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Google's New Privacy Policy

Google recently revised its privacy policy:

Old Policy (July 1, 2004)

New Policy (Oct. 14, 2005)

Philipp Lenssen has a humorous translation of the legalese of Google's new privacy policy. A brief excerpt:

 

What they say	What they really mean
Google collects personal information when you register for a Google service or otherwise voluntarily provide such information. We may combine personal information collected from you with information from other Google services or third parties to provide a better user experience, including customizing content for you.	When you want to use one of our sites, I mean really use them, we put up those little boxes where you type your name and stuff. Whatever you type in any of those sites goes to our great big machine somewhere in the basement, and from there, all of our employees can pretty much sniff around in it and do fun stuff with it, like read it out loud on office parties.

 

For more Google humor, check out Randy Siegel's joke Google website in the year 2084. (Hat tip: Thinking About Technology)

We here at Concurring Opinions have a privacy policy. Please don't get alarmed after reading it -- it's a joke, of course. We don't sell your information to others. Really. Not because we care about your privacy -- just because we haven't found somebody to pay us for it yet. . . .

Posted by Daniel Solove at 06:42 PM | Comments (0) | TrackBack

Italy's Surveillance of Cyber Cafes

This interesting story describes Italy's strong antiterrorism laws, which require extensive monitoring of people's use of the Internet in cyber cafes:

After Italy passed a new antiterrorism package in July, authorities ordered managers offering public communications services, like Mr. Savoni, to make passport photocopies of every customer seeking to use the Internet, phone, or fax. . . .

Passed within weeks of the London bombings this summer, the law is part of the most extensive antiterror package introduced in Italy since 9/11 and the country's subsequent support of the Iraq war.

Though the legislation also includes measures to heighten transportation security, permit DNA collection, and facilitate the detention or deportation of suspects, average Italians are feeling its effect mainly in Internet cafes.

Before the law was passed, Savoni's clients were anonymous to him. Now they must be identified by first and last name. He must also document which computer they use, as well as their log-in and log-out times.

Like other owners of Internet cafes, Savoni had to obtain a new public communications business license, and purchase tracking software that costs up to $1,600.

The software saves a list of all sites visited by clients, and Internet cafe operators must periodically turn this list into their local police headquarters.

Posted by Daniel Solove at 01:42 PM | TrackBack

Update on Sober = Drunk in Washington DC

Earlier this week, I wrote a post on how people can be arrested for DUI even when they have a BAC well below the legal limit of .08. The Washington Post article I blogged about sparked a considerable public outcry, and now the DC Council is rushing to revise the law. According to a follow-up article in the Washington Post:

D.C. Council members, swamped with irate calls and threats to boycott D.C. bars and restaurants, introduced emergency legislation yesterday that would override the police department's controversial and little-known zero-tolerance policy for drinking and driving.

Posted by Daniel Solove at 11:16 AM | Comments (1) | TrackBack

Does Google Image Search Violate Copyright Law?

Perfect10, an adult industry website, has sued Google claiming that Google Image Search is violating its copyright. For those who haven't tried it, Google Image Search is a terrific resource. One can search the web for images, which appear as thumbnails on the search results page. EFF, which has filed an amicus brief in the case, argues on its website:

Thumbnails created by Google Image Search allow users to identify information they are looking for online and then access that information—much like an electronic card catalog. As certain information about images can only be conveyed visually, there is no other feasible way to provide image search on the Internet than capturing images, transforming them into thumbnails, and then displaying them on a search results page for users.

Posted by Daniel Solove at 10:25 AM | Comments (5) | TrackBack

The Most Expensive Blog Ad Ever?

To post an advertisement for just one day on the home page for WordPress, which gets about 11,000 unique visits per day, how much do you think it costs? $50 per day? $100? $200?

Nope. Try $20,000! That's right -- $20,000 for just one day. Ads for a week cost $100,000 and ads for a month cost $250,000.

No takers so far. If there are, you might start to see a lot of ads here . . .

Hat tip: Google Blogoscoped

Posted by Daniel Solove at 10:10 AM | Comments (0) | TrackBack

The Music of the Law

Unlike my co-bloggers, I practice law for a living. Like most would-be lawyers my view of practice was powerfully shaped by Law & Order episodes. I do mainly civil and appellate litigation, so my practice contains few trips to Attica, but I did envision the practice of law as being a much more social endeavor. At the very least, I expected there to be some noise. My law firm, however, tends to be a very quiet place. People work in their offices, and if they talk they do so in conference rooms. There is none of the noisy bustle of the Law & Order DA's office. As it happens, I don't think well in silence. I find it distracting and unnerving. Even in college, for example, I found it impossible to study economics in the library. The quiet destroyed my concentration, so I always did econ work in the student union cafeteria. At work, I escape the silence by closing my door and playing music, which leads to the important question of which music goes with which tasks.

For document review, I find that I like rock music, especially U2. I think that for the rest of my life the music and lyrics of "One" will be permanently associated with insurance documents in my mind.

If I am doing general legal research -- looking on Westlaw for cases or statutes -- I find that I like folk music or bluegrass. There is something about the sound of Nanci Griffith or Allison Krauss that I associate with SCT-OLD searches or rummaging around through ALLFEDS.

For more serious research such as close reading of key cases or a careful review of the opposing parties' briefs I prefer baroque music, in particular Handel or Correlli. At the very least, there is something about the rationalism of Correlli or Bach that just makes me feel more incisive, analytical, and logical.

For writing I find that I do best with either lively folk and blue grass (something about banjo picking gets the words flowing for me), choral music -- especially Beethoven or Brahms -- or, somewhat inexplicably, the Dave Matthews Band.

Of course these are not hard and fast categories. I have been known to review documents while listening to Handel's Water Music, and I recently wrote a cert petition while listening to "Joshua Tree" over and over and over again.

