I don’t often purchase full-fare first class tickets, and at the beginning of the year I switched loyalty programs from American to Delta after merging with US Airways caused AA’s service to plummet (hey, who could have predicted that merger would hurt consumers?!).  So I’ve never had access to AA’s Flagship First program before, which entitles guests to ultra-premium lounge access, including no-charge “fine dining,” and a special airport entrance, for those flying in first class direct between JFK and either LAX or SFO.  But, I had some AA miles to burn and booked the flight for today.

You’ll imagine my surprise when I walked through the VIP entrance and was immediately placed in the PreCheck queue.

TSA PreCheck is designed to allow people to submit to a background check and thereafter skip the most invasive of the security the TSA imposes upon us — including the nude body scanners and full-body pat-down.  The idea is that passengers can be pre-screened to ensure that they are less of a security risk and thus it becomes unnecessary to use normal security practices.

The wisdom of PreCheck not withstanding (it relies on the premise that the government can predict who is a terrorist and who is not, a premise that I’m not sure is founded), the program is entirely undercut if one can get PreCheck benefits by splurging about $1K (or 50,000 AAdvantage miles, in my case) on a premium ticket.  American Airlines and the TSA are literally allowing flyers to buy their way out of security procedures.

In the meantime, your 80-year-old grandmother is still getting rubbed down for weapons and your 2-year-old’s baby bottle is still being tested for explosive residue.

Anything for our profits safety, right?

Knowing that I’ve been in civil rights advocacy for 7 years and I’m now finishing law school, I get a ton of questions from friends about legal issues.  Being that Burning Man festival happens in 2 weeks, this month I’m inundated with, “Will the cops on the Playa care about x, y, z,” and reading a ton of material from other sources misstating the law (sadly, sometimes even the official correspondence from Burning Man gives inaccurate advice).   The answers to these questions mostly apply to many kinds of festivals, so rather than respond individually, allow me to share my collective thoughts regarding the common themes here:

1. Can I get arrested for smoking weed on the Playa?  Yes.  Nevada made recreational marijuana legal effective July 1st, 2017, but federal law still prohibits possession or use of the same.  So, state cops are not going to be citing you if you’re in compliance with the law.  So what’s the problem?  Two things.  First, Burning Man is held on federal land.  There are federal law enforcement — Bureau of Land Management Rangers — all over, and although some might look the other way, it’s no guarantee.  Second, smoking marijuana in public in Nevada is still illegal.  Whether being in a tent qualifies as being in your home for the purpose of Nevada’s marijuana laws is not a question that has yet been answered, but you definitely do not want to be caught walking around with a lit joint.  You should be especially careful if there are children around, as there are at Burning Man during the day — it is unlikely a cop will “look the other way” if you’re getting high next to a kid.
2. I heard that if one person is doing drugs, they can search the whole camp!  No.  An officer needs probable cause to conduct a search, a standard which means that a person of reasonable prudence would believe that you were committing a crime.  Case law is quite clear that standing next to a person committing a crime — let alone owning a tent 100 feet from them — is not, by itself, probable cause.  But, know that law enforcement is known to coerce consent to search.  How do you respond to, “I just caught your campmate smoking weed, now open your tent or I’m bringing the dogs!”  Easy: “I’m sorry but I don’t consent to a search.”  Let them bring the dogs if they must (they will probably get bored before that time, and your defense attorney would much rather challenge a dog search than your consent), but do not ever consent to a search, whether you are doing something illegal or not.  Likewise, if you’re cited or arrested out on the Playa, you have no obligation to tell them where you’re camping, and I suspect your campmates may prefer if you don’t.  Do not lie to the police on the Playa — if they are federal law enforcement, lying to them is a felony! — but why invite them back to your house?  Instead, “I’m going to exercise my right to remain silent” is a good response (and then do the remaining silent part!).
3. What about prescription pills?  They’re fine.  And despite what this morning’s e-mail from the Burning Man said (“If you use prescription drugs, they must be in the prescription bottle or container you receive from the pharmacist at all times”), I was able to find no part of Nevada’s Controlled Substances Act that requires you to do this, and at least one state that has tried to legislate a “must be in Rx bottle” requirement has found their law declared unconstitutional.  But, here’s the thing: having a baggie full of pills may be evidence that you intended to distribute them.  It’s not enough on its own, but I would not recommend getting 10 little baggies, putting 4 oxycodone pills in each of them, and carrying all 10 baggies with you while walking around the Playa.  You’ll look like a drug dealer, and at the least give them reasonable suspicion to question you.  But, if they are legitimately prescribed to you, in the end, you’ve committed no crime, and carrying one of your Xanax in your pocket in case you need it is, as best I can tell, fully legal in Nevada.
4. Anything else I should worry about?  Yep.  Here’s where people most frequently get in trouble:
   • You won’t get in with: stowaways, fireworks, lasers, styrofoam coolers, pets, plants, and guns (lol at this morning’s e-mail stating there are no “weapons” allowed… anything from knives to flamethrowers is not a problem; the only prohibition is firearms).  The Burning Man staff (not the police) will ask to do a quick look in your car for any of the above on the way in, and you’ll be turned away from the gate if you refuse.
   • Don’t drive like an asshole (don’t drive on open Playa without a mutant vehicle permit, don’t exceed the speed limit, don’t drive while drunk, don’t drive during a dust storm).  It’s weird driving for miles at 10 MPH on gate road, but do it.  Going faster will also screw up your car and create massive dust clouds for everyone else.
   • Use intoxicants responsibly.  Drugs are bad, I hear, but doing them out in the open is just plain stupid, and the police have binoculars and night vision goggles.  They’re also known to go undercover and ask for drugs, so don’t think it’s cool to “gift” them to the cute girl you just met — she may (seriously) be a cop.  Know your limits and don’t get so obliterated that you need medical attention.
   • Mind the children.  Keep anything adult-themed away from the daytime view  of passers-by.  Drinking age is 21 (yes, there are undercovers for that too).  Age of consent is 16.  Most law enforcement on the Playa most (but not all) of the time is fairly relaxed, but if you screw up anything in this section, you’re gonna have a bad time.
   • Ask for consent.  Boobs do not mean “yes.”  And same goes for women… don’t think you get a pass because you’re a girl.  People verbally asking “Can I touch your ___?” or “Can I kiss you?” is common and appreciated by most.  Take the opportunity to go the extra mile to ensure that you’re respectful of people, and also take the opportunity to respectfully educate those who don’t get it.

