Pennsylvania Noise Ordinances Presentation February 3, 2021

On February 3, 2021, attorney Shannon Brown presented a webinar entitled What’s All the Noise About Noise Ordinances? to the PA State Association of Township Supervisors.

Noise Ordinance Presentation Materials

Noise Means Disruptive Sound

The EPA defines noise as any unwanted or disruptive sound. Sound becomes unwanted or disruptive when it interferes with basic life functions such as sleep or conversation or when noise diminishes one’s quality of life. Note that noise does not need to be “loud” to meet this definition. Furthermore, the definition of noise emphasizes that noise represents an interference with the rights and physical-person of others.

Noise a Serious Health, Community & Property Rights Issue

Noise poses

  • a serious health problem,
  • a violation of fundamental private property rights to the quiet enjoyment of property, and
  • a threat to community peace and neighborliness.

US law has recognized noise a a serious issue for at least 50 years

Three Distinct Pennsylvania Tools for Addressing Noise

Under current federal and state statutory and case law, Pennsylvania municipalities have significant latitude to address noise and protect their communities and residents using three distinct, basic, and simple tools:

  1. a true noise ordinance,
  2. a public nuisance ordinance, and
  3. zoning ordinance with performance standards.

The presentation illustrates why these are three, distinct tools (and how to avoid problematic Frankenstein-ordinances that improperly conflate these distinct tools). For the true noise ordinance, communities in Pennsylvania may use the simple, direct, fair, and easy-to-enforce, plainly-audible noise standard. Pennsylvania follows Constitutional law and does not require sometimes arbitrary, “decibel-level ordinances,” which can be complicated and hard-to-enforce.

Noise Linked to Serious Health Issues

Research links noise to a host of health issues such as learning impairment in children, miscarriages, diabetes, heart disease, high blood pressure, psychiatric disorders, colitis, ulcers, stress disorders, and other adverse health effects. Noise does NOT need to be “loud” to be linked to adverse health.

Noise Violates Basic Private Property Rights

Noise also represents an improper and illegal invasion of or condemnation of private property rights of others and a violation of basic community standards of neighborliness. As the presentation illustrates, all property owners possess a fundamental right to the  quiet enjoyment of their property—importantly, no “right” to make noise or to disrupt others exists. Similarly, Constitutional law specifies a duty that one use his real property in a manner that does not disrupt others in their quiet enjoyment of property.

Specific Noise-related Hot Topics: Agri-tainment, No-impact Businesses, Fireworks

The presentation also addresses specific noise-related “hot topics” in Pennsylvania such as:

  • statutory, no-impact home businesses (which by definition cannot make noise or cause disruption)
  • agritourism and agri-tainment business operations (non-agricultural uses of agricultural property)
  • ATV and recreational vehicle abuse and
  • fireworks (a growing problem in Pennsylvania due to recent tax law changes with effects on humans and animals).

Addressing Noise a Fundamental Function of Local Government

Addressing noise is a basic, necessary, and quintessential function of local government. Noise ordinances protect private property rights, benefit health, and maintain community peace.

Noise Ordinance Presentation Materials


Pennsylvania Municipalities Must Base Decisions on Evidence, Not Mere Opinion

On January 13,2021, the Pennsylvania Commonwealth Court (appellate court) in Weis Markets v. Lancaster Township again firmly stated that municipalities cannot act on mere opinion, not supported by substantial evidence, when making municipal decisions. Merely reciting “health, safety, welfare, and public morals” as justification for a decisions without substantial evince does not constitutionally support municipal decisions. The decision has broader implications for municipal decision-making and again reminds that municipalities cannot simply “wing-it” when making decisions.

