DEEPFAKE VIDEOS: MASSACHUSETTS MULLS BAN

August 4, 2021:- If you lie awake worrying that there are too few people incarcerated, too few criminal offenses on the statute books, and too much unregulated speech (in fact altogether too much unregulated human activity in general) rest easy. Help is at hand. The Massachusetts Legislature is considering a bill that would criminalize videos that make it look as if people are saying things that they did not really say.

It seems unlikely that the bill, H. 1755, sponsored by Representative Jay D. Livingstone, will become law, not this session anyway. It is a refile of H. 3366, which he filed in 2019. For reasons that I explain below, I hope this bill does not become law, not this session, not next session, not ever.

The clue is in the typo

Whoever drafted the bill apparently drew inspiration, and most of the text, from a federal bill titled the Malicious Deep Fake Prohibition Act of 2018 filed by United States Senator Bill Sasse (R – Nebraska). If you want to read Attorney Nina Iacono Brown’s critique in Slate of Senator Sasse’s bill and similar proposals, click here.

Copying another legislator’s bill is not a violation of the Copyright Act, of course (on which subject see below). In fact, they should have gone the whole hog and copied the title too. Because what did the drafters choose as a moniker for Representative Livingstone’s adaptation of Senator Sasse’s bill? They called it “An Act to protect against deep fakes used to facilitate torturous or criminal conduct.”

Aside from the irony-laden, Freudian-slippy typo (I am quite sure that they meant to write “tortious” not “torturous”) it’s just too much of a mouthful. But that problem is a small one compared with the bill’s potential impact on freedom of expression. It would hand the shut-uppers yet another tool with which to silence heterodox speakers.

Trust me, I’m from Big Tech

H. 1755 was on the agenda for the Joint Committee on the Judiciary on July 27, 2021. If you would like to watch the relevant part of the hearing, click here and scroll to 1:09:40. There you can see and hear testimony from Nick Gatz, manager of State Government Relations for Adobe, who states that the company is neutral on H.1755 and offers the Legislature its expertise “on the topic of content manipulation and online misinformation,” which is the sort of thing Adobe is against, I gather.

Adobe is so very much against content manipulation and online misinformation that it has established an entity called the Coalition for Content Provenance and Authenticity. If that name was approved by a focus group, I am quite sure that its members either: (a) had no familiarity with Orwell’s 1984; or (b) considered the book to have been not so much a cautionary tale as an instruction manual.

Coalition of the all too willing

The purpose of the Coalition for Content Provenance and Authenticity? To deploy technology that will help us — naïve saps that we are — sort the real-news wheat from the fake-news chaff, thereby obviating the need for legislation. Why should politicians bother to extend control over online speech with laws (laws that could conceivably be struck down by bothersome judges or repealed by the great unwashed) when Big Tech has an app for that? If the alternative to the Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct is the Coalition for Content Provenance and Authenticity, forgive me for not sighing with relief.

One of the more famous members of the coalition is Twitter, the company that (like Google’s YouTube) runs advertisements for the Chinese government, says the Columbia Journalism Review:

“According to a number of reports, the most recent ads push the message that protesters in Hong Kong are violent extremists and that state police are simply doing their best to keep the peace.”

Yes, Twitter takes money to promote the Chinese Communist Party line that pro-democracy protestors are violent extremists, a falsehood that does not count as “online misinformation” so far as Twitter is concerned, apparently.

Another coalition member is Microsoft, which, according to Business Insider, complies with China’s censorship laws. For example, earlier this year, when users in the United States tried to find images of Tank Man via Microsoft’s search engine, Bing, their searches yielded no results.

Readers may recall that Tank Man was the protestor who stood in front of Red Army tanks during the Tiananmen Square demonstrations. He was being a “violent extremist,” I suppose. But Bing’s omission was merely the result of “human error,” according to reports on the British Broadcasting Corporation (BBC).

“Beijing is known to require search engines operating in its jurisdiction to censor results, but those restrictions are rarely applied elsewhere.”

The most important word in that sentence is “rarely.” Fans of Gilbert and Sulivan’s H.M.S. Pinafore may be recalling the Captain’s lines, “What, never? Well, hardly ever.”

