Author Archive for Jonathan LuriePage 2 of 17

ICE Faces Criticism for “Sensitive Locations Policy”

Out in New Jersey, the Chief Justice of the New Jersey Supreme Court Stuart Rabner has come out hard against the exception in the Immigration and Custom Enforcement (ICE) Sensitive Locations Policy. In a letter asking for an end to the practice, the high ranking judge criticizes ICE’s practice of waiting in courthouses for undocumented immigrants who are victims of a crime, defendants in a case, or simply there to testify in proceedings. He argues that the practice not only denies access to the courts to people who are undocumented by making them fear arrest and deportation, it also torpedoes the legal process by guaranteeing a lack of cooperation in ongoing cases where somebody might get grabbed by ICE on the way out of testifying against a criminal.

He’s not criticizing the practice for no reason. Just in the last couple months ICE agents have arrested several undocumented immigrants in courthouses. Just recently they have arrested a woman  seeking a protection order  to keep her safe from an abusive spouse. Another man was arrested as he left a proceeding, otherwise free to go after a civil case.

ICE agents have responded to Rabner with a resounding no. As written, the Sensitive Locations Policy places no restrictions on arrests made at courthouses. Even if it did, the actual protections of the policy are far from absolute even where they do apply.

ICEICE’s Sensitive Locations Policy

The Sensitive Locations Policy is very much what it sounds like-a policy of ICE limiting enforcement actions at sensitive locations. These locations include schools (either at the school or when a parent is picking up or dropping off a child), medical treatment facilities, places of worship, ceremonies like weddings and funerals, or during public demonstrations such as a march or rally for a cause. You’ll notice courthouses are nowhere on that list.

Courthouses not only don’t make the cut in this policy as written, they are explicitly not included. Even if they were, the policy isn’t a blanket ban on arrests in sensitive locations but rather more of a strong suggestion. First, it only limits enforcement actions. This includes actual apprehensions, arrests, searches, or surveillance. However, it doesn’t include them entering a sensitive location to get records or documents to later use against undocumented immigrants, serving subpoenas or notice of proceedings, and other more administrative actions.

Although it suggests that arrests at sensitive locations be avoided, the policy doesn’t stop ICE from making arrests.  Agents just need permission from a supervisor before proceeding. Even without permission, they can make an arrest-so long as they do so as discreetly as possible-where there are circumstances related to national security, terrorism,  public safety, or destruction of evidence.

The policy is in place to ensure that everybody is free to utilize crucial services without fear of repercussion. Education, health care, worship-all incredibly important. Doesn’t it seem odd that legal services aren’t on that list? Don’t we want everybody to enjoy the protections of the law and help others when they witness crimes? The protection of our laws-both for undocumented immigrants and citizens whose cases they might testify in-are a similarly crucial service to education of health care. However, the sad truth is that even were courthouses included in the policy the protections might still not be enough.

Sensitive Locations Policy Not as Strong a Protection as it Was

To say that the attitude towards immigration has changed after the Obama administration passed the torch to President Trump. Besides Trump’s failed immigration ban orders, he has also issued an executive order which drastically changes the approach of ICE agents.

Under the Obama administration, ICE agents were told to prioritize targeting gang members and violent criminals for deportation. For the most part, they were not going after anybody else. Trump’s order substantially expands those ICE is meant to target. Under Trump the agency is to target, in no particular order, undocumented immigrants who “have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” If that sounds extremely broad, that’s because it is. Gone are the days of prioritization, every illegal immigrant is equally targeted.

What Trump’s order notably does not do is change the Sensitive Locations Policy, he has given ICE agents much wider leeway in how they act. This has led to much less strict consideration of the policy than in previous years. Just in the last few months ICE agents have raided a pre-school in San Francisco (apparently mistakenly), arrested a California man right after he dropped off his daughter at school and while he drove his other daughter to her classes. In Virginia, two men were arrested as they left the homeless shelter offered by their church.

Judge Rabner has a good point, access to the courts is crucial for our justice system to operate properly. However, as it stands it looks like the protection the Sensitive Location Policy would offer to undocumented immigrants seeking the protection of the law would be middling at best.

