The Volokh Conspiracy

Note that the law criminalizes polygamy, rather than just refusing to recognize polygamous marriages. Here’s the summary from Prof. Howard Friedman (Religion Clause):

In Canada, [a British Columbia trial court] today upheld most of Canada’s anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province’s attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions....

In today’s decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), [the trial judge] concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17.... [EV notes: This means that those children can’t be prosecuted for violating the law when they have entered into polygamous marriages — people who enter into polygamous marriages with them can still be prosecuted.]

The court also found that the statute violates the religious liberty of fundamentalist Mormons, some Muslims and Wiccans — as protected by Sec. 2 of the Charter — but that this infringement is justified by Sec. 1 of the Charter that allows “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The court rejected arguments that the anti-polygamy law violates various other provisions of the Charter, such as protections of expression and assurances of equal protection. The opinion — which runs 1367 numbered paragraphs in length — includes an extensive survey of the history of polygamy and the alleged harms caused by the practice.

U.S. courts have likewise concluded that laws criminalizing polygamy are constitutional; I discuss that in this earlier post, and cite to two recent cases that have discussed the issue. I think it’s not clear whether, given Lawrence v. Texas, a state may outlaw plural religious marriages where the parties don’t try to make any legal claims based on those religious ceremonies; for more on that, see the majority and the dissent in State v. Holm (Utah 2006). But in any event, so far U.S. courts, like the Canadian court, have not accepted any such constitutional argument.

The Wall Street Journal recently published a round-robin dialogue on privacy featuring Jeff Jarvis, danah boyd, Chris Soghoian, and me. Our vibrant discussion was quite heavily compressed for publication, so two of the other participants have now published their contributions in full.  Jeff Jarvis’s is here, and danah boyd’s is here. Publishing the full version on the web seems like good practice generally, so I’m following suit, with a few edits to avoid cross-referencing material that hasn’t been put on the web.  The Wall Street Journal’s questions are in bold italics.

How much should people care about privacy?

 That’s like asking how much they should care about the weather. Some, for sure. If we don’t, we’re liable to end up deeply uncomfortable from time to time.

 But let’s not kid ourselves. Privacy is like the weather in another way, too. For all the complaining, no one is going to do much about it.

 They can’t. The price of storing and analyzing data is dropping exponentially; and keeping that data hidden is a hopeless task.

 So, in the end, we will adjust.  Privacy is the most adaptable of rights. 

 Sometimes our sense of what is private shrinks. The man who invented the right to privacy, Louis Brandeis, was appalled that ordinary newsmen could snap his picture and print it in the paper without so much as a by-your-leave.  And most of us can sympathize, if we remember the shock of seeing ourselves in a photo, looking quite different than we imagined.  But no one today thinks that photography is a privacy violation. We’ve adjusted to the new technology. 

 And sometimes our sense of privacy grows. Most of us would be deeply uncomfortable at the idea of having strangers sleeping in our homes, listening to our family conversations, and gossiping about us over the back fence. But Brandeis never gave the privacy risk posed by his servants a second thought.

 It’s tempting, in that first uncomfortable moment when new technology starts to shrink our old sense of privacy, to ask for new laws to protect us from change.

 They won’t. Sooner or later, the laws on the books will yield to Moore’s law. But in the meantime, bad laws can do a lot of damage.

 Maybe it made sense to tell the FBI in Hoover’s day that its agents couldn’t compile clippings files on Americans who weren’t suspected of acting improperly. But by the time of 9/11, when any coed could assemble clips files on her blind dates — in seconds, for free, with the help of Google — did it really make sense for FBI agents to be the only people in the country barred from printing out name searches?

 So, sure, we should care about privacy. But we should also care about dumb privacy laws whose cost we won’t appreciate until it’s too late.

 What is the harm that can be inflicted by bad privacy laws? Will it prevent us from catching terrorists or drug cartels?

 Bad privacy laws abound, but the harm they do is too often downplayed in the media. 

 Take the story of September 11 itself. As the attacks loomed, the secret court that approves national security wiretaps had plunged the FBI into turmoil — but over privacy, not terrorism. Perhaps reacting to charges that it was merely a rubber stamp, the secret court had begun aggressively protecting Americans’ privacy — by imposing harsh, career-killing sanctions on an FBI agent who failed to observe the Wall between law enforcement and intelligence.

 As described in Skating on Stilts, the court’s harsh punishment was still reverberating when the FBI learned that two al Qaeda operatives had entered the US. Members of its massive Cole bombing task force begged for a chance to track them down.  But no one was willing to risk the secret court’s wrath by using a criminal task force to pursue intelligence leads.

 And so we missed our last, best chance to stop the 9/11 attacks — thanks to the secret court’s misplaced enthusiasm for a dubious privacy doctrine. That’s what turned me from a moderate privacy supporter into a profound skeptic. 

 Worse, because the secret court has never been held to account for its fecklessness, it is reportedly still following the same path — imposing new and secret privacy restrictions on our intelligence agencies. And leaving us all at risk of becoming the next privacy victims.

 You’ve said that privacy advocates have helped turn our computers into surveillance machines; what privacy laws are you referring to? And how should it have been prevented?

 There are indeed privacy laws that make computer defense much more difficult.  European laws protecting employee privacy make it harder to secure corporate networks, and U.S. privacy rules make it hard for the government to identify and warn Americans whose computers have been taken over by botnets. But the real problem is the way privacy groups have prevented the government from making policy changes in response to the growing danger of network attacks. 

 Take intrusion detection. Many corporate networks use technology that monitors networks to detect intrusions and alert administrators to threats. As long ago as the 1990s, the Clinton Administration proposed creating a Federal Intrusion Detection network, or FIDNet, that would do the same thing for civilian government networks.  It didn’t happen. FIDNet was condemned by privacy groups as “a monitoring system that threatens privacy and other civil liberties.” Along with their allies in the press, privacy advocates made FIDNet so controversial that Congress killed it. When George W. Bush revisited the idea, it made even less progress.  Only now, after a third President has raised the alarm about network attacks, are we beginning to roll out coordinated intrusion detection for the civilian arms of government.  Of course we’re a decade late; foreign governments have had ten years to steal all the information the privacy advocates now say they’re worried about – delays caused in large part by the privacy advocates themselves. 

If secret court orders protecting privacy led to 9/11, as you contend — isn’t the answer to not have secret courts? Not that privacy is terrible?

 Secrecy may well be cloaking dubious rulings by the secret court, just as it cloaked the court’s enforcement of the Wall. But we can’t expose those rulings without also exposing the highly classified intelligence operations the court is overseeing.  To solve this kind of dilemma, the Congress’s intelligence committees sometimes conduct classified investigations and release an unclassified summary of their findings.  Maybe the value of such an investigation is one thing that privacy advocates and I (and the Wall Street Journal) can all agree on.

 But the problem at its heart is not secrecy.  It’s the court’s willingness to create novel privacy and civil liberties protections.  That may sound like a good thing, but it cost us dearly in August 2001. We should consider that cost before we impose new privacy rules.

Law students and lawyers — don’t let this happen to you (from today’s Gonzalez-Servin v. Ford Motor Co. (7th Cir.):

In ... Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009)[], we affirmed Judge Barker’s transfer of a similar case [to the one being litigated here] to the courts of Argentina under the doctrine of forum non conveniens. The appellants in No. 11–1665 (the plaintiffs in the district court), the accident case, do not cite Abad in their opening brief, though the district court’s decision in their case was issued in 2011 — long after Abad. In their response the defendants cite Abad repeatedly and state accurately that its circumstances were “nearly identical” to those of the present case. Yet in their reply brief the appellants still don’t mention Abad — let alone try to distinguish it — and we take this to be an implicit concession that the circumstances of that case are indeed “nearly identical” to those of the present case.

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it....

The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” The attorney in the vehicular accident case, David S. “Mac” McKeand, is especially culpable, because he filed his opening brief as well as his reply brief after the Abad decision yet mentioned it in neither brief despite the heavy reliance that opposing counsel placed on it in their response brief.

The AP reports:

During the first two months of the nationwide Occupy protests, the movement that is demanding more out of the wealthiest Americans cost local taxpayers at least $13 million in police overtime and other municipal services, according to a survey by The Associated Press.