Posted by oman at 09:06 AM | Comments (5) | TrackBack

Should We All Be in the National DNA Database?

The Senate recently voted to reauthorize the Violence Against Women Act. But nestled in the Act was an amendment by Senator Jon Kyl (R-Arizona) to add arrestee information to the national DNA database. The national DNA database, which is run by the FBI, is called the Combined DNA Index System ("CODIS"), and it includes DNA from over two million convicted criminals. This DNA is used to identify matches with DNA found at crime scenes.

In a press release, Senator Leahy (D-Vermont) states:

Regrettably, this important bill was saddled in Committee with an extraneous and ill-considered amendment, offered by Senator Kyl, relating to the national DNA database. Current law permits States to collect DNA samples from arrested individuals and to include arrestee information in State DNA databases. In addition, States may use arrestee information to search the national DNA database for a possible “hit.” The only thing that States may not do is upload arrestee information into the national database before a person has been formally charged with a crime.

Under the Kyl amendment, arrestee information can go into the national database immediately upon arrest, before formal charges are filed, and even if no charges are ever brought. This adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent. It could also provide an incentive for pretextual and race-based stops and arrests for the purpose of DNA sampling. Congress rejected this very proposal less than a year ago, after extended negotiations and consultation with the Department of Justice.

The Kyl amendment would also make it harder for innocent people to have their DNA expunged from a state database. Under current law, if a State chooses to enter a person’s DNA profile into its database before the person is convicted of a crime, then the State must automatically expunge that information in the event that no conviction is obtained. Under the new language, even a person who is arrested in error and released without charge would need to obtain a court order before his DNA information could be removed from the database.

I've always struggled over the issue of DNA databases. While I generally take the pro-privacy positions on many issues, I have yet to find the privacy arguments on DNA databases to be strongly convincing given the limited amount of DNA that is used. Current DNA identification does not involve one's entire genome; instead, it only involves a small segment of one’s DNA. It is thus not very useful for determining information about a person other than use in identification.

The benefits of using DNA identification are quite significant, since many people who have been wrongly convicted based on erroneous eye witness testimony (which is very unreliable) have been exonerated with DNA. Adding more DNA profiles will improve the database.

Nevertheless, I am very wary of the power the database gives the government. Since we leave trails of our DNA wherever we go, it might be possible to link particular people to particular places. That's what is done with crime scenes, but what if the use expanded beyond crime scenes?

For those who are unconcerned about the collection of DNA for arrestees, what if the DNA database contained the DNA of all citizens? After all, if it is beneficial in investigating crime and can be extended to arrestees who are later exonerated, why not take the next step and extend it to everybody? Would this pose a problem?

Anytime the database is searched, the DNA profiles are scanned to find a match with the DNA at the crime scene. Should this be understood as a kind of dragnet search under the Fourth Amendment? On the one hand, millions of people's information is being searched each time the database is used. On the other hand, it is information that is currently limited to serving as identification only.

This is an issue I continue to deliberate over. I thus am not rushing to object to the expansion of the DNA database as a matter of policy. However, I strongly object to the way that this issue is being handled in Congress. Major changes in the DNA database should be made based on extensive Congressional study and debate, not based on sneaky amendments to another Act. In her thoughtful paper on abandoned DNA, Elizabeth Joh (law, U.C. Davis) writes that it "may be that we are already moving toward a system in which the government will have access to the genetic information of everyone in the population, to solve crimes ranging from murders to littering. If we want unrestricted access to DNA information, however, that ought to be the subject of public debate. . . ." Indeed.

Posted by Daniel Solove at 01:25 AM | Comments (3) | TrackBack

Roundup

Some posts of possible interest around the legal blogosphere:

Eugene Volokh points out a funny obit. (This seems to be part of a semi-regular semi-series; see funny star footnotes).

Will Baude ruminates about airborne citrus and constitutional interpretation.

The Notes Editors apparently gave Heidi Bond slightly more than two minutes.

Various parties weigh in on Schelling's Bank-of-Sweden prize:
-Brian Leiter reminds us all that it's not a Nobel, no matter now what the VC says.
-Drezner takes issue with Slate's criticism of Schelling's Vietnam involvement.

Christine Hurt is becoming Dagny Taggart. In related news, Gordon Smith has invented an unbreakable new metal. . .

Ethan Lieb thinks reprints are obsolete; Ben Barros disagrees.

Posted by Kaimipono at 12:12 AM | Comments (0) | TrackBack

Fictions, Concessions & Genossenschaft

Kaimi's post about corporations and constitutional rights has provoked a response from Will Baude, who points out that at the time that the Fourteenth Amendment was passed it is not as though considering corporations as persons was beyond the pale. My own response to this issue (aside from a hearty "What Will said!") is -- in the best tradition of legal academia -- self citation. Consider the following gem from "Corporations and Autonomy Theories of Contract," forthcoming in the next issue of the Denver University Law Review:

There are three basic theories about the nature of corporations: the real theory, the concession theory, and the fiction theory. The real theory claims that corporations are the legal expression of organic groups or other supra individual entities and should be understood as having a will and an existence that cannot be reduced to the sum of their collective parts. The concession theory claims that the corporation is a creation of the state that exercises delegated authority to serve the purposes of the government, even when that purpose is “private” business. The fiction theory claims that the corporation is nothing more than a collection of individuals and that the language of corporations is little more than a useful shorthand referring to a complex set of individual rights and obligations.

It seems to me that it is only under the concession theory of corporations that thinking of them as right-holders becomes difficult. Even under this theory, however, if one thinks that rights have a utilitarian basis, then there is no a priori objection to corporations having rights. Certainly, if we subscribe to the fiction theory, then it seems to me that denying corporations rights is to work an injustice against actual human beings on the basis of a mere conceptual shorthand.