Bill Cosby’s Sexual Assault Trial Begins

The allegations of rape and sexual assault against famous comedian and actor Bill Cosby have been some of the most well publicized accusations in recent memory. With nearly 60 women coming forward with accusations of rape and sexual assault, usually involving situations where Mr. Cosby drugged them before sexual intercourse, the stories that came out were horrifying to say the least. However, despite all these accusations, the only civil case over the allegations was brought in 2004 and settled in 2006.

A large part of this is that a great deal of the accusations date back to the 70s and 80s, at least one goes all the way back to 1965. Unfortunately, rape and sexual assault often come along with statutes of limitations which limit the time period in which a claim can be brought. In California, where many of the attacks allegedly took place, this limitation was 10 years after the act occurs. Since the allegations against Mr. Cosby came to light, and many say in response to the allegations, California and many other states have removed the statutes of limitations for rape and sexual assault.

However, not all the accusations were based on actions from the 70s. One Ms. Andrea Constand alleges Mr. Cosby sexually assaulted her as recently as January of 2004. She went to the police with her accusations in 2005 but the local prosecutor decided not to press charges on her behalf against Mr. Cosby. However, as accusations outside of the statute of limitations continued to pile up in 2014 and onward, Ms. Constand’s criminal charges were brought in December of 2015-just a month before Pennsylvania’s 12-year statute of limitations was set to expire.

The criminal case has just recently got underway, and just days ago the prosecution finished making their arguments against Mr. Cosby. The case, charging Mr. Cosby with criminal sexual assault as opposed to rape, has been the subject of extreme press scrutiny. In order to understand these charges, let’s take a look at what needs to be proven in a criminal sexual assault charge and the facts alleged against Mr. Cosby and in his defense.

Bill CosbyHow Does Criminal Sexual Assault Work?

Sexual assault, like all sexual crimes, are some of the most heinous our criminal justice system handles. Like almost all criminal law, exactly how sexual assault works varies depending on each state’s statute. It’s worth noting, however, that sexual assault and rape have some of the most substantial variations in how they are handled from state to state. In general, sexual assault is any nonconsensual touching of a sexual nature-in some cases statutes require that touching to be done by force, threat of force, or violence. Sexual touching is generally understood as the knowing and purposeful touching of an intimate or private part of another. Depending on the statute, this touching may include touching with objects, touching through the clothes, and may or may not require penetration. Often the touching need only be un-consented and offend a reasonable person. A lack of consent can generally exist where a person is unable to communicate consent due to physical helplessness including helplessness induced by alcohol or drugs.

In Pennsylvania, where the criminal charges are being brought, sexual assault is a class two felony defined as “sexual intercourse of deviate sexual intercourse with a compliant without the complainant’s consent.” Deviate sexual intercourse includes penetration, no matter how slight of the genitals or anus of another person with a foreign object for non-medical and non-law enforcement related procedures. Basically, this means that the charges require evidence of: 1) sexual intercourse or actual penetration of genitals or anus with a foreign object; 2) without consent. This is more strict than many other statutes in the nation, especially the requirement of actual penetration.

The charges carry an even higher penalty where they are committed either 1) when a victim is unconscious or the person charged knows the victim is unaware sexual intercourse is happening; or 2) where the person charged substantially impairs the victim, with drugs or otherwise, without their knowledge and for the purpose of preventing resistance.

The Charges Against Mr. Cosby

First and foremost, nobody is guilty until proven so by a jury of their peers. However, if true, the events told by Ms. Constand are gut-wrenching to say the least. One of the requirements of our legal system is that an accuser in a criminal case must testify. This is based on the premise that the accused has the right to confront their accuser. Often, victims of rape and sexual assault are hesitant to do this as confronting their rapist is, for obvious reasons, too mentally distressing. What’s more, while there are limitations on the type of questions that may be directed at a victim of rape or sexual assault known as rape-shield laws, consent is always at issue and the attorney for the defense will almost always bring up the sexual history of the victim to some extent in establishing whether the accuser consented. The defense’s attorney may, and usually will, make lines of questioning related to prior consensual sex between the defendant and the accuser, other potential sources of bodily fluids, evidence attacking the series of events the accuser describes, and situations that may show the rape was not committed by a defendant. These situations make sense, sexual assault and rape are very serious accusations. However, to say that testifying as a victim of a sex crime can be extremely difficult is a huge understatement. This was what Ms. Constand faced as she testified as part of the prosecution’s case this last week.