The heaviest financial burden has fallen upon law enforcement agencies tasked with monitoring marches and evicting protesters from outdoor camps. And the steepest costs by far piled up in New York City and Oakland, Calif., where police clashed with protesters on several occasions.

The AP gathered figures from government agencies in 18 cities with active protests and focused on costs through Nov. 15, the day protesters were evicted from New York City’s Zuccotti Park, where the protests began Sept. 17 before spreading nationwide. The survey did not attempt to tally the price of all protests but provides a glimpse of costs to cities large and small.

Broken down city by city, the numbers are more or less in line with the cost of policing major public events and emergencies. In Los Angeles, for example, the Michael Jackson memorial concert cost the city $1.4 million. And Atlanta spent several million dollars after a major snow and ice storm this year

The http://www.nytimes.com/2011/11/23/science/earth/new-trove-of-stolen-e-mails-from-climate-scientists-is-released.html?pagewanted=all on the new release of climate scientists’ emails:

The new e-mails appeared remarkably similar to the ones released two years ago just ahead of a similar conference in Copenhagen. They involved the same scientists and many of the same issues, and some of them carried a similar tone: catty remarks by the scientists, often about papers written by others in the field. . . .

In one of the e-mails, Raymond S. Bradley, director of the Climate System Research Center at the University of Massachusetts, Amherst, criticized a paper that Dr. [Michael] Mann wrote with the climate scientist Phil Jones, which used tree rings and similar markers to find that today’s climatic warming had no precedent in recent natural history. Dr. Bradley, who has often collaborated with Dr. Mann, wrote that the 2003 paper “was truly pathetic and should never have been published.”

Dr. Bradley confirmed in an interview that the e-mail was his, but said his comment had no bearing on whether global warming was really happening. “I did not like that paper at all, and I stand by that, and I am sure that I told Mike that” at the time, he said. But he added that a disagreement over a single paper had little to do with the overall validity of climate science. “There is no doubt we have a big problem with human-induced warming,” Dr. Bradley said. “Mike’s paper has no bearing on the fundamental physics of the problem that we are facing.”

Some of the other e-mails involved comments about problems with the computer programs used to forecast future climate, known as climate models. For instance, a cryptic e-mail apparently sent by Dr. Jones, a researcher at East Anglia, said, “Basic problem is that all models are wrong — not got enough middle and low level clouds.”

Gavin A. Schmidt, a climate modeler at NASA, said he found such exchanges unremarkable. He noted that difficulties in modeling were widely acknowledged and disclosed in the literature. Indeed, such problems are often discussed at scientific meetings in front of hundreds of people.

Roger Pielke also comments here, noting that the new e-mails confirm the politicization of decisions about what papers to cite (or omit) from the 2007 IPCC report.

As with the first ClimateGate release, I have yet to see anything in these e-mails that disproves, or even seriously undermines, the basic claim that human emissions of greenhouse gases have contributed to a gradual warming of the climate and will continue to do so in the future. They do, however, further confirm that “mainstream” climate scientists have contributed to the politicization of climate science and allowed political concerns to influence scientific judgments, exaggerating the reliability of climatic projections and downplaying scientific findings that undermine the claim that climate change presents an apocalyptic threat.

Here’s a list of VC posts that mention ClimateGate. For an overview of my views, see here and here.

During the early and mid-1960s, a typical theme of television situation comedies was a character who is some way was different from everyone else, and whose difference (or whose very existence) needed to be concealed from almost everyone by the show’s protagonist. To wit:

Mister Ed (1961–66). Mister Ed is a talking horse who belongs to a human named Wilbur, and will speak only to him. Wilbur attempts to conceal Mr. Ed’s ability from the neighbors.

McHale’s Navy (1962–66). In the South Pacific during World War II, PT boat Lt. Commander McHale and the crew of PT-73 work hard at having fun, to the dismay of Captain Binghamton.  Concealed in their barracks is a Japanese prisoner of war named “Fuji,” who gratefully serves as their houseboy. Keeping Fuji hidden from the American officers is the subject of several episodes, but it is not as central to the show as are the secrets in the other shows on this list.

My Favorite Martian (1963–66). After a Martian scientist’s spaceship crashes, Tim O’Hara rescues him. Tim invites the Martian (whose real name is Exigius 12½) to live with him, and passes him off as Tim’s “Uncle Martin.”

Bewitched (1964–72). Samantha is a beautiful witch who is married to advertising executive Darrin Stephens. They live in the suburbs, and often face challenges trying to conceal Samantha’s powers from the nosy neighbors and Darrin’s boss.

My Mother the Car (1965–66). David Crabtree’s deceased mother is reincarnated in a 1928 luxury automobile. She speaks only to him, through the car radio. He must conceal the car’s secret from the world, especially Captain Manzini, who is determined to acquire the antique.

I Dream of Jeannie (1965–70). Jeannie is a beautiful 2,000 year old genie who lives with astronaut Tony Nelson. Tony and his best friend Roger must conceal Jeannie’s existence from everyone else, especially the commanding officers at NASA.

Another theme of some sitcoms of the period is the family of freaks who do not know that they are freaks:

The Beverly Hillbillies (1962–71). After the Clampetts accidentally strike it rich by discovering oil on the Ozark property, patriarch Jed moves them to Beverly Hills. They retain their rural dress and customs, and seem to have little or no idea how aberrant they are in urban California. Their innocent good nature keeps them (except for the half-witted skirt-chaser Jethro) out of trouble most of the time.

The Munsters (1964–66). The father looks like Frankenstein, his father-in-law is a vampire, and so on. Living with them is their niece Marilyn, who is an ordinary human college student, and whom the rest of the family considers to be a freak, but they are very nice to her. Marilyn apparently is unaware that the Munsters are different from everyone else.

The Addams Family (1964–66). A family of wealthy eccentrics with paranormal abilities and a strong taste for the macabre enjoys life in their mansion. Again, they have no clue how bizarre they are.

So in 1965–66, when there are only three national networks producing TV series, we have in a single television season five shows built around the concealment of character with a unique trait. (Or six, if you include the McHales’s Navy subplot), and three shows about extremely strange families who think they are normal.

So my question to the commenters is “Why?” Were these shows an unintentional avant garde, extolling the pleasures of non-conformity and the virtue of tolerance to Middle America? Except for “My Mother the Car,” all the shows were at least moderately successful for a while, and Beverly Hillbillies and Bewitched garnered top ratings. So was the American public subconsciously looking for validation for non-conformity? Or is there some other explanation?

Former AIG CEO Hank Greenberg is suing the federal government challenging the constitutionality of the AIG takeover.  From the WSJ:

Mr. Greenberg’s lawyers on Monday sued the U.S. and the Federal Reserve Bank of New York on behalf of Starr International Co. and other AIG shareholders. The lawsuits accused the Treasury Department and New York Fed of wrongly taking control of the insurer and using it as a vehicle to funnel tens of billions of dollars to AIG’s trading partners, which included large U.S. and European banks.

The suits allege that by taking a nearly 80% stake in AIG in September 2008 when it agreed to lend the insurer up to $85 billion, the government took valuable property from Starr and other AIG shareholders in violation of the Fifth Amendment, which says private property can’t be taken for “public use, without just compensation.”

Starr is seeking damages for itself and other shareholders of at least $25 billion. AIG is listed as a nominal defendant in the suits, which also seek damages for the company. A spokesman for the company declined to comment.

More coverage from the NYT and Reuters.

Gene Fidell (Yale Law School) and some of his students are putting together an article tentatively titled A Pronouncing Dictionary of the Supreme Court of the United States, which will basically help people know the standard ways of pronouncing Supreme Court case names (such as City of Boerne v. Flores and Gentile v. State Bar of Nevada). They have a list of cases to include, but if you have some suggestions, please post them in the comments. The requirements, of course, are that (1) it’s not obvious what the standard pronunciation is, and (2) the case comes up often enough to make it worth knowing the standard pronunciation.