Of these three options, I dare say that the real theory sounds the oddest to modern ears. There was a time, however, when it represented the cutting-edge of Anglo-American legal thought. Back in those days (circa 1900) instead of doing cool, interdisciplinary work really hip legal intellectuals imported concepts from German jurisprudence. (Germany invented the research university in the the 19th century and by 1900 it occupied a position of academic prominence analogous to the United States today.) Ernst Freund summarized the real theory at the time, stating:

Above the existence of the individual there is the existence of the species, and the corporation is nothing but the legal expression of this fact, which appears as a reality in the physical person, so the higher will of the species is embodied in numerous and various forms of as-sociation, and as a result we find, beside the individual, entities of a higher order endowed with volition and acting capacity. And where the law recognizes such embodied will as a person, we have a juristic person or a corporation.

Obviously, this has a Germanic and Hegelian feel to it, and as one would expect you can push the idea back to a Teutonic root:

Nineteenth century German jurists were eager to find authentically German legal traditions in contrast to the foreign influences of the Roman law. Otto Gierke became the proponent of this approach in the context of corporate law. According to Gierke, the indigenous, pre Roman German law had a thick notion of corporate existence, what Gierke called Genossenshaft. In contrast to the thin, Roman theory that a corporation was nothing more than a legal fiction, Gierke argued that historically German law recognized the organic existence of the group. Corporations, he argued, are the legal manifestation of communities possessed of a collective spirit. Hence, the acts of a corporation are not the mere aggregation of the individual acts of its members, but rather should be understood as being qualitatively different. Gierke’s treatise became influential in common law countries by virtue of a translation by Frederick Maitland. Maitland and others argued that in numerous instances the common law acknowledged the real existence of collectives and treated their actions as what they were—the choices of organic groups, even when the groups were not formally incorporated. They took this as evidence that in practice the common law, whatever the rhetoric of its judges and lawyers, contained elements of the real theory.

Of course even today we have elements of Genossenschaft in our law, most notably the doctrine of corporation by prescription, which holds that a community -- such as a town or a school -- that for a long period of time has acted as a corporation without a charter will be treated as a corporate entity without one.

Posted by oman at 04:18 PM | Comments (4) | TrackBack

Must see TV...

Normally, I think that blog posts that simply link to another blog and say "hey this is cool," are pretty dumb. On the other hand, this is a really cool post. Check it out!

Posted by oman at 04:12 PM | Comments (2) | TrackBack

Preparing for a Bird Flu Pandemic

Bird flu has now captured the attention of the news. While I'm generally not one to become overly concerned with armaggedon scenarios, a flu pandemic strikes me as a particularly realistic and frightening possibility. Pandemics occur periodically, and the experts all seem to be extremely concerned.

I believe that it is important to view this as a national security issue. National security has become almost synonymous with the protection against terrorism, and we assess the success and failure of government officials in keeping us secure primarily with terrorism in mind. But national security should also be understood as the ability to prevent and respond to natural disasters and outbreaks of disease. The destruction terrorists might cause is often small when compared to what nature can do. According to Newsweek:

According to the intelligence document, the World Health Organization is warning that if a pandemic outbreak occurs, “as much as one-fifth of the world’s population could become ill, at least 30 million people worldwide could require hospitalization, and at least 2 million people could die.” According to the booklet, however, other experts “warn that far more could die, with some estimates as high as 180 million” in the event that a new pandemic virus is as potent as the “Spanish flu” virus which caused massive casualties in 1918.

By all news accounts, we're not prepared to handle a pandemic. Part of the problem is the lack of a clear plan to address how to respond to such a disaster. Another problem is a shortage of bird flu vaccine. There are vaccines that might be effective against the bird flu. The problem with the vaccines, however, is that they must be made new each year, and if there is no outbreak, then the vaccine-makers are left with a huge financial loss. This problem might justify government subsidies for companies in making the vaccines. Alternatively, the government could provide a form of insurance against a vaccine-maker's potentail losses, thus ameliorating the risk of unsold supplies of vaccine.

If you are interested in reading more about the issue, I have blogged many times previously about the importance of seeing a pandemic as a national security issue:

· At Least Armstrong Gets It

· It’s Not Only Security vs. Liberty But Also Security vs. Security

· National Security, Terrorism, and the Bird Flu

· National Security and a Potential Bird Flu Pandemic

· Security, Privacy, and Shark Bites

For good literary works about plagues and pandemics, I recommend:

· Albert Camus, The Plague

· Jose Saramago, Blindness

Posted by Daniel Solove at 01:17 PM | Comments (0) | TrackBack

The Law of Harry Potter

What are the criminal consequences of a curse? Can a person commit a tort by unfair Quidditch play? How can the law of the Muggles be harmonized with the law of the Wizarding World? For a long time, attorneys struggled over these issues without much legal guidance. But that problem has now been fixed by Aaron Schwabach (law, Thomas Jefferson), who has posted an article on SSRN analyzing the law of Harry Potter: Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World. According to the abstract:

The astounding success of the Harry Potter series of children's fantasy novels is an unexpected cultural phenomenon, but a welcome one for lawyers and legal academics: Harry's story is a story about law, and about a society trying to establish a rule of law. There is law in every chapter, and on almost every page, of all six books. Sometimes the legal questions hang in the background, while at other times they are the focus of the story: We see numerous trials, and the author gives us statutes, regulations, school rules, and even international agreements to consider.

Harry's world is administered, ineptly, by the Ministry of Magic. The Ministry of Magic's muddling misrule is not quite dictatorship, but it is not fair and just, either. Under the stress of the first war against Voldemort's Death Eaters the Ministry regime, like some Muggle governments in similar circumstances, adopted an ad hoc and inconsistent approach to justice. It imprisons people, and sometimes executes them, without a trial. It keeps careful tabs on law-abiding citizens, but is unable to track down terrorists. It reaches inaccurate results in about half of its criminal trials, in large part because defendants are not represented by counsel. This article attempts to examine the problems with the wizarding word's legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death.