Ms. Constand’s testimony, nearly seven hours in length, described Mr. Cosby building a mentorship relationship with her while she worked as director of operations for the women’s basketball team at Mr. Cosby’s alma matter Temple University. She stated that Mr. Cosby never expressed clear interest in her, although she did rebuff his advances twice while she knew him. She describes considering him a mentor and not thinking twice about accepting his invitation to his house to discuss her future career. She also says that this trusting relationship led her to not question accepting and taking three pills he offered her for stress. This leads to the part Cosby has already admitted in a past deposition, that he gave Ms. Constand pills and had sexual contact with her while she was under their influence.

Mr. Cosby’s version of the story is a bit difference, and discusses the situation as a consensual sexual encounter. In his previous 2005 deposition, he had admitted giving Ms. Constand pills but had said that he still thought the encounter was consensual.  His defense attorney has pointed to 72 phone calls that occurred after Ms. Constand says Mr. Cosby assaulted her. Something that Constand describes as returning Mr. Cosby’s phone calls due to his position on Temple University’s board essentially necessitating due to her position with the school. While Mr. Cosby has previously admitted to giving woman quaaludes, a prescription sedative, he and his lawyers state that he instead gave Ms. Constand Benadryl-something Cosby says he considered a sleeping aid. They point to a15 minute session of “holding” in a casino hotel room, along with one or two alleged encounters of a more sexual nature, as proof that they had a previous romantic relationship. Ms. Constand says she rebuffed Mr. Cosby on all these occasions.

Trial is Still Ongoing

Mr. Cosby is being tried by a jury of his peers. While his admitted actions are beyond inappropriate, it would also be premature to speculate on his guilt before testimony is complete in this case. That the act itself occurred is not contested, this case will certainly come down to a matter of whether the act was consensual. Consent especially is a historically unpredictable thing in courts, often coming down to the opinion of a specific jury. This can often take some particularly unfortunate forms as laws meant to prevent somebody from defending themselves are used to inappropriately attack a victim’s credibility.

We will know soon enough whether the evidence is there for a jury to treat his actions as criminal. What Mr. Cosby has already admitted to, as a man in a position of power taking advantage of a woman under that power, certainly seems at least morally reprehensible if not criminal. As to potential enhancements under the Pennsylvania statue, they seem unlikely at this time as Ms. Constand was both conscious for the act and knowingly took the medication Mr. Cosby provided her. If found guilty Cosby will go to jail for up to 10 years as felony sexual assault is a second degree felony in Pennsylvania. Were the charges enhanced, he would have faced up to 20 years.

Being Transgender is Covered by ADA, PA Court Decides

When we think of disabilities, being transgender-hopefully-is not something that comes to mind. This is for a simple reason, gender identity is state of being rather than a disorder. However, out in Pennsylvania, Judge Joseph Leeson was recently saddled with the unenviable position of parsing how gender identity should be handled under the Americans With Disabilities (ADA)—the act which provides federal protection against discrimination based on a disability.

This ruling is the first of its type and had some serious hurdles to overcome to include gender identity as a disability under the ADA. When the ADA was first passed gender identity was specifically excluded from being classified as a disability. It wasn’t in particularly good company, other specific exclusions include kleptomania, pyromania, and pedophilia. The unfortunate truth is that the exclusion was a bit of a product of the times when the ADA was passed. At the time, congress specifically railed against the inclusion of so-called “immoral” medical conditions. Thus, gender identity was unfairly lumped in to ADA exceptions. However, the exception remains as part of the law. Truthfully, despite it’s unfortunate conception, being transgender is not a disorder or disability in and of itself. Including it under the ADA seems out of place for that reason. However, like most things in law, the question before Judge Leeson was one of definition. In order to understand the Judge’s ruling, ultimately including gender dysphoria as a disability, let’s look at how a disability is defined and the ruling itself.

What is a Disability Under The ADA?