I should note, of course, that the query isn’t about the right pronunciation in some etymological sense; and even the party’s own pronunciation of his own name may not be relevant in some cases, especially if the case is old enough. Thus, for instance, even if I learned that Schenck of Schenck v. United States (1919) pronounced his name “Skenk,” I’d still pronounce the case “Shenk,” since that seems to be the standard pronunciation among lawyers who know the case.

But often this standard pronunciation isn’t obvious. Thus, in my experience the “Boerne” in City of Boerne v. Flores is pronounced “Bernie” by those knowledgeable in the field, perhaps because someone did take the trouble to figure out that this is how the city name is pronounced by its residents. And it is this standard pronunciation (or, in some cases, perhaps several standard pronunciations, as with “either” and “apricot”) that I’m asking about.

Senator Leahy recently proposed an amendment to the Computer Fraud and Abuse Act to try to address the overbreadth concerns that myself and others have raised about the current statute, and particularly DOJ’s controversial view that the statute presently allows the government to prosecute computer users for TOS violations. I wanted to blog my thoughts on Leahy’s proposed amendment. My basic take is that Leahy’s proposal is such a modest step that it doesn’t solve the problem it aims to solve. Its language appears to still allow DOJ to prosecute TOS violations, including the theory of the Lori Drew case that the statutory fixes are all designed to stop. For those reasons, explained in detail below, I can’t support the Leady Amendment. Instead I continue to support the Grassley/Franken amendment.

I. Introducton and the Leahy Amendment

First, some context, for those who are new to this debate or unfamiliar with the Leahy proposal. At its broadest, the CFAA prohibits exceeding authorized access to a computer and obtaining information. See 18 U.S.C. 1030(a)(2). This is overbroad for two related reasons: First, “exceeding authorized access” might mean anything, including violating TOS; and second, the statute applies to obtaining any kind of information, not just sensitive information, so it would include any kind of TOS violations, no matter how arbitrary or silly. As I explain in my House testimony, there are two basic ways to fix the overbreadth problems. First, you could limit the definition of “exceeds authorized access,” so it excludes TOS violations; and second, you could limit the kinds of information that could be obtained so that it only applies to violations involving particularly sensitive information.

The Grassley/Franken amendment agreed to by the Senate Judiciary Committee a few weeks ago was based on the first strategy; it amends the definition of “exceeds authorized access” to exclude TOS violations. Senator Leahy’s proposal is based on the second strategy, limiting the kind of information obtained. I have heard that Leahy’s proposal was based loosely on my blog post here in September, in which I suggested that you could amend the information obtained under the “exceeds authorized access” prong to the following categories of information:

(a) Information with a value of more than $5,000;
(b) sensitive or private information involving an identifiable individual (including such information in the possession of a third party), including medical records, wills, diaries, private correspondence, financial records, or photographs of a sensitive or private nature;
(c) information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954.

That brings us to Senator Leahy’s proposal. Leahy’s proposal would rewrite 1030(a)(2) so that it punishes whoever:

Intentionally accesses a computer —

(A) without authorization, and thereby obtains—
(i) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as
such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
(ii) information from any department or agency of the United States; or
(iii) information from any protected computer;

or

(B) in excess of authorization, thereby obtains— (i) information defined in subparagraph (A) (i) through (iii); and (ii) the offense involves
(I) information that exceeds $5,000 in value;
(II) sensitive or private information involving an identifiable individual or entity (including such information in the possession of a third party), including medical records, wills, diaries, private correspondence, government-issued identification numbers, unique biometric data, financial records, photographs of a sensitive or private nature, trade secrets, commercial business information, or other similar information;
(III) information that has been properly classified by the United States Government pursuant to an Executive Order or statute, or determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national security, national defense, or foreign relations, or any restricted data, as defined in paragraph y of section 11 of the Atomic
Energy Act of 1954; or
(IV) information obtained from a computer used by, or on behalf of a government entity.

The basic strategy here is as follows. First, the proposals leaves the current 1030(a)(2) in place for violations involving “access without authorization,” so that any information is covered when access was without authorization. (As an aside, note that the statute is written in a redundant fashion for mostly historical reasons; because any information in categories i and ii are already part of iii, it’s iii — “information from a protected computer” that really matters. I have no idea why they don’t modernize the language and just eliminate all the gibberish about financial records and the Fair Credit Reporting Act, but at least the extra gibberish is harmless in practice.)

Second, the proposal rewrites 1030(a)(2) for violations involving “exceeding authorized access,” but it only makes only one change: The offense has to somehow “involve” one of the listed categories of information. The listed categories of information start with the ones I proposed in my blog post, but then add the following:

1) government-issued identification numbers,
2) unique biometric data,
3) financial records,
4) trade secrets,
5) commercial business information,
6) other similar information;
7) information obtained from a computer used by, or on behalf of a government entity.

II. My Two Objections to the Leahy Amendment

I think there are two major problems with Senator Leahy’s amendment: first, the overbreadth of the information that qualifies; and second, the use of “involves” information rather than “obtains” information.

(a) The Overbreadth of the Categories of Information. The first major problem with the Leahy amendment is that the categories of information listed are incredibly broad. Unfortunately, the language is so broad that it wouldn’t substantially limit DOJ’s ability to prosecute exactly the kinds of Terms of Service cases that every one is worried about. That means that the Leahy amendment has the form of a “fix,” but in practice would simply endorse TOS prosecutions in a remarkably wide range of cases.

This is particularly clear in the case of TOS set up by businesses. DOJ could still prosecute TOS violations involving most businesses because violating a TOS with a business will almost always involve some kind of business information. Consider a fact-pattern from an actual CFAA civil case. Say I run a business and I have information about products on my website; I then set up a Term of Use saying that no competitors are allowed to visit my website. As I read the Leahy proposal, it is still a CFAA violation if the competitor violates the Term of Use. After all, the competitor violated the Term of Use and then obtained “commercial business information,” that is, information about the company’s products.

For that matter, I think Leahy’s amendment would endorse DOJ’s prosecution of Lori Drew. Drew helped set up a fake myspace account to try to contact her daughter’s friend with the goal of finding out what the friend was saying about her daughter; Drew helped violate the Terms of Service which said all profile information has to be accurate. As I read Leahy’s amendment, it would support the DOJ’s prosecution in that case: Drew violated the TOS in the course of obtaining personal information about her daughter held by the daughter’s friend. (To be clear, this is partly a problem with my own proposal for how to fix 1030(a)(2); now that I think about it, my own proposed language was too broad.)

Some of the other categories of information are particularly strange. Take the “trade secrets” provision. Not long ago, Congress worked hard to pass an entirely different statute on the theft of trade secrets, 18 U.S.C. 1832. Congress crafted that statute carefully, requiring intent to convert the trade secret. Including trade secrets in 1030(a)(2) just because they are trade secrets would reduce Section 1832 to a nullity, effectively allowing DOJ to prosecute theft of trade secrets without ever having to prove intent to convert the trade secret — the very element Congress went out of its way to require in passing Section 1832. If Congress wants to expand Section 1832, it should do it directly, but it seems strange to use the CFAA as a quiet way to dramatically expand the theft of trade secrets statute.

The category of “other similar information” is even more puzzling. Similar how? To what? In what way? It’s hard to know what that is supposed to mean.

And further, why does the amendment treat information from government computers as somehow special? If the law is going to carve out categories of particularly sensitive information, it’s not clear to me why information stored on a government computer (which would include public websites like whitehouse.gov) is inherently private or sensitive.

For all these reasons, I think the categories if information listed in the Leahy amendment are far too broad. They wouldn’t really limit DOJ’s power to prosecute Terms of Service violations.

(b) What Does it Mean to “Involve” Information? The second major problem with the Leahy amendment is that it still extends to obtaining any information, and merely requires that the offense somehow “involve” one of the new categories of listed information. That strikes me as at best tremendously vague and at worst terribly overbroad. What does it mean for an offense to merely “involve” a type of information, when that information is not the information actually obtained by the offense? How far removed from the actual information obtained can the information be while still being “involved” in the offense? I don’t know, but it seems to me that DOJ could plausibly interpret that language so broadly that it reduces the amendment to a nullity.

