January 27, 2012

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Law School Rankings

posted by Gerard Magliocca

One of the most common complaints that you hear from law professors and deans is that the U.S. News and World Report rankings exert too much influence over legal education.  If given a choice between doing something to boost its ranking or doing something to help students, the incentives for a school are heavily weighted towards boosting the ranking.  This is true because rankings are widely publicized and provide a simple way for prospective students, alumni, and other interested constituencies to evaluate law school performance.

If people were confident about how the the rankings were done, then that influence might be acceptable.  But most faculty do not think that the methodology used by U.S. News is sound.  I’ve noted before that they give no weight to student or faculty diversity, and Malcolm Gladwell wrote an essay observing that the rankings do not take cost-effectiveness into account (which is especially strange in this era).  Granted, coming up with a standard that everyone would agree upon is impossible, but we can do better.

What is to be done?  The answer to monopoly is competition.  We need other organizations to conduct law school rankings. This would give people more information, especially if the alternatives explicitly take factors into account (e.g., cost) that are absent from the U.S. News rankings. It would also diminish the power of any single organization or person over law schools, and make gaming the ranking system far more difficult.

No single school can be trusted to do this for conflict-of-interest reasons, but there are plenty of other candidates.  The ABA and the AALS are two obvious ones assuming that no other commercial outfit wants to compete with U.S. News.  Or, dare I say it, a consortium of law blogs could organize and then disseminate these rankings for free.  It’s time to stop whining about U.S. News and start doing something to give schools better incentives to improve legal education.

  January 27, 2012 at 9:15 am   Posted in: Law School (Rankings)   Print This Post   Comments (6)

Landscape of the Amici Supporting Florida’s Medicaid Brief

posted by Nicole Huberfeld

Reporting results for its monthly Health Tracking Poll published today, the Kaiser Family Foundation introduced the summary of its findings thus:  “As the Supreme Court prepares to hear legal challenges to the health reform law in March, most Americans expect the Justices to base their ruling on their own ideological views rather than their interpretation of the law…. Other key findings include:  The public doubts the Supreme Court renders judgments based solely on the law. Three-quarters (75%) say they think that, in general, Justices let their own ideological views influence their decisions while 17 percent say they usually decide cases based on legal analysis without regard to politics and ideology….”  Notable for a term that has the potential to render a few blockbuster cases.  (The public’s opinion of the Court is worthy of its own conversation, but it’s best left for another post.) 

It is not just the general public that believes politics will win out; amici supporting the states seem to be appealing to ideology.  In reading all of the amicus briefs supporting Petitioners’ claim that the Medicaid expansion is unconstitutionally coercive, several themes reflecting this strategy emerge, such as:

• Rejection or non-acceptance of New Deal era programs and precedents (the foundation of spending programs such as Medicare and Medicaid).
• Asking the Court to invent a coercion doctrine to limit the power to spend and/or seeking a return to U.S. v. Butler, the 1936 decision that articulated a Hamiltonian understanding of the power to spend as a separate enumerated power but that also declared the provision of the act at issue to be unconstitutional as infringing on states’ rights.  (One brief even seeks reversal of Butler’s adoption of the Hamiltonian view in favor of the Madisonian view that the power to spend only supports the other enumerated powers.)
• Eschewing precedent - paragraphs unfold with no cites (the Texas brief is a good example).  Citations that do exist are often to concurrences, dissents, scholarship, or think-tank reports.  Justice Kennedy’s concurrences and dissents are well represented. 
• Providing a limited picture of the Medicaid Act and the expansion by failing to account for prior mandatory modifications to the program as well as the statutory architecture of the program (which contains both mandatory and optional elements). 
• An assertion that states cannot leave Medicaid because the federal government somehow improperly taxes state citizens, therefore states cannot tax their populations enough to pay for a state-based Medicaid equivalent. (This reflects an argument articulated by Professor Lynn Baker in her spending power articles, though it is not always attributed.) 
• Hyperbolic analogies (such as characterizing states as drug addicts).

A couple of additional thoughts that come to mind from reading the amicus briefs:

• State dependence on federal funding speaks to state behavior, not federal.  
• Coercion is too nebulous and perverse to be a coherent constitutional doctrine. This is illuminated by the amicus briefs, which essentially assert that the more money the federal government offers, the less control it should be able to exercise over either the money or the states.
• The Court has no standard by which to judge whether the federal government offers too much money to states.  Too much money relative to what?  If healthcare is expensive, then in a cooperative federalism arrangement the federal government must offer sufficient money to encourage a state to implement a program that will be costly.  The sum of money speaks to the nature of the program, but it does not dictate whether the federal government may permissibly offer the money to the states. 
• The tax argument is a distraction that denies the existence and purpose of the 16th Amendment as well as long-standing reliance on redistributive tax policy.