In 2008, the ADA updated their definitions of what exactly constitutes a disability.  The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The changes also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

transgenderUnderstanding Judge Leeson’s Ruling

So does gender identity constitute a disability? Absolutely not. However, Judge Leeson’s ruling recognized a clear distinction between gender identity and gender dysphoria-the distress created by the differences between a transgender person’s gender and the gender they were assigned at birth. Let’s take a look at the facts of the case to figure out how he got there.

The case involves one Kate Lynn Blatt suing Cabela’s Retail, her former employer, for firing her based on her diagnosed gender dysphoria. Ms. Blatt was not allowed to dress and act as woman while working for Cabela’s. This became a point of contention between her and her employer. Under the ADA, an employer is required to provide reasonable accommodations to a disabled employee. However, Cabela’s refused to let Ms. Blatt dress as a woman and allegedly eventually fired her over it. This led to Ms. Blatt’s ADA retaliation claim. A retaliation claim requires her to show that she engaged in protected activity under the ADA and that adverse employment action was taken against her based on this action.

The ruling in question was on a motion to dismiss the case entirely. Thus, Judge Leeson needed only to find that the facts and law were sufficient to show that Ms. Blatt had a plausible claim under the ADA. The facts were there, Blatt had diagnosed gender dysphoria and it is at least plausible she was fired over her desire to dress as a woman-a very reasonable accommodation to require. The question came down to whether gender dysphoria was a disability under the ADA.

The ADA specifically excludes gender identity. However, Blatt argued that her gender dysphoria substantially limited major life activities for her including how she interacted with other and social and occupational functioning. Ms. Blatt further argued that the outright exclusion of gender identity from the ADA was either not meant to be interpreted as a blanket ban on any element of gender identity or the existence of such a ban violated her equal protection rights.

Judge Leeson agreed to a certain extent. Where the constitutionality of a law is called into question, judges are advised to look for an interpretation of the statute that reads in a constitutional manner. The Judge found this middle ground-the distinction between gender identity and gender dysphoria-a condition clearly associated in the medical community with stress and other disabling impairments. He determined that if the exclusion of gender identity disorders in the ADA excludes gender dysphoria it would undermine the statute itself. Instead, he chose to construe the exclusion of gender identity very narrowly and preserve the intent of the statute.

In a motion to dismiss, this was enough. If gender dysphoria can be a disability then Blatt had given enough facts to get past this initial threshold.

What Does This Ruling Mean?

Gender identity disorders, as opposed to gender identity itself, has had an unfortunate position in the ADA since the law was first passed. This ruling is a huge step for the transgender community. These protections are something that have been unfairly placed out of reach for decades.

However, it is important to recognize what this ruling is and what this ruling is not. First and foremost, it is a ruling on a motion to dismiss. While the analysis of the law from this judge will not change as the lawsuit progresses, a big victory for the LGBT community, this ruling may well be appealed and the lower standard of these type of motions mean that Ms. Blatt is far from a guaranteed victory. Also important to keep in mind, Judge Leeseon’s analysis allows the ruling to bypass a larger issue. By reinterpreting the law in a way that avoids potential constitutional issues, Leeson made it unnecessary to decide whether the exclusion for gender identity disorders violates Blatt’s equal protection rights. This ruling is a big step, but it must be recognized as a step and not a leap. The full implications of this ruling, and whether it will stand up in the long term, still remain to be seen.

Uber Part 2: Is Levandowski Guilty of Stealing Trade Secrets?

Yesterday, we talked about Waymo’s lawsuit against Uber over the alleged theft of the secrets behind Waymo’s self-driving car technology. What we didn’t get a chance to get into is the criminal consequences for the man who allegedly stole the files in the first place-Anthony Levandowsky.

After years of working with Google and Waymo, Levandowsky allegedly quit with no notice; making off with upwards of 14,000 confidential files relating to Waymo’s self-driving car technology. He immediately started his own self-driving software firm named Otto. Then, mere weeks after Otto came into existence, Uber (in the process of designing its own self-driving technology named Lidar) bought the whole shebang for $680M.