There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry's world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry's regime as well as under relevant British (Muggle) and international law.

All the more reason to attend Hogwarts Law School . . . although I heard that Dean Dumbledore might have played some magic tricks on their statistics, thus making their U.S. News ranking of #6 somewhat dubious. But I'm sure that Brian Leiter will get to the bottom of it.

Hat tip: Larry Solum

Posted by Daniel Solove at 09:50 AM | Comments (0) | TrackBack

Sober = Drunk in Washington, DC

I'm quite in favor of cracking down on DUI, but this story from the Washington Post is really disturbing:

Debra Bolton had a glass of red wine with dinner. That's what she told the police officer who pulled her over. That's what the Intoxilyzer 5000 breath test indicated -- .03, comfortably below the legal limit.

She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle's automatic-light feature.

Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.

Bolton, 45, an energy lawyer and single mother of two who lives in Alexandria, had just run into a little-known piece of D.C. law: In the District, a driver can be arrested with as little as .01 blood-alcohol content.

As D.C. police officer Dennis Fair, who arrested Bolton on May 15, put it in an interview recently: "If you get behind the wheel of a car with any measurable amount of alcohol, you will be dealt with in D.C. We have zero tolerance. . . . Anything above .01, we can arrest."

Neither the police department nor the attorney general's office keeps detailed records of how many people with low blood alcohol levels are arrested. But last year, according to police records, 321 people were arrested for driving under the influence with blood alcohol levels below the legal limit of .08. In 2003, 409 people were arrested. . . .

Fair acknowledged that many people aren't aware of the District's policy. "But it is our law," he said. "If you don't know about it, then you're a victim of your own ignorance."

It strikes me as outrageous that people who are clearly not intoxicated (the national BAC limit is .08) are being arrested and charged with DUI. But what follows is even more troubling:

Not many people fight the charge, said Richard Lebowitz, another defense lawyer, because the District offers a "diversion program" of counseling for first-time offenders.

"If diversion is offered and accepted, there's a guarantee that the charges will be dropped," Lebowitz said. "If you go to court and try to prove your innocence, it's a coin-flip. So most people choose diversion."

Bolton didn't. She balked at the $400 fee and the 24 hours of class time required to attend the "social drinker" program.

The system seems designed to encourage people just to accept a dubious criminal charge that would not stand up in court because fighting the charge can be more costly and time-consuming than just paying the fine and attending the class. Bolton decided to fight it as a matter of principle and hired a lawyer:

Since what she refers to as her "unfortunate incarceration," Bolton has spent hours in D.C. Superior Court and at the DMV and $2,000 so far fighting the DUI charge. Her refusal to submit to the 12-week alcohol counseling diversion program has sent her on a "surreal" odyssey.

Twice, after hours of waiting, prosecutors told her that they had lost her file and that she would have to come back.

On Aug. 22, after four court appearances, prosecutors dropped the charge. But she spent all of September battling the DMV to keep her driving privileges from being suspended for three months.

Corey Buffo, the DMV's general counsel, explained that the agency drops its procedures only after a case goes to trial and is dismissed on its merits. "Our burden of proof is lower" than the Superior Court's, he said. "Not enough evidence for them may be enough evidence for us." Yesterday, the DMV decided not to suspend her privileges and issued her a warning instead.

This strikes me more like a form of extortion than a well-functioning criminal justice system.

Posted by Daniel Solove at 09:44 AM | Comments (8) | TrackBack

If only France could file for Chapter 11

The Economist has a nice article on the Delphi bankruptcy. For those who don't follow such things, Delphi is the largest car parts manufacturer in the country and it has just gone into Chapter 11. In doing so, it has availed itself of a process that would do much to help France out of its current economic malaise. Delphi in up against pension obligations entered into with union negotiators long ago. It thus has essentially the same problem as France -- back in the day it promised more than it could realistically deliver. The difference is that ultimately Chapter 11 gives Delphi a way of rewriting its contracts in an orderly fashion. France has no such luxury.

When Delphi negotiated the contracts with its unions promising high-paying, low-skilled jobs with tenure and generous pensions, the union bosses were able to declare victory and management was able to purchase labor peace. It was a win-win situation that would have made the architects of the New Deal proud. I suspect, however, that both the bosses and the managers had some inkling that what they were offering was too generous to last. On the other hand, neither of them would be left holding the bag when the contracts came due. That honor was left to the workers and the shareholders. Similarly, in creating its vaunted alternative to the heartless Anglo-American model of capitalism, France's politicians promised its people (and not insignificantly its labor unions) all that the Delphi workers were promised: high wages, job security, generous benefits, limited hours. It is a noble and appealing vision to be sure. The problem is that like the Delphi contracts, it was ultimately too good to be true, as attested to daily by the chronically unemployed in France.

The great advantage of Chapter 11 is that it provides an orderly process for restructuring all of these agreements. No one is going to like it, and it will be painful. On the other hand, all parties are guaranteed at least as much as they would get in a total implosion of the company, and with luck what emerges on the other side of Chapter 11 will have some economic life in it, although the days of high-pay, low-skill job security are almost certainly at an end. In this sense, Delphi has an advantage that France does not. Ultimately, French politicians have no cram-down provision to which they can resort in order to change the deal. (Although Maastricht and monetary union moved in this direction.) Instead, French politicians are stuck with a unanimity rule: nothing changes unless the effected parities (French voters in this case) agree. Yet in a situation where there is ultimately no economic there there, this may be a recipe for the long, slow bleed toward insolvency or -- more optimistically -- to some intermediate point where the economic incoherence becomes obvious even to French labor unions.

