Arbitrary and Capricious

By now, you’ve probably heard that federal prosecutors have decided not to press charges in the Pennsylvania high school laptop spying case. I thought it might be helpful if I explained some of the legal issues involved — but first, I should probably list my qualifications as an expert.

I watch a lot of television. I’ve seen episodes of all the Law and Order spin-offs, including that weird nonfiction one that only lasted for about three episodes.

I’ve served on two juries. The thing I remember most about my first jury experience is the colorful and surreally festive atmosphere created by the many street vendors selling t-shirts related to the O.J. Simpson murder trial, which was being held in the same courthouse.  The most memorable thing about our trial was an excruciatingly long argument between the prosecuting and defense attorneys about whether a particular object was a baseball bat or not.  We could have played an actual game of baseball in the time it took for them to have that argument, but I didn’t suggest it, because a) judges are surprisingly closed-minded about listening to helpful suggestions called out by jurors during a trial and b) we would have had to round up baseball equipment, which would have raised the question of whether or not we already had a bat — so we probably wouldn’t be able to start the game until after that argument had been resolved anyway.  The reason that particular debate stood out is that no one on the jury cared whether it was a baseball bat or not — seriously, it had absolutely nothing to do with the case.  Both attorneys seemed to think it was really important, though.  My verdict:  not a baseball bat.

I took an undergraduate Constitutional law class. Technology has changed a bit since then, however.  For example, the laptop spying case (which, as you may recall, this article is about) involves webcams, but I took this course before the invention of the webcam.  Or the Web.  Or the internal combustion engine.  Still, the class had a profound impact on my life — it introduced me to the phrase “arbitrary and capricious”, which I thought was cool at the time and have since adopted as my writing style.

I once had a dream that I was about to take the Bar exam. Usually, when I have a dream like this, I’m either really late or unable to find the room where the test is being held.  In this case, I was seated at my desk in time for the exam, but I realized at the last minute that I’d completely forgotten to go to law school.

Now that I’ve established my credibility as an expert, here’s my analysis of the laptop spying case:  apparently, it’s okay to use cameras embedded in things that you lend people in order to take pictures of them without their knowledge, as long as you don’t record any audio.  So if you’re curious about any of your friends or neighbors, feel free to lend them something with an embedded camera.  It doesn’t have to be a laptop; you can add your own spy cameras to other objects, such as baseball bats or things that aren’t baseball bats.  And always make disparaging remarks about whoever appears in your pictures — if your neighbors claim they hold the copyright on their own lives, you want to be able to argue that you took the pictures so you could criticize them, and thus your actions should be allowed under the doctrine of “Fair Use”.

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