This led to the lawsuit against Uber, which we discussed in a previous article. However, it also might lead to even more serious problems for Levandowski.  When Uber’s attorneys attempted to question Levandowski in an effort to gather evidence for their civil case, he invoked his 5th Amendment right against self-incrimination. Pleading the 5th is asserting your right to not be forced to act as a witness against yourself in a criminal case but can be used to avoid testifying in either a criminal or a civil case so long as the answer to a question would tend to incriminate you. In a criminal trial, pleading the 5th can’t be used by a jury as evidence that somebody is guilty. This is not the case in a civil trial however, the jury is free to make any inferences they like when somebody pleads the right to avoid self-incrimination.

The judge in the case, Judge William Alsup, has certainly taken issue with Mr. Levandowsky’s actions. Taking into account both Levandowsky’s plea and apparently substantial evidence against him Judge Alsup has taken the rare step of reffering Mr. Levandowsky to the US Attorney’s Office for criminal charges.

The US Attorney’s Office may or may not proceed on Judge Alsup’s recommendation. Even if they do, it’s no guarantee that Levandowski will be found guilty-criminal proceedings require a higher standard of evidence. Criminal trade secret law is also similar, but not identical to its civil counterpart. In order to figure out exactly how much trouble Levandowsky is in, let’s take a look at exactly how criminal trade secret charges work as well as when and how the US Attorney’s Office decides to bring charges.

UberCriminal Trade Secret Law

Trade secret theft is a white collar crime under both state and federal laws. In federal law, the type of law Levandowsky would be facing if charged, it is governed by the Economic Espionage Act of 1996 (EEA)

Under the EEA, it is illegal steal, take without permission, carry away or obtain a trade secret by deception. It is also illegal to copy, download, upload, alter, destroy, transmit, give away, or sell a trade secret without permission. The EEA also makes it a crime to receive, buy, or own a trade secret that you know was wrongly obtained. A trade secret is defined as information that is made more valuable by being secret where its owner has taken reasonable steps to make sure the information stays secret.

For those of you who have read the article describing Waymo’s lawsuit against Uber earlier this week, these elements will sound quite familiar. However, there are a few differences between the criminal and civil sides of trade secret. First, the EEA makes it a crime to attempt or conspire to commit trade secret theft. At civil law this is not the case. As mentioned above, the standard of evidence is substantially different. Civil law requires a preponderance of the evidence-fifty percently likelihood plus a feather-criminal requires proof beyond a reasonable doubt. However, the single most substantial difference between civil and criminal trade secret is that criminal trade secret always requires evidence of intent and knowledge-the intent to “convert a trade secret” and knowledge that the person was committing one of the acts that are illegal under the EEA. Evidence of an intent to covert means that it must be shown that a person acted with the intention of exerting control over somebody else’s property which is not authorized by the property’s owner.

The evidence from the Waymo case makes it seem pretty cut and dried that Levandowski, at a minimum, took the 14,000 confidential documents without permission. His employment agreement made it fairly clear that they were not his to take. This means a criminal case against him would likely hinge on intent and knowledge. For somebody Levandowski, this would likely require proof that, at the specific time he committed a crime under the EEA, he did so with the intent to either use them himself or share the secrets contained within the documents he downloaded. The evidence certainly points this way. Especially damning is alleged evidence of plans to sell Otto to Uber from before Levandowski even left Waymo. Knowledge would require evidence that Levandowsky knew he was not supposed to take the documents he did. As mentioned already, we know this is the case because his employment agreement clearly forbade him to take and share those documents.

Will Criminal Charges Be Brought?

You can see that there’s a pretty strong potential case here against Levandowski. It’s worth noting that it is by no means ironclad. Levandowsky certainly had access to the files, partially because of his position. However, how easily accessed those files are might impact whether Waymo took sufficient measures to protect their trade secrets. The issue of intent may also be muddied somewhat by the exact level of access to the files Levandowsky was allowed in his position. If he actually believed he was allowed to take the files then he would not have the necessary intent for a criminal conviction.