Of course, trying to figure out how to create a code to deal with political bankruptcy is no mean task. Still, it is something that a few of the over-promised social democracies of the world might want to look into.

Posted by oman at 07:32 AM | Comments (4) | TrackBack

Originalists Take Over The Nation

Many progressives are opposed to the Harriet Miers nomination. Thus, it was no surprise to see an article in The Nation suggesting that she be quizzed about her beliefs, and that she be pressed not to extend the rights of corporations. What was surprising was the fact that the article, by Morton Mintz, relied on the bizarre adoption of a originalist interpretation of the Constitution. Mintz's argument -- which was mostly a plain-vanilla critique of corporate rights -- contains (and relies on) this gem:

Who was the "person" whose basic rights the Framers of the Fourteenth Amendment, and the people who approved it, sought to protect? (The person was, of course, the newly freed slave. The history of the amendment, adopted in 1868--soon after the end of the Civil War--proves this.)

From there, Mintz argues that this original understanding shows that corporations should not be give Fourteenth Amendment protection.

Yes, that's right. Mintz is suggesting that the Fourteenth Amendment should be construed according to how it was viewed in 1868. This is the interpretive methodology known as originalism -- a school of thought more likely to be associated with the National Review than The Nation.

If the amendment is read in an originalist way, Mintz is right that it would probably not cover corporations. The original understanding of the Fourteenth Amendment was that it was to help slaves; that's more or less where the original understanding ends.

Of course, such a reading creates a blinding assortment of new problems for progressives. For example, the fact that the 1868 understanding of the Fourteenth Amendment didn't cover women. Or Hispanics. Or gays. Or anyone else except for newly freed slaves. And yes, it didn't cover corporations. So Mr. Mintz is right, in a sense. Originalism is certainly one way to restrict the rights of corporations -- and everyone else.

Originalist arguments, similar to that Mintz employs in his article, are nothing new. A nearly identical argument -- that the Fourteenth Amendment was meant to protect freed slaves, no one else, and that no further rights should be drawn from it -- was made by Robert Bork in The Tempting of America. Advocates like Bork, taking the originalist methodology to its logical conclusion, have argued that originalism invalidates a whole host of civil rights and liberties.

Is The Nation really willing to endorse originalism in order to score a few points against corporations and Harriet Miers?

Posted by Kaimipono at 04:39 PM | Comments (14) | TrackBack

Juris Novus

We are pleased to announce that Concurring Opinions is now a feed on the terrific resource site, Juris Novus. Juris Novus is now posting links to the headlines of our most recent postings.

Juris Novus also contains the headlines of postings at some other great legal blogs such as The Volokh Conspiracy, Leiter Reports, Lessig Blog, The Becker-Posner Blog, PrawfsBlawg, Conglomerate, JD2B, and more.

Juris Novus is part of the Meta Novus network, a group of sites that provide headlines from blogs about law (Juris Novus), technology (Machina Novus), politics (Polis Novus), science (Scientia Novus), and more. These are very useful sites, and they are definitely worth visiting.

Posted by Daniel Solove at 04:35 PM | Comments (2) | TrackBack

Do We Really Want Perfect Law Enforcement?

I just wrote a post about the possibility of cell phones being used to nab speeders. This raises a larger question regarding law enforcement. If we employ new technologies of surveillance to achieve a more efficient enforcement of various laws, the most obvious concern that comes to mind is the threat posed to privacy. There’s also another problem worth thinking about – Is it desirable to have very efficient enforcement of certain laws?

Of course, we’d want as perfect enforcement as we could get when it came to crimes such as murder and kidnapping. But what about speeding?

Consider what happened in 2000, when the Hawaii transportation department began using cameras mounted on vans to catch speeders. Tickets were issued for all drivers exceeding the speed limit by six miles per hour. The program resulted in an enormous public outcry. As one journalist observed, “it became possibly the most hated public policy initiative in Hawaii history, almost uniformly disliked, even by those who thought it actually worked.” Mike Leidemann, Few Saying Aloha to Van Cams Fondly, Honolulu Advisor, Apr. 14, 2002. Some drivers referred to the vans as “talivans” and radio stations broadcast their location.

In 2002, the program was cancelled. Where the cameras were used, traffic accidents and fatalities were down significantly. [In a recent post, however, I discuss a study of DC traffic cameras that reveals the opposite conclusion – that traffic cameras had no effects on accident or fatality rates.]

So why was there such a public outcry against the program?

My hypothesis is that the outrage stemmed from the impersonality of the system as well as its profound efficiency. The system was exercised to enforce rules that many people frequently violated. The automated and perfected enforcement of the law, even a law generally viewed as justified and important, was experienced as overly oppressive. People were too tightly controlled, which created a sense of excessive state paternalism that led to rebellion and resentment.

I believe that people have ambivalent views toward many laws, such as speeding laws. They generally support the laws, but they often violate them. For example, would society really want perfect enforcement of the drug laws? Imagine if everybody who did drugs at one point in their lives were caught. This could nab quite a lot of people, including many corporate CEOs, politicians, and probably every celebrity.

What about perfect enforcement of underage drinking laws? Probably the majority of the population has at one time during their childhood engaged in underage drinking. And quite a lot of adults have furnished alcohol to a minor at one point in time.

So perhaps we don’t want to enforce these laws perfectly. Yet, doesn’t imperfect enforcement unfairly penalize the unlucky few who get caught? Indeed, prior drug use can disqualify people for certain jobs, such as the FBI (which is considering rethinking some of its policies). Underage drinking violations can appear on a person’s record. Should these stains on people’s records be put there haphazardly? After all, if many people are guilty of these things, why should only the unlucky few who get caught be punished?

The same goes for speeding. If many people speed but only a fraction are caught, shouldn’t we desire better enforcement of the law rather than arbitrarily penalizing the unlucky few who get caught?