Coincidentally, the BBC is another member of the Coalition for Content Provenance and Authenticity. For readers unfamiliar with the BBC, it is Britain’s publicly-funded media organization that makes popular dramas, documentaries, and situation comedies and, once upon a time, used to be a trustworthy source of news, at least in comparison with, say, TASS or Pravda. It is also the organization that employed Martin Bashir, the reporter who secured a TV interview with Diana, Princess of Wales, by using faked bank statements that fueled the princess’s paranoid delusions that she was the victim of a conspiracy involving, inter alia, royal bodyguards; her husband and heir apparent to the Crown, Prince Charles; the Secret Intelligence Service; and GCHQ, Britain’s equivalent of the National Security Agency.

The BBC followed up on Bashir’s fakery with an equally fake internal inquiry and not only retained his services but gave him a promotion. For the report of the independent inquiry, click here.

In addition to Martin Bashir, the BBC employed Jimmy Savile who, during his lengthy broadcasting career, sexually assaulted approximately 72 people and raped several more, including an 8-year-old girl, crimes to which the BBC later admitted it had “turned a blind eye.”

So Twitter, Microsoft, and the BBC are now coalescing with other media corporations in order to protect us — poor, credulous, undiscerning, gullible us — against content manipulation and online misinformation. What, as they say, could possibly go wrong.

Federal question

During the hearing, the House chair of the committee suggested that deepfakes might be better dealt with via a new federal law. This brought to mind a current federal law, namely section 506 (c) of the Copyright Act, which makes it a crime to place on any work a false copyright notice:

“Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false… shall be fined not more than $2,500.”

This provision came to mind for two reasons. First, it was only last year that the Supreme Court of the United States issued its decision in Georgia, et al v. Public.Resource.Org, Inc., on the subject of copyright in legislative works (the public edicts doctrine). The court reiterated the well-established point that legislators cannot claim copyright in the works they create in the course of their official duties.

That’s why Senator Ben Sasse has no grounds to go after State Representative Livingstone. And it is why the Massachusetts Legislature cannot claim copyright in the documents that it publishes. If it did so, e.g. by fraudulently posting a false copyright notice on its website, it would be violating section 506 (c) of the Copyright Act.

And that was the second reason that the provision came to mind as I watched the hearing, because right there on the screen, at the bottom of the page, appeared the following words:

“Copyright © 2021 The General Court of the Commonwealth of Massachusetts”

I wonder if that qualifies as “online misinformation.”

From tort to crime

If we cannot safely place total trust in Twitter, Microsoft, the BBC, and the Coalition for Content Provenance and Authenticity as a whole (and we can’t), would we be any better off with Rep. Livingstone’s Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct? No, and here’s why.

The proposed law would make it a crime to distribute a video in order to “facilitate criminal or tortious conduct” if the video was “created or altered in a manner that [it] would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”

The word “facilitate” is pretty clear, I suppose, and the term “criminal conduct” is easy enough to grasp. It covers things like assault and battery, and fraudulently placing a false copyright notice in violation of section 506 (c) of the Copyright Act.

But what qualifies as tortious conduct? We have torts aplenty in Massachusetts, but here are two that tend to come up in the context of online spats: defamation and the intentional infliction of emotional distress. To me, these are the two torts that seem likely to provide a pretext for political prosecutions under H. 1755, allowing Massachusetts politicians to use the courts to silence their opponents. Do such things really happen here? For just one example, see my post titled “Free speech wins (four years after judge bans candidate from mentioning opponent’s name.”

It can be difficult for public figures such as politicians to shut up their detractors with defamation lawsuits. They have to prove “actual malice,” i.e. that the speaker made a false statement knowing that it was false or with reckless disregard of whether it was false or not.

Easier, then, if you are an elected tribune of the people, to seek a civil harassment-prevention order, as did the politician in the case I discuss in the aforementioned post. Even easier, perhaps, to bring a private criminal complaint under the proposed Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct or, better still, get your friend the prosecutor to ask a grand jury to issue an indictment.

If H. 1755 becomes law and you share a deepfake with the intent to cause emotional distress to, say, Senator Suehappy Thinskin you won’t be looking at your screen for a while; you’ll be looking at two and a half years in the slammer.

To safely forward the video of the esteemed Senator without fear of criminal prosecution, you would need to know — prior to sharing it — that it was not “created or altered in a manner that would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”

How could you be sure? Perhaps you could look for a certificate of authenticity issued by the Coalition for Content Provenance and Authenticity. But the Coalition (i.e. Twitter, Microsoft, the BBC, etc.) might not issue certificates to videos that criticize the powerful. It might routinely withhold certificates from people who say things that the powerful do not like.

