Twenty legal battles that stand out across Ars’ 20 years of covering them

By Cyrus Farivar

The US Supreme Court is shown on the day of the investiture ceremony for new Supreme Court Associate Justice Brett Kavanaugh on November 8, 2018 in Washington, DC.
Enlarge / The US Supreme Court is shown on the day of the investiture ceremony for new Supreme Court Associate Justice Brett Kavanaugh on November 8, 2018 in Washington, DC.

The legal system is often a confounding place, where disputes are adjudicated—it’s a world full of jargon that we journalists try to explain as best we can. And over the last two decades, legal cases have remained a fixture on Ars Technica.

We’ve brought you endless news of initial criminal or civil complaints in that time. And in the most important cases, Ars has followed them, blow by blow, through various motions. We sat in every session for the criminal trial of Silk Road mastermind Ross Ulbricht and took a similar approach to the API patents saga of Oracle v. Google, for instance.

Just this week, Ars sat in the courtroom as Defense Distributed and the State of New Jersey argued over legal jurisdiction and matters of free speech intersecting with future technology. It echoes back to our site's legacy of watching the march of technology and innovation directly intersect with an evolving legal system—it has been nearly 20 years since we covered Microsoft’s infamous antitrust battles around the turn of the century. These literally became the subject of CNN decade documentaries since then.

So as Ars continues to reflect on the recent technological past as part of our 20th Anniversary, we wanted to look back at the most memorable legal cases of the site's lifetime. To be clear, these are not necessarily the cases that have had the most lasting impact on the legal landscape—although many would qualify—but we think these cases stand out for their relevance today, the philosophical questions at hand, and often the memorable circumstances at a case's core.

Reno v. American Civil Liberties Union

Filed: February 8, 1996
Highest court reached: Supreme Court of the United States
Decided: June 26, 1997
Result: Established that the Communications Decency Act’s provisions that attempted to criminalize the distribution of adult content online to minors were unconstitutional.

While this case is just barely outside of our 20-year timeline, multiple legal experts that we contacted insisted it be included on any list involving recent history.

Reno v. ACLU was the first time that the United States Supreme Court considered how the free speech provision of the First Amendment should apply to the Internet. And a unanimous court found that the law did not adequately define "indecent."

Had the Supreme Court ruled the other way, it would have been punishable by up to two years in jail and/or a $250,000 fine for any Internet user to speak in an "indecent" or "patently offensive" manner that would be viewed by minors. Quite simply, the Internet as we know it would not exist (for good or for ill).

"We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech," Justice John Paul Stevens wrote for a unanimous court. "In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve."

Bernstein v. Department of Justice

Filed: February 21, 1995
Highest court reached: 9th US Circuit Court of Appeals
Decided: May 6, 1999
Result: Court ruled that computer code is speech and is protected by the Constitution.

This case was brought before Reno, but it took longer to be fully decided. In Bernstein v. DoJ, the 9th US Circuit Court of Appeals firmly established that computer code—like any other language—is protected by the First Amendment’s guaranteed right to freedom of speech.

Back in 1995, Daniel Bernstein, then a doctoral student at the University of California, Berkeley, wanted to be able to publish "Snuffle." This program converted a one-way hash into a private-key encryption system.

Bernstein wanted to publish not only the algorithm involved but also a mathematical paper explaining it and the relevant source code. However, federal arms regulations forbade him from doing so. He and the EFF challenged this interpretation of the law on First Amendment grounds.

In 1999, the Ninth Circuit ruled along similar lines as the district court, and it took the time to discuss the relationship between encryption and privacy:

Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb. The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption's bounty.

The case obviously continues to have relevance today, as this week's debate over the distribution of CAD files for printing firearms reminds us.

Kyllo v. United States

Filed: January 24, 1992
Highest court reached: Supreme Court
Decided: June 11, 2001
Result: The government’s use of an infrared scanner to peer inside someone’s home without a warrant is unconstitutional.

