Chapter 16

Keeping the secret from Thea’s stored fellows was one thing. Keeping it from her parents, she insisted, was quite another, and intolerable. But Hu sternly instructed Thea not to speak to them directly. “It’s too unpredictable. They might say something, or you might say something, that LiveAfter can use against us. You can bet the company will be listening.”

Thea’s father jumped to his feet, shoving his chair back hard enough to knock it over. Thea’s mother, who might normally have restrained him, sat with her hands clasped tightly together, her eyes closed and her face turned upward as if in prayer. Max tried to sit very still until both of Thea’s parents had their emotions under a little more control.

Her father, however, did not intend to wait that long. He loomed over Max and shouted, “Did you know about this bullshit ahead of time? When you signed those papers?”

“Of course not!” Which he had to admit was evading the real question. Would he have signed anyway?

Linda opened her eyes, stood up, and moved to stand by her husband with both hands on his left arm—a gesture reminding Max that Thea’s father was left-handed. “Dear, please. It’s not his fault. Thea was the one who made the arrangement. And she had far more opportunity to look into the details than Max did, taken by surprise at such a terrible time.” She turned to Max. “Does she know it’s happening?”

Linda led Bill back to their abandoned chairs, picking up the fallen chair and setting it upright. Max waited for them to sit, then explained the lawsuit as well as he could. He had memorized some legal lingo, but most of it now escaped him.

When he came to a halt, Linda leaned over to Bill, whispered to him for a moment, received his muttered reply, and faced Max again. “We can help pay for this. We don’t know how much that will help.”

Max almost replied that Hu had made such assistance unnecessary, but paused at the last instant: they must feel the need to do something, anything, to defend their daughter. Instead, he told them, “I’ll talk to the lawyer about that. Thank you. She might want you to help some other way. In fact, I’m just about sure of it. You could testify about what Thea was like before.”

Thea’s mother smiled a little, which did not make her expression any less sad. “And I can tell the judge, or jury, or whomever about how Thea’s been hijacked into agreeing with her mother at long last.” Tears had finally gathered in her eyes. “And I was glad. I thanked her for thinking things through, and really listening to what I had to say. If I’d known . . . .” She lifted her chin and sat very straight, defiance personified. “I will fight for Thea until she can disagree with me again.”

Hu had considered explaining her theory only to Esther for now. Of the current inner circle, Esther seemed the most likely to understand legal points. But Dane, at least, would be sure to demand information either from her or from Esther, and even Esther might garble it. Besides, Hu needed all the practice she could get at getting her points across to lay people.

That would be even more difficult in a phone conference. She would not learn enough about how well she was reaching her audience. So she made the necessary arrangements to assemble Esther and Dane and even Max for a lunchtime meeting, paying for Max’s maglev ticket despite his polite protests. As for refreshments, she calibrated the selection to satisfy hunger without distracting: nothing too exotic, delicious, or noisy, but nothing likely to elicit even politely suppressed complaint. She would eat before they arrived—and if she indulged in her favorite takeout of Thai/Mexican fusion, well, that was nobody’s business but her own.

As her guests munched sandwiches, peeled bananas, and sipped soft drinks and fruit juice, Hu got started.

“First, let me explain the goal. I’m greedy! I don’t just want to protect Thea and the other stored people in the short term. I want to establish a principle that’ll protect everyone stored in the future, no matter what clever tweaks are possible in their contracts, no matter what a state legislature or even Congress might do with sufficient corporate persuasion. So we include one or more constitutional claims.”

Dane swallowed a large mouthful of sandwich and grinned, a shred of lettuce still in his teeth. “That means the Supreme Court gets involved, doesn’t it?”

Hu suppressed a sigh. She must expect oversimplified assumptions. “Not necessarily, and certainly not right away. We’ll be starting out in a trial—a federal trial court if we can manage it. We still have to decide whether we want a jury trial, at least on those claims that a jury can hear.

“But wherever we end up, we’ll have the same initial obstacle to overcome. In general, it takes a government, or somebody directly or indirectly working for a government, to violate constitutional rights.”

Max looked up, brow furrowed, and put down his banana. “I’m pretty sure I’ve heard people complaining about censorship when a bookstore won’t carry some book, or a social media site blocks somebody. Isn’t censorship about the First Amendment?”

