, and community place-making law including land use, noise pollution, and noise control.

Neighborhood noise increasingly challenges communities and municipalities. Simple application of neighborliness can resolve many noise disputes.

Yet, increasingly, some community members reject neighborliness and [wrongly] insist on some “right” to make noise to justify their disruptive activities, noise, and anti-community behavior. These problem-makers can quickly undermine otherwise good neighborhoods, escalate conflict, and negatively affect health of neighbors.

Municipalities have an active obligation to hold problem-noisemakers accountable. As Pittsburgh Council President insightfully summarized, “If you’re not being a good neighbor, there are steps we can take to ensure the peace.” With increased populations, mixed-use planning, and higher housing densities, municipalities must protect the private-property right of quiet enjoyment; protect health and welfare; keep-the-peace; and perhaps avoid liability for the municipality itself for failing to take action.

 

Penn State Press Release: Webinar to focus on addressing noise in Pennsylvania’s communities

Noise and its impacts on communities will be the topic of a web-based land-use seminar presented Sept. 19 by Penn State Extension.

Presenting the 75-minute webinar starting at noon will be attorney Shannon Brown.

Noise can cause serious health issues and can undermine the quality of life in Pennsylvania communities, she pointed out.

“Current scientific research shows that noise can cause significant, adverse health effects such as heart disease, diabetes, learning impairment in children, high blood pressure, sleep deprivation, hearing loss, psychological disturbances and stress,” Brown said.

However, communities possess health, safety and welfare powers to effectively address noise issues and protect their residents.

“Municipalities clearly have authority to control noise pollution, and enforcement may be simpler than is sometimes assumed when the right tools are applied,” Brown said. “Furthermore, municipalities might risk liability themselves for not effectively controlling noise and protecting fundamental, private property rights such as quiet enjoyment.”

Brown will discuss three examples of noise ordinances during the webinar, along with the formidable problems of trying to address noise through typically outdated, general, nuisance ordinances.

The presentation will cover medical effects of noise; working definitions of noise; constitutional issues arising from noise; statutory authority for controlling noise pollution; and the basics of sound and decibel measurements (which might not be needed). In addition, Brown will cover how to distinguish between noise ordinances, nuisance ordinances and zoning; and three available regulatory standards for addressing noise in a noise ordinance — plainly audible, decibel/sound-level, or a hybrid of plainly audible and sound level.

Noise Again Linked to Early Death, Heart Disease, Hypertension, and Diabetes

A Swiss National Science Foundation short and long-term study of aircraft, rail and road traffic noise demonstrate disturbing links to early death, heart disease, hypertension, and diabetes.

The risk of dying from a heart event increases a disturbing 4% with every 10dB increase in road noise. Martin Röösli, principal investigator of SiRENE and professor of environmental epidemiology at both Swiss Tropical & Public Health and the University of Basel, stated “[t]he threshold for negative health impact is lower than previously suspected.”

The SiRENE study, ongoing since 2014, also suggests that noise may contribute to diabetes. Noise causes stress leading to insulin imbalances and causes sleep disruption.

The SiRENE study provides additional confirmation that noise contributes to significant, adverse health effects at much lower noise levels than previously suspected. Using the study information, noise from motorcycles, boom cars, and vehicles with tampered exhaust systems may increase heart-related deaths by 16% or more in communities. With aging populations in the US, the unnecessary noise places vulnerable elderly populations at significant risk.

 

Story from EEN (June 17, 2017).