Despite the Medicaid expansion being the surprise question before the Court for many observers, it may dictate the outcome of the case.  The Court could dodge the Commerce Clause question by virtue of the Anti-Injunction Act but still limit congressional authority by adopting the anti-federal spending position of the states and their amici.  An additional theme - that Medicaid is essential to the minimum coverage provision – could make it so that Medicaid is the downfall of PPACA rather than the individual mandate.  Such a result would fly in the face of severability jurisprudence; but, much about this litigation is unprecedented.

  January 27, 2012 at 12:35 am  Tags: Constitutional Law, federalism, health care, Supreme Court  Posted in: Constitutional Law, Health Law, Supreme Court   Print This Post   Comments (0)

January 26, 2012

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Georgetown Law Journal, Issue 100.2 (January 2012)

posted by Georgetown Law Journal

Articles

The New Kinship

Naomi Cahn

Response: Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands

Glenn Cohen

Meaning, Purpose, and Cause in the Law of Deception

Gregory Klass

Dormancy

Garrick B. Pursley

Notes

The Grand Trunk Road from Salomon to Mehta: Economic Development and Enterprise Liability in India

Abhi Raghunathan

  January 26, 2012 at 3:10 pm   Posted in: Uncategorized   Print This Post   Comments (0)

Fashion Protection

posted by Gerard Magliocca

Much like Jason in “Friday the 13th,” the idea of having a federal statute to protect fashion designs never dies. I’ve posted before about why I think that kind of measure is unnecessary and would be a bad idea, but Professor Jeannie Suk had an op-ed in the NY Times on Sunday arguing once again for this proposal.

One way to think about this is to look at the Architectural Works Copyright Protection Act, which was enacted in 1990. Prior to that time, architecture (like fashion) was generally unprotected and the incentives for architects came from what they got paid for executing a commission.  If people wanted to sell merchandise depicting a building, they could do so freely.  Now that isn’t true, though in practice most buildings have a copyright value of zero.

Here’s are some questions.  Is architecture better as a result of these new copyright incentives?  Or was this just a measure that redistributed wealth from average folks to a few well-known architects?  The latter isn’t a compelling rationale and, in my view, that’s all that would happen if Congress enacts fashion design protection.

(BTW, the Super Bowl is coming to my hometown, hence I thought that the photo of Mrs. Brady was appropriate.)

  January 26, 2012 at 8:58 am   Posted in: Intellectual Property   Print This Post   Comments (5)

January 25, 2012

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Invitation to connect with a mentor

posted by Nicole Huberfeld

In furtherance of the mentoring line of thought, the invitation is as follows:

The AALS Section on Women in Legal Education is delighted to offer a mentoring program. Through this program, we match faculty members who share teaching, scholarship and work/life interests and issues.

If you would like a mentor in any of these areas, please contact one of the co-chairs of the Mentoring Committee, Leigh Goodmark, lgoodmark@ubalt.edu, or Naomi Cahn, ncahn@law.gwu.edu. Indicate your mentoring interests or any other questions, and we will search the website at http://law.unl.edu/wile to find the mentor who best matches your needs. We will contact the mentors on your behalf, and then send you their information.

  January 25, 2012 at 10:30 pm   Posted in: Uncategorized   Print This Post   Comments (0)

The E.U. Data Protection Directive and Robot Chicken

posted by Derek Bambauer

The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…

  January 25, 2012 at 4:32 pm   Posted in: Advertising, Architecture, Civil Rights, Consumer Protection Law, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Innovation, Politics, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0   Print This Post   Comments (0)

Higher Education Costs: What Could The Federal Government Do?

posted by Dave Hoffman

President Obama’s State of the Union glossed on a topic that’s quite relevant to the recent debates about legal education:

“Of course, it’s not enough for us to increase student aid. We can’t just keep subsidizing skyrocketing tuition; we’ll run out of money. States also need to do their part, by making higher education a higher priority in their budgets. And colleges and universities have to do their part by working to keep costs down. Recently, I spoke with a group of college presidents who’ve done just that. Some schools re-design courses to help students finish more quickly. Some use better technology. The point is, it’s possible. So let me put colleges and universities on notice: If you can’t stop tuition from going up, the funding you get from taxpayers will go down. Higher education can’t be a luxury— it’s an economic imperative that every family in America should be able to afford.”

As political pap goes, this is as good as any.  But I’d go a step further to ask how the government could help keep down costs, apart from threatening to take away subsidies.  Costs have many drivers, including rising student demand for particular kinds of campus amenities, legacy benefit costs that plague all large-scale employers, and rising health costs.  But the biggest factor is faculty salaries. Given tenure (which affects law schools disproportionately because of our accreditor’s monopoly) it might seem like this is a wicked problem.  Maybe it is, but the President could have called for the Congress to make a small change in law that might make a real difference: repeal that portion of the ADEA which prohibits mandatory retirement ages for university professors.