All of this will be taken into account when the US Attorney’s Office decides whether to prosecute the case. Due to how overextended the budget of the Attorney’s Office is, criminal charges under the EEA are moderately rare. They often come up in situations where the secrets are owned by the government and/or are taken by international agents-a situation that the EEA slaps with higher penalties. For instance, the very first (and potentially most famous) EEA trade secret case involved a Chinese national who stole trade secrets related to the US Space Shuttle Program from Boeing.

Levandowsky is certainly not on this level. However, he would be far from the first homegrown conviction. Nor would he be the first criminal conviction that didn’t deal with earth-shatteringly important secrets-space shuttles, military software, and the like. In fact, the US Attorney’s Office has a published policy for how it decides whether it should prosecute a violation under the EEA. This policy looks at a number of factors including : 1) how wide the scope of the criminal activity is and especially whether a foreign government is involved; 2) how bad the economic injuries are to whoever owns the trade secret; 3) what type of trade secret was stolen (military secrets are obviously way up there on the priority list); 4) how effective a civil remedy would be; and 5) the potential deterrent value of bringing criminal charges-how much it will scare off similar criminals.  The existence of a civil remedy doesn’t weigh that much against prosecution as that remedy will almost always exist.

Levandowsky, if guilty, has immeasurably damage Waymo in their quest to be first to market in the burgeoning self-driving technology field. However, his single act of theft from a private company who is already suing in civil court might just be too small fry for the US Attorney’s Office to bother with.

What Does Levandowsky Potentially Face?

We’ll have to see if the US Attorney’s Office chooses to pursue a case against Mr. Levandowski. It’s unlikely Judge Alsup would have recommended charges if the case against Levandowski was not particularly strong. If they do chose to come after him, he’ll be facing up half a million in fines and a decade in prison.

Even with just the civil case leveled against him, Levandowski is in hot water. Criminal charges would take that water to boiling. However, even if the US Attorney’s Office does bring charges they are unlikely to do so particularly soon. For now, Levandowsky will just have to stew and hope.

Uber, in Trouble Again, For Allegedly Stealing Trade Secrets from Waymo

Uber has a bit of a history of asking for forgiveness instead of permission when it comes to the law–a trend which hasn’t worked out particularly well for them. This has come back to bite them again in the case brought against them by the Google owned self-driving car project Waymo.

After an engineer, Anthony Levandowsky, allegedly left Waymo with thousands of confidential files he set up a firm which Uber promptly purchased for $680M. It’s no surprise Uber was interested in what he was offering, they have long been developing their own self-driving technology. Among this technology is a laser navigation tool known as Lidar.

Just about a week ago, the judge handling the case-Judge William Alsup-ruled that Levandowsky knew or should have known he was in possession of this confidential material and barred Uber from using any of the technology brought by Levandowsky in their products. The judge’s order states that Waymo has produced “compelling evidence” that Levandowsky and Uber had planned the acquisition of Levandowsky’s firm before he had even left Waymo. The order also says that the evidence showed that Uber hired Levandowski even though they “knew or should have known that he possessed over 14,000 confidential Waymo files.” Judge Alsup’s order requires Uber to not to allow Levandowski to work on their Lidar project or use the files he downloaded for the duration of the lawsuit. It also requires them to return all the files to Waymo by this Wednesday, May 31st. Despite all this, the ruling has still been hailed as something of a victory for Uber. Waymo didn’t get their ultimate wish-shutting down Uber’s Lidar project entirely until the lawsuit is resolved. The court also didn’t consider some of the things claimed by Waymo as true trade secrets-not surprise given that Waymo had listed 121 potential trade secrets that were allegedly stolen. What’s more, while Waymo has succeeded in receiving an injunction on the issue of trade secret misappropriation, they have failed to do so on their second cause of action for patent infringement.

UberDespite this, the ruling is a huge blow against Uber’s self-driving car program. As the case goes on, it could get worse for both Uber and Levandowsky. Federal trade secret law includes potential repercussions in both civil and criminal law. Levandowski himself invoked his Fifth Amendment right to not incriminate himself when attorneys representing Waymo questioned him.

The trade secret rulings here are the meat of this order and the problems for both Uber and Levandowski. In this two-part article, let’s look at how civil and criminal trade secret law works and how it was applied in reaching this order.