This case began on a tiny scale: a Bureau of Land Management agent thought that one 27-year-old man, Danny Kyllo, was growing marijuana inside his home. Why did the BLM believe this? Because an Oregon National Guardsman used a newfound device, a forward-looking infrared (FLIR), to scan the heat output from this modest home in Florence, along the Oregon coast.

In essence, the government claimed that the use of a FLIR was so small-scale and so non-invasive, it was more analogous to binoculars than a high-tech device. But five justices of the Supreme Court nine were unconvinced.

"Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant," Justice Antonin Scalia wrote for the majority.

Given that newer versions of the FLIR that attach to the iPhone can be had for under $300, it’s not clear whether Justice Scalia’s "not in general public use" provision would still hold up in 2018. Still, Kyllo’s impact remains.

"The idea is that a search is a search, no matter what technology police use," Andrew Crocker, an EFF lawyer, told Ars.


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Proponents of Internet file sharing march in front of the Supreme Court while the MGM versus Grokster case is being heard inside, Tuesday, March 29, 2005, in Washington, DC.
Enlarge / Proponents of Internet file sharing march in front of the Supreme Court while the MGM versus Grokster case is being heard inside, Tuesday, March 29, 2005, in Washington, DC.

Filed: October 2, 2001
Highest court reached: Supreme Court of the United States
Decided: June 23, 2005
Result: Court unanimously ruled that Grokster and Streamcast (both file-sharing companies) could be sued for inducing copyright infringement.

In this case, EFF defended StreamCast Networks, which made the Morpheus file-sharing software. While the defendants ended up losing the case, the EFF portrayed it both then and now as a partial win given the Supreme Court did not entirely buy into the entertainment industry’s argument.

Crucially, the court declined to overturn the 1984 "Betamax doctrine," which came from the case of Sony v. Universal City Studios. That case established that a technology cannot be stifled if it has "substantial non-infringing uses."

As Justice Stephen Breyer wrote in his concurring opinion: "Sony's rule is strongly technology protecting. The rule deliberately makes it difficult for courts to find secondary liability where new technology is at issue."

Capitol Records, Inc. v. Thomas-Rasset

Filed: April 19, 2006
Highest court reached: 8th US Circuit Court of Appeals
Decided: March 18, 2013
Result: After three trials, a Minnesota woman is liable for $222,000 in damages to Capitol Records after having pirated 24 songs. But she’ll probably never pay up.

In 2013, the Supreme Court of the United States announced that it denied certiorari (declined to hear the case) of Jammie Thomas-Rasset, a Minnesota woman who was ordered to pay $222,000 after having downloaded 24 songs off Kazaa several years ago.

When her legal travails began in 2006, the case eventually became the first trial involving unauthorized file-sharing of intellectual property heard by a jury in the United States. But as a result of the SCOTUS action, the decision from the 8th Circuit ruling in September 2012 stands. The Eighth Circuit upheld the very first ruling for $222,000 (at $9,250 per song) in damages. It's an amount that has varied across three subsequent trials, reaching as high as $1.92 million and later falling to $54,000 (upheld last year before later being overturned by the 8th Circuit).

Back in 2007, Ars Managing Editor Eric Bangeman covered the trial from federal court in Duluth, Minnesota. As he reported, the jury "appeared to be about as diverse as a random group of people from the Iron Range of Minnesota can be. All of them are Caucasians, two of them don't own PCs and have never used the Internet, and a third described himself as a ‘total computer illiterate.’ In addition to the English teacher, there's a funeral director, a bartender, and a steelworker."

There is no evidence that Capitol Records actually attempted to collect the $222,000 from Thomas-Rasset, who has vowed never to pay it.

Prince performs during the 'Pepsi Halftime Show' at Super Bowl XLI between the Indianapolis Colts and the Chicago Bears on February 4, 2007 at Dolphin Stadium in Miami Gardens, Florida.
Enlarge / Prince performs during the 'Pepsi Halftime Show' at Super Bowl XLI between the Indianapolis Colts and the Chicago Bears on February 4, 2007 at Dolphin Stadium in Miami Gardens, Florida.