As is well-known, the federal government prohibits mandatory retirement policies except when age is a bona fide occapational requirement or when the person is a qualifying executive.  29 U.S.C. §§623(f), 631(c).  An exception for tenured employees, including professors, was phased out in 1993.  (The law phasing out the exception passed in 1986).  As this study predicted, the impact on research universities in particular is severe, as an increasingly high percentage of workers stay on the job after age 70. Why does this matter?   If teaching and/or scholarship decreases after many years on the job – and there is some evidence that they do – universities have few remedies given tenurial job protections for under performing employees.  In today’s economy, with an increasingly volatile stock market, and unpalatable health insurance choices, we’d probably also expect that fewer faculty will retire voluntarily in the future than they used to.  Thus, many institutions will find it hard to reduce costs by reducing faculty sizes (or paying less per person by replacing older, more expensive, employees with younger, cheaper, ones.)  We will deliver fewer educational goods, at higher costs.

Now there are good reasons for prohibiting mandatory retirement in general. But I’ve never understood why those reasons translate when you’ve got a tenured faculty who often exercise more self-government than law firm partners.  In any event, given the economic realities of the moment, lumping faculty in with other workers feels like a luxury students can no longer afford.

  January 25, 2012 at 2:01 pm   Posted in: Economic Analysis of Law, Education, Law School   Print This Post   Comments (3)

Stanford Law Review Online: The 2011 Basketball Lockout

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by William B. Gould IV entitled The 2011 Basketball Lockout: The Union Lives to Fight Another Day—Just Barely. Gould, a former chairman of the National Labor Relations Board, provides a succinct postmortem on the 2011 lockout:

The backdrop for the 2011 negotiations was the economic weapon once regarded as a dirty word in the lexicon of American labor-management relations—the lockout. This economic weaponry, endorsed by the Supreme Court since 1965, became the flavor of the two prior decades; baseball flirted with it in 1990, basketball in 1995 and 1999. One of hockey’s lockouts even resulted in the cancellation of the entire 2004-05 season. The lockout again was utilized in 2011 by recently peaceable football as well as by basketball. The owners gravitated towards the lockout tactic because in the event of strike (protesting changes in conditions in employment, which proved ineffective), players who crossed the union picket line could play and still sue in antitrust simultaneously. The lockout put more pressure on the players to settle. . . . The union now was represented by David Boies, who had only a few months before represented the NFL and successfully deprived that union of its only effective antitrust remedy—i.e., an injunction against the lockout, which would have required the owners to open the camps in early summer. Thus the basketball union now would not pursue the injunction remedy, notwithstanding the persuasiveness of Judge Bye’s dissenting opinion in the football case. Of course, Boies would have met himself coming around the corner if he argued for it in basketball.

He concludes:

Nonetheless, even though the union was stripped of its most effective antitrust remedy, litigation seems to have moved the parties together. It most certainly called the NBA’s bluff, in that the league’s regressive or inferior option was quickly forgotten. True, the NBA obtained givebacks that are estimated to be worth more than $300 million. Not only did it win on revenue sharing with the players—the players will possess between 49% and 51% as opposed to 57%—but more stringent luxury tax penalties for violators also have been instituted. As National Basketball Players Association Executive Director Billy Hunter said, the latter element constitutes the “harshest element of the new system.” At the same time, guaranteed contracts were preserved, restricted free agents will benefit from the reduction of the so-called “match period” when teams may match competing offers from seven to three days, which may encourage bidding on these players. The cap remains soft in that the so-called incumbent “Bird” players (named for Celtics superstar Larry Bird) may exceed the cap and have more expansive increases and lengths of contracts than other players. A so-called “amnesty” for bad contracts was permitted, in that even though the contracts must be paid, a player on each club may be waived and his salary not counted towards his team’s cap. What appeared to be a rout of the players in November emerged as a reasonable face-saving compromise.

Read the full article, The 2011 Basketball Lockout: The Union Lives to Fight Another Day—Just Barely by William B. Gould IV, at the Stanford Law Review Online.

Note: Updated quotation.

  January 25, 2012 at 1:34 pm  Tags: Antitrust, labor law, lockout, NBA, professional sports, strike, unions  Posted in: Antitrust, Current Events, Law Rev (Stanford), Supreme Court   Print This Post   Comments (0)

The Yale Law Journal Online: “Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision

posted by Yale Law Journal

  January 25, 2012 at 11:14 am   Posted in: Uncategorized   Print This Post   Comments (0)

Copyright Renewal Fees

posted by Gerard Magliocca

 

Given the recent tussles over copyright policy, I want to endorse an idea put forward by Larry Lessig and others–copyright renewal fees.  To retain a patent, a firm has to pay a fee to the Patent Office every couple of years.  In my article on patent trolls, I called for a significant increase in those fees to make it more costly to hold dormant patents, which would encourage people to either use them or abandon them.