To see why, imagine a guy sets up a Match.com profile and fills it with information about himself. When asked to enter in his age, he says he is 32 years old when he is really 33. After setting up the profile, he stops. In such a case, he didn’t use the service to obtain any sensitive information of anyone else. But presumably his conduct “involved” private information belonging to an identifiable individual — namely, himself. More broadly, it’s hard to know when an offense “involves” information that is one of the sensitive categories of information; I don’t think I know what that means. And when you pair it with some of the other ambiguous language in the statute, the ambiguity is magnified: A statute that says it is a crime to exceed authorized access to a computer when the conduct “involves . . . similar information” is a statute with considerable vagueness problems in need of a clean-up.

III. Conclusion

To be clear, I think the Leahy proposal starts with a fair approach: The basic concept of limiting the CFAA by limiting the information obtained in 1030(a)(2) is sensible. But the categories of information in this particular proposal are too broad, and the limitation that the offense must merely “involve” such a category is too vague, for me to support it. I think the Grassley/Franken approach is much better, and I hope the Senate sticks with that approach rather than adopting the Leahy approach.

Charlie Savage of the New York Times reports:

The American Bar Association has secretly declared a significant number of President Obama’s potential judicial nominees “not qualified,” slowing White House efforts to fill vacant judgeships — and nearly all of the prospects given poor ratings were women or members of an ethnic minority group, according to interviews.

The White House has chosen not to nominate any person the bar association deemed unqualified, so the negative ratings have not been made public. But the association’s judicial vetting committee has opposed 14 of the roughly 185 potential nominees the administration asked it to evaluate, according to a person familiar with the matter.

The number of Obama prospects deemed “not qualified” already exceeds the total number opposed by the group during the eight-year administration of Bill Clinton or George W. Bush; the rejection rate is more than three and a half times as high than under each of the previous two presidencies, documents and interviews show.

That outcome has added a new twist to a long-running friction in the politics of judicial nominations. During recent Republican administrations, conservatives have made political hay of accusing the A.B.A. of bias against conservative potential judges. In 2001, President Bush stopped sending the group names of prospects before he selected them, so the panel instead rated them after their nomination. In 2009, Mr. Obama restored the panel’s role in the pre-nomination selection process, which dates to the Eisenhower administration.

In discussions with bar panel leaders, administration officials have expressed growing frustrations with the ratings over the past year and a half, people familiar with those conversations said. In particular, they are said to have questioned whether the panelists — many of whom are litigators — place too much value on courtroom experience at the expense of lawyers who pursued career paths less likely to involve trials, like government lawyers and law professors.

You can view the members of the ABA vetting committee here. According to the story, 13 of the 14 individuals given a “not qualified” rating were nominated for vacancies on the District Court.

I’m curious what the back-story is here. My understanding is that certain presidents have used the ABA evaluation as a way of blocking candidates, especially district court judges, who they didn’t want but that certain Senators pressed; after the ABA returns a judgment of “not qualified,” the President can go back to the Senator and say he needs another nominee. That may be what is happening here; it’s hard to know.

Last year, Zeljka Buturovic and economist Dan Klein published an article showing that political liberals were more likely to be ignorant about several economic issues than libertarian and conservative survey respondents. The study got a lot of media and internet attention.

At the time, I noted that its results were interesting, but also pointed out a possible flaw:

[A]s Buturovic and Klein themselves point out, the Zogby survey they relied on didn’t ask questions about issues where conservative rather than left-wing positions are likely to be at odds with basic economics. For example, I expect that many more conservatives than liberals deny that the War on Drugs creates black markets and violence, believe that immigration is a zero-sum competition for jobs between immigrants and natives, and deny that laws banning prostitution and gambling have various negative economic side-effects (black markets; domination of these activities by organized crime, etc.). Thus, the study doesn’t really allow us to say whether liberals or conservatives are the ones who with the greatest levels of economic ignorance. Survey data shows that ignorance about politics is widespread on both sides of the political spectrum. The same thing is likely to be true of economic ignorance....

People have a strong tendency to reject out of hand any information or argument that cuts against their preexisting political views, and this is especially true of those most committed to their ideology or political party. Unfortunately, voters have strong incentives to be both ignorant about public policy and irrational in their evaluation of the information they do know.

To their credit, the authors conducted a follow-up study that includes questions that challenge conservative and libertarian preconceptions. On those issues, conservative and libertarian respondents do indeed display higher levels of ignorance than liberals, just as I would have predicted. The net result, as Klein explains in this Atlantic article, is that “Consistently, the more a [factually accurate] statement challenged a group’s position, the worse the group did.”

Like political ignorance, economic ignorance is common on all sides of the political spectrum.

UPDATE: In the original post, I accidentally forgot to include a link to Daniel Klein’s new article in the Atlantic. I have now corrected the mistake. Thanks to Klein himself for bringing it to my attention.

On the eve of another UN climate summit, it appears that another batch of potentially embarrassing e-mails by various climate scientists have been released to the public. The Guardian reports:

The emails appear to be genuine, but the University of East Anglia said the “sheer volume of material” meant it was not yet able to confirm that they were. One of the emailers, the climate scientist Prof Michael Mann, has confirmed that he believes they are his messages. The lack of any emails post-dating the 2009 release suggests that they were obtained at the same time, but held back. . . .

One marked difference from the original 2009 release is that the person or persons responsible has included a message headed “background and context” which, for the first time, gives an insight into their motivations. Following some bullet-pointed quotes such as “Over 2.5 billion people live on less than $2 a day” and, “Nations must invest $37 trillion in energy technologies by 2030 to stabilise greenhouse gas emissions at sustainable levels,” the message states:

“Today’s decisions should be based on all the information we can get, not on hiding the decline. This archive contains some 5.000 emails picked from keyword searches. A few remarks and redactions are marked with triple brackets. The rest, some 220.000, are encrypted for various reasons. We are not planning to publicly release the passphrase. We could not read every one, but tried to cover the most relevant topics.”

Excerpts of the e-mails are posted on Watt’s Up With That? and The Air Vent.

Ted Frank at the Center for Class Action Fairness has had another important victory–obtaining a 9th Circuit reversal of a cy pres award that had been made as part of a settlement with AOL:

The Ninth Circuit U.S. Court of Appeals on Monday rejected a class action settlement that called for AOL Inc. to give $110,000 to random charities, sending a message that courts should be more careful in doling out money under the cy pres doctrine.

A unanimous panel said the charities had nothing to do with the plaintiffs’ email privacy claims and that too much money was being funneled to Los Angeles groups, despite a class spread out across the country. And the court expressed skepticism about whether judges or mediators should make recommendations on how large sums of money get paid out when the money doesn’t go to the class members.

AOL was poised to donate a total of $75,000 to three different charities — Legal Aid Foundation of Los Angeles, the Boys and Girls Clubs of Santa Monica and Los Angeles, and the Federal Judicial Center Foundation — upon the suggestion of a former federal judge who mediated the agreement. Another $35,000 was to go to charities picked by class representatives, an arrangement also recommended by the mediator, Dickran Tevrizian.

“When selection of cy pres beneficiaries is not tethered to the nature of the lawsuit and the interests of the silent class members, the selection process may answer to the whims and self-interests of the parties, their counsel or the court,” Judge N. Randy Smith wrote for the unanimous three-judge panel.

Also on the panel in Fairchild v. AOL, 10–55129, were Senior Judge Betty Fletcher and U.S. District Judge James Gwin, visiting from Ohio.

My article “Economic Uncertainty, The Courts, and the Rule of Law” is now available on SSRN.  It is based on my remarks at the Federalist Society’s National Student Convention last spring at UVA.  Here’s the abstract:

Abstract

Should judges protect private property rights and constitutional rights as vigilantly in times of crisis as in ordinary times? Conventional wisdom holds that crises justify suspending the rule of law and allow government discretion to address the crises. I argue that this lesson of past economic crises as well as the most recent crisis is that we should uphold the rule of law with special rigor in times of economic crisis because the temptations for politicians to misuse their powers during times of crisis are especially great. During crises, judges must be particularly vigilant in protecting private property and constitutional structure.