Stephanie Lenz v. Universal Music

Filed: July 24, 2007
Highest court reached: 9th US Circuit Court of Appeals
Decided: June 28, 2018
Result: The two sides settled, after more than a decade of copyright litigation stemming from a 29-second video that featured a very brief use of a Prince song.

Earlier this year, Universal Music Publishing Group finally settled its copyright lawsuit involving Stephanie Lenz, the woman who posted a short video of her son dancing to Prince’s "Let’s Go Crazy," in 2007.

The two sides came to a formal agreement, agreeing that as a result of the litigation that lasted for over a decade, Universal Music (UMPG), which owns the copyright to Prince’s recordings, now has a more "fair" process for takedown orders.

Lenz and her attorneys from the Electronic Frontier Foundation had argued that when her 29-second video was initially taken down under a Digital Millennium Copyright Act order, Universal Music had ignored the fair-use exception to copyright law.

In June 2017, the Supreme Court declined to hear the case, upholding a 9th US Circuit Court of Appeals ruling that a trial would have examined whether Universal had gone too far.

United States v. Warshak

Filed: September 20, 2006
Highest court reached: 6th US Circuit Court of Appeals
Decided: September 21, 2011
Result: The government cannot use a particular type of court order to go after the content of a suspect’s email—turning it into a sort of wiretap—without a warrant.

Back in 2001, a Cincinnati-based company called Berkeley Nutraceuticals began selling various pills that claimed to enhance penile erections. Within years, as the company’s popularity skyrocketed, it drew the attention of Federal Trade Commission investigators.

As the criminal fraud case advanced, authorities obtained 27,000 of Warshak’s emails, including one written by his nephew, Jason Cossman, which outlined a plan that seemed to explore an additional way to dupe customers.

Eventually, Warshak’s attorneys learned that the government had obtained their client’s email for two years, under authority that they claimed was granted by the Stored Communications Act.

Since the appellate ruling in Warshak’s favor, many major email providers have said that they will abide by the new legal standard and will require a warrant before handing over the contents of any messages to the government.


Page 3

Filed: October 28, 2005
Highest court reached: Supreme Court of the United States
Decided: January 23, 2012
Result: Law enforcement cannot place a GPS tracker on someone’s car without a warrant.

The saga of Antoine Jones began in 2004, when federal investigators began targeting Jones, who they believed was a drug trafficker.

Jones, the owner of the Levels nightclub in Washington DC, was surveilled and investigated in multiple ways. FBI and Immigration and Customs Enforcement agents used pole cameras, pen registers, and informants to figure out what was going on with this drug ring.

Eventually, in September 2005, a DC federal judge granted permission to install a GPS tracking device on Jones’ champagne-colored Jeep Grand Cherokee. However, the device wasn’t installed until a day after the judge’s permission expired, and it was installed in Maryland—Jones’ home state—rather than in DC. This meant that authorities were effectively operating with no warrant at all.

Jones was eventually acquitted on nearly all the drug charges, except for a single count of conspiracy. By March 2007, prosecutors brought a superseding indictment for the single count of conspiracy to distribute.

There, they laid out their case of Jones’ years-long scheme to acquire substantial quantities of cocaine and resell it in the United States. On appeal, Jones’ lawyer, Stephen Leckar, seized on the warrantless installation of the GPS tracking device as a potential avenue for his client.

By the time Leckar reached the Supreme Court, he outlined an argument that, ultimately, the nine justices unanimously agreed with.

"If you want to use GPS devices, get a warrant, absent exigent circumstances or another recognized exception to the Fourth Amendment, because of their capacity for—to collect data that you couldn't’ realistically get; because of the vanishingly low cost, because of their pervasive nature, that you should get a warrant any time—you must get a warrant any time you’re going to attach a GPS to a citizen’s effect or to a citizen’s person," he said.

The real Daniel Rigmaiden, as seen in a still from the <em>American Greed</em> episode.
Enlarge / The real Daniel Rigmaiden, as seen in a still from the American Greed episode.