The same principle could be applied to copyrights that are registered (which obviously does not cover all copyrighted material).  Say you charged $50 every two years to renew a copyright registration and said that once something was registered you have to keep it registered to maintain your rights.  Many copyrights would not be renewed, either because the owners would not think it worthwhile or because there would be nobody to pay the fee for an orphan work.  So in addition to raising some revenue, material would enter the public domain more quickly and difficulties created by unclear title would be resolved in favor of free access.

Now I know some people will argue that this violates the Berne Convention, but I doubt that it does.  Would it create some inconsistency between our copyright law and European copyrights?  Yes.  But a harmonized system that is poorly structured is not, in this instance, superior to a diverse one with better policies here.

  January 25, 2012 at 8:52 am   Posted in: Intellectual Property   Print This Post   Comments (3)

January 24, 2012

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The State of the Union and the Individual Mandate Litigation

posted by Gerard Magliocca

The President proposed in his speech that the states require all students to stay in high school until they turn eighteen or they graduate.  I wonder if that means he thinks that Congress lacks the constitutional authority to order that change.

Not necessarily, of course.  But the position that I’ve taken in my essay is that Congress can require individuals to buy health insurance but probably cannot enact a compulsory education law.  Food for thought.

  January 24, 2012 at 9:41 pm   Posted in: Constitutional Law   Print This Post   Comments (1)

Cybersecurity Puzzles

posted by Derek Bambauer

Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.

  January 24, 2012 at 4:13 pm   Posted in: Anonymity, Architecture, Articles and Books, Current Events, Cyberlaw, Innovation, Intellectual Property, Law Rev (Minnesota), Military Law, Politics, Privacy (National Security), Technology, Web 2.0   Print This Post   Comments (0)

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

posted by Derek Bambauer

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »

  January 24, 2012 at 12:05 pm   Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology   Print This Post   Comments (8)

Reasonable Expectation of Privacy

posted by Gerard Magliocca

While I’m not a Fourth Amendment expert, that won’t stop me from saying something about Jones.  I think that Justice Sotomayor’s concurring opinion, which calls into question the rule that there is no reasonable expectation of privacy when information is disclosed to a third-party outside of a confidential relationship recognized by the common law (lawyer/client, doctor/patient, etc.), should start a conversation about abolishing this outdated tort concept.

It seems to me that trade secret law provides a better model.  The inquiry there is whether the owner of the information takes reasonable precautions to preserve its secrecy.  Disclosure to a third-party does not automatically end legal protection, and custom is relevant for defining whether the third-party disclosure constitutes a waiver.  Now adopting this standard would probably lead to more intrusion upon seclusion claims, but it is also more realistic in the social media age.  I doubt that I’m the first one to suggest this approach, but I don’t know.

UPDATE:  Some quick research shows that a Note in the Georgetown Law Journal did make this proposal with respect to the Fourth Amendment, though not for tort law.  See Andrew Riggs Dunlap, Fixing the Fourth Amendment With Trade Secret Law, 90 Geo. L. J. 2175 (2002).

  January 24, 2012 at 12:01 pm   Posted in: Privacy, Uncategorized   Print This Post   Comments (4)

United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5.

posted by Priscilla Smith

By Priscilla Smith, Nabiha Syed & Albert Wong, Information Society Project at Yale Law School

There was exciting news from the Supreme Court yesterday.  By a rare 9-0 vote, in United States v. Jones, No. 10-1259, the Court held that the Government should have obtained a warrant before placing a GPS surveillance device on the defendant’s car and monitoring his movements.  This result was not completely unexpected, especially considering the Justices’ interest at oral argument in the Government’s position that GPS surveillance technology could be used without a warrant to track the movements of any car — even the Justices’ own cars — for an unlimited period of time.  The Government argued —  unsuccessfully — that this result was compelled because citizens have no privacy interests in their public movements.

Of particular note, the three opinions in the case and the unusual line-up make for a broader ruling than is apparent at the outset.  The most narrow rule comes from the Court’s opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and — wait for it — Sotomayor, holding that that “the Government’s installation of a GPS device on a target’s vehicle,² and its use of that device to monitor the vehicle’s movements, constitutes a “search.”  Slip op. at 3.  Scalia notes that the Fourth Amendment protects the “right of the people to be secure in their . . . effects,” and it “is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.”  Id. at 3.  Ergo, he holds the installation done with the intent to “use … th[e] device to monitor the vehicle’s movements” was a search.  Id. at 3.  He describes the action at issue, saying “[t]he Government physically occupied private property for the purpose of obtaining information.”  He holds that since this form of physical trespass and monitoring would have been a search within the meaning of the Fourth Amendment at the time it was adopted, it is a search now.  Hello, original application guy.

On first glance, it seems that Scalia might be returning to old interpretations of the Fourth Amendment that required a physical trespass to have occurred before an action could be considered a search.  But what Scalia is actually doing here is defining the Court’s task, which is “at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment,” and because it would have, it is a search now.  Just because in 1967 Katz said that the Fourth Amendment protects more than physical trespass, doesn’t mean that the Fourth Amendment doesn’t protect physical trespass.  See slip op. at 6-7 (noting Katz did not erode the principle that a search occurs where the Government “does engage in physical intrusion of a constitutionally protected area in order to obtain information.”) (emphasis in original).  So Scalia establishes and emphasizes a threshold for determining when a search has occurred — a threshold that is not comprehensive, but sufficient to resolve the issue at hand.