Also, more automated and efficient law enforcement might eliminate prejudice and bias. This could cut down on the over-enforcement of traffic laws against minorities, such as the phenomenon dubbed “driving while black.”

I haven't worked out the answers just yet, but I find the issue quite intriguing.

Posted by Daniel Solove at 12:15 AM | Comments (4) | TrackBack

Using Cell Phones to Catch Speeders

A glimpse into the not-too-distant future . . .

You’re driving along the highway. There is only light traffic on the road, and there’s not a cop in sight. You decide to give in to that dastardly rebel within and go 10 miles over the speed limit. You get to your destination without incident, a few minutes early. The sun is shining in the sky; there’s not a cloud in sight. It’s a happy day. Life is good.

But then a few weeks later, you discover that the day wasn’t as cheery as you had thought. That’s because you were caught for speeding that day. Your ticket arrives in the mail. But there were no police officers along the route, no speed traps, no surveillance cameras. How did you get caught?

You were ratted out, betrayed by a traitor in your car. No, not a secret agent, not a rat, not a mole. Instead, it was something you trusted the most, an inseparable companion . . . it was your cell phone.

According to the AP:

Driving to work with your cell phone on, you notice the traffic beginning to slow down. Instantly and unbeknown to you, the government senses your delay and flashes a traffic congestion update over Web sites and electronic road signs.

Other motorists take heed, diverting to alternative routes or allowing more time for their trips.

Futuristic as it might seem, the scenario actually is pretty close to becoming reality.

In what would be the largest project of its kind, the Missouri Department of Transportation is negotiating with private contractors to monitor thousands of cell phones, using their movements to produce real-time traffic conditions on 5,500 miles of roads statewide.

Cell phone users won’t even know anyone’s watching them. But transportation and technology leaders assure there is no need to worry - the data will remain anonymous, leaving no possibility of tracking specific people from their driveway to their destination.

I have a quote in the story, but I’m not saying anything really profound, so I won’t bother excerpting it.

Since there is no tracking that can be linked to identifiable people, the cell phone tracking described by the article appears to pose little of a privacy concern. However, it isn’t too hard to imagine in the future new ways that these devices can be used. Previously, I blogged about how cell phones can function as an RFID device to track people’s movement. With the technology described in the AP article, it doesn’t seem far-fetched to imagine cell phones being used to determine a driver’s rate of speed. Would there be a problem if cell phones were used as a way to nab speeders?

This raises another question regarding the enforcement of the law. When we devise ways to more perfectly enforce laws such as speeding, is this desirable? To keep this post from getting too long, I will explore this question in a separate post.

Posted by Daniel Solove at 12:08 AM | Comments (4) | TrackBack

The Unappreciated East Pediment

Since Miers's nomination has focused the attention of the blogosphere on the Supreme Court, I figured that now would be a good time to discuss the unappreciated east pediment of the Supreme Court building. The lion's share of the pedimentary attention at the Court goes to the west pediment. This makes sense, of course, since the building faces west (like the Capitol it has its back to Europe), but I think that it has led to an undue focus on the west pediment's inscription: "Equal Justice Under Law." Don't get me wrong. I am all for equal justice under the law, but I think it is unfortunate this is the particular legal maxim-engraved-in-marble that has become so exclusively adopted as an icon of our law. I think that we would do well to pay more attention to the inscription on the east pediment, which reads "Justice the Guardian of Liberty."

"Equal Justice Under Law," it seems to me, is essentially a public-law message. Justice is something that comes down from above on to us, and our marble-inscribed aspiration is that when the ton of bricks falls it will fall without regard to race, religion, or creed. This is a noble ideal to be sure, but it focuses our attention on the law as a regulator. The basic public-law orientation of the west pediment's inscription follows the 20th-century legal academy's valorization of public law. Virtually all law professors seem to secretly want to teach constitutional law, and as anyone who has gone on the AALS meat market having listed "administrative law and civil rights law" as their primary interests can attest, the legal intellectuals churned out by our law schools tend to stampede in tightly concentrated masses in that direction.

"Justice the Guardian of Liberty," on the other hand, is an essentially private law message. Justice is something that facilitates private ordering, and our marble-inscribed aspiration is that the law constitutes a space in which we freely and justly work out our own lives. There was a time, of course, when the academic valorization was reversed, and private law ruled the intellectual roost. The opening debates around which modern American legal education coalesced were essentially private law disputes: Langdell and Holmes on contract law, Brandies on the right to privacy (initially a private cause of action not a public right against the government), etc. By the time the Court's building was finally completed in the 1930s, however, public law was firmly in the intellectual saddle and private law was relegated to the indignity of the European-facing pediment.

Listening to the arguments about Miers's nomination and before that the debates over Roberts, I have been struck by how intellectually exhausted our public discussion of constitutional law has become. This is not to suggest that that the discussion is unimportant, or to argue that those who spend their lives in constitutional law lack intellectual ability, imagination, and even -- occasionally -- insight. But the debates strike me as increasingly stylized and stale. Furthermore, in a world of global markets and legal transactions, the debates of American public law are becoming increasingly parochial. While the constitutional law mandarins debate the propriety of cf. citations to foreign law, private law straddles the globe, and webs of contracts and private ordering weave from nation to nation. Perhaps the east pediment will get the last laugh in the end.

Posted by oman at 09:15 PM | Comments (1) | TrackBack

The Airline Screening Playset: Hours of Fun!

After blogging a few weeks ago about the airline screening playset, I went ahead and ordered one.

Each day, I would check my mailbox, eager with excitement about its arrival. Today, it finally arrived. I rushed to open it and began what would be hours of exciting play. Here's what came in the playset:

I was a bit disappointed in the toy’s lack of realism. There was only one passenger to be screened. Where were the long lines? The passenger’s clothing wasn’t removable for strip searching. The passenger’s shoes couldn’t be removed either. Her luggage fit easily inside the X-ray machine. There were no silly warning signs not to carry guns or bombs onto the plane. And there was no No Fly List or Selectee List included in the playset.