Hu wiggled her hand in a “yes-and-no” shimmy. “The word ‘censorship’ isn’t a legal term. If the government is doing the censoring or is somehow mixed up in it, then you can have a violation of the First Amendment. But whether we’re talking about freedom of speech or some other constitutional right, you still need that link to government—what lawyers call a ‘state actor’—before you can even start arguing about what the Constitution means and whether it protects your plaintiff against whatever the defendant did.”

Hu sighed. “The law about ‘state actors’ is particularly confusing and confused. I won’t drag you through all the details. But there are two concepts I’m hoping will get us somewhere.”

“Hold on. Let me grab another sandwich.” Dane scooted his chair toward the table with the food on it. Esther rolled her eyes; Max looked from the food to Esther and clasped his hands together on his lap. Hu waited for all three to look toward her once more before resuming.

“First: ‘entwinement.’ When the activities of some person or company are so entwined with, so hard to separate out from, government activities, that moves you toward a court finding that the person or company is a state actor for constitutional purposes. What I want to do is emphasize how things have changed in the last several decades. Have you all heard the phrase ‘crony capitalism’?”

Esther and Dane nodded in near unison; Max looked uncertain, then said quietly, “I’m not sure. Would you mind . . .”

Hu smiled in what she hoped was a reassuring manner. “It means that some companies, usually large ones, get favors from the government, favors that make it harder for anyone else to compete with them. Sometimes the companies pay for those favors with outright bribery, but usually the quid pro quo is more long-term and subtle. The companies support regulations that give government more power, and the regulators write those regulations in a way that helps the companies keep their market share and stifle competition.

“We’ve had crony capitalism for a long, long time, but it’s expanded along with the expansion of the state and federal regulatory framework. It’s now normal for major companies—companies like, and including, LiveAfter—to be protected by government, enriched by government, and, in the end, dependent on government for their prosperity or even their existence. Are you with me so far?”

Max stared over Hu’s shoulder, his eyes just a little crossed, then looked back at Hu. “I think I get it, more or less. LiveAfter needs the government, and the government needs LiveAfter.”

“That’s close enough. Another way to put it is that there’s no clear dividing line between the company and the government. And that means—or I’m going to argue it means—that the company is really operating as an arm of the government, and therefore can be held to at least some of the same constitutional standards as a government agency would.”

Dane grinned. “Atta girl! . . . Wait, didn’t you say ‘first’? There’s more?”

Hu, unsure whether to bother bristling at the form of Dane’s praise, seized on his question as a way to move on. “Yes, I do have another argument to throw in the mix. Legally, LiveAfter is the guardian of all those who’ve entrusted themselves to be digitized and stored. Like other guardians, LiveAfter is court-appointed, though in a more wholesale way than traditional guardians, and it’s accountable to the state for how it cares for its wards—the stored people.”

Max stirred in his chair. Hu glanced at her notes and put her finger on the point she would make next. “It’s okay to ask a question. Do you have one?”

Max grimaced. “I don’t know if it’s a question, exactly. I just don’t like the idea of LiveAfter thinking it’s Thea’s guardian. Aren’t guardians for people who can’t do things for themselves, like people whose minds have gone?”

If only she had steered Max toward the seat next to hers, she could have made some physical gesture of support, like putting her hand over his. Too late now. “Of course Thea’s as alert as ever, and in some sense as able as ever she was to handle her own affairs. But the brutal fact is: she can’t do that, or anything else, without the computer storage space and software that LiveAfter’s providing.” She waited while Max nodded, bit his lip, struggled for control, and finally sat quiet again. “And that’s actually a point in our favor, as I’m about to explain.

“There used to be a fair amount of legal debate about whether state authority over guardians meant that guardians were state actors. Almost all courts decided that no, they weren’t—but there was a minority view going the other way. I plan to argue that LiveAfter’s guardianships should be treated as state action even if other guardianships aren’t.