And thus Scalia declines to go further and consider what would happen if, hypothetically, there was no physical trespass.  He does hold open the possibility that “achieving the same result through electronic means [as they achieved here with physical trespass], without an accompanying trespass, is an unconstitutional invasion of privacy.”  Id. at 11.  Simple enough.  Why decide the harder issue with all its accompanying “vexing problems” that would arise in a case involving electronic surveillance without an accompanying trespass?  Scalia argues that there is no reason to “rush forward” to resolve them now.  Slip op. at 12.  Put aside for a minute that he encouraged the Court in United States v. Kyllo, a case holding that the use of heat-seeking technology required a warrant, to adopt rules that “take account of more sophisticated systems that are already in use or in development,” Kyllo, 533 U.S. at 37.

But Scalia has a problem.  As he points out, in its opinion in United States v. Knotts, the Court upheld the use of beeper technology to track a target’s movements, holding there was no invasion of privacy.  He distinguishes Knotts from this case because Knotts did not involve physical trespass. The beeper there was placed inside a container with consent of the then-owner of the container, and only then was the container placed in the driver’s car.  Moreover, Knotts didn’t challenge the installation.  Right.  But the Court didn’t decide there was no search in Knotts based on an absence of a physical trespass; the Court decided the case holding there was no invasion of privacy.  So shouldn’t Scalia explain to us why he holds open the possibility that “achieving the same result through electronic means [as they achieved here with physical trespass], without an accompanying trespass, [like they did in Knotts] is an unconstitutional invasion of privacy?”  Id. at 11.  Saying that GPS is a different technology, as he does in a footnote, is not enough.  Doesn’t he owe us an explanation of why Knotts doesn’t preclude that possibility, as the Government so vehemently argued it did and the Ninth Circuit in a similar case agreed?  See Pineda-Moreno v. United States.

Of course he does — or so says Justice Alito, with Justices Ginsburg, Breyer and Kagan joining.  See Alito’s concurrence, slip op. at 13.  In fact, not only did Alito think the Court should reach the Katz expectation of privacy test, he didn’t buy the physical trespass holding at all, and lists its many flaws.  Justice Alito then evaluates the GPS surveillance here, noting that “devices like the one used in the present case … make long-term monitoring relatively easy and cheap.”  “[T]he best we can do in this case,” reasons Alito, “is to apply existing Fourth Amendment doctrine” and “ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.”  Alito at 13.  Under this inquiry, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” because “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.”  Id.  Now, Justice Alito recognizes the “degree of circularity” inherent in Katz’s expectation of privacy test — i.e., the problem that, if read literally, the test would permit a situation in which the government takes away your privacy so that one no longer has an“expectation” of it — and in so doing, one no longer has a constitutionally protected interest in it.  Hello, 1984.  Unfortunately, though, his concurrence does nothing to address, and instead relies exactly on, that circular part of it — the intrusion you would or would not have anticipated.  The concurrence is also remarkably skimpy in its explication of why exactly the surveillance is “intrusive” — you know, the point that is the actual crux of the case.

The only Justice who doesn’t avoid the issues is Justice Sotomayor.  Although she joins the narrow majority opinion because she buys Scalia’s argument that the physical trespass here suffices to decide the case, she writes separately to make clear that “physical intrusion is now unnecessary to many forms of surveillance,” her slip op. at 2, a statement that Scalia certainly does not deny.

Moreover, and making this a much broader ruling than it appears on first glance, unlike Scalia, Sotomayor explains the distinction between Jones and Knotts.  She agrees with the Alito Four that “’longer term GPS monitoring in investigation of most offenses impinges on expectations of privacy.’”  Sotomayor concurrence at 3, quoting Alito concurrence at 13.  Rather than relying on whether citizens “anticipate” invasions of their privacy, her opinion reflects the concerns of the D.C. Circuit, New York Court of Appeals, and C.J. Kozinski writing in dissent from denial of rehearing en banc in a similar case in the Ninth Circuit, that the information collected by GPS monitoring generates a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”  Id. at 3.  (In fact, unless we missed something, she appears to be the only one who cites to Chief Judge Kozinski’s dissenting opinion in the Pineda-Moreno case; no one seems to cite the DC Circuit opinion, scared off perhaps by some folks’ misplaced railing against its “mosaic” language).  She further discusses the concerns raised in a brief filed by some of us at the ISP on behalf of a group of privacy scholars that GPS surveillance, as she says, “evades the ordinary checks that constrain abusive law enforcement practices” and is susceptible to abuse, and that awareness of government monitoring chills associational and expressive freedoms.  Id.  She summarizes:

I would also consider the appropriateness of entrusting to the Executive, in the absence of any over­sight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” United States v. Di Re, 332 U. S. 581, 595 (1948).