Another oddity was that the toy came with two guns, one for the police officer and one that either belonged to the X-ray screener or the passenger. The luggage actually opened up, and the gun fit inside. I put it through the X-ray machine, and it went through undetected. Perhaps this is where the toy came closest to reality.

The biggest departure from reality was that the passenger had a cheery smile on her face.

To make the toy more realistic, I required the passenger to show her ID, which she didn’t have. Indeed, the playset didn’t come with an ID card, so it wasn’t the passenger’s fault. But I had the screener cheerfully deny her the right to board the plane. Ha!

But she still had that silly smile.

I wasn’t ready to give up, however, so I decided to have her searched from head to toe with the magnetic wand.

But she still had that smile.

I then knew what I had to do to get that smile off her face -- I had the screeners search her luggage by hand and destroy it in the process.

But she was still smiling.

So I created a No Fly List. But there was a problem. The passenger had no name. Nevertheless, I had the screener tell her that she was on the list and that she couldn’t fly until she went through the bureaucratic hassle of trying to clear her name from the list. I had the screener tell her that it could take her weeks or months to set things right, and that there was no guarantee that she would ever get off the list unless she knew top officials in the Bush Administration.

But she was still smiling.

What was wrong with this woman? Was she just so happy because it appeared that TSA’s security was “really working to protect us”? Apparently so. She just wouldn’t stop smiling. So finally, I had the cop shoot her dead.

Posted by Daniel Solove at 12:03 AM | Comments (17) | TrackBack

Ben Barros discusses Kelo and Midkiff

Kelo was not a surprise. Kelo easily followed the court's broad language in Midkiff. Was it any surprise that Midkiff was extended slightly in Kelo, and the broad principle upheld?

Perhaps to Justice O'Connor. For a fascinating account of Justice O'Connor's eventual decision "eat her words" from Midkiff, see Ben Barros' discussion.

Posted by Kaimipono at 08:10 PM | Comments (2) | TrackBack

Wikimania

Dan mentions the possibility of writing a paper by Wiki. He even hints that this could affect legal academia. (And I for one am shocked, shocked at the suggestion that the responsibility of writing legal scholarship might be farmed out to anonymous hooligans on the web, rather than continuing with the time-honored method of farming it out to minimum-wage research assistants).

(Definitional note for those who didn't read Dan's post: A wiki is an open website which allows anyone to edit any entry; the most successful is the online encyclopedia Wikipedia).

But let's ask the real question -- is Dan going far enough with wikimania? Or are there more places where wiki adoption could take the place of help out law professors?

WikiRankings.

U.S. News unreliable? Princeton Review incomprehensible? Leiter just too political? Welcome to WikiRankings. Every school is ranked, and everyone can participate in the process. Indulge in your urge to tell people that NYU stinks or that [insert your alma mater here] is really the best school in the country. (Potential downside: Columbia grads who insist on continually mentioning the fact that NYU stinks).

Wiki Law Review.

Your article will be read by an unknown number of random web participants, who can vote on which articles they like best. (How is this different from normal law review submission?)

Once accepted for publication, it will be edited through the efforts of anonymous Wikizens and then published online. (Oh, it's an online journal!).

--

Hey, I like these innovations so far. Long live Wikis! I suppose it doesn't hurt any that I'm teaching at Thomas Jefferson -- currently ranked #7 in the country, according to WikiRankings* -- and that I've just had five articles accepted by the Wiki L. Rev. Where else can we introduce Wikis?

Wiki Tenure Committee.

On second thought, let's not go there.

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* I deny all reports that in an original version of this post I wrote "and it would be ranked higher if I had coded a better javascript voting program."

Posted by Kaimipono at 06:43 PM | Comments (3) | TrackBack

Me and Judy Miller

A proposed bill would shield journalists from prosecution for failure to divulge their sources. No more Judy Millers!

Unless Judy was a blogger. In which case, she would not be protected.

Yes, that's right. An unidentified source -- who I cannot and will not identify* -- has suggested that the proposed law will not shield bloggers. So while Judy is living it up in New York and D.C., we Concurrers will be moldering in a tiny cell. On the other hand, the publicity will be great.

So, does anyone want to e-mail me some juicy leads relating to anonymous sources? I promise, I'll guard the names well.

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* Okay, you got me. You broke past my iron will. The source for my controversial assertion -- that bloggers are not protected by the proposed shield law -- was Matt Drudge. Don't arrest me, please, go arrest him.

Also, I think he may be married to a CIA agent.

Posted by Kaimipono at 06:07 PM | Comments (0) | TrackBack

Hurricane Katrina and Credit Scores

Bob Sullivan at MSNBC writes:

A second storm surge may soon start slamming into Gulf coast residents hit by hurricanes Katrina and Rita. Mounting unpaid bills will lead to a surge of black marks on victims' credit reports, say consumer advocates, sinking their credit scores. And now, they say, efforts to convince the nation’s credit bureaus to develop new systems to account for victims’ temporary bill-paying troubles have hit a major snag.

Consumers who can’t make their house payments any more – even if that house has been completely swept away by the storm – may face the ultimate penalty in America’s credit-driven society: A credit score so low they won’t qualify for the loans they need to start rebuilding.

Consumer groups, anticipating the coming surge of late payments and account defaults, have asked credit bureaus to help. The consumer groups proposed that the bureaus take a pre-Katrina credit score snapshot of all residents in the affected areas. Later, when victims apply for loans, the pre-Katrina score could be used to identify whether victims were good credit risks before the storm.

