By Elena Applebaum, Senior Editor
Today, rapid innovation poses unexpected challenges for lawyers. I met with Santa Clara Law Alum Allonn Levy, who specializes in high profile technology cases, to get an inside view on what it’s like to litigate in a system that’s in constant flux. Mr. Levy has argued cases both in front of the California Supreme Court and the U.S. Supreme Court. Hopkins & Carley is located in a vintage mall in Downtown San Jose, so we sat down in a conference room that was once a storefront, to discuss how the face of law has changed since that time….
What’s it like to be an appellate lawyer in Silicon Valley? What kinds of challenges does technology pose?
Both in the jurisdiction [Pavlovich] case, and the other one, which is DVD-CCA v. Bunner (that one also went to the Supreme Court) . . . we had to educate justices who were not at all comfortable with, what at the time, was new technology. We had to spend a lot of the time in the briefing explaining how the technology worked, because applying the law to that technology really mattered.
A lot of the judges and justices thought that the internet was like a loud speaker, like it was pushing information outward, and that’s not how the internet works, it’s the opposite.
What’s the difference between posting on the internet and publishing a newspaper article?
One of the key differences is control, if you are a newspaper publisher, as you are for The Advocate, you can control the distribution. Now, I might take your newspaper and take it to Michigan, but that’s one of those random fortuitous acts . . . You knew where your newspaper was being published: it was within Santa Clara County. As opposed to, if it’s on the internet, well, you can’t control where that’s going to go.
How is the Ninth Circuit different than others?
I think the Ninth Circuit is one of the more sophisticated circuits. Having practiced in a lot of other jurisdictions, I think the level of sophistication here is much higher than in most areas.
When you are living and working in an environment that is even close to Silicon Valley, much less in Silicon Valley, you sort of absorb information and it affects the way you look at things in terms of the importance of technology. And when you are weighing interests between technological innovation versus stifling competition, I think a Ninth Circuit justice may have very different views than someone else around the country.
You’ve been in front of the U.S. Supreme Court a couple of times, what is it like being a part of creating law?
I think it is the most fulfilling and exciting thing that I get to do, and I get to do a lot of exciting and fulfilling things.
I really got the sense that everybody from the lowest line clerk all the way up to the chief justice is really honestly interested in getting the best correct result, and that’s not a criticism of lower judges. Some of that is just a matter of resources, including time.
If you think of just the oral arguments at the California Supreme Court level, you’ve got seven of the smartest people in the state, all sitting there, not just listening to you, but they are fully prepared and they are debating with you on a particular issue. That’s a huge amount of resources. And the U.S. Supreme court—add two more—plus you’ve got all of their staff who have combed through your briefs, the other side’s briefs, the amicus briefs, they’ve read up on law.
Is there any justice in particular whose comments stuck with you?
Yes. The Supreme Court argument that I had was really great. Most of the time you will get some participation from most, though commonly not all of the justices. I had participation from all of the justices.
Was there any question that you weren’t sure how to answer?
This oral argument happened, I think, about a year after September 11th, so the whole concept of massive terror attacks was on people’s minds—it was at the forefront—and . . . Justice Baxter asks me if a terrorist in Washington fires a missile aimed at Nevada, but inadvertently hits California, can California sue that terrorist? Can they bring that terrorist to justice?
It is connected to the concept of express aiming and targeting for purposeful availment questions. I know that for me, the answer has to be ‘no,’ because there’s no express targeting. So why is that a stupid answer? There is absolutely no reason that I, representing Mr. Pavlovich, need to defend the terrorist—so, the better way to answer, the right answer for that actually, is ‘that isn’t what we have before us, because…’ and then talk about your facts.
Are there any high profile technology cases that come as a surprise to you?
I recently had an appeal on a non-technology issue, and that caused me to watch the Yelp case you may have read about. Yelp was a non-party to a defamation action. And in the defamation action there was a default judgment entered, and after the default judgment was entered, Yelp as a non-party came in and did a particular motion and tried to substitute a new judgment in place of the prior judgment, which in limited circumstances you can do (and that was the issue I had in my appeal which is why I was watching this). It raises some really interesting First Amendment issues, because Yelp’s position is that the order that came out between the two parties is going to affect Yelp, because it includes an injunction, [that] could cause Yelp to have to remove material from their site, and could infringe on Yelp’s First Amendment rights. I predicted that the petition for review would be granted, and it just got granted, so the Supreme Court is going to look at that issue now.
What are some areas of the law that you personally think need to change?