United States v. Rigmaiden

Filed: July 23, 2008
Highest court reached: US District Court, District of Arizona
Decided: April 9, 2014
Result: For the first time, a criminal defendant substantively challenged the secrecy surrounding the use of cell-site simulators, also known as stingrays.

After being arrested at his Santa Clara, California, apartment, Daniel David Rigmaiden began a months-long saga to uncover how exactly he had been located with such precision.

Rigmaiden, who was a tax fraud suspect, had been extremely smart and careful. He only accessed the Internet via a prepaid wireless Verizon "AirCard." He had a plethora of fake identities and had substantial knowledge in how to make them.

After he was arrested, Rigmaiden fired his court-appointed attorneys who didn’t seem to buy his theory that the government had used some sophisticated and legally questionable surveillance tool against him.

While incarcerated, Rigmaiden vigorously defended himself in court and began to shed a great deal of light on the device used to catch him in 2008, a cell-site simulator, or stingray. While Rigmaiden ultimately was not successful in convincing the judge in his case that the warrantless use of the device was unconstitutional, he had much better luck in the court of public opinion, where he attracted privacy researchers and journalists to his plight.

By April 2014, Rigmaiden took a plea deal and was sentenced to time served.

Since then, he has parlayed his skills toward crafting more privacy-minded legislation in Washington state and just might know more about how stingrays work than anyone outside of law enforcement or on a government contract. Since being released from the Arizona county jail where he had been held, Rigmaiden eventually moved to Florida, where he has been working as a freelance Web developer.

In November 2018, Rigmaiden sued CNBC over what he felt was a defamatory representation of his personal story as depicted on the show "American Greed."

Kim Dotcom, as seen in 2014.
Enlarge / Kim Dotcom, as seen in 2014.

United States v. Dotcom

Filed: January 5, 2012
Highest court reached: US District Court, Eastern District of Virginia / New Zealand Supreme Court
Decided: Pending
Result: The biggest criminal copyright case in American history is now entering its seventh year, with no signs of being resolved any time soon.

Nearly seven years ago, Ars first covered the opening salvo in the case against Megaupload, a file-sharing website.

Its founder, Kim Dotcom, likens the site to Google Drive or Dropbox, while prosecutors claim that the site has made more than $175 million in ill-gotten gains based on criminal copyright infringement.

Dotcom has hired top-flight attorneys from both the United States and from New Zealand, where he has lived for nearly a decade. Since that time, he has successfully fought back against American efforts to extradite him, and a documentary film was made about him.

Earlier this year, a New Zealand appeals court ruled that Dotcom would, in fact, be extradited. At a hearing before the New Zealand Supreme Court earlier this month, David Boldt, an attorney representing American interests, said that the case may only be at "halftime," suggesting that a resolution is likely still years away.

ACLU v. Clapper

Filed: June 11, 2013
Highest court reached: 2nd US Circuit Court of Appeals
Decided: May 7, 2015
Result: The National Security Agency’s Section 215 metadata program went beyond what Congress authorized. Ruling made moot after USA Freedom Act passed in June 2015.

This case was originally filed within days of the Edward Snowden revelations. It laid out a comprehensive argument that the NSA’s practice of capturing the metadata of all phone calls was "akin to snatching every American’s address book."

In response, the government declared that the ACLU lacked standing to bring the lawsuit in the first place and said that its "injuries are entirely speculative."

As the case moved ahead, the 2nd Circuit eventually found that the government had overstepped.

"The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here," the appeals court wrote.

As Ars reported at the time, the court noted that the Patriot Act gives the government wide powers to acquire all types of private records on Americans as long as they are "relevant" to an investigation. But the government is going too far when it comes to acquiring, via a subpoena, the metadata of every telephone call made to and from the United States, the court said.