Crisis often is invoked to rationalize both governmental discretion and waiver of the rule of law. But as the financial crisis and its aftermath reveal, it is precisely during times of crisis that it is most important to tie the hands of government with the bonds of the rule of law. First, in times of economic crisis there is a special need for government behavior to be predictable and rule-bound to encourage investment and economic recovery in a period of uncertainty. Second, adherence to the rule of law in the face of crisis is important to restrain politicians from using the crisis to pursue their own self-interest or unleashing rent seeking by special interest groups—both of which dampen economic recovery and long-term economic growth. Third, the government’s seizure of discretion creates a ratchet effect whereby the discretion and exceptions to the rule of law made during the crisis ossify and never return to pre-crisis levels. Fourth, the dynamics of short-term interventions tend to invite moral hazard that can be exploited by powerful special interest groups.

From CNN, a story that interested me even though I don’t follow football at all.

Over at Inside the Law School Scam, Paul Campos reveals that he worked extensively with David Segal in helping Segal with his article on law professors and legal scholarship, and in particular with Segal’s estimate of the price students pay for legal scholarship. According to Campos, the basic methodology is to assume that 40% of law school operating costs pay the salaries of tenured or tenure-track professors, and that law professors spend 40% of their time writing articles. Multiplying the two suggests that 16% of law school operating costs pay for law review articles, which Segal estimates collectively at about $575 million.

I am no labor economist, and my comment is probably amateurish, but this strikes me as a puzzling way to calculate the costs of legal scholarship. It assumes that professors spend a fixed amount of time working and a fixed percentage of time writing articles. But that’s not the case, as professors spend a wildly varying amount of time working and a wildly varying amount of time writing. Some professors work very hard; some don’t. As a result, I would think that a better way to measure the costs of legal scholarship would be to compare the salaries of the professors who are active scholars with the salaries of the professors who are inactive scholars. (To determine the costs of X, compare the costs with X to the costs without X.) Consider an example. At a given school, it may be that a professor who spends 25 hours a week writing articles has earned merit increases in pay over time, and as a result is paid $40,000 more per year than a professor who doesn’t write articles at all. If so, that would suggest the costs of legal scholarship are somewhere in the ballpark of $30 an hour. That is, $40,000 additional pay for 1,300 hours of additional work.

This calculation has lots of problems, too, I realize. For example, it assumes that salary competition for active scholars has no effect on the salaries of inactive scholars. But at the very least I would think it’s a better gauge of the costs of legal scholarship than the methodology used by Campos that was followed in the Times article. Or so it seems to me, but then I’m about as far a way from my area of academic expertise as I can get. Comments are open, with corrections and criticisms particularly welcome.

UPDATE: Paul Campos responds, via e-mail: “You’ve misunderstood the calculation regarding the subsidizing of scholarship via tuition, probably because I stated it unclearly. While I estimate 16% of law school operating costs go toward subsidizing scholarship, the $575 million number isn’t 16% of operating costs – it’s 16% of collected tuition.”

I have recently posted to SSRN a forthcoming article on slippery slope issues in the individual mandate litigation. The article is part of a symposium in Law and Contemporary Problems. Here’s the abstract:

The 2010 Affordable Care Act’s individual mandate has given rise to one of the most important constitutional disputes in recent decades. The provision in question requires that most Americans purchase health insurance by 2014.

Both sides in the mandate litigation have argued that we will be sliding down a dangerous slippery slope if their opponents prevail. Despite the prominent role of slippery slope arguments on both sides of the case, the extensive academic commentary on the mandate litigation does not yet include a comprehensive analysis of this aspect of the dispute. This article seeks to fill the gap in the literature.

Part I considers the slippery slope arguments against the individual health insurance mandate. I conclude that the federal government’s arguments really do lead to an unlimited congressional power to impose almost any mandate. The same result occurs under all three of the government’s major arguments for the constitutionality of the mandate: claims that the mandate is authorized by the Commerce Clause, the Tax Clause, and the Necessary and Proper Clause. In addition, there is a substantial likelihood that Congress will take advantage of an unconstrained power to impose mandates for the purpose of benefiting favored interest groups.

Part II provides a similar assessment of slippery slope arguments put forward by defenders of the mandate, focusing on fears that striking it down would lead to the restoration of Lochner, the unraveling of precedents upholding major post-New Deal government programs, and prevent Congress from enacting important regulatory measures in the future. Such logical implications do not arise from the most likely path by which the Court might strike down the mandate: holding that Congress cannot use the Commerce Clause and Necessary and Proper Clause to regulate “inactivity,” defined as imposing mandates merely on the basis of one’s presence in the United States. Such a decision would leave intact all existing precedents and major government programs. And it would not even come close to restoring Lochner. It is, however, possible that a decision striking down the mandate would lead to incrementally more vigorous enforcement of structural limits on congressional power at the margin.

Stephen Glass, the disgraced writer for The New Republic who penned stories that were too good to be true (and whose exploits inspired the movie “Shattered Glass”) wants to be a lawyer.  But is a journalist exposed as a serial fabricator fit to practice law?  The New York Bar said no.  Now, The Recorder reports, Glass is trying California, and his case is going to the state supreme court.

Glass moved to California and passed the bar exam here. But in 2009 the Committee of Bar Examiners declined to certify his moral fitness, noting, like New York, his history of lies. Glass then petitioned the State Bar Court’s hearing department, which disagreed with the committee and found the would-be lawyer had the necessary “good moral character.” The hearing officer declared Glass’ 22 supporting witnesses to be “outstanding” and credible.

The committee took the case to the three-judge review department, which in July, on a 2–1 vote, found that Glass had indeed rehabilitated his moral shortcomings and should be certified for admission to the Bar. Now the Committee of Bar Examiners has successfully asked the state Supreme Court to step in.

“In light of the serious misconduct that occurred, albeit a decade ago, [Glass] did not show in the commission’s eyes significant rehabilitation,” Grunberg said. “He just hasn’t shown that he holds those values that we hold dear.”

The question is likely to be decided in early 2012.

Conservative columnist Rich Lowry has an interesting piece on Herman Cain’s ignorance about major public policy:

At a meeting with the editors of the Milwaukee Journal Sentinel, Cain was asked whether he agreed with Pres. Barack Obama’s handling of Libya. You would think he had been asked who is the president of Ubeki-beki-beki-beki-stan-stan, Cain’s joshing description of a prototypical gotcha foreign-policy question. What ensued was the longest five minutes of an editorial-board meeting ever.

Cain paused. Then he asked for a lifeline by trying to confirm with his questioner that President Obama supported the Libyan uprising. He started to say why he disagreed with Obama, but stopped after realizing, “No, that’s a different one.” He hesitated again. “Got all this stuff twirling around in my head,” he explained.

Cain hadn’t been asked about an obscure conflict or one distant in time. We’re not talking the War of Jenkins’s Ear or the Second Peloponnesian War. He seemed to all but have missed that there had recently been a Libyan War that had taxed the capacities of NATO, created an intense conflict with Congress over presidential war powers, teetered on the brink of failure, and divided conservatives....

His typical answer on national-security questions is that he would consult the experts, a thinly disguised dodge. What if the experts are wrong (as they often are) or disagree (as they often do)? Because Cain has no independent knowledge base or bearings, he would be entirely a creature of others on foreign policy.

It’s not as though he’s a wonk on domestic policy, either. He’s tied himself in knots on abortion, contradicted himself on an electrified border fence, and demonstrated an unfamiliarity with the basics of Medicare policy. Even on his signature issue, 9–9-9, he relies on repetition and assertion more than detailed argument.

It’s easy to find examples of Democratic politicians who demonstrate comparably egregious ignorance. But that does not excuse Cain. If you want to be president of the United States, you should have at least a basic knowledge of the issues the office is responsible for.

One can argue that Cain will simply bone up on the issues after taking office. But any such expectation is highly unrealistic. Presidents work under tremendous time pressure, especially early in their tenure, which is when they have the greatest chance of implementing major changes in policy. There is little time for study at that point. Most of the public policy knowledge a president uses in office is knowledge he brought there with him.

Cain’s defenders could also claim that his ignorance is irrelevant because, once in power, he can just rely on the advice of experts. Obviously, every president must rely on advisers to a great extent. But in order to make effective use of those experts, a president needs to have at least a basic understanding of what they’re talking about. That’s especially true in the many cases where experts disagree and the president has to decide whose advice to follow.