Weis Markets involved a liquor license transfer in Lancaster Township, Lancaster County, Pennsylvania. The Applicant, Weis Markets, provided some basic evidence supporting the requested liquor license transfer. [Slip, 3-7]  The Township Supervisors

declined the opportunity to ask questions or extend their time for making a decision….Instead, they made comments expressing general concerns about the number of nearby licensed premises, without tying those concerns to any record evidence…. They then voted unanimously to deny the Transfer. … In its subsequent written adjudication, the Township listed the nearby businesses with liquor licenses and stated a bare conclusion that the Transfer was denied because it would adversely affect the health, welfare, peace, and morals of Township residents. The adjudication did not cite any evidence in the record in support of that conclusion. [Slip, 6-7]

The Commonwealth Court held against the Township because general comments by municipal actors do not constitute evidence to support municipal decision-making—citing to the 2014 Accord Howell v. City of Erie Blighted Prop., 87 A.3d 949, 953 (Pa. Cmwlth. 2014).  [Slip, 11]

Lessons for Municipalities

The Commonwealth Court affirms that municipalities abuse discretion (here under the Liquor Control Act) when they make a decisions unsupported by any evidence. The Commonwealth Court concludes:

Because we find the Township’s discretion is not unfettered, we conclude that in the absence of any supporting evidence to support its determination that the Transfer would have an adverse effect on the Township and its residents, the Township’s adjudication constituted a misapplication of the law and a manifestly unreasonable exercise of judgment, and therefore was an abuse of discretion. [Slip, 16]

Thus, mere opinion or comments by municipal officials do not constitute constitutionally-required evidence and thus cannot support municipal decision-making.

Founding Pennsylvania’s First Noise-Pollution-Abatement Advocacy Organization

Study after study link noise pollution with adverse health including birth defects, miscarriages, diabetes, heart disease, heart attack, high blood pressure, learning impairment in children, psychological disorders, stress induced disorders, hearing loss, PTSD, and  early death. Noise disrupts communities, interferes with the enjoyment of natural areas, and causes neighbor disputes. Noise violates our most fundamental Constitutional rights by interfering with the fundamental right to quiet enjoyment. Yet, even basic noise mitigation too often falls on deaf ears. No more.

Attorney Shannon Brown quietly leads a new non-profit community initiative  named, the Pennsylvania Association for Noise Pollution Abatement with focus on

  • raising awareness of noise pollution (the sometimes “forgotten pollution”),
  • providing education on the startling adverse health effects tied to noise (noise need not be “loud”),
  • delivering community education programs on noise mitigation,
  • advocating for those affected by noise pollution, and
  • developing sound, public policy to comprehensively mitigate noise pollution.

More will follow as this initiative further addresses noise pollution in Pennsylvania. Interested? Join the movement.

Pennsylvania Noise Ordinances for Townships Webinar February 3, 2021

On February 3, 2021, from 12-1PM, Shannon Brown will present What’s All the Noise About Noise Ordinances to the Pennsylvania State Association of Township Supervisors (PSATS).

Program Description

Township supervisors, staff, and solicitors receive sound information about the need for noise ordinances; understanding the startling current research on noise and adverse effects on health; important distinctions between nuisance law and noise ordinances; avoiding the potential decibel-level trap; and tips on drafting a true, simple, effective, noise ordinance.

Suitable for township officials, staff, and solicitors. CLE eligible (anticipated).

Webinar Signup Information

PSATS Learning: Webinar – What’s All the Noise About Noise Ordinances? – 2/3/21

Pennsylvania Noise Ordinance Article Published

The November-December 2020 issue of The Pennsylvania Lawyer contains an article on noise ordinances in Pennsylvania—Turning Up Quiet With Noise Ordinances.

The article provides context for attorneys when drafting noise ordinances for Pennsylvania. Many noise ordinances and purported noise ordinances (actually problematic omnibus “zoning” ordinances or nuisance ordinances) suffer from outdated research, lack of recognition that noise is a serious health issue, reliance on ordinances copied from other jurisdictions with other regulatory schemes, or failures to accommodate current law. After Scott Township, municipalities with defective noise ordinances may expect challenges and novel litigation.