Finally, Sotomayor suggests a more fundamental change in the jurisprudence to “reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” and notes that the rule is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor at 5, questioning the notion at the heart of the rule that “secrecy [is] a prerequisite to privacy.”

The long and the short of it is that by agreeing with the Alito Four that the use of GPS surveillance technology for a prolonged period violates a reasonable expectation of privacy, Sotomayor’s concurrence means that five justices agree to veer away from the inside/outside distinction relied upon by the Government.  It seems that we may have some privacy interests in our public movements after all.

  January 24, 2012 at 11:39 am   Posted in: Anonymity, Constitutional Law, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Uncategorized   Print This Post   Comments (2)

Jones is a Near-Optimal Result

posted by Paul Ohm

Thanks to Danielle for inviting me to post my thoughts. I’ll try to come up with some new, original thoughts in a later post, but to start, let me offer an abridged version of what I posted yesterday on my home blog, Freedom to Tinker.

I think the Jones court reached the correct result, and I think that the three opinions represent a near-optimal result for those who want the Court to recognize how its present Fourth Amendment jurisprudence does far too little to protect privacy and limit unwarranted government power in light of recent advances in surveillance technology. This might seem counter-intuitive. I predict that many news stories about Jones will pitch it as an epic battle between Scalia’s property-centric and Alito’s privacy-centric approaches to the Fourth Amendment and quote people expressing regret that Justice Alito didn’t instead win the day. I think this would focus on the wrong thing, underplaying how the three opinions–all of them–represent a significant advance for Constitutional privacy, for several reasons:

1. Justice Alito?

Maybe I’m not a savvy court watcher, but I did not see this coming. The fact that Justice Alito wrote such a strong privacy-centric opinion suggests that future Fourth Amendment litigants will see a well-defined path to five votes, especially since it seems like Justice Sotomayor will likely provide the fifth vote in the right future case.

2. Justice Scalia and Thomas showed restraint.

The majority opinion goes out of its way to highlight that its focus on property is not meant to foreclose privacy-based analyses in the future. It uses the words “at bottom” and “at a minimum” to hammer home the idea that it is supplementing Katz not replacing it. Maybe Justice Scalia did this to win Justice Sotomayor’s vote, but even if so, I am heartened that neither Justice Scalia nor Justice Thomas thought it necessary to write a separate concurrence arguing that Katz’s privacy focus should be replaced with a focus only on property rights.

3. Justice Sotomayor does not like the third-party doctrine.

It’s probably best here just to quote from the opinion:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U.S., at 742; United States v. Miller, 425 U.S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “dimunition of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Wow. And Amen. Set your stopwatches: the death watch for the third-party doctrine has finally begun.

4. The wrong case for a privacy overhaul of the Fourth Amendment.

Most importantly, I’ve had misgivings about using Jones as the vehicle for fixing what is broken with the Fourth Amendment. GPS vehicle tracking comes laden with lots of baggage–practical, jurisprudential and atmospheric–that other actively litigated areas of modern surveillance do not. GPS vehicle tracking happens on public streets, meaning it runs into dozens of Supreme Court pronouncements about assumption of risk and voluntarily disclosure. It faces two prior precedents, Karo and Knotts, that need to be distinguished or possibly overturned. It does not suffer (as far as we know) from a long history of use against innocent people, but instead seems mostly used to track fugitives and drug dealers.

For all of these reasons, even the most privacy-minded Justice is likely to recognize caveats and exceptions in crafting a new rule for GPS tracking. Imagine if Justice Sotomayor had signed Justice Alito’s opinion instead of Justice Scalia’s. We would’ve been left with a holding that allowed short-term monitoring but not long-term monitoring, without a precise delineation between the two. We would’ve been left with the possible new caveat that the rules change when the police investigate “extraordinary offenses,” also undefined. These unsatisfying, vague new rules would have had downstream negative effects on lower court opinions analyzing URL or search query monitoring, or cell phone tower monitoring, or packet sniffing.

Better that we have the big “reinventing Katz” debate in a case that isn’t so saddled with the confusions of following cars on public streets. I hope the Supreme Court next faces a surveillance technique born purely on the Internet, one in which “classic trespassory search is not involved.” If the votes hold from Jones, we might end up with what many legal scholars have urged: a retrenchment or reversal of the third-party doctrine; a Fourth Amendment jurisprudence better tailored to the rise of the Internet; and a better Constitutional balance in this country between privacy and security.

  January 24, 2012 at 11:11 am   Posted in: Civil Rights, Constitutional Law, Criminal Procedure, Privacy, Privacy (Law Enforcement)   Print This Post   Comments (2)

Three thoughts on U.S. v. Jones

posted by Margot Kaminski

Many thanks to Danielle Citron for offering to host this writeup, an earlier draft of which is available here.