“You see, normally the state—in most cases, meaning either state government or local government—exercises what’s called the ‘police power’ over all its residents. Making and enforcing criminal laws, settling disputes about contracts and such, deciding who’s qualified to practice a profession—these are all part of the police power. And to exercise that power over you or me, they don’t need anyone’s help—no intermediary. But because of LiveAfter’s total control over their wards’ interactions with the outside world, governments need LiveAfter’s help in order to carry out any of their police power functions where the stored are concerned. And that brings us back to the idea of ‘entwinement.’ When a guardian is inevitably part of every government action that affects an individual, I’ll argue that it only makes sense to call the guardian a state actor as well.”

Esther shook her head and smiled a little. “That’s quite ingenious. But we’re not talking about things the government asked LiveAfter to do. Doesn’t that make a difference?”

“Not as much difference as you’d think. As long as LiveAfter was in a general sense doing what its arrangement with the government required it to do, then we should be all right. It’ll be like holding a prison responsible when a guard beats up a prisoner.”

Max visibly shuddered. “A prisoner. That’s a little too close to home.” He squeezed his eyes tight. “It was up to me, in the end. I could have told them not to do it.”

This time Hu stood up and went over to Max, putting her hand on his shoulder. “You did the best you could for her.” She should make no promises, but the hell with that. “We’re going to fix this. We’re going to make sure she can live this new life the way she would want to live it.”

Dane got up as well, dragging his chair over toward Max and giving him a one-armed hug before sitting down again. Hu went back to her own chair. Esther waited until Hu had resumed her seat, then asked: “Is that the whole legal picture, then?”

Hu laughed. “Not even close. There are all sorts of complexities about what we can get damages for and what we can’t, what we’ll have to do to try to get into federal court and stay there . . . but those are my headaches. You’ll have enough to do just keeping an eye on what happens in the meantime.”

Esther found the usual energetic Dane hard enough to handle. Nervous, jumpy Dane was giving her a headache, especially with the early spring pollen already irritating her sinuses. When he paused for a moment in his pacing, she reached up to grab his shoulder. “Stop. Sit. Breathe. And tell me what’s going on with you.”

He gave a halfhearted grin and sat on the bench. Esther brushed aside a few twigs and perched beside him. When he said nothing, she took her best guess. “Is your mother all right?”

He jerked his shaggy head toward her. “For now? Maybe. As far as I can tell, they haven’t gotten to her yet. But they might, any time. It sounds as if some of her friends are getting more political. . . . Why the hell is Hu taking so long?”

Esther stopped herself from rolling her eyes. “A case like this takes a great deal of preparation. You must know that. And it used to take much longer before the courts streamlined the procedure.”

“If Hu doesn’t prepare very, very thoroughly, what would that do to her chances? And Thea’s? And your mother’s?”

Slowly he turned his head toward her again. “She could lose. They could lose.”

Esther laid her hand gently on his knee. “We’re not doing all this, taking the risks we’re taking, only to make things worse. We have to win. And winning will take patience, and discipline.”

Hu stretched, turned away from her large office window, and settled back down to work. It was all very well to dream about making new constitutional law, but she had more reliable claims to draft, and procedural mazes to navigate.

Thea might be the plaintiff now, but she couldn’t remain the only plaintiff—not if they were going to get some broad relief that protected all the stored. From Hu’s limited exposure to Thea, she wouldn’t be content with a victory that only covered her. And no way would Dane and Esther be risking their jobs, if nothing more, because of Thea alone. Hu would have to make this a class action, with all the stored who’d been altered, or even all those in danger of it, as her clients.

And she’d need to shore up her access to the federal courts. It might not be a major setback if she ended up in state court, but federal court had advantages she was loath to relinquish. If she defined her class of plaintiffs broadly enough, she could get past the minimum size requirement. And as for the minimum “amount in controversy”: she’d be asking for injunctive relief, with the court ordering the defendants to do this and stop doing that. If the cost of implementing those remedies wouldn’t get her to the minimum, she could add some large—if ultimately unlikely—figure for “punitive” damages. LiveAfter certainly deserved some punishment.

Her only claims based on federal law were her somewhat ambitious constitutional ones, but she had another way through the federal court doors: diversity jurisdiction, a difference in state citizenship between plaintiffs and defendants. Like so many corporations, LiveAfter was incorporated in Delaware; and with the rapid growth of Idaho as a corporate haven, LiveAfter’s principal place of business, like so many of Hu’s business clients, was right here in Boise. At least some of her potential class members lived outside Delaware and Idaho. Thea had lived in California. With a class action, “some” was good enough.

