Peter Orlowicz’s Techdirt Profile


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  • Jan 5th, 2017 @ 6:46am

    "Civilian" doesn't mean "contractor"

    From what I can tell, this individual was a Federal employee, not a contractor. The military departments have a lot of civilians working on bases who are still Federal civil servants, and therefore are covered by Federal personnel laws including whistleblower protections. "Civilian" in this context is simply to distinguish from uniformed military personnel.

    For instance, the IG report makes reference on the first page to an MSPB agreement. The Merit Systems Protection Board has jurisdiction over Federal employees, but not contractors. The statutory authority section of the report also references 5 U.S.C. § 2302, which describes prohibited personnel practices against employees in an agency (or in some cases a Government corporation like the FDIC or Tennessee Valley Authority). That statute doesn't apply to contractors either.

    That being the case, some of the conclusions in the last paragraph of the story are unjustified. The Air Force wasn't legally justified in taking the actions it did; that's the whole conclusion of the IG report, and they're held to the standard in Federal personnel law because the individual involved in whistleblowing here was a Federal employee, not a contractor.
  • Dec 7th, 2016 @ 9:34am

    Re: when asked for their feelings about the results of litigation.

    You assume the firm in question is capable of introspection and learning lessons. Just as likely would be a response of "We look forward to vindication on appeal" or "We're examining our options for suing the judge for defamation, given the damage his order does to our reputation."
  • Aug 11th, 2016 @ 12:43pm

    Re: Roar of a paper tiger

    The 10% reduction of Federal funding only applies at the discretion of the Attorney General, so it's not automatic. The AG can also impose less than a 10% reduction if he/she chooses (10% is a cap rather than a requirement), or simply choose not to impose any reduction at all. Paper tiger indeed.
  • Aug 9th, 2016 @ 6:10am


    Most theft statutes require an intent to deprive the owner of the property. Texas' current theft statute (because I can't be arsed to look up what it was in 1963) says to deprive someone of their property means to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner, to restore property only upon payment of reward or other compensation, or to dispose of property in a manner that makes recovery of the property by the owner unlikely. Assaulting someone to make a copy of a film, then returning it, could well be conversion or some other violation of law, but it's not necessarily theft.
  • Jul 21st, 2016 @ 1:02pm

    (untitled comment)

    It seems particularly ironic that Tennessee is complaining about federal government interference in its local utility management, given how many of Tennessee's current and potential broadband consumers likely still get electricity from the Tennessee Valley Authority...
  • May 23rd, 2016 @ 11:54am


    Procedurally, appeals from a military court-martial go to the service court of criminal appeals (in this case, the Army Court of Criminal Appeals). The judges on the CCA are uniformed military officers, not civilians. If PFC Manning loses at the CCA level, she may file a petition for review with the U.S. Court of Appeals for the Armed Forces, which has civilian judges appointed for fixed terms (not lifetime appointments) and hears appeals in criminal cases from all the military services.

    However, unlike other federal appeals courts, CAAF doesn't have to hear a case on petition by the accused. As far as I know, CAAF is the only court in the federal system that has this kind of discretionary jurisdiction over whether it accepts cases. (Article 67 of the UCMJ specifies that CAAF must review all cases where the accused was sentenced to death, and all cases where a service Judge Advocate General requests review, but only reviews petitions from the accused for good cause).
  • Apr 22nd, 2016 @ 10:46am

    Re: Is this even an agency record?

    On the other hand, if it is an agency record, then FOIA Exemption 4 might well apply, because the copyright holder would have substantial commercial value in the copyrighted material, at least before the new season is broadcast.

    "Thus, Exemption 4 stands as a viable means of protecting commercially valuable copyrighted works where FOIA disclosure would have a substantial adverse effect on the copyright holder's potential market."
  • Apr 22nd, 2016 @ 10:26am

    Is this even an agency record?

    I'm not sure copyright law is the most productive way to analyze this request. In order for anything to be subject to FOIA, it has to be an "agency record" in the first place. Music played at the inauguration was recorded by the Marine Corps in the legitimate conduct of its official business, so it's an agency record created or obtained by an agency. It's much less clear that advance screeners of Game of Thrones would qualify as agency records that are even subject to FOIA, if they weren't provided in connection with the President's legitimate conduct of official business.

    The D.C. Circuit has listed four factors that go to whether a record is in the control of an agency: (1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files.

    For example, if the screeners were provided with the stipulation that only the President and his immediate family could view them, or with a provision that the screeners had to be returned (or access to an electronic copy would terminate) after a specific amount of time, that would tend to demonstrate that HBO or the show producers never relinquished control of the record being requested. It also seems extremely unlikely that agency personnel would be relying on Game of Thrones screeners for official business, or that the screeners would be integrated into the normal records systems. All of those factors would seem to justify a denial of a FOIA request on the basis that the screeners aren't agency records at all, without resorting to copyright.

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