But the absence of a certificate would not necessarily mean that the video was deepfake. So you could roll the dice, share the video, and hope that you don’t get a call from the offended hack’s lawyer or from law enforcement.

Even if the video is authentic, you might worry that people with friends in high places might be able to persuade law enforcement — and even a judge and jury — that it is not. Readers may have noticed that when somebody says something true, but embarrassing, about a powerful person, the powerful person first denies it and then attacks the somebody who said it, often with the eager help of the online mob. Even if the truth of the statement eventually becomes apparent, by that point the speaker’s life has been turned upside down.

Yes, H. 1755 says that “no person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.” But when do you, the speaker, find out whether your activity was protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States? When a judge says so, i.e. long after you’ve been interrogated and prosecuted.

Those risks, I suspect, would make you think twice about forwarding the video of Senator Suehappy Thinskin saying or doing something idiotic. We call this the chilling effect.

But shouldn’t there be laws against using deepfakes to defame people or cause them emotional distress? Yes, and we already have them, e.g. the torts called defamation and the intentional infliction of emotional distress.

If you still think we need more criminal offenses for prosecutors to threaten people with, check out @ACrimeADay on Twitter. Spoiler alert: There are a lot.

Conclusion

Back in 2019, the Massachusetts bill to ban deepfakes had two cosponsors, but this time Representative Livingstone is going it alone. The bill is losing support rather than gaining it. You may think that I should take heart from this trend, but I do not. Why? Because of the difference between bad ideas and nuclear waste.

At some point, with the passage of time, nuclear waste stops being dangerous. Not so with bad ideas. You cannot summon forth the ideas that H. 1755 embodies, bottle them, bury them in a lead-lined underground vault, and wait for them to disintegrate into harmless nothingness. No, they remain in the atmosphere, floating freely like wraiths, sometimes for decades, until they suddenly make themselves manifest as emergency bills or outside sections in the State budget.

That is why I am no more relieved at the bill’s feeble prospects this session than I am about entrusting the task of identifying deepfakes to the likes of Twitter, Microsoft, and the BBC.

P.S. For the full text of Representative Jay Livingstone’s bill, H. 1755, scroll down below the image.

Photo by Kindel Media from Pexels

SECTION 1. Chapter 266 of the General Laws is hereby amended by inserting after section 37E the following section:-

Section 37E 1/2. (a)As used in this section, the following words shall have the following meaning unless the context clearly requires otherwise:

“Audiovisual record,” any audio or visual media in an electronic format and includes any photograph, motion-picture film, video recording, electronic image, or sound recording.

“Deep fake”, an audiovisual record created or altered in a manner that the record would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.

(b) Whoever (1), creates, with the intent to distribute, a deep fake and with the intent that the distribution of the deep fake would facilitate criminal or tortious conduct, or (2) distributes an audiovisual record with actual knowledge that the audiovisual record is a deep fake and with the intent that the distribution of the audiovisual record would facilitate criminal or tortious conduct shall be guilty of the crime of identity fraud and shall be punished by a fine of not more than $5,000 or imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment.

No person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.

Do we still need an eviction moratorium? Define “eviction.”

July 30, 2020:- Perhaps I am a slow learner. But I think I just realized something important about the eviction moratorium.

Those following the Matorin v. EOHED case challenging Chapter 65 (the eviction moratorium) will know that earlier today the Superior Court held a hearing on the plaintiffs’ motion for a preliminary injunction.

What struck me while I was watching the oral argument was the size of the gap between the law’s supposed purpose and its actual effect. Then I realized that there is a gap between the two sides over the nature of the very thing they are arguing about, i.e. evictions. I will explain what I mean in a moment, but first a very brief explanation of a key term, namely “execution.”

Execution

In Massachusetts, only a judge can evict a tenant and award the housing provider possession of the rented premises.  If, after trial, the judge decides to award the housing provider possession, the housing provider has to wait 10 days and then ask for a document called the writ of execution.   This is the document that authorizes the sheriff or constable to physically remove the renters and their belongings. When the sheriff does so, it is called levying.

When non-lawyers think about evictions, what they have in mind is the event called levying the execution. It is quite rare, fortunately.