Cain’s shortcomings in this respect are reminiscent of Sarah Palin’s troubles in the 2008 election. There is, however, a crucial difference. Palin didn’t know that she was going to be nominated for VP until shortly before it was announced. Before 2008, she had little incentive to study national issues; as governor of Alaska and mayor of Wasilla, she only needed to be familiar with local and state policy, which by all accounts she knew reasonably well. By contrast, Cain has been running for president for many months, and presumably knew that he was going to enter the race months before then. Moreover, he also ran for a Senate seat back in 2004. So he has had far more opportunity than Palin did to study up on the basics of national public policy issues. The fact that he hasn’t chosen to do so is telling.

As in the case of Palin, there is an important difference between ignorance and stupidity. Cain is a successful business executive, and clearly has more than enough intellectual ability to understand the basics of public policy, including Obama’s Libya policy. The problem is not lack of ability, but lack of effort.

While there’s a lot worth criticizing in David Segal’s NYT article about law professors and law schools — Matt Bodie covers a lot of good ground in this post at Prawfs — there’s an underlying point that I think is both important and correct: Law professors, at especially the “top” law schools, are becoming less connected to the legal profession. As a result, over time, they are less likely to know — and therefore less able to teach — the perspective an experienced lawyer would bring to legal problems.

Richard Posner made this point nicely in his 2007 essay celebrating the life of his late colleague Bernard Meltzer. Posner begins by describing the professional identities of law professors before the 1960s:

Law professors used to identify primarily with the legal profession and secondarily with the university. . . . Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer.

That all changes starting in the 1960s, Posner argues: Now law professors identify academics first, and with the legal profession second or not at all. Posner argues that this switch has real costs to students, as law professors who identified with the legal profession served as role models for students who were trying to master the craft of lawyering:

Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy, or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed.

Posner then argues that while you wouldn’t want every law professor to be completely oriented to the profession, law schools should strive for balance between the profession-oriented legal academics and the university-oriented legal academics.

[The practical lawyer’s sense] cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

I don’t know what the right balance is, but I do think that students are best served when their classes are taught by professors with a mix of approaches.

Just in case you’ve been wondering where I’ve been:

Tropical Storm Kenneth has formed in the eastern Pacific Ocean, with forecasters calling it a rare late-season tropical storm. The U.S. National Hurricane Center in Miami said Sunday that Kenneth had maximum sustained winds near 40 mph (65 kph). The storm was centered about 525 miles (845 kilometers) south of Manzanillo, Mexico.  Projections show Kenneth moving west out to sea, away from land, over the next several days.

State legislators in Ohio are considering legislation that would enable criminal prosecutors to insist on a jury trial even when a criminal defendant waives that rate and asks for a bench trial. The Cleveland Plain Dealer reports:

Ohio prosecutors want to change the law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. . . .

“The whole jurisprudence system is based on the jury system,” [state legislator Lynn] Slaby said. “Until we do away with juries entirely, it’s more fair to have both sides have a right to a jury trial.”

As the article notes, this proposal is not revolutionary. Although criminal defendants have a constitutional right to trial by jury, they are not guaranteed the ability to waive this right.

Today’s NYT has a lengthy front-page article on legal education suggesting that a major problem with legal education is the failure to teach law students how to practice law. There is something to this complaint — some schools and some legal academics do relatively little to prepare their students for practice and there is much relatively worthless legal scholarship — but the article overstates the case, fails to identify workable alternatives, and makes various errors about legal education and scholarship along the way. For instance, the article identifies a philosophy paper, published in a philosophy journal, as an example of how legal scholarship is divorced from legal practice. The article simultaneously harps on the high cost of legal education and suggests more clinical education is a good way to help prepare law students to practice law. Yet the article makes no mention of the fact that clinical education is more expensive than traditional doctrine-oriented classes.

For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what’s going in on legal education, the good and the bad, one’s better off reading legal bloggers than the NYT.

UPDATE: Leiter has a fuller response to the article here, and Orin comments above.

Why is there so much bad privacy law, and so many privacy victims? Here’s my theory.  Privacy advocates exploit that first uncomfortable moment when we realize that technology is changing our world, offering a Luddite illusion that law can prevent uncomfortable change.  The result is laws and court rulings on privacy that quickly become quaint.

It’s not hard to find support for that view if you compare United States v. Jones, the GPS 4th Amendment case, with an article in today’s Washington Post about the rapid spread of license plate readers:

When stored over time, the collected data can be used instantaneously or can help with complex analysis, such as whether a car appears to have been followed by another car or if cars are traveling in a convoy.

Police also have begun using them as a tool to prevent crime. By positioning them in nightclub parking lots, for example, police can collect information about who is there. If members of rival gangs appear at a club, police can send patrol cars there to squelch any flare-ups before they turn violent. After a crime, police can gather a list of potential witnesses in seconds.

…

Arlington police cars equipped with the readers regularly drive through the parking garage at the Pentagon City mall looking for stolen cars, checking hundreds of them in a matter of minutes as they cruise up and down the aisles.

At the same time that license plate readers are spreading across the landscape, companies like Google and Apple are investing heavily in location-based services for smartphones.  As a result, we’re rapidly losing any expectation that our location is private.  These fast-moving technologies make the technique at issue in Jones – whether law enforcement can physically attach a GPS tracking device to a suspect’s car – seem almost antediluvian.

Recall the moment that many journalists treated as the critical coup de grace for the government in Jones. Pressing the SG’s office about GPS tracking of Supreme Court Justices, Chief Justice Roberts asked, “So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?” Many reporters and lawyers thought that this question was a killer for the government, likely hoping that the Court will ride to privacy’s rescue and  impose constitutional constraints on such tracking.

That may be so, but what the Court says about location privacy in Jones is not likely to stand the test of time. It’s as caught in the present moment as Adele’s “Someone Like You” – and a little less likely to endure. If the case had come up ten years ago, the Court, unthreatened by the location revolution, would likely have accepted the SG’s answer — that the FBI could physically follow the Justices’ movements in public without causing a constitutional concern, and a GPS device shouldn’t be viewed differently. And if the case came up ten years from now, the SG would answer, “Chief Justice Roberts, we don’t need to attach a GPS device to your car.  We can already track its movements with no warrant in a license plate database that is always getting bigger and more effective.  And we already have subpoena access to the third party location-based service providers that you all authorized when you activated your smart phones. Hell, soon, those services are going to merge.  People will mount dirt-cheap cloud-connected license-plate reading cameras on their cars as protection against a hit-and-run or road-rage attack — or to help the police find a kidnapper. No one is going to expect privacy in their car’s location then.”

In 2021, I predict, thirty-somethings will snuggle nostalgically to “Someone Like You,” and reminisce about the days when their parents didn’t know where they were – while smugly congratulating themselves that their kids will never be able to do the same to them.

And if the Court imposes constitutional restrictions on GPS tracking in Jones? What will be the ruling’s fate in 2021?  It seems to me that the debate is going to end in one of two ways.  Either constitutional restrictions on GPS devices will become a forgotten corner of the law, as law enforcement moves to newer location tracking techniques, or the Court will begin a campaign it cannot win – trying to regulate a host of location technologies in a vain effort to preserve twentieth century notions of privacy.

That’s where dumb privacy law comes from.

Photo credits:  Thanks to Francis Storr in Flickr and to Amazon.co.uk

Over at Lawfare, I have posted a new review of three books on international law, war, and counterterrorism, with a particular focus on the changing shape of counterterrorism through drone warfare and targeted killing.  The three books are all technical and academic, so not everyone’s cup of tea.  Sample below the fold. Continue reading ‘Three Academic Books on International Law and Counterterrorism’ »

The decision came in Occupy Boston v. City of Boston (Mass. Super. Ct. Nov. 17, 2011); the hearing on the preliminary injunction is set for Dec. 1.

The First Amendment analysis in the decision is quite thin: The court concludes that the plaintiffs have the requisite likelihood of success on their First Amendment claim because their encampment is symbolic expression. But the question isn’t just whether the encampment is presumptively protected by the First Amendment — it’s whether there are valid content-neutral city ordinances or state laws that permissibly restrict such camping.