Page 4

Stanford University law professor Jeffrey Fisher, representing the Alaskan plaintiffs, makes remarks to the press after giving oral arguments before the US Supreme Court on February 27, 2008 in Washington, DC.
Enlarge / Stanford University law professor Jeffrey Fisher, representing the Alaskan plaintiffs, makes remarks to the press after giving oral arguments before the US Supreme Court on February 27, 2008 in Washington, DC.

Filed: August 22, 2009
Highest court reached: Supreme Court of the United States
Decided: June 25, 2014
Result: Police may not search someone’s phone while being arrested, without a warrant.

This case began with the traffic stop of a 19-year-old suspected gang member in San Diego, California.

Police seized David Leon Riley’s Samsung SPH-M800 phone, a pre-Android smartphone—it lacked encryption or any other type of locking mechanism. Police scrolled through it, finding contacts with the prefix "ck," believing that they stood for "crip killer." Other videos on the phone appeared to be of Riley proximate to gang-related street fights.

After losing at the California Supreme Court, Riley’s lawyer, Pat Ford, received a call from a rockstar Stanford Law professor, Jeffrey Fisher, who wanted to challenge the search of the phone. Ford happily agreed.

When the case reached the Supreme Court, the crux of Fisher’s argument was that digital was different and that searching someone’s phone was highly invasive and was not analogous to searching a suspect’s pockets for dangerous weapons or other related evidence.

In the end, the Supreme Court agreed, 9-0.

Chief Justice John Roberts blasted the government’s claim that a search of a phone was "materially indistinguishable" from searching someone’s pockets.

"That is like saying a ride on horseback is materially indistinguishable from a flight to the moon," he wrote.

United States v. Auernheimer

Filed: January 11, 2011
Highest court reached: 3rd US Circuit Court of Appeals
Decided: April 11, 2014
Result: A criminal defendant accused of committing a computer crime must be charged in the appropriate venue.

Andrew "weev" Auernheimer is a notorious troll whose activities online go back more than a decade. He’s the rare hacker who has an entry on both Wikipedia and the Southern Poverty Law Center.

Ars first covered Auernheimer back in 2011, when news of his iPad AT&T hack broke.

As we reported at the time, Auernheimer's co-defendant, Daniel Spitler, "discovered the original vulnerability in AT&T's servers, which were configured to recognize when iPads were attempting to access them. When an iPad was detected, the device would then send the device's ICCID number from its SIM card, encoded in plain text in a URL. The server would then return the e-mail address associated with the ICCID to auto-populate a username field. Spitler realized he could spoof the user agent string, supply a potentially valid ICCID number in the correct URL, and AT&T's servers would return the matching e-mail address." The result was that many journalists, government officials, and others had their personal email addresses exposed.

Both men were prosecuted under the Computer Fraud and Abuse Act. Spitler pleaded guilty, but Auernheimer went to trial and was ultimately convicted and sentenced to 41 months in prison.

Auernheimer appealed, drawing top-notch lawyers, including Orin Kerr, now a law professor at the University of Southern California.

By April 2014, the 3rd US Circuit Court of Appeals vacated his conviction, largely on the grounds that the case hadn't been brought in the proper venue—Auernheimer had no connection to New Jersey, where it was filed—and didn’t really address the substance of the case.

"With the 3rd Circuit opinion, it became something just as important, and not more," Mark Jaffe, one of Auernheimer's attorneys, emailed Ars.

"The opinion shaped the venue clauses of the US Constitution, and by doing that it limits the government's power. If the Court of Appeals had ruled in favor of the government, there would be practically no limit to the choices where it could haul a defendant into court just because the alleged crimes were on the Internet."

United States v. Ulbricht

Filed: September 27, 2013
Highest court reached: 2nd US Circuit Court of Appeals
Decided: June 1, 2015
Result: Ross Ulbricht was convicted at trial of creating the world’s most notorious online drug website, Silk Road, and was ultimately given a double life sentence. The Supreme Court declined to hear the case.

Ars first covered the Silk Road back in August 2012, when we reported on how the site had reached nearly $2 million in sales per month.