The article discusses:

  • the extensive medical research demonstrating noise as a serious community health issue linked to a myriad of diseases such as heart disease, diabetes, learning impairment, birth defects, psychological disorders, PTSD, stress, and early death;
  • a reminder that Congress (since 1972) formally recognizes noise as an environmental pollutant;
  • noise is a fundamental property rights issue implicating the centuries-old fundamental right to quiet enjoyment and corresponding constitutional duty to use real property in a way that does not impair real property of another;
  • Pennsylvania’s recognition (along with other states) of the “plainly audible” standard to trigger potential liability for impairment under quiet enjoyment;
  • that so-called “decibel measurements” by definition do not measure noise, cause problems with enforcement, and do not provide additional “accuracy;” and
  • common ordinance problems such as mistaken reliance on nuisance law alone to address community noise (nuisance represents a distinct, adjunct area of law) or “omnibus” zoning-noise-nuisance ordinances that try to lump zoning, nuisance, and noise together under zoning (the MPC) rather than as distinct ordinances with enforcement as general health-safety, and welfare, then nuisance, and possibly zoning (as true performance standards).

The article represents a starting point for attorneys drafting noise ordinances or for attorneys reviewing and resolving problematic ordinances.

Pennsylvania Noise Ordinance Resources

Pennsylvania Addresses Variances Applied to Cell Towers

On June 2, 2020, in Fairview Township v. Fairview Township Zoning Hearing Board, the Pennsylvanian appellate Commonwealth Court addressed issues related to variances and cell towers (wireless communications towers).

Use Variances Remain an Extraordinary (and Rare) Remedy

A variance represents an extraordinary remedy: “[t]he burden on an applicant seeking a zoning variance is heavy, and variances should be granted sparingly and only under exceptional circumstances..” [Slip 7, internal citations omitted].

The applicant must establish something beyond mere hardship (economic) to the applicant. “[T]he fact that “the property may be used more profitably with the proposed use is not grounds for granting a variance.”” [Slip 8, internal citations omitted].

Furthermore, as Fairview Township again emphasizes,  the applicant cannot just cite some alleged physical defect or physical limitation in the property, including shape, that allegedly impairs or somehow precludes the desired use. Instead, consistent with constitutional law, the applicant must show that the physical defect precludes or creates “unnecessary hardship,” not just mere hardship, for all the potential uses permitted by the zoning district. [See slip, 9]. The ZHB or courts cannot just look at one potential use but must look at all potential uses to evaluate whether the extraordinary remedy of a variance applies and the criteria for variances are met.

Municipalities May Regulate Wireless Communications Towers

The Commonwealth Court held that the federal, Telecommunications Act (TCA) does not summarily trump state and local zoning. [Slip, 18-19]. The holding clarifies claims by wireless providers that the TCA largely trumps local authority and attempts to clarify the ambiguities with the federal, Third Circuit’s “one-carrier rule.” [See extensive discussion, slip 11-18].

Thus, the Commonwealth Court held that bona fide local zoning and community issues are factors when considering a variance request because such denials are not based solely on the presence or absence of wireless services in the proposed tower site (regardless who provides the wireless services). [Slip, 19-20] The Commonwealth Court reminds, “[n]ot every municipality’s denial of an application to build a wireless facility violates the TCA.” [Slip, 20, internal citations omitted].


Fairview Township provides much needed guidance to communities regarding both variances and cell towers.

  1. Municipalities retain the quintessential function of analyzing the compatibility between uses in a land use context.
  2. Variances remain an extraordinary remedy–consistent with the constitutional rights of neighboring and affected properties, not just the alleged rights of the applicant or site-owner.
  3. When assessing variances, the assessing body must consider all uses, not just the applicant’s “preferred” or targeted use—consistent with the constitutional rights of neighboring and affected properties, the basis for zoning.
  4. Hardship alone is not adequate to support variances; the applicant must demonstrate a higher “unnecessary hardship.”
  5. The Telecommunications Act does not summarily trump local land use and zoning.


