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Making Universities Pay for Government Surveillance

In 1994, Congress passed a law called the Communications Assistance for Law Enforcement Act (CALEA), which requires telecommunication providers to build wiretapping and surveillance capabilities for law enforcement officials into their new technologies.

A recent rulemaking by the Federal Communications Commission (FCC) significanty expands the reach of CALEA beyond telephone companies and ISPs:

The federal government, vastly extending the reach of an 11-year-old law, is requiring hundreds of universities, online communications companies and cities to overhaul their Internet computer networks to make it easier for law enforcement authorities to monitor e-mail and other online communications.

The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers. . . .

The order, issued by the Federal Communications Commission in August and first published in the Federal Register last week, extends the provisions of a 1994 wiretap law not only to universities, but also to libraries, airports providing wireless service and commercial Internet access providers.

It also applies to municipalities that provide Internet access to residents, be they rural towns or cities like Philadelphia and San Francisco, which have plans to build their own Net access networks.

Shouldn't the government be paying these costs? Why should the government be imposing this quasi-tax on those providing communications services?

According to the article:

If law enforcement officials obtain a court order to monitor the Internet communications of someone at a university, the current approach is to work quietly with campus officials to single out specific sites and install the equipment needed to carry out the surveillance. This low-tech approach has worked well in the past, officials at several campuses said.

But the federal law would apply a high-tech approach, enabling law enforcement to monitor communications at campuses from remote locations at the turn of a switch.

It would require universities to re-engineer their networks so that every Net access point would send all communications not directly onto the Internet, but first to a network operations center where the data packets could be stitched together into a single package for delivery to law enforcement, university officials said.

It is certainly true that new technology can erode the government's ability to engage in surveillance. It can also enhance the government's surveillance capabilities too. Setting aside the issue of the merits of the government surveillance, the issue of who pays for it is also a very important one. Placing the costs on those developing or supplying the technology can severely hinder the development of technology and its use. And saddling such a large financial burden on educational institutions at a time of rapidly rising education costs strikes me as very unwise and troublesome.

Posted by Daniel Solove at 05:29 PM | Comments (1) | TrackBack

How to Develop a Supreme Court Practice

How does a law firm develop a Supreme Court appellate law practice? Hang out a shingle? Well, yes, if you've got Seth Waxman. This interesting article explains how law firms build a Supreme Court practice. The article contrasts the firm of Wilmer Culter, where Waxman argued all five of its Supreme Court cases last term, with the firm of Jones Day, which had five different attorneys argue its six Supreme Court cases.

Posted by Daniel Solove at 04:45 PM | Comments (0) | TrackBack

Dumb and Dumber

Another entry in the annals of dumb criminals. A duo from Australia, dubbed "Dumb and Dumber" by the Australian media, robbed a bank in Vail, Colorado and made off with $130,000.

Tip: Don't pose for photographs with your loot in hand.

Posted by Daniel Solove at 01:20 PM | Comments (1) | TrackBack

Good Media, Bad Media

A 4-year old girl’s mother was murdered, and the girl was left abandoned. She was put on TV, and people’s calls helped her and lead to her mother’s killer. But now it is hard to get the media to leave the girl alone. From the New York Times:

But now, those caring for the girl . . . say coverage by the news media has become a curse. She is trapped inside her relatives' home on Long Island, they say, unable to play outside or ride the new bicycle she received as a gift.

Eighteen days have passed since [the girl] talked about pizza, pickles and her cat on television, after child welfare officials made her available to the cameras in an extraordinary effort to find out who she was. Reporters have followed every step of her story and, until last night, had been camping outside the home of [the girl’s] temporary guardians, hoping for a new photograph or a word from them. . . .

"Our worst fears are coming true for [the girl] right now: she is a virtual prisoner in her new home," Kim McLaurin, the lawyer who represents the girl in the custody case, said yesterday. "She can't go outside to ride her bike, she can't go to school and she can't make friends. She is locked in, just sitting in the house, and that's not right."