Little did we know that just over a year later, federal authorities would bust it and arrest its owner, Ross Ulbricht, who was arrested at a public library in San Francisco. Investigators seized his laptop while it was running and open, effectively defeating Ulbricht’s encryption methods.

Over the course of the following months, a crazy saga unfolded. Not only was one man seemingly responsible for orchestrating a vast online drug empire, but he also was brazen enough to attempt six murders for hire that he believed were carried out.

The story got even crazier when it came out that there were not one, but two federal agents who were corrupted by the allure of Bitcoin. One Secret Service agent and one DEA agent ended up pleading guilty to their own charges and were sent to prison.

Ulbricht's Facebook account showed a February 2012 trip to Thailand. The same month, Dread Pirate Roberts told Variety Jones: "took the day off. ran around beaches and jungles with some girls, very little on my mind."
Enlarge / Ulbricht's Facebook account showed a February 2012 trip to Thailand. The same month, Dread Pirate Roberts told Variety Jones: "took the day off. ran around beaches and jungles with some girls, very little on my mind."
Loose ends connected to Ulbricht’s case continue to be tidied up.

In June 2018, Ross Ulbricht’s alleged right-hand man—Roger Thomas Clark, also known as "Variety Jones"—was extradited from Thailand to the United States. Just four months later, Gary Davis, better known as Silk Road moderator "Libertas," pleaded guilty to drug trafficking.

And finally, last month, Canadian police arrested a man that they say is "redandwhite," one of Ulbricht’s alleged hitmen from years earlier.

The new suspect, James Ellingson, age 42, was released on bail by a judge in British Columbia despite American efforts to keep him detained. Separately, Ellingson allegedly made $2 million in profits from selling drugs directly on Silk Road.

Clark’s trial has been set for September 23, 2019 in federal court in Manhattan.

Carpenter v. United States

Filed: April 4, 2012
Highest court reached: Supreme Court of the United States
Decided: June 22, 2018
Result: Police cannot obtain 127 days' worth of cell-site location information about a criminal suspect without a warrant.

In 2010 and 2011, when Timothy "Little Tim" Carpenter was part of a criminal gang, sticking up RadioShack stores and cell phone stores in Michigan and Ohio, he certainly had no idea that his name would become iconic in surveillance law.

As part of the investigation into the robbery gang, one of his accomplices flipped, giving authorities Carpenter’s number. That was a critical step, as with it, investigators would go to MetroPCS and obtain cell-site location information (CSLI)—granular information that showed Carpenter’s whereabouts.

Without needing a warrant, police got 127 days' worth of information—12,898 data points—showing his presence at the scenes of the crimes, among many other locales.

Carpenter’s case was successfully challenged ultimately at the Supreme Court, where he was represented by the ACLU.

"Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user," Chief Justice John Roberts wrote in the 5-4 majority opinion.

However, the court also suggested that there was a seeming arbitrary line of six days, ruling that law enforcement certainly definitely needed a warrant to get CSLI for more than that amount of time. The majority of the Supreme Court justices did not fully explain why they drew the line there, much to the frustration of the dissenting minority.

The court notably declined to overturn the controversial "third-party doctrine," the 1970s-era legal precedent that found there was no "reasonable expectation of privacy" in data collected by a third party, like a phone company. The third-party doctrine, which was created by two cases known as Smith and Miller, was the underpinning for the National Security Agency’s Section 215 metadata program, which was exposed by former contractor Edward Snowden.


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Filed: September 13, 2017
Highest court reached: US District Court, District of Massachusetts
Decided: Pending
Result: N/A

Over the last two years, there has been increased scrutiny as to what the law has to say about forcing people to decrypt their phones at the border, particularly in the wake of the Riley decision.

There has been a steady increase in the number of inbound travelers to the United States who have had their devices searched: in fiscal year 2017, it exceeded more than 29,000 people. Customs and Border Protection maintains that this is still a minuscule number of people who come to the US every year.