Except that notion might be stillborn, if stored people’s citizenship changed with their death. If all the stored were citizens where LiveAfter was incorporated, or—even more plausibly—where the computers that housed their code were located, that’d put paid to the idea of diversity jurisdiction.

Wait, hadn’t Max said something about Thea voting? Hu put in a call to Max, and he answered on the second ring.

“Max, when Thea voted, was it the same ballot you used? I mean, the same candidates and issues?”

“Yes!” Hu laughed like a pirate. Max made some attempt to chuckle along. “It’s all right, Max. That’s just what I wanted to hear. I’ll explain next time we meet.” She hung up and sat back in her chair, allowing herself a moment to gloat. For whatever reasons, very likely in service of some goal of one or more of the defendants, Thea’s continuity of citizenship had already been established. Surely the same was true of her fellows. They had their ticket to federal court.

Aside from the constitutional claims, everything else Hu asserted would be based on state law. The federal court could hear the state law claims, and probably would choose to do so unless it threw the case out of federal court altogether. But as for which state’s law would be applied, she’d better be prepared for all the possible alternatives.

Of course, LiveAfter’s contract was intended to preempt all manner of claims. So she’d need to dig into the language and find ways around some parts, and ways to turn other parts against the company.

She would start with only LiveAfter as a defendant. Later, once the discovery process yielded more information, she’d add whatever self-appointed social engineers had hired (or otherwise induced) LiveAfter to mess with people’s brains.

She would hide Dane’s and Esther’s involvement for as long as she could; but she would almost certainly end up representing them in whistle-blower lawsuits. At least the statutes covering such suits would pay her fees if she won.

Which was more than she could be sure of in this case, depending on the extent of any victory. But the publicity would be more than worth the investment of time. At least, that was the story she would give her partners. As far as she was concerned, she was doing it for her former colleague, now probably sitting in the virtual sun and contemplating his belly button. And for her new friends. And for herself, against the day when she might hope for digital immortality without the devil’s bargain of losing herself.

Hu usually prided herself on an elegant restraint in choosing the causes of action in her complaints. But in this case, she had better make use of any analogies she could and stretch every definition to its limit.

Of course, they denied any knowledge of or involvement in the manipulation of their clients. But they acknowledged the possibility that some intruder could have hacked the files of the named plaintiff—in which case she must be considered incompetent and unable to file suit. And they asserted paragraph this, clause that, whereby Thea Lee, like all their clients, had waived the application of any implied warranties.

Time to amend the complaint! Hu promptly roped Max in as next friend, suing on behalf of his wife in the event she were held incompetent.

Max, consulted by phone, showed some initial resistance. “We don’t want to admit she’s incompetent, do we?”

“That’s not what we’re doing,” Hu explained. “We’re pleading in the alternative, just as they are.”

Hu smiled. “Here’s one common example. There’s a broken vase lying on the rug in the living room. Whoever’s accused of breaking it has this to say: ‘I didn’t touch it. And if I did, I picked it up but didn’t break it. Or else it was broken when I walked in.”

“I’m sure future lawyers are particularly eloquent when they make that argument at the age of five.”

For good measure, Hu filed a separate suit with Max as a plaintiff in his own right, seeking damages for loss of consortium, and then moved that the two cases be tried together.

“Loss of the companionship involved in a familial relationship. For husband and wife, it usually includes sex. But it includes the intangibles as well. Companionship, advice, support.”

“Hey, didn’t they used to do phone sex? Can you make the defendants pay for interrupting that?”

“Hmmm. That’s about the monitoring more than the monkeying. But the contract gave them privacy rights, didn’t it? I’ll add it in.”

“Do hush up. And back up. I’m afraid you’ll trip and fall and squash me.” But she grinned as she worked.

Dane finally took his leave, bowing like a courtier and then drumming a reveille on her door on his way out. Just as well: he was a distraction, if an entertaining one.