This sounds like a sensible proposal, something that will help the survivors of the hurricane rebuild their lives. After all, without good credit, it is much more costly to take out a loan, and sometimes nearly impossible to get a loan or credit.

Fair Issac, the company that creates the formula for generating credit scores supports this proposal. The credit reporting agencies, however, won't have any of it:

But on Thursday, consumer groups revealed that the nation’s three bureaus – Experian, Trans Union, and Equifax – have declined to participate in the plan.

The reasons are:

A second score likely wouldn’t comply with parts of the Fair and Accurate Credit Transaction Act, the firm indicated in a letter sent to Consumers Union.

Equifax’s David Rubinger said the presence of a second score could create confusion both for lenders and consumers. Also, credit bureaus and lenders sometimes use alternate scoring systems, he said, so a snapshot FICO score would be of little use to those lenders.

First of all, I'm not familiar with a provision of the Fair Credit Reporting Act (FCRA) that would prohibit reporting a second score. If there is something in the law that prohibits reporting another score, then Congress should make an exception for victims of certain sudden catastrophes.

Second, I don't understand the confusion. The second score would inform creditors of a more accurate picture of what a person's normal payment history and financial condition are barring unusual unforseen circumstances. Why would this be so confusing?

Here's what the credit reporting agencies agreed to do instead:

As an alternative, bureau representatives said they’ve instructed lenders, who supply the bureaus with payment history data, to be lenient with consumers. They’ve also asked lenders to include a special code on Katrina-related overdue payment and default entries – called a “disaster recovery code,” according to Rubinger. A late payment entry will appear with the designation “AW” on consumers' credit reports. . . .

For now, the bureaus say they are trying to help consumers in other ways. Residents in hurricane-afflicted areas can get a free copy of their credit report from AnnualCreditReport.com, the Congressionally-mandated free credit report site -– even if they’ve already gotten a copy recently, said Rubinger. A positive pre-Katrina report could be an important asset during a difficult conversation with a lender, he said.

Hillebrand said consumers could also consider paying for a credit score now, before any late payments show up. But the scores cost around $10 each, and there’s no guarantee a lender will look at a score purchased by a consumer during the loan evaluation process.

These measures, however, are not very helpful. While the law allows people to obtain a yearly free credit report, it does not come with a credit score. To see that, you have to pay $10. That can be a lot of money to many Katrina victims. And how many, in the maelstrom of stress and hassle and heartbreak they are now facing, are thinking about ordering their credit reports right now? How many even know how to do it? Or have an address to send it to?

Posted by Daniel Solove at 12:49 PM

The Blog Impersonators

Harriet Miers, as my co-blogger Kaimi pointed out, is the first Supreme Court Justice nominee to have her own blog – Harriet Miers’s Blog!!! Her first entry:

OMG I CAN'T BELIEVE I'M THE NOMINEE!!! This is BIGGEST DAY OF MY LIFE!!! EVER!!!!

OMG OMG OMG

Needless to say, it’s a fake. And so is a blog called Luttig’s Lair purportedly written by Judge J. Michael Luttig.

Anyone can sign up on a free blogger platform, such as Blogger, and create a blog. In anybody’s name. In your name. You might have a blog and not even know about it.

The Miers and Luttig blogs are quite funny because everybody knows they’re phony. But it is easy to imagine a case where reality and parody are not so readily discernable. What’s to stop me from creating a blog by you? (Don’t even think of vice-versa!)

The law provides at least two potential remedies. One is the tort of libel, which provides for damages when a person publishes falsehoods that damage the reputation of another. This wouldn’t apply to Miers because the blog is an obvious parody – no reasonable person would think it were true.

The second is the tort of appropriation of name or likeness, which makes another person liable if she appropriates for her own benefit the name or likeness of another. Typically, however, appropriation applies to the use of a person’s name or likeness in connection with a commercial endorsement (though not always).

There’s a difficulty, however, with any legal remedy – anonymity. To the extent people can create blogs in ways that their identity cannot be linked back to them, how can victims sue for redress?

This issue is a difficult one. On the one hand, we want to protect anonymous blogging, since people can suffer severe consequences from their blogging such as being fired from their jobs. Indeed, I just blogged about the importance of protecting anonymous posting to blogs.

On the other hand, true anonymity (non-traceable) can practically immunize the anonymous blogger from being sued for committing these torts. How should this tension be resolved?

Posted by Daniel Solove at 12:07 AM | Comments (4) | TrackBack

Wiki Your Papers?

Need a proofreader and fact checker? Let the collective community of the Internet do it for you. According to CNET:

When Esquire magazine writer A.J. Jacobs decided to do an article about the freely distributable and freely editable online encyclopedia Wikipedia, he took an innovative approach: He posted a crummy, error-laden draft of the story to the site.

Wikipedia lets anyone create a new article for the encyclopedia or edit an existing entry. As a result, since it was started in 2001, Wikipedia has grown to include nearly 749,000 articles in English alone--countless numbers of which have been edited by multiple members of the community. (There are versions of Wikipedia in 109 other languages as well.) . . . .

Jacobs decided to craft an article about Wikipedia, complete with a series of intentional mistakes and typos, and post it on the site. The hope was that the community itself would be able to fix the errors and create a clean version that would be ready for publication in Esquire's December issue. The original version was preserved for posterity.

"The idea I had--which Jimmy (Wales, Wikipedia's founder) loved--is that I'd write a rough draft of the article and then Jimmy would put it on a site for the Wikipedia community to rewrite and edit," Jacobs wrote on the page introducing the experiment. Esquire "would print the 'before' and 'after' versions of the articles. So here's your chance to make this article a real one. All improvements welcome." . . .

According to the Wikipedia page for Jacobs' story, the article was edited 224 times in the first 24 hours after Jacobs posted it, and another 149 times in the next 24 hours.

What result?

On the latest version of the article, t