Before the constables or sheriffs can even get their hands on an execution to levy, the renters can ask the judge for a stay, i.e. a pause or delay. The law allows judges to stay execution for up to six months (12 months, if the renters have disabilities or are age 60+).

Rule 13  of the Uniform Rules of Summary Process lays out the steps.

Now back to the argument over Chapter 65.

How to stop executions

The proponents of Chapter 65 argue that the Legislature enacted the eviction moratorium in order to stop people being made homeless during the COVID 19 pandemic. If that had indeed been the real purpose, the Legislature could have achieved it by banning the courts from issuing executions and prohibiting the sheriffs from levying on any executions already issued. Here is the bill the Legislature could have enacted:

In any summary process case, the court shall not issue execution, and no person shall levy execution, until 45 days after the end of the state of emergency.

But the Legislature chose not to do that. Instead of banning the thing that non-lawyers think of as evictions (levied executions), it banned housing providers from even getting into court. And that, in turn, bars access to the trained Housing Court mediators who resolve disputes and help the parties work out payment plans.

If the Legislature and Governor had defined the problem they were trying to solve, they would not have created the unholy mess that will confront so many housing providers and renters when the moratorium finally ends. Defining problems before attempting to solve them is a big part of the job. And, unlike some of the housing providers I represent, the legislators are actually getting paid. Legislative salary moratorium, anyone?

Decision?

As for the hearing in the Matorin case, the judge took the matter under advisement, which means that he will issue his decision at a later date. To stay up to date, and to read more about the case from Attorney Richard Vetstein, who is one of the two lawyers representing the Matorin plaintiffs,  click here.

 

New MCAD bill filed

February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.

Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.

Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.

But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.

As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.

The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.

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Peter Vickery, Esq.

Election 2016: one call to make the day after

October 26, 2016:- With less than a fortnight to go until the general election, now is the time to start thinking about the day after.

In addition to choosing the state’s presidential electors, in 13 days’ time Massachusetts voters will elect the state legislature, officially known as the Great and General Court of Massachusetts. Perhaps “elect” is too strong a word given that almost 80% of the seats are uncontested, earning Massachusetts a competitiveness ranking of 44 out of 50. Nevertheless, even without the ordeal of an actual race many freshly re-elected politicians tend to experience feelings of relief and generosity of spirit, which makes Election Day + 1 an ideal time to ask them for a favor.

If you are willing to make one post-election request of your state representative and senator, please consider asking them to co-sponsor a bill to restore some balance to the Massachusetts Commission Against Discrimination (MCAD). The goal is quite modest. If enacted, this piece of legislation would require the MCAD to make sure that it only handles cases that fall within its jurisdiction. In fact it does not even go that far. It puts the onus on the respondent (the person being accused of discrimination) to file a motion to dismiss, which would automatically stay, i.e. pause, the investigation until the MCAD determines that it does, in fact, have jurisdiction.

Why is this necessary? Because, as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit, which not only contributes to the agency’s four-year backlog but is unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.

Invidious discrimination is real, and there are enough cases that do fall within the MCAD’s jurisdiction without the agency having to spend its budget investigating cases that do not. The new legislation would restore some balance. If you would like a copy of the bill and a bill summary for legislators and their aides, email peter@petervickery.com with the words “MCAD Bill” in the subject line.

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Court cuts off gas contracts

August 17, 2016:- If you are interested in electricity prices, today’s decision from the Supreme Judicial Court (SJC) affects you. The case saw the Conservation Law Foundation and the power company Engie Gas (formerly GDF Suez) on the same side. Neither wanted to see electricity companies able to buy pipeline capacity, as this article in the Springfield Republican explains.

The question before the SJC: May the Department of Public Utilities  (DPU) approve contracts that electricity-distribution companies want to enter into with natural-gas power generators?

The answer: No. That is the abridged version of today’s 37-page decision.

The impact? Find out by looking at your electricity bills over the months and years ahead.

Note to grammarians and students of legislative drafting: You too may be interested in this decision because it discusses redenda singula singulis, AKA the rule of the last antecedent.

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Peter Vickery, Esq.

No sex please, we’re Bay Staters

July 22, 2016:- When Governor Baker signs into law Senate Bill 2199, titled “An Act to Establish Pay Equity,” Massachusetts employment law will un-define (not merely re-define) an important word. Here is the text of the very first section of the bill:

Section 1 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the definition of “Woman”.