Time to review the storage contract again, to be sure she wasn’t forgetting anything. . . . Damn it, she had. That hold harmless clause would have Max paying some of LiveAfter’s attorney fees unless she could get around it somehow. The judge would probably put that clause on hold until Max won or lost on his consortium claim. If he won, Hu very much doubted the clause would hold up. But she’d better make sure he could afford to lose. . . .

Back to the class action. She would add negligence in allowing the supposed hackers to breach LiveAfter’s defenses. And as for the waivers of implied warranties, she couldn’t wait to go after those. “How dost thou violate public policy? Let me count the ways.”

One of the associates assisting Hu on the Lee case checked his phone in the break room and whistled. “Whoa, our judge bailed! Recused himself.”

Hu checked her messages and found the confirmation. “Let me guess: he’s got a LiveAfter contract. . . . Yup, that’s what it is. Too bad. He’s a decent sort.”

“On the other hand, if all the judges with LiveAfter contracts are out of the picture. . . .”

Hu gave the half-voltage version of her evil laugh. “Indeed. The message doesn’t say who we’ll get instead. Check on it, will you?”

The associate popped his head back into Hu’s office in less than five minutes. “This really is your lucky day!”

“I don’t understand.” Max was getting tired of saying that, and the case had barely even started.

“Judges have to avoid ‘the appearance of impropriety,’ no matter how fair they think they can be. If someone would look at the stock they own or the club they belong to or whatever, and wonder if they could still treat all parties equally, then they’re supposed to step aside. That’s what our original judge did. And in this case, we traded up, and got one of my favorites as a replacement. This lady is sharp as a tack, and keeps lawyers on a pretty tight leash. That means I’ll have to play it straight, no pushing the envelope—at least not unless it’s crucial. But it also means she’ll understand our arguments and the technical facts underlying them.”

“I guess that’s good. But does the judge matter all that much? What about the jury?”

Hu looked briefly taken aback. “Didn’t I tell you? I’d already been leaning against a jury trial, and even more so with this change of judges. I’m sorry—I explained it to Dane, and forgot you weren’t with us that day.”

Hu had tackled Dane first, on a hunch that he would be the hardest to convince.

“But don’t we need a jury? Judges are powerful people. We need folks who understand being pushed around. We’d just need to pick some jurors who like to push back!”

Hu had absolutely no doubt that Dane was imagining himself in the role of heroically combative juror. “It’s not that easy. Jury selection is like multiple simultaneous tugs-of-war. Your opponent knows what kind of jury you want—and that’s not a simple calculation, either—and they’ll do their best to prevent it. My track record is pretty good; but even though federal courts don’t require a unanimous jury in civil trials these days, we would need at least seven out of ten, and that can be tricky. Especially for a cutting-edge case with mind-boggling issues, not to mention constitutional law. I’d rather gamble on one tough, smart, curious judge.”

Max nodded along to Hu’s explanation. It made sense, he supposed, although like almost everything else she explained to him, it made the legal process seem even more tangled and intimidating than before.

Hu, however, seemed anything but intimidated. She practically sparkled with energy, in a way that reminded him painfully of Thea despite their very different personal styles. When she sat back and actually rubbed her hands, he could not help muttering, “I’m glad one of us is having a good time.”

Of course Hu heard him. She cocked an eyebrow, then looked him in the eye. “Max, oversimplifying somewhat”—she said that so often!—“some lawyers work this hard for money, and some of us work this hard because we enjoy it. In my biased and not exactly humble opinion, those of us having fun do a better job.”

“You’re kidding. Are you telling me I can’t tell my friends what’s happening? What’s being done to them?”

Hu did not exactly raise her voice, but she somehow gave it a more penetrating quality. “Thea. The class hasn’t been certified yet.” Hu must have caught Thea’s frown, quickly as Thea suppressed it: she paused a moment, with a “how do I simplify this” look on her face, then continued. “The judge hasn’t decided yet whether all the other stored are in the same situation as you are, the one we’re suing about. Once the judge rules in our favor on that point, then we may be allowed to tell all of them about the lawsuit—though we’d have to be quite careful about our wording. But remember, they’re watching you.” Thea gritted her teeth at the unnecessary and unwelcome reminder. “If you start spreading the word now, it could complicate our position. The judge might consider it mischief-making. And we absolutely do not want to annoy the judge.”