Is the continued media coverage appropriate? On the one hand, the media’s initial involvement worked for the good. The media began a story, sparked people’s interest, and should be able to see the story through to its end. On the other hand, once the media is invoked, it becomes like an attack dog that will not let people out of its jaws.

Currently, the law will often provide a remedy when a single journalist (or a paparazzi) harasses an individual to an excessive degree. But what about when it is a combination of journalists who do so, with no one journalist acting excessively? This is what often happens to people caught up in a major news story. One reporter may not go to excessive lengths, but there are so many reporters that it guarantees that the person will be followed everywhere. I wonder what, if anything, the law can do to provide people with a reasonable bit of space.

Posted by Daniel Solove at 12:17 PM | Comments (0) | TrackBack

Telephone Menu Cheat Sheet

You call a company and you want to speak with a human. Instead, you get one touchtone menu after the other, and it seems impossible to find out how you can just talk to a person. There's usually always a way -- but it can take quite a lot of time to discover it. Now, someone has created a handy cheat sheet for how to quickly navigate these menus to reach a human. Good stuff.

Hat tip: Vesterman.com

Posted by Daniel Solove at 11:45 AM | Comments (3) | TrackBack

Why Orwell's 1984 Is So Bleak

According to this article, the drab and dismal world portrayed in George Orwell's 1984 was in part influenced by his bouts with illness:

The new study, by John Ross of Caritas St. Elizabeth’s Medical Center in Boston, recounts Orwell's sickly life. . . .

Orwell was born in India in 1903 as Eric Blair. He suffered multiple bouts of bronchitis and other respiratory ailments, Ross writes. As a young man, Orwell had several episodes of bacterial pneumonia, and also contracted dengue fever while in Burma. He was a heavy smoker, and he suffered fits of coughing from a condition called bronchiectasis. . . .

[D]epressed by his wife’s death, Orwell moved to a windy and damp Scottish island. His health worsened significantly just as he was working on the first draft of "1984," Ross reports. Fever, weight loss, and night sweats sent him to the hospital, where he underwent “collapse therapy,” a treatment designed to close the dangerous cavities that form in the chests of tuberculosis patients. . . .

"Orwell himself told his friends that 1984 would have been less gloomy had he not been so ill—it was a very dark, disturbing, and pessimistic work," Ross said. Orwell's illnesses "made him a better and more empathetic writer, in that his sense of human suffering made his writing more universal."

I wonder what a less gloomy 1984 would have read like -- Brave New World perhaps?

Posted by Daniel Solove at 01:44 AM | Comments (4) | TrackBack

Revenge of the Splog

I previously blogged about splogs earlier this week. This recent Wall St. Journal article (one of the rare freebies on the WSJ website) has some more interesting information about splogs:

Just this past weekend, Google's popular blog-creation tool, Blogger, was targeted in an apparently coordinated effort to create more than 13,000 splogs, the search giant said. The splogs were laced with popular keywords so that they would appear prominently in blog searches, and several bloggers complained online that that the splogs were gumming up searches for legitimate sites. . . .

Many spammers are buying special software on the Web that allows them to automatically create scores of phony blogs in mere seconds. One program cited by splog critics is BlogBurner, which starts at $47 a month. The tool "creates a unique blog for your Web site in less than one minute -- even if you know nothing about computers," according to the BlogBurner.com site.

BlogBurner's founder, Rick Butts, denies that his software is used by spammers. He says it is used by business owners to automatically create blogs based on content pulled from their Web sites. He acknowledges that the blogs being created by BlogBurner are often used to help draw attention to a company's main Web site. "I'm not going to pretend to say we're altruistically creating blogs for humans to read," he says, adding that other companies have mimicked his software and sold it to spammers.

On the Splog Reporter website I wrote about:

Frank Gruber, a blogger in Chicago who became frustrated while encountering splogs in search engines, recently launched a site called SplogReporter.com. It lets anyone submit the Web address of a suspected splog. SplogReporter has created an index to rate how "spammy" a blog is, and is building a database of splogs. Mr. Gruber, who says he was inspired by Mr. Cuban's crusade against splogs, has not decided what he will do with the information. But he says he may share it with blog search engines.

Posted by Daniel Solove at 05:39 PM | Comments (0) | TrackBack

Spinning Straw into Gold

I was initially attracted to the law because I thought that the books looked cool. My father is an art historian and my mother was an adjunct English professor before she became a tech writer. My grandfathers were a rancher and a farmer respectively. I did not come from a legal background. Nevertheless, my first year of college I wrote a paper that required that I venture into the law library, and I was entranced by the look and feel of old copies of the U.S. Reports.

There was something about the heavy mustiness of the books, the calfskin bindings, and the eighteenth- and nineteenth-century type faces that captured my imagination. The books just looked like they contained “lore” and “learning.” One of the great pleasures of my clerkship was going through my judge’s personal collection of rare legal books: a first edition of Blackstone, Yearbooks printed in the 17th and 16th centuries, a Restoration-era printing of the record in Charles I’s trial, and so on.

My wife finds my fascination on this point incomprehensible. She has poked about in some of my law books and finds the disputes about assumpsits, pendant jurisdiction, or legal hermeneutics that I love unspeakably dry. As she rightly points out, her books have pictures of dismembered cadavers and diagrams of the swallowing mechanism. Much more interesting.

Nevertheless, to me there is a kind of beauty in seeing how the law weaves the pedestrian disputes of life into a fabric ultimately concerned with power, justice, and the good society. Jurisprudence spins the straw of the everyday into the gold of applied philosophy and political economy. No mean feat, that.

It seems to me that spinning straw into gold is a great deal of what lawyers – practical and academic – do. You take a pile of undistinguished facts and turn it into a story about wrong and injustice, the distribution of political power, the advance of prosperity, or so on. Professors – if they are good – can take the mundane details of their subjects and spin connections to basic themes about human action and the good society. Apart from its intrinsic value, one of the things that makes the law fascinating for me is the sheer intellectual challenge of taking the boring or the pedestrian and making it interesting.

Posted by oman at 03:57 PM | Comments (6) | TrackBack

When Google Is King

We are entering the age of the Google Empire. As Randy Picker at the Chicago Law Faculty Blog notes in a review of John Battelle’s The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture:

Microsoft was the king of the personal computer, and the Windows Desktop represented the most valuable real estate available. The rise of search has changed that. Search is now the front-door to the Internet, and the documents located there are often more important than those that sit on your computer. Google, not Microsoft, is defining the new interface to the Internet.

Babies are now being named after Google.

Google is filing for patents for techniques to target ads based on search results.

Google has recently added features such as Blog Search, Instant Messaging, Email, Video Search, Maps, and more. There's also the much discussed Google Print in the works.

And Google is now unwittingly entering into international affairs, finding itself in the middle of the squabble between China and Taiwan.

All roads, it seems, are leading to Google.

Related Posts:

Google's New Privacy Policy

Does Google Image Search Violate Copyright Law?

Posted by Daniel Solove at 11:30 AM | Comments (2) | TrackBack

Update on Zywicki, Measure 37, and Quotations

In a prior entry, I crticized the use of a quote in a Volokh.com post by Todd Zywicki. I suggested that the quote was suspect, given a number of factors.

Investigation has revealed that the quote is actually drawn from a real e-mail. (I have received a copy of the e-mail in question). To the extent that my earlier post may have implied that the quote Zywicki used was fabricated, I was wrong on the facts. Given the factual support for the existence of this particular quote, some of my rhetoric was overbroad and inappropriate. I posted too quickly, and should have done further investigation myself before making some of my statements.

That said, I believe that many of the underlying concerns of my original post remain accurate, for reasons that I'll state below.

In the original post, I summarized my argument as follows:

So, to recap, the "quote" is:

(1) A good example of how liberals talk in libertarian fantasyland.
(2) Anonymous.
(3) Drawn from an