The treatment of older people. They as a whole are such easy targets for fraud, but also things that are just below fraud.
The problem is that our laws are set up for two scenarios, one where you are completely together with your cognitive abilities, and one for people who are incompetent. The reality is actually totally different, and I think that there are millions of people who are in between those two places.
The only place where I think we actually do a better job than that, is surprisingly enough the DMV. The DMV actually has pretty good guidelines, and among those guidelines, they actually try to let people keep their driver’s license as long as they can, because just like forcing someone into incompetency before they are really there, there are lots of studies and literature that tell you that removing control, removing the ability to drive, removing the ability to make decisions on your own, dramatically hurts older folks.
The reality is there is never a simple fix on these things, that’s part of what you see in our election process, everyone wants simple answers, but those are never truthful.
Are there any laws you know to be in flux?
There are a couple of really strong cases that set up good protections for online discourse, including the right to anonymity in discourse, and the connection of that to First Amendment rights—and I do think those are very important. The part that I think is unaddressed right now, and I think you’re going to see it addressed in the next five or six years, are extreme instances of abuse of that.
How do you weigh what is more important, privacy or freedom of speech?
I think that at some point, we are going to have to create a line that has to be clear.
If you really can’t do anything about information that’s out there that is negative and provably false, I think that is a problem. The old answer to that is that you fix bad speech with good speech . . . [but] that doesn’t always work, because the hits on the bad information are going to be prioritized, because people are going to read those more, so those are going to advance higher up on your Google search. So that means that your rebuttal may never get read. And, at some point perception is reality.
I have had a number of folks who have contacted me about issues where someone has spread falsities about them and it’s cost them their career, because what happens is when they go to another employer, the employer looks them up, does the google search and sees terrible things, maybe they even see the good things, but why would you take the risk?
Same thing with businesses. Businesses end up closing down because they can’t convince people that they didn’t do some particular thing. Or they did it, but then they fixed it, but no one cares about the fix, no one knows about it.
It is really disruptive. I have had at least one person contact me about the revenge porn issue, it’s really disturbing.
Is that really just impossible to take down?
Actually, on the revenge porn there is actually a fix, that is disturbing in and of itself, but you can do it. What you can do, is you can actually copyright images of yourself . . . it’s horrible. They feel completely out of control, and just severely emotionally and personally violated.
That is the dark and unfortunate side of anonymity, and of speech that really isn’t intended to be protected. We don’t intend to protect obscenity, we don’t intend to protect false statements, that’s why defamation laws exist.
We have an election coming up, and you mentioned it can be hard to speak truthfully in politics. Hillary Clinton says she will attack ISIS via the internet, and Donald Trump says he wants to tighten-up libel laws. Are there legal avenues for them to do either of these things?
I didn’t mean to say that politicians can’t be truthful, I actually think that they absolutely can. I think that the problem is that we as a society don’t always want to digest that truth.
I think that Mr. Trump is excellent at packaging bite-sized information that people want to hear, and I think he is very good at that. I think Hillary Clinton provides lengthier, more thorough, carefully-worded responses and I think people are completely turned off by that. I think her responses tend to be the more truthful ones, but they are a lot less interesting.
In terms of the two proposals that you mentioned, there are almost certainly ways to attack ISIS. We are rumored to have very good cyber warfare capabilities. Assuming the attacks would be extraterritorial (outside the U.S.) we would have the ability to do that.
As soon as it crosses into the U.S., it becomes much more difficult to engage in activities that would be unlawful within the U.S.
When I was working on these technology issues, I remember everyone talking about how great it was that you would have this platform for publication that was totally unregulated, and how that would unshackle ideas and allow for this great exchange of intellectual concepts. And that’s true . . . but what about the other side of that? What about the fact that you will lose the ability to ever identify experts? I think truth becomes a casualty.
I can’t say I foresaw ISIS, but what they do is they use the same idea, that nobody’s going to challenge them on what is true, or what is untrue. They peddle in lies, and package a form of extremism that suits their ends, and they do it really well. And, I think the challenge of battling that is really difficult. Technologically disrupting it is problematic, because now you are starting to run into First Amendment issues.
Right, because then you are preventing the free flow of information.
It is the worst kind of infringement because it is content-based; government would be deciding ‘this content is bad, and I am going to block it,’ so you can’t do that.
And to Mr. Trump’s approach on libel laws, I think that it would be difficult for him to do what he wants to do . . . that’s court-created precedent based on an interpretation of the First Amendment. And while the President is very powerful, he (or she) doesn’t have the power to change the Constitution without our say-so.