Thea clenched her fists, until she noticed that her fingernails were somehow failing to dig into her palms. She shivered and took a few deep breaths. “If I see somebody change, change in a way I don’t think they asked for, can I at least tell you?”

Hu nodded emphatically. “By all means do. And depending who, and how, we might figure out a way to add that person as a plaintiff.”

Hu looked Thea up and down, her gaze lingering on Thea’s hair. “And by the way, it might be a good idea to go blonde again. It’s hard to predict when you might end up in court, virtually speaking, and I’d rather you didn’t show up sporting any elective alterations.”

And even when the class had finally been certified, Hu still wanted Thea to hold back. “Give me a chance to spread the word formally and comprehensively. If I fail, then we can revisit a more underground approach.”

LiveAfter’s lead counsel seemed to be, in one of Hu’s favorite semi-archaic words, flummoxed. “Your Honor, the plaintiff class seeks primarily injunctive relief rather than money damages. Under those circumstances, the rules do not require notice to all putative class members. We are confident that plaintiffs’ claims will be determined to be unfounded, and ask you not to order such a disruptive and disquieting communication.”

The judge aimed a stare down her nose at the man, one Hu would certainly have called “disquieting” if aimed at her. “Counsel, I do not appreciate your making assumptions as to the decision I will ultimately reach. Kindly refrain from premature optimism. Ms. Yang, your response?”

“Your Honor, under the current federal rules, this court may allow class members to opt out of the litigation. LiveAfter’s clientele could hardly opt out of a litigation kept secret from them.”

“Yes, Ms. Yang. I may so allow. But why should I? What circumstances make it particularly appropriate, despite the disruptive effect defense counsel has identified?”

It had taken some time for Hu to come up with an answer to this expected question. In the end, it had been the thought of her former law partner, now unable even to realize that he was helpless, that had inspired her. “Your Honor, LiveAfter has successfully marketed itself to what we may call society’s movers and shakers. Its clients are accustomed to exercising power and authority. We submit that these people would expect to be consulted, would feel entitled to be consulted, before letting some third party speak for them in matters of importance. We wish to honor these justified expectations.”

The judge pondered for a moment, then called up her calendar. “Ms. Yang, let me see a proposed notice by close of business next Monday. Then I’ll decide whether notice is advisable.”

Monday! Hu did not look at her opponent, who was probably smirking. The cover sheet, the table of contents, the detailed descriptions that had to pass muster as objective, would consume the rest of her week and every spare moment of the weekend. At least she could rope in a couple of associates to assist and share her suffering.

Three hours before the deadline, a somewhat bleary-eyed Hu filed her proposed notice, yawned, stretched, and invited the equally weary associates out for a drink. Their efforts satisfied her, on the whole. She thought they had managed to avoid both timidity and overstatement, and to tread the fine line between easily ignored fine print and easily dismissed excess. If only the judge approved the result, LiveAfter’s customers would have a wake-up call coming.

The call jolted Thea out of a creative trance; she scrambled to jot down the musical phrase before it eluded her, then reached to answer, almost barking out an irritated “yes?”, softening her tone at the last moment when she saw Hu’s face.

Hu looked positively smug. “Check your messages, will you? And then call me back.” Hu hung up; Thea, bemused, did as Hu had asked. There were only three messages: one from Max, one from The Diva, and one that appeared to come from the federal court. Even as she moved to open that one, five more messages appeared, all from stored acquaintances, with subject lines expressing various versions of shock and dismay.

“IF YOU ARE A CUSTOMER OF THE LIVEAFTER CORPORATION AND RESIDE IN DIGITAL CONDITION WITHIN THEIR SERVERS AT THIS TIME, A LAWSUIT HAS BEEN FILED ALLEGING THAT YOUR FILES HAVE BEEN ALTERED IN MATERIAL WAYS WITHOUT YOUR CONSENT . . . .”

Thea hollered, “YES!”, jumping up from the chair, jumping up and down with her feet together like a springboard diver, punching the air. Only after several minutes of energetic celebration did she settle down, lying back in luxurious relief upon her bed. She would call Hu, of course. But first, she would call Max.