Have fun out there, guys!

Last week, a Google employee wrote a document entitled, “Google’s Ideological Echo Chamber,” and posted it to an internal discussion group promoted as a place for Google employees to advocate for internal changes.  (Full text including sources and hyperlinks present in original.)  I encourage you to read the full 3,000 word document, but I think a fair summary of the author’s position is as follows:

1. There have been studies that show that, statistically, there are some psychological traits that are more likely to occur in men than in women, and others more likely to occur in women than men.
2. These psychological differences may be at least partially the reason for the disparity between the number of men and women in the tech field, which has been dominated by men for decades.
3. Google’s corporate culture pretends to solicit diverse viewpoints from its employees, but a viewpoint that reflects the points above would be frowned upon.
4. Some of Google’s diversity programs are not the best approach, specifically including: a) training for women and minorities to the exclusion of white men, and b) a requirement that team composition include a quota of women and minorities regardless of whether the composition of the available qualified resources matches that quota are not.

The document was promptly leaked to the media by employees who were offended by its contents, and the author was subsequently fired for “perpetuating genders stereotypes” — perhaps proving point #3.

As a man who has spent much of his life working in tech, I have had occasion to notice that there aren’t as many women, e.g., in the Comp Sci classroom, on the IT helpdesk, or a part of the remote software development team, as there are men.  Frankly, I’m not sufficiently educated on the subject to have an opinion worth sharing as to why that is.  Sexism is certainly a real thing that still happens, although I suspect that the full explanation is a nuanced issue with more to it than any brief explanation can offer.  But, I am also troubled that the media reporting on the document in question immediately labeled it an “anti-diversity manifesto,” despite the author literally saying “I strongly believe in gender and racial diversity” as one of his key points, and I am troubled that Google would create a forum for people to express constructive criticism and then fire an employee for doing so in a way that doesn’t match Google’s (and Silicon Valley in general’s) political ideology.

Anyway, you came to this post because I do happen to be educated on the law.  Having made national attention, this guy now has lawyers knocking down his door to take the case because doing so is good publicity for them, win or lose.  Assuming he retains one of them, will he win in largely at-will California?

Some arguments he can make:

1. California prohibits companies from “[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of employees.”  Cal. Lab. Code § 1101(b).  I think there’s no doubt that the subject matter of the memo was a “political issue.”  Google has a reasonable argument that they didn’t fire him for his position on this political issue, but for expressing it at the workplace when it violates their code of conduct.  But, the counterargument for that is that Google created this forum for its employees to speak freely, and then punished him for what he said.  If he can show that others have posted political opinions from a different viewpoint that have gone unpunished, it can very much be argued that Google at least tended to control political activities or affiliations.
2. California prohibits companies from retaliating against an employee who publishes information that he or she “has reasonable cause to believe that the information discloses a violation of state or federal statute,” so long as he does so to the government or to a supervisor.  Cal. Lab. Code § 1102.5(b).  Among many other things, the memo alleges that Google’s diversity programs “incentivize illegal discrimination,” which would violate both state and federal law if true.  Let’s assume he has reasonable cause to believe that.  Google will argue that: 1) his 3,000 word memo said many things, and he was not fired for the small comment about incentivizing discrimination, but rather for his hypothesis that biological gender differences, and not sexism, are responsible for the gender gap in tech.  They may also argue that publishing to this forum doesn’t count as disclosing to a supervisor.  I think Google would fail on the first argument, but prevail on the second.  He can reasonably argue that the other 2,997 words were background to his claim of discrimination, but cannot reasonably argue that submitting his feedback to the entire company, rather than to his boss, was the right way to provide that feedback.  But, I will note that the law provides that “the employer shall have the burden of proof.”  Perhaps not a risk worth taking.
3. Federal law allows employees to complain to each other about workplace conditions without fear of retribution, as long as it is a “concerted activity” for “mutual aid or protection.”  29 U.S.C. § 157.  What do these vague terms mean?  Well, the agency in charge of enforcing this statute, the National Labor Relations Board, takes a broad view: “Examples include: talking with one or more co-workers about your wages and benefits or other working conditions…”  This clearly applies to the situation, and it matters not whether the state is at-will or the employees are in a union.  There’s just one catch: “However, you can lose protection by saying or doing something egregiously offensive…”  Google will obviously argue that the employee’s memo was egregiously offensive, but given the civil tone of the memo, even if some (even many) people found the memo to be offensive, I don’t think a court will find it to be “egregiously” so.

In short, there is no open-and-shut case here.  But there is a case, and given that this former employee will have strong legal representation, I expect Google will rapidly settle the matter with a 6- or 7-figure payout to avoid having to publicly defend its diversity programs and its politically homogeneous work environment.

Last year, I sued Insomniac, the producer of Electronic Daisy Carnival — a massive, 100,000+ attendee music festival held in the desert outside of Las Vegas, NV — over their policy of not allowing OTC medication into their event and requiring those with prescription medication to “consult” with a “safety officer” before they would be allowed in.  That case was settled before appeal after being dismissed on a technicality.

A large part of Insomniac’s argument in that case before settlement was that there was no need for attendees to bring in their own OTC medicines because they provide world-class medical services including all the medicine anyone could possibly need.  But, the reality is this: there are only 3 medical tents, and the Las Vegas Motor Speedway where the event is held is massive:

According to Google, the longest interior dimension is over 3,000 feet, or about 6/10ths of a mile (1 km).  To walk around the circumference of the venue would be about 1.5 miles (2 km).  With 3 medical tents, you’re looking at 1 tent every 1,000 or so feet.

At the 2016 festival, a young man named Nicholas Austin Tom succumbed to the heat in combination with MDMA intoxication.  MDMA (ecstasy, molly) is a common, relatively safe party drug with two main caveats: dehydration and hyperthermia (fever).  When you’re in a 110°F (43°C) desert, dancing and sweating, and do not consume water, you are already tempting fate with dehydration and hyperthermia, but add large doses of MDMA to that and the results can be deadly.

Of course, dehydration and hyperthermia are easy to treat in a medical setting: IV fluids and ice packs can save a life.  So, according to Mr. Tom’s attorneys, when he started seizing that evening, festival goers attempted to carry him to a medical tent — but it took them half an hour to find one.  Futher, when they arrived, there was no medical staff there, and by the time they returned, he was dead.

Did Insomniac just not know that they needed more medical staff?  From the complaint:

Beginning in 2006, someone has died every year at a rave put on by Defendants INSOMNIAC and [current parent company] LIVE NATION.

In case that seems like an exaggeration, they provided a list:

• Joshua Johnson, 18 (Nocturnal Wonderland, 2006)
• Michelle Lee, 21 (Monster Massive, 2007)
• William On, 23 (Together as One, 2008)
• Jesse Morales, 22 (EDC Dallas, 2010)
• Sasha Rodriguez, 15 (EDC L.A., 2010)
• Andrew Graf, 19 (EDC Dallas, 2011)
• Kyle Haigis, 22 (EDC Dallas, 2011)
• Emily McCaughan, 22 (EDC Vegas, 2012)
• Arrel Cochon, 22 (Nocturnal Wonderland, 2013)
• Anthony Anaya, 25 (EDC Vegas, 2014)
• Brian Brockette, 20 (Electric Forest, 2014)
• John Hoang Dinh Vo, 22 (Beyond Wonderland, 2015)

In fairness, it seems that they didn’t find a death for 2009, so perhaps for that year, they get a pass.

The bottom line: trying to take away people’s drugs at the gate doesn’t work.  Drugs will always be smuggled into music events.  What does work is providing adequate water and medical services.  Based on the list above, it would seem that Insomniac must know that they have a problem.  I just can’t fathom how Insomniac CEO Pasquale Rotella does not feel disgusted with himself for letting this happen.  (Feel free to let him know how you feel on Twitter.)

Tom v. Insomniac – Complaint (Los Angeles Superior Court, BC 665696) (.pdf)

* Provided with an F.U. to the Los Angeles Superior Court for charging me ~$15 just to retrieve that document, and to the media for reporting on the story but being too cheap or lazy to actually post the source document.  Public records should be free.