The Supreme Court came down yesterday in the GPS tracking case, U.S. v. Jones, in which prominent privacy scholars and members of Yale Law School’s Information Society Project filed an amicus brief this fall.

Scalia’s majority held that the physical attachment of a GPS tracker to a car was a warrantless search in violation of the Fourth Amendment, and thus the Court did not need to reach the question of whether GPS tracking invaded a reasonable expectation of privacy. Sotomayor joined, but described in her concurrence how if they had reached the Katz question, she would have found that a reasonable expectation of privacy had been invaded. Alito’s concurrence, joined by Ginsburg, Breyer, and Kagan, criticized the majority’s physical trespass focus and to conclude that under Katz a reasonable expectation of privacy had been invaded.

There has already been a lot written about this opinion, in the short time it has been out. This post is not intended to be comprehensive, by any means, or to evaluate the potential impact of the majority’s trespass/search analysis, which will take time to sort out. I wanted just to add three thoughts to the fray.

(1) Sotomayor’s opinion is the one that will have the biggest practical impact, and thus to me is the most important;

(2) The most troubling indication for future cases is Alito’s observation that the Katz test is grounded in social norms that increasingly deprioritize privacy, which may lead Alito and possibly others away from the Fourth Amendment in the future, towards deferring to legislation; and

(3) The majority’s treatment of the beeper case, Knotts, suggests a possible theme to explore: maybe down the line the question can become whether third party behavior looks more like that of a traditional police informant, rather than following the blanket Miller rule that third parties can do what they like with information. More on this below.

First: Sotomayor’s concurrence is the one that will have the greatest practical impact. The majority holding adds a line of defense against slipping trackers into overcoat pockets– a scenario Kennedy and Sotomayor both referenced at oral argument– but it has a narrow practical impact, because police don’t need to physically attach a tracker to your car to use GPS tracking. They can just turn on GPS trackers already in your car (OnStar) or on your person (cell phones).

Sotomayor joins the majority on the trespass issue and refuses to reach the Katz question of whether GPS tracking violates a reasonable expectation of privacy, but then she spends the concurrence explaining how she would treat Katz. In a GPS tracking case where no physical attachment occurred, Sotomayor would “ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” This concurrence signals precisely what Sotomayor’s outcome will be in the next GPS case, about OnStar or its equivalent: GPS tracking (of a certain magnitude) is a violation of the Fourth Amendment.

The real result of Jones is thus not a narrowly held majority about physical trespass. It is, for precedent-citing purposes, but not for its impact on practice or lower courts. Sotomayor uses her concurrence to clearly signal to cops and judges. The next time one of these cases comes up, Sotomayor will be joining Alito on the reasonable expectation of privacy question. Or she may write an even stronger concurrence, since she suggests that Alito hasn’t adequately taken into account the ease of GPS tracking, or its chills on associational and expressive freedoms. This matters– and matters a lot– because in the interim cases, before another GPS case comes to the Supreme Court, judges are going to pay attention to Jones for any hints of a future outcome. And Sotomayor deliberately showed her hand.

Second, the most dangerous part of these opinions is not the majority’s decision about trespass, but Alito’s conclusion that Katz is tethered to evolving social norms, and his tendency to consequently defer to the legislature on these issues. If this is how Alito views Katz, then as society gets more privacy invasive, he will be more likely to defer to Congress than to invoke the Fourth Amendment. It is not clear how many will follow him on this path.

According to Alito at oral argument, “[t]echnology is changing people’s expectations of privacy. Suppose we look forward 10 years, and maybe 10 years from now 90 percent of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones. Then — what would the expectation of privacy be then?”

Alito returned to this idea in the concurrence: “even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.”

This angle on Katz is disturbing, because it conflates knowledge that one is being unreasonably surveilled with acceptance of that surveillance. This perversely incentivizes a dearth of public conversation about privacy violations, in the interest of preserving Fourth Amendment-based privacy. It also fails to recognize any difference between surveillance by private companies and surveillance by the government, indicating that Alito may be slow to follow Sotomayor in her hope to overturn Miller. Combine this view with Alito’s indicated desire to defer to the legislature on these issues, and it may be that by the time the next GPS case comes up, Alito will change sides.

My third point will take a lot more development, and admittedly is a long shot or a merely theoretical one. But the majority’s treatment of the earlier beeper case, Knotts, at 8, looks strangely like a misplaced trust case. The individual who received the chloroform containers with the beeper already placed in them by the previous owner (the chloroform manufacturer) in Knotts couldn’t say that his property had been searched, because the police didn’t search it: the previous owner made the choice to cooperate with the police. Similarly, in U.S. v. White, 401 U.S. 745 (1971), the Court found that when a defendant trusts an apparent colleague and that trust turns out to have been misplaced, no warrant is required for wiretapping.