See also

Zoom-bombing and “Hacking” Online Conferencing: A Open Challenge to Future Heroes or Future Felons

The rise of online meeting tools accompanies  the coranavirus (COVID-19) pandemic. Tools such as ZOOM, (open source, community developed), GoToMeeting, and Microsoft Teams provide critical infrastructure during the pandemic and critical tools for socialization in an isolation-environment.

Zoom-bombing Arises Likely from Script-Kiddies, Not Hackers

Zoom-bombing (also possible on other platforms, not just ZOOM) takes advantage of the balance between openness in advertising socialization opportunities via online meeting tools and the need to protect the integrity of the meetings. Recently, so-called hackers, are accused of “hacking” into such meetings to cause disruption including disrupting meetings, making inappropriate comments, or scrawling offensive images on the screens of meeting attendees.

I get annoyed with the tired media portrayals of these activities as somehow the dark domain of lurking “hackers.” Little, if any, of this activity requires any type of “hacking” ability. Yet, “hackers” get blamed (in fact, at least some of those demonized “hackers” are likely helping with the pandemic by providing key computer help to non-profits, aid to 3-D printing efforts to produce protective gear, and assistance with infrastructure development.) Zoom-bombing is likely NOT caused by “hackers.”

Instead, Zoom-bombing is probably  script-kiddies—board, computer-literate individuals just trying to cause disruption (get the kids back into school and Zoom-bombing will likely dissipate). Zoom-bombing requires little, if any, real computer skills. Now before the script-kiddies get angry with me, I mean no offense with that moniker and ask that you read the rest of this post.

Zoom-bombing: No Joke in Pennsylvania—Felony Prosecution

Even if Zoom-bombings are just attempts to cause malicious disruption or offense, script-kiddies should be warned that Zoom-bombing incidents in Pennsylvania, or a meeting involving  any Pennsylvanian’s in attendance or hosting, carry steep criminal penalties.

The Pennsylvania Computer Crimes Statutes still broadly define computer crimes—so the chances of prosecution are high because a competent district attorney, under these broad statutes, can easily make a case. More importantly, while this might be viewed as a “joke” or “harmless” by some, the penalties should be a wake-up call—third-degree felonies. Yep, upon conviction, you are looking at a lifetime label of felon, likely prison time as a guest of the Commonwealth’s prison system, steep fines, no more college loans, no more voting, and a lifetime of awkwardly explaining that felony on job applications. Plus, you will likely face prosecution in Pennsylvania due to the computer crimes jurisdictional component (18 PaCS 7602) even if you do not live in Pennsylvania. This isn’t TV; this is how the law works.

Zoom-bombers risk prosecution under, at least, 18 PaCS 7611 (unlawful use of a computer) which is an offense if someone

accesses or exceeds authorization to access, alters, damages or destroys any computer, computer system, computer network, computer software, computer program, computer database, World Wide Web site or telecommunication device or any part thereof with the intent to interrupt the normal functioning of a person.

Second, the person also risks 18 PaCS 7612 (disruption of [computer] service) which is an offense if someone

intentionally or knowingly engages in a scheme or artifice, including, but not limited to, a denial of service attack upon any computer, computer system, computer network, computer software, computer program, computer server, computer database, World Wide Web site or telecommunication device or any part thereof that is designed to block, impede or deny the access of information or initiation or completion of any sale or transaction by users of that computer, computer system, computer network, computer software, computer program, computer server or database or any part thereof.

Third, the person risks 18 PaCS 7615 (computer trespass ) which is an offense if someone

knowingly and without authority or in excess of given authority uses a computer or computer network with the intent to:

(2)  cause a computer to malfunction, regardless of the amount of time the malfunction persists;

(3)  alter or erase any computer data, computer programs or computer software….