How Civil Trade Secret Law Works

Waymo’s lawsuit against Uber is firmly in the realm of civil law. Thus, it is civil trade secret law that was used in reaching this ruling. Waymo’s lawsuit alleges violations of both the California Uniform Trade Secrets Act and the Defend Trade Secrets Act.

California’s Uniform Trade Secrets Act is one of the many nearly identical state laws handling trade secrets based on the Uniform Trade Secrets Act. Every state except New York, North Carolina and Massachusetts. It’s worth noting that near identical is not identical and many states have small but meaningful differences in their approach to trade secrets.

The Defend Trade Secrets Act is a federal law passed by the Obama administration in May of last year. It serves to extend the Economic Espionage Act of 1996 (basically federal criminal law applying to trade secret theft) to include a civil cause of action nearly identical to the Uniform Trade Secrets Act.

So what exactly is a trade secret? Any information can qualify so long as it fulfills certain criteria. First, the information must be more valuable for the very reason that it secret-if it isn’t actually secret it is basically impossible for this to be the case. Second, its owner must have taken reasonable steps under the circumstances to make sure it stays secret.

Where something that qualifies as a trade secret is misappropriated, that violates civil law. The California version of the Uniform Trade Secret Act (CUTSA) treats misappropriation as acquiring a trade secret through improper means or from somebody you know or have reason to know got the secret by improper means. It also includes using or disclosing a trade secret you acquired or at least should know was acquired by improper means. Improper means include, but aren’t limited to theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage. However, improper means never includes a situation where you figure out the trade secret on your own.

Mr. Levandowski left Waymo with confidential files his employment agreement clearly said were not his to take. The evidence shows that there is at least a strong chance Uber bought Levandowski’s firm knowing exactly what it was getting. This means that there is a strong case against both for misappropriating Waymo’s trade secrets. While not all of the things claimed as trade secrets by Waymo, as with most trade secret cases exactly what those secrets are is heavily redacted to maintain their secrecy, enough satisfied the test described above to put both Levandowski and Uber in hot water.

Injunction Against Uber

The order has granted a preliminary injunction against Waymo with the effects described above. A preliminary injunction is an order stopping a party to a lawsuit from doing something before the lawsuit even really gets underway.

In order to receive a preliminary injunction a party needs to show a likelihood that they’ll win, the potential that they will be harmed in a way money can’t fix, a public interest in such an injunction, and that they will be more harmed by the lack of an injunction than the party it’s brought against will be harmed by the injunction itself.

We’ve seen that there’s a pretty good case here for trade secret misappropriation. However, likelihood of success was where Waymo lost on their patent infringement arguments for the injunction-they simply didn’t have enough evidence.

In terms of irreparable harm, the technology in question has the potential to change who controls the burgeoning market of self-driving cars going forward. This is something of incalculable value and thus no simple money damages could properly address it. There is also a clear public interest in both protecting intellectual property rights and preventing unfair competition via potential corporate theft.

However, it is the balance of harms element that really led to the limitations that led to some calling the ruling an Uber victory. As serious as the harm would be to Waymo if the Lidar project used their trade secrets to advance their technology, shutting down Lidar altogether for the multiple years it will take for the lawsuit to resolve would kill Lidar altogether. This is extreme in the opposite direction, thus why the judge chose to simply prevent Lidar from using any of the secrets they may have misappropriated.

What Does This Mean For Uber and Levandowski?

The process of ensuring that none of Waymo’s documents, and the information contained therein, makes its way into the Lidar project is no mean feat and will certainly slow down Uber’s progress; giving Waymo a leg up on its competition. It also means that, at least for now, Uber may have spent nearly three-quarters of a billion dollars on nothing. The order also indicates a strong chance of success for Waymo in their trade secret action against Uber. This could lead to an enormous money judgment against Uber in the future.

As bad as it is for Uber, it’s much worse for Anthony Levandowski himself. The judge in this case has already referred his situation to the US Attorney’s Office, recommending criminal charges against Levandowski. This is an uncommon move on the part of this judge and could ultimately lead to up to fines of up to half a million against Levandowski and up to a decade in prison. Later this week, we’ll look into exactly how the criminal side of trade secret works. However, suffice it to say, Levandowski is facing down some serious charges.