Maybe, then, the misplaced trust idea could be used in the future as a principle to both limit Miller and address the OnStar problem. Instead of looking only to whether the tracker was placed by the police or placed prior to purchase, courts could look to whether the third party intended to be a police informant in supplying the person with the technology. If you sell a person a car in which you’ve hidden a tracking device because you intend to aid the police in tracking that person, no warrant would be needed. But if as a car manufacturer you’ve provided the person with the same car you sell everybody, and one feature happens to be that you can turn on tracking, police would need a warrant to ask you to turn the tracking on.

This idea is in very nascent stages, and I realize Miller is likely insurmountable until overturned or at least reevaluated. I also realize that misplaced trust and the trespass question are different issues, and the majority gave every indication of understanding the moment of placement of the GPS literally and physically. Finally, I understand the very large potential loophole that all third parties could just claim that they always intend to be police informants on everybody, before any sale occurs. But it’s a thought that might serve to unify trespass with misplaced trust and third party doctrine, and create a limiting requirement of specific prior intent to inform for all three.

  January 24, 2012 at 10:32 am   Posted in: Uncategorized   Print This Post   Comments (1)

Welcoming Experts to Discuss the Supreme Court’s Decision in United States v. Jones

posted by Danielle Citron

As my co-blogger Dan Solove noted, the Supreme Court ruled in United States v. Jones, finding the warrantless GPS surveillance of a car unconstitutional.  There’s much to discuss about the majority opinion written by Scalia (with Roberts, Thomas, Kennedy, and Sotomayor), a concurrence written by Sotomayor, and a concurrence by Alito (with Ginsburg, Breyer, and Kagan).  We’re lucky to have experts on board to help us sort it out: Margot E. Kaminski, Executive Director of the Yale Information Society Project and Research Scholar and Lecturer at Yale Law School whose scholarship focuses on civil liberties, privacy, and surveillance, guest blogger Paul Ohm, Associate Professor of Law at the University of Colorado School of Law and former computer programmer and network systems administrator who has authored many important pieces on privacy and surveillance, and Priscilla “Cilla” Smith, Senior Fellow at the Yale Information Society Project who has co-authored “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches,” 121 The Yale Law Journal Online 177 (2011) (with Nabiha Syed, David Thaw and Albert Wong).   In a week or so, we will also be hearing from my colleague Renée Hutchins, Associate Professor of Law at the University of Maryland Francis King Carey School of Law, whose article “Tied Up in Knotts?” GPS and the Fourth Amendment, 55 UCLA Law Review 1 (2007) appeared in many district and Court of Appeals decisions wrestling with warrantless GPS tracking on cars.

  January 24, 2012 at 8:26 am   Posted in: Civil Rights, Constitutional Law, Criminal Procedure, Privacy, Privacy (Law Enforcement)   Print This Post   Comments (0)

January 23, 2012

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Fetal Gender and Abortion

posted by Gerard Magliocca

Recently I put up a post asking if a state statute prohibiting doctors from disclosing the gender of a fetus to the parents would be constitutional.  I received the following thoughtful reply from Margo Kaplan, a Visiting Assistant Professor at Brooklyn Law School.  Here response is below the fold:

Read the rest of this post »

  January 23, 2012 at 3:25 pm   Posted in: Constitutional Law, Health Law   Print This Post   Comments (1)

On Social Policy, A Growing Divide Between Conservative Policy Elites and the Base

posted by Frank Pasquale

Mike Konczal has an interesting interpretation of the recent rise of Gingrich in GOP polling:

A common trope for conservative policy intellectuals is that they want to “means test” the welfare state – reduce its availability for those with high wealth and income and focus it on those with the least wealth and income. But the Tea Party base wants the opposite – they are opposed to a welfare state for the poor, young people, undocumented workers and other groups they think are undeserving. The welfare state is ok for people like themselves, but for people they think that don’t make the cut it should be a nonexistent or a burdensome affair.

From the latest research on the Tea Party we learn that “Tea Partiers judge entitlement programs not in terms of abstract free-market orthodoxy, but according to the perceived deservingness of recipients…The fundamental distinction for them is not state vs. individual, it is the division of the United States into ‘workers’ vs. ‘people who don’t work.’” This is welfare as private charity, charity conditional on fitting certain expectations, not as an unconditional right. . . .

[T]he conservative mind doesn’t see the economy as something that is defective when involuntary unemployment shoots up or something that should work to the advantage of those who have the least. To them, the threat of people going hungry for failing in the market is what creates the ability to thrive in that market. The market doesn’t just reward the successful, it punishes those who fall behind. Food stamps deny people of that experience[.]

So, too, might burial money intended for the poor. Gingrich has not yet elaborated on the bracing effects of dying without enough money for a funeral. But he does have hard-edged answers for those near the beginning of life, repeatedly urging a repeal of “outdated” child labor laws. Remember, you heard it on this blog first.

  January 23, 2012 at 2:36 pm   Posted in: Law and Inequality   Print This Post   Comments (1)

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