All of the computer crimes carry third-degree felony penalties (translation: you are in the Big Leagues here for criminal defense and will likely pay a hefty attorney fee). And before the more savvy of you try to argue-away these laws, understand that’s TV, not real life. The district attorney, not you, defines how these statutes apply. You may be charged. You will then need to defend.

A Unexpected Hate Crime Escalator?

As with late-night TV, “but wait…there’s more….” Diligent district attorneys, depending on the content of the disruption and targets, may add a hate crime escalator to the criminal computer crime charges under 18 PaCS 2710. This bumps-up the third-degree felony to a second degree felony. That tacks on another two to three years of prison time (5 to 10 years!). So, if attacking a religious group, making ethnic comments, or generally being a jerk to protected classes somehow, you are looking at a serious escalator.

Summary: A Quiet Challenge to Zoom-bombers

Yes, the pandemic sucks. But it sucks a whole lot more for the tens of thousands of the dying, hundreds of thousands exposed as healthcare workers or grocery store workers, millions of the out-of-work (no paycheck) or out-of-school, and the millions of elderly now isolated.

No, I don’t think “hackers” get a fair shake by being labelled the cause of this Zoom-bombing activity (but “hackers” can take the high-road and feature, in appropriate channels, what they ARE doing to help).

Instead of “hackers,” I refer to what, I think, is the real source of Zoom-bombing incidents as script-kiddies—perhaps bored people with some, at least basic, computer skills. I do not mean any disrespect by the term. But I do think that it is important to distinguish hackers from script-kiddies.

So here’s my challenge to the script-kiddies: rather than risk tens of thousands of dollars in computer crimes defense, risk five to ten years in jail (and you know they will throw-the-book at someone to make an example), living labelled as a felon (no more voting, no firearms, no college loans, and likely impaired  job prospects) put the boredom and computer skills to work to HELP. Nonprofits, faith groups, advocacy groups (hey, if you’re angry with the world, find a group that fits you), hospitals, first responders, the medical community, legal access-to-justice groups, the open source software community, etc. are reeling with the pandemic and need help, especially technology help—websites to distribute information, help training non-computer-literate people in computer use, help setting up online meetings, help with 3-D manufacturing, help with open source software (free software that benefits the community), etc.

So, my challenge to the Zoom-bombers is this: when you look back on this pandemic 25 years from now,

  • do you want to be the one who vaguely remembered for being prosecuted for Zoom-bombing (yet with possible serious long-term consequences and likely regrets) or
  • do you want to remember how you quietly used your time and computer  skills (or learned new skills) to help that fire department, local free medical clinic, elder care facility (isolated under lock-down), advocacy group that you resonate with, or faith community (struggling to maintain contact with members)?


Revised Model Noise Ordinance for Pennsylvania Released

Attorney Shannon Brown released a newly-revised Model Noise Ordinance for Pennsylvania municipalities. A noise ordinance acts as an essential tool for municipalities to encourage neighborliness, to recognize fundamental constitutional property rights, and to reduce the negative health effects of noise pollution in Pennsylvania communities. The newly-revised model noise ordinance incorporates additional review of legal precedent through October 2019. The model noise ordinance focuses on ease of enforcement, adherence to constitutional law, and novel new risk to municipalities who do not adopt a true, noise ordinance.

Failure to take noise pollution seriously may impair the constitutional rights of property owners to the quiet enjoyment of their property, may contribute to adverse health in the community, and may exacerbate poor neighbor relations. Unfortunately, some municipalities still think that a general “nuisance ordinance” is adequate to combat noise (it’s not—see my detailed, 2018 noise ordinance presentation).

Mounting health and scientific evidence show serious health consequences linked to noise. Noise is linked to at least heart disease, high blood pressure, stress, sleeplessness, psychological annoyance, psychiatric illness, hearing loss, and premature death. Increasingly, children suffer from autism (noise can exacerbate) and learning impairment related to noise. Also, recent research emphasizes that noise need not be “loud” to cause problems or negative health effects.