By way of analogy, imagine someone came to court asking for an order barring the police from shutting down an unlicensed parade down a busy street. The parade is surely symbolic expression; but the question is whether there’s a content-neutral law that nonetheless constitutionally restricts the parade (in the hypothetical, traffic laws coupled with a content-neutral scheme for allowing parade permits in certain places at certain times). And given that Clark v. CCNV (1984) upheld the constitutionality of limits on sleeping in parks, it seems likely that some content-neutral restrictions on Occupy encampments are constitutional (if Boston or Massachusetts do indeed implement such restrictions).

This having been said, two experienced Massachusetts lawyers who are familiar with the case (and who are sympathetic to the result) tell me that Massachusetts state court practice is often to issue such TROs based on highly abbreviated analysis, just to preserve the status quo pending a more thorough hearing. So the decision on the preliminary injunction will presumably go through the First Amendment questions in more detail.

From two of the journals here at UCLA law school:

CALL FOR PAPERS: 2012 UCLA ENTERTAINMENT LAW REVIEW and the JOURNAL OF LAW AND TECHNOLOGY SYMPOSIUM

The UCLA School of Law’s Entertainment Law Review (ELR) and Journal of Law and Technology (JOLT) are co-hosting their first annual Symposium on March 18, 2012 at the UCLA School of Law. The Journals are seeking submissions for the Symposium, which will focus on legal issues related to cloud computing. Papers may address any important aspect of the law and cloud computing, including privacy concerns, antitrust violations, and intellectual property and copyright claims.

ELR and JOLT are particularly interested in the current issues and concerns regarding cloud computing. Cloud computing is the use of software as a service, rather than as a product, whereby shared resources and information are provided to computers by third parties over a network. The concerns raised in regard to privacy issues center on the increased ability of companies hosting the cloud service to keep track of the information and data stored between the user and the host. Service providers will be capable of accessing and monitoring consumers’ habits with greater ease than ever before. Another concern is antitrust as cloud computing services will provide large companies with more power to resist competition. As of right now, it is unknown whether or not a consumer will be forced to exclusively consume particular products and services once that consumer selects a cloud service provider. Many companies may use cloud computing as a way of linking the cloud service to their individual products, thus reducing the ability of consumers to use competing products. Finally, there is the possibility that intellectual property laws may interfere with the success of cloud computing, and it remains to be seen how cloud computing will comply with copyright laws.

DEADLINES TO SUBMIT:

Papers (drafts): February 27, 2012

Please submit an Abstract by December 21, 2011 to elrsubmissions@lawnet.ucla.edu with “Symposium Submission” in the subject line. Selected presenters will be notified by January 3, 2012, and will be asked to provide a polished draft of their Paper by February 27. Papers will be jointly published in the Summer 2012 issues of the Entertainment Law Review and the Journal of Law & Technology.

I was interviewed for a segment of NPR’s “All Things Considered” today on the Lori Drew case and the scope of the Computer Fraud and Abuse Act. You can listen to the segment here.

No, it’s not The Onion; it’s a real story.

The question has bothered me for decades. We sang “Yankee Doodle” plenty of times at school, but nobody seemed to wonder why he would say that “a feather in his cap” was “macaroni.”

At last, I found the answer, in Thomas Wright’s book “Caricature History of the Georges” (1860), which examines political and social satire drawings during the reigns of England’s King Georges I, II, and III. A very interesting book, if you’re interested in English history. Despite what the title might suggest, most of the book is text, not pictures. The author notes that for a while in the late 18th century, magazines often did 3-word book reviews. So let’s call this book “clever, erudite, tory.”

On pages 258–61, we learn that during the reign of George II, “men of fashion” were called “beaux.” In 1749, “fribble” became the new term, and this persisted into the reign of George III. In 1772, things changed. Rich young men who had made the tour of the continent came back with new fashions of all kinds; thanks to the wealth pouring in from India, the time was one of extravagant frivolity. The young men formed a club which soon took the name of the unusual Italian dish which it served. For the gentlemen of the Macaroni Club, “it was their pride to carry to the utmost excess every description of dissipation, effeminacy of manners, and modish novelty of dress.” The Macaronis of 1772 “were distinguished especially by an immense knot of artificial hair behind, by a very small cocked-hat, by an enormous walking stick, with long tassels, and by jacket, waistcoat, and breeches, of every close cut.”

Then in 1773 the Macaroni fashion changed to “the elevation of the hair, and the adoption of immense nosegays in the bosom.”

So the mystery of Yankee Doodle is solved. He is an American rube and rustic. He naively thinks that a mere feather in his cap makes him an ultra-fashionable “macaroni.”

It turns out that I could have learned the truth by just looking up “Yankee Doodle” and “Macaroni” in Wikipedia. But at least I finally understand.

As I noted in June, a district court held that, under Boy Scouts v. Dale, a gay athletic group had a First Amendment right to limit the number of straight players on a team, since that was necessary for it to convey its expressive message. The court has now issued a new opinion (Apilado v. North American Gay Amateur Athletic Alliance (W.D. Wash. Nov. 10, 2011)) reasserting its conclusion, but developing the analysis further:

In a May 31, 2011 order, the Court denied Plaintiffs’ motion for partial summary judgment as to whether Rule 7.05, which stated that teams participating in the Gay Softball World Series (“GSWS”) were limited to two players who were not predominantly interested in the same sex, violated the Washington Law Against Discrimination (“WLAD”). In response to the motion, NAGAAA argued that Rule 7.05 was protected by the First Amendment.

To determine whether or not the First Amendment did indeed protect Rule 7.05, the Court applied the three-pronged test found in Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000). Under that test, NAGAAA’s decision to exclude someone from membership is protected by the Constitution if NAGAAA can show three things: (1) NAGAAA is an expressive association, (2) forced inclusion of unwanted members would affect NAGAAA’s ability to express its viewpoints, and (3) NAGAAA’s interest in expressive association outweighs the state interest in eradicating discrimination. See id. at 648–59. The Court held that NAGAAA had satisfied the first two prongs but determined that the parties had not provided enough information to resolve the third prong.

Later, in response to a motion for reconsideration from the Plaintiffs, the Court requested additional briefing from the parties on that third prong, so that NAGAAA’s First Amendment rights under the Dale test could be conclusively decided. The Court now considers that final question: does NAGAAA’s interest in expressive association outweigh the state interest in eradicating discrimination? ...

In the previous Order, wherein the Court determined that NAGAAA was an expressive association, the Court did not find an explicit formulation of the message NAGAAA intended to express. Instead, the Court found that NAGAAA communicated a mission and a purpose through its literature that fell easily within the standards that the Supreme Court had set for an expressive association. Now, however, NAGAA has made its intended message explicit: ...

Continue reading ‘More on the Gay Athletic Group’s First Amendment Right to Limit the Number of Straight Players on a Team’ »

Here’s what is alleged in the Complaint in Hyatt v. Berry Plastics Corp. (N.D. Ga. filed Nov. 8, 2011) — recall that these are just the plaintiff’s allegations:

1. Hyatt’s employer kept a safety calendar that marked the number of consecutive days that the workplace was accident-free. Employees were required “to write the number off of the safety calendar onto a sticker and are to wear the sticker throughout the work shift” (I’m quoting the Complaint here).

2. “As the number of safely worked days crept into the range of the 600’s, Plaintiff began discussing with his co-workers and supervisors that he could not wear the number 666 as this number was the sign of the beast and his religious beliefs forbid him from wearing this number. Plaintiff sincerely believed that wearing a sticker with the number ‘666’ on it would be abandoning his beliefs and his God, and would subject Plaintiff to damnation and would force Plaintiff to abandon his religious beliefs.”

3. Plaintiff asked a manager for a religious accommodation on day 666, but the manager allegedly responded that “Mr. Hyatt’s beliefs were ridiculous, and that Mr. Hyatt could go to work with a ‘666’ on his safety sticker or face a three (3) day suspension.” Plaintiff decided to take the three-day suspension, but was then fired for refusing to work on day 666.