This lawsuit is the first of its kind to directly challenge the government’s claim that it can demand travelers' passwords at the border in order to search a device in the aftermath of that key 2014 Supreme Court decision. The plaintiffs are being represented by attorneys from the American Civil Liberties Union and the Electronic Frontier Foundation.

Some of the plaintiffs' stories have been previously reported in the media, including by Ars.

Aaron Gach, as seen in 2017.
Enlarge / Aaron Gach, as seen in 2017.

In May 2017, we reported the story of Aaron Gach, who told us that border agents threatened to "be dicks" if he didn’t hand over the password to his phone upon his arrival at San Francisco International Airport.

Each of the plaintiffs tell a similar story: they were returning home after a trip abroad when a CBP agent demanded that each of them write down their passwords or otherwise unlock their smartphones. In many cases, the encounter, often accompanied by many hours of delay, is described in the complaint as "coercive," where travelers have "no meaningful choice" other than to comply with agents’ demands.

Both sides will present their arguments for summary judgment in a Boston federal court on June 6, 2019.

Epic Systems v. Lewis

Filed: February 10, 2015
Highest court reached: Supreme Court of the United States
Decided: May 21, 2018
Result: Workers that sign arbitration agreements are bound to them and can’t use the federal court system to adjudicate labor claims—making class-action lawsuits in such scenarios all but impossible.

In recent years, there has been a rise of on-demand tech startups that whose backbone is composed of flexible contracted labor. Uber works like this, as does Lyft, DoorDash, Postmates, TaskRabbit, Instacart, and more.

We’ve covered the thorny legal issues surrounding many of these companies and the individual lawsuits that have stemmed from them as a result. Many of these companies, among others, require workers to sign arbitration clauses in their work agreements.

Arbitration is a private, quasi-legal procedure originally designed to expedite disputes between corporations. But over time, it has evolved into a system where individuals are compelled for a variety of reasons to agree to arbitration decisions versus seeking a court decision. The net result is that disputes that normally would have been adjudicated via the public court process are often processed via private arbitration, which generally favors corporations over individuals.

Worse still, in the world of arbitration, there is no possibility of class-action claims. Arbitration proceedings are additionally often shrouded from public view, meaning it is traditionally difficult to find out about sexual harassment or misconduct claims at corporations.

Last year’s Supreme Court 5-4 decision was a major setback for activists seeking for companies to improve working conditions.

"This has undermined the possibility of any significant change of employment status in the gig economy, as class actions have been dismantled," Veena Dubal, a law professor at the University of California, Hastings, told Ars.

"Plaintiffs’ attorneys now have to take their complaints to individual arbitration hearings. It has also had the impact of undermining sexual harassment class actions."

Dynamex v. Superior Court of Los Angeles County

Filed: January 2005
Highest court reached: California Supreme Court
Decided: May 2, 2018
Result: A new three-part test establishes whether workers should be considered employees or contractors.

Another way that gig economy companies engage in questionable practices is by classifying the bulk of their workforce as contractors rather than employees. By doing this, Lyft, Uber, and many other similar companies save millions annually in costs that they would otherwise have to pay out, including health insurance, retirement, unemployment, and more.

While there have been some gig economy labor lawsuits that have been filed, none have substantively advanced.

But there may be some hope, however, in a related California Supreme Court decision known as Dynamex, which established a three-part test to determine whether workers can accurately be classified as contractors rather than employees.

Now, businesses cannot simply say that any or all of their workers are contractors with a wave of a hand—or a relevant clause buried in their contracts.

The court found that companies can only declare workers as contractors if they meet certain requirements:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity's business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business, the worker should be considered an employee and the hiring business an employer under the suffer or permit to work standard in wage orders.

Since that court ruling, new lawsuits have been brought, arguing unfair competition and illegal underpayment.

This is the sixth type of vehicle Waymo has added its self-driving technology to. The company has also ordered thousands of Chrysler Pacifica Hybrid minivans for its fleet.
Enlarge / This is the sixth type of vehicle Waymo has added its self-driving technology to. The company has also ordered thousands of Chrysler Pacifica Hybrid minivans for its fleet.

Waymo v. Uber

Filed: February 23, 2017
Highest court reached: US District Court for the District of Northern California
Decided: February 10, 2018
Result: Waymo and Uber end trade secrets trial with sudden $244 million settlement.

With publicly available, truly self driving cars coming soon, this lawsuit—alleging a high-stakes theft of troves of data from one of Alphabet’s most ambitious divisions—would be about whether Uber would, in fact, be able to catch up to Waymo.

After all, if Uber didn’t develop self-driving technology of its own, as its founder, Travis Kalanick, realized: it would soon be game over. All those thousands of drivers who may be misclassified as contractors won’t have any sort of work as they’ll simply be replaced by robot cars.

The case was first filed nearly two years ago, in both a federal court and also in the court of public opinion.

In a Medium post published the same day the lawsuit was filed, Waymo accused Anthony Levandowski—a former Google engineer hired away by Uber—of having downloaded "over 14,000 highly confidential and proprietary design files for Waymo’s various hardware systems."

In particular this allegedly included "Waymo’s LiDAR and circuit board" designs—a total of nearly 10 gigabytes. Levandowski left Google in January 2016, then founded Otto, which was acquired by Uber several months later.

After numerous high-stakes hearings (read them all here!) the case suddenly ended on the fifth day of trial.

Waymo got what it wanted: Uber agreed to ensure that none of Waymo’s "confidential information" would end up in hardware or software produced by Uber’s self-driving division, known as the Advanced Technologies Group. Waymo also got a sizable 0.34 percent equity share of Uber, worth more than $244 million. No money has actually changed hands: it’s an all-equity arrangement, which means Waymo is financially invested to some degree in Uber's future.

But about a month after that deal, an Uber self-driving car in Arizona struck and killed a woman in Tempe. That tragedy has led to the near-death of Uber’s self-driving car program, leaving Waymo still atop the heap, safety drivers and all.

Shiva Ayyadurai, seen here in January 2017.
Enlarge / Shiva Ayyadurai, seen here in January 2017.

Ayyadurai v. Techdirt

Filed: January 4, 2017
Highest court reached: 1st US Circuit Court of Appeals
Decided: Pending
Result: N/A

Computer historians and most of the Internet had not heard the name Shiva Ayyadurai until 2011 or 2012, when this Indian-American scientist and entrepreneur began claiming in the press that he had invented email as we know it today. Time, The Washington Post, and even CNN all ran stories touting this uplifting story: an immigrant, precocious teenager had invented a modern, ubiquitous, and useful tool.

But they were wrong. The Post even ran a lengthy correction.

In February 2012, Techdirt wrote a post about Ayyadurai: “How The Guy Who Didn’t Invent Email Got Memorialized In The Press & The Smithsonian As The Inventor Of Email.” Less than a month later, Gizmodo writer Sam Biddle published the most in-depth report on Ayyadurai to date, calling it “Corruption, Lies, and Death Threats: The Crazy Story of the Man Who Pretended to Invent Email”—a headline noted in Ayyadurai’s lawsuit four years later.

Years later, after Gawker Media was sued out of existence as part of a libel case, Ayyadurai hired its victorious lawyer, Charles Harder. Within months, the Los Angeles-based firebrand attorney then sued Techdirt and its founder, Mike Masnick, over claims of defamation. Soon after the suit was filed, Masnick wrote that the legal battle would be his site’s “First Amendment fight for its life.” Techdirt isn't backing down: its numerous articles decrying Ayyadurai's claims remain.

That lawsuit is now about to enter its third year and is on appeal before the 1st Circuit. (In the meantime, Ayyadurai lost his longshot bid to become a US Senator from Massachusetts.)

In the lower court ruling, US District Judge F. Dennis Saylor found that because it is impossible to define precisely and specifically what email is, Ayyadurai's "claim is incapable of being proved true or false."

Ayyadurai filed his appeal in June 2018—Techdirt's was due December 28, 2018.