So, farewell “woman,” a word that the statute used to define as “a female eighteen or over” but now does not define at all.

And farewell “sex,” too. Out with the hackneyed old phrase “no employer shall discriminate in any way in the payment of wages as between the sexes,” and in with the new: “No employer shall discriminate in any way on the basis of gender in the payment of wages.”

Pondering the replacement of sex with gender, and mulling over one of the other laws enacted this session, An Act Relative to Transgender Discrimination, which prohibits discrimination in public accommodations on the basis of gender identity, I see the potential for some mischief.

Could an employer charged with discriminating on the basis of gender raise the defense that the gender of her employees is information to which she is not privy? After all, gender is a matter of identity not physiology. I know this because I just read it in the relevant statute (clause 59, if you’re curious), which tells me in pertinent part:

“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

Got that? Gender identity means “gender-related identity, appearance or behavior.” If you are not satisfied with that definition and worry about the challenges of establishing gender identity in the courtroom, fear not; the Legislature recognized the need for greater clarity as to “when and how gender identity may be evidenced” and saw the need for guidance. In addition to having a stab at it themselves (the statute says that litigants may offer any of the following: “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity”) lawmakers delegated the task of crafting said guidance to the Attorney General and the Massachusetts Commission Against Discrimination. They are due to report to the Legislature by September 1, 2016.

In the meantime, what do we know? Well, we have replaced wage discrimination on the basis of sex (a matter of physiology) with wage discrimination on the basis of gender (a matter of identity). Of course, how a person “identifies” is not always obvious, and some think it shows rather poor manners to ask. So in the inevitable litigation, I can imagine a cross-examination of an employer along these lines:

Q. Does your employee Valery earn more than your employee Valerie for comparable work?

A. Yes.

Q. What gender is Valery?

A.  I don’t know.

Q. What about Valerie?

A. No idea.

Goodbye woman, goodbye sex. Hello protracted litigation.

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Attorney Peter Vickery

 

 

 

 

 

Commission creep: discrimination agency asserts jurisdiction in late-filed cases

July 1, 2016:-  The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”

The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency,  and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).

Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.

So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:

Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.

The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.

Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least  123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:

[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.

I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.

Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.

The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:

If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.

The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.

I submitted this suggestion back in January 2015.  In view of the State Auditor’s findings, I shall re-send it.

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Peter Vickery, Esq.

Issue more regulations, court tells agency

May 17, 2016:- Today the Supreme Judicial Court (SJC) told the Massachusetts Department of Environmental Protection (DEP) that it has to issue more regulations in order to comply with the Global Warming Solutions Act, which the Legislature enacted in 2008. In Kain v DEP, the SJC ruled in favor of the Conservation Law Foundation and held that the DEP’s current regulations do not comply with the statute’s requirement of “declining aggregate [greenhouse gas] emissions limits.”

More to follow. In the meantime, two questions for diligent readers:

(1) By how much have our commonwealth’s greenhouse gas emissions declined since 2008?

(2) For bonus points, what is the main reason for the decline?

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Peter Vickery, Esq.

Another campaign finance rule. KA CHING!

As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.

The latest state regulation aimed at controlling the funding of political speech  means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.

Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.

Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.

Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?

Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.

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Peter Vickery, Esq.

Exploding house case: To dig safely, define accurately

In November 2010, while digging up a street to repair water and sewer pipes in Boston’s Hyde Park neighborhood, DeFelice Corporation damaged a gas line. The resulting explosion destroyed a single family home on Danny Road. Today the Appeals Court upheld the decision of the Department of Public Utilities (DPU) to fine the company for violating the Dig Safe law, chapter 82, sections 4040E.

DeFelice had appealed the DPU decision on the basis that it told the Dig Safe call center that it would be digging at “all intersections” around Danny Road. But under the terms of the statute that was not accurate enough, the Appeals Court held. Originally the law required only that an excavator  describe the location “reasonably accurately.” But when the Legislature amended the law in 1998, it deleted the word “reasonably.”  That deletion, reasoned the court, meant that “excavators became legally required to identify excavation locations with precision.”

Students of legislative drafting take note: Sometimes what matters is not the words that the legislature uses, but the words it loses.

Peter Vickery, Esq.
Peter Vickery, Esq.