Plaintiff is now suing, claiming the employer violated Title VII of the Civil Rights Act by refusing to reasonably accommodate his beliefs, and retaliated against plaintiff for asserting his rights.

If plaintiff’s account of the facts is accurate and complete, then he ought to win under the law. I discuss the relevant legal regime here, but the basic principle is that an employer must give religious employees special exemptions from generally applicable job requirements if (1) the requirements interfere with an employee’s sincerely felt religious obligations and (2) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977). The “undue hardship” standard isn’t hard for the employer to meet — any “more than ... de minimis cost” to the employer would qualify as an undue hardship. But here the only cost was letting plaintiff not wear the sticker for one day, something that was highly unlikely to impose any more than de minimis cost on the employer. (To be sure, dealing with individual exemption requests always involves some cost, just in processing the request and deciding whether to grant it, but such a cost obviously isn’t enough to warrant denying requests, or else the statutory duty of religious accommodation would never be triggered.)

Indeed, courts have commonly found that employers must give religious exemptions from dress code or grooming requirements, unless this would interfere with safety or with the public mission of the employer (such as a police department that requires uniforms). Thus, for instance, a man who feels a religious obligation to wear a beard is generally entitled to an exemption from an employer’s no-beard policy, absent some evidence that such an exemption would pose an undue hardship on the employer. See, e.g., Carter v. Bruce Oakley, Inc., 849 F. Supp. 673 (E.D. Ark. 1993). A woman who feels a religious obligation not to wear pants is likewise generally entitled to such an exemption, again unless there’s some good reason (such as safety) for barring her from wearing a skirt or a dress. The same principle should apply to this case.

One can debate whether it’s good policy to require private employers to give employees special religious exemptions (or conscientious examples motivated by deeply held secular philosophical beliefs, which the EEOC and many courts have held are likewise covered by the religious accommodation requirement). But that’s the law, and under the law the Beast-phobic are entitled to an exemption, regardless of how “ridiculous” their beliefs might seem to others.

UPDATE: Let’s not forget the zip code of the beast and many other similar items.

Once again, Congress is being asked to make bad rules that will hurt network security, but this time the blame doesn’t fall on the privacy lobby.  This time the booby prize goes to the intellectual property lobby.

Below is an op-ed I wrote for Politico this week on the security consequences of the copyright enforcement bills now on the Hill — PROTECT IP and the Stop Online Piracy Act.  As it happens, the House Judiciary Committee held a hearing on the proposal on Wednesday, when the op-ed appeared, and some of the questioning turned on my op-ed.  Indeed, I gather that it contributed to an unexpectedly ragged performance from Hollywood’s normally smooth witnesses.

Unfortunately, the Politico article was posted behind a paywall.  That’s pretty ironic for an op-ed questioning the value of over-enforcing the copyright laws. So I’m posting it here, too:

Everyone knows that internet security is bad and getting worse.  Recognizing the problem, Congress is hard at work on cybersecurity, with a number of bills on the table.  Ironically, at the very same time, Congress is getting ready to pass a copyright enforcement bill that could kill our best hope for actually securing the internet.

How did that happen?  Let’s start with the internet, where fake websites cost users millions of dollars in fraud losses every year.  Unless we find a better system for locking down website identities, this and other forms of online crime will continue to skyrocket.

It turns out that internet engineers have already designed a system to solve this problem — a set of technical rules that go by the unlovely name of DNSSEC. Under these rules, an Internet website will be given identification credentials by the same company that registers its Internet name.  Thus, when Citibank claims the domain name citibank.com, the registry who issues the name will at the same time lock that name to a particular Internet address. From then on, anyone who types “citibank.com” into his browser will be sent to one and only one Internet address.  Under the new system, the browser simply will not take the user to a site that isn’t verified by Citibank’s unique credentials.

That’s protection that the people who bank online need today. 

Why don’t they have it?  Two reasons.  The first is friction.  Moving to the new rules won’t be free.  It will require a lot of work by browser companies, internet service providers, domain registries, and others – many of whom may never get any direct benefit from the change.  Naturally, these companies are a little slow to spend money that just makes the internet overall safer; that’s the tragedy of the commons.  But as the need for security becomes obvious to all, we’re slowly overcoming that friction, thanks in part to the leadership of my old agency, the Department of Homeland Security, in getting government to adopt the new procedures.

The second problem is new. It is Hollywood’s desperate desire to keep foreign websites from delivering pirated movies and music to American computers.  To do that, the movie industry wants a law that will require internet service providers block their customers from going to those sites.  Instead, the users are supposed to be sent to a site that warns them against copyright infringement.

 Hollywood has sold that idea to Congress, and bills are now moving through both houses to impose this “block and redirect” obligation on internet service providers.  And they’re moving fast. The Senate bill is out of committee, while the House judiciary committee is holding hearings on a similar bill this week.

 This is far faster than Congress’s cybersecurity effort, and it runs directly counter to that effort. Because “block and redirect” is exactly what crooks are doing today to bank customers.  If the bills become law, the security system won’t be able to tell the difference between sites that have been blocked by law and those that have been sabotaged by hackers. Indeed, it isn’t hard to imagine crooks redirecting users to sites that say, “You were redirected here because the site you asked for has violated copyright,” while at the same time planting malware on the user’s computer. 

 What’s more, the bill will likely break the fragile consensus that my former agency, the Department of Homeland Security, has spent years helping to build around the switch to DNSSEC.  If the bill passes, practically everyone who needs to make changes to implement DNSSEC will instead be on the phone to their lawyers, asking whether they will be sued for adopting a security technology that makes the mandated “block and redirect” system even more difficult. 

If “block and redirect” could stop Hollywood’s bleeding, perhaps a case could be made for undermining everyone’s security in order to protect the studios’ intellectual property. But it won’t stop the bleeding.  Even today, if someone is blocked and redirected away from his favorite pirate website, he can find many simple ways to defeat the block. He can paste his favorite pirate website’s number (rather than its name) into the address box on his browser.  Or he can simply tell his computer to look up the site’s address on a Canadian server instead of an American one.

Passing this bill will make Hollywood feel better, and richer. 

For about a minute. 

It will leave the rest of us hurting and poorer for years.

The Harvard Law Review has posted its annual Supreme Court issue, featuring a very interesting Foreword by Dan Kahan. Suzanna Sherry responds to Kahan here, and Mark Tushnet responds as well here.

Back in 2008, I wrote the following post:

Judicial Biography Needed: Every modern Supreme Court Justice becomes the subject of one or more judicial biographies. It’s a different picture in the court of appeals. Circuit Court Judges occasionally become the subject of a biography, but coverage is spotty. Of course, Gerald Gunther brought us the fantastic Learned Hand biography. And other judges have also been the subjects of biographies of varying qualities, including Frank Johnson, Skelly Wright, Bill Hastie, John Biggs, and Harold Medina, just to name a few.

But who will write a biography of Judge Henry J. Friendly? As far as I know, no one has written a biography of Friendly. But Judge Friendly probably had the most lasting influence of any Circuit Judge of the 1960s and 1970s. Also, he seems to have been a fascinating and brilliant figure. Plus, his law clerks have gone on to great prominence, making the story of the judge all the more interesting. Altogether, Judge Friendly seems like a natural subject for a biography. But is anyone planning to write one? Someone should. (Full confession: I have sometimes thought it would be cool to try myself, but I have absolutely no training in such things so I doubt I would ever try.)

I’m pleased to report that is about to change with this book:

Ron Collins has the scoop over at SCOTUSblog:

Late next March a biography of Judge Friendly is scheduled to be published. The author is David M. Dorsen, a seasoned trial lawyer and Harvard Law graduate who served as an editor on the Harvard Law Review, followed by stints as (among other things) an Assistant U.S. Attorney for the Southern District of New York (1964–1969) and Assistant Chief Counsel to the Senate Select Committee on Presidential Campaign Activities (1973–1974).

The forthcoming five-hundred-plus-page biography is titled Henry Friendly: Greatest Judge of His Era. Belknap Press of Harvard University Press is the publisher and Judge Richard Posner has apparently written a foreword to the book, which speaks well for the undertaking. Pace Law Review recently published a sampling of Dorsen’s treatment of his subject.

You can pre-order the book at Amazon here.