Noise ordinance law in Pennsylvania differs from some other states. Pennsylvania correctly recognizes the fundamental federal and state constitutional rights to the quiet enjoyment of property and the corresponding duty of every individual to use his property in a manner that does not interfere with the quiet enjoyment of others. Pennsylvania also follows the constitutionally-sound rule that noise infractions can be supported by plainly-audible standards (again, reflecting that any noise is a potential infringement on the fundamental constitutional right to quiet enjoyment). Thus, Pennsylvania does not require that municipalities set “decibel level” measurements (and other states will need to follow suit because “decibels” do not measure noise and “decibel limits” are typically arbitrary and set way too high).

Easy to implement, easy to enforce, and recognizing noise as a serious issue are the hallmarks of the free, newly-revised, noise ordinance. The model noise ordinance comes in PDF and fill-able MS Word formats.

Attorney Brown consults on noise pollution, noise ordinances, neighbor law, and nuisance law issues.

Revised Model Noise Ordinance for Pennsylvania—early 2020 version

PDF Version of Pennsylvania Noise Ordinance—Model Noise Ordinance v.202

MS Word Version of Pennsylvania Noise Ordinance—Model Noise Ordinance v.202 [WORD]


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).


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.











Land Use Law Important to Address Climate & Community: Opinion

The IPCC (Intergovernmental Panel on Climate Change) released a special report on land use and climate change from a global perspective. While the report focuses globally, the report provides insights for local action on land use issues.

First, the report suggests that human population has grown explosively in the past 50 years placing extreme pressure on natural areas, farmland, and natural resources resulting in land degradation. Land degradation results in loss of farm productivity, flooding, erosion, and pollution.

While global reports sound distant, I have seen this personally. Being from Lancaster County in Pennsylvania, I have seen farms replaced by debt-ridden agricultural-commodity-production-facilities, farmland replaced by McMansions, and the paving over of thousands of acres of productive land to make way for housing and housing developments, etc. The result: serious flooding problems (e.g., 2011 floods), lost community viability, lost farms, and destabilized communities (saddled with crushing tax debt).

Second, the report suggests simple but insightful methods to help address the land degradation.

  • restoring true farms which rely on sustainable farming practices (as opposed to reliance on debt, costly bio-engineered seeds, chemical “fertilizers,” contract commodity production, human waste, etc.)
  • restoring farming communities and farm viability
  • valuing productive land over yet-another-housing-development or strip mall
  • assess future needs rather than immediacy when making land use decisions

I have commented before on the need for a fundamental shift in Pennsylvania from failed “growth-at-any-cost-land-use-models” to community stabilization models—and the report supports such thinking. Pennsylvania still labors in a 1950s mentality that growth = good and that all open land is somehow “undeveloped,”  and relying on failed notions of highest-and-best-value of land as somehow always includes a McMansion or Big Box. The report, and practical local experience, show that such notions failed to yield the “benefits” that the proponents claimed (if still in doubt and still not convinced by flooding and other issues, look at Pennsylvania’s crushing debt load of $128 BILLION in 2018 NOT including state pension debt. See also Statista. Updated 2021.).

While some may disagree with climate change, few can contradict the damage that failed land use policies that emphasize  “development” over stability have caused. Sound land use policies, based on constitutional factors and not “developer” demands, protect private property and help stabilize communities.





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]



Pennsylvania Short-Term Rentals Limited in Residential Areas


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 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 to impliedly exclude such incompatible commercial uses.

The prior cases, all addressing short-term rentals, launched a flurry of municipal ordinances, see example, trying to reign-in problematic short-term-rental, commercial activity in residential zoning districts based on these murky, new “rules.” However, in 2019, the Pennsylvania Supreme Court overruled the Commonwealth Court’s analysis and “rules.” Thus, we are back-to-square-one with short-term rentals allowing municipalities (and neighboring property owners) additional latitude in addressing these types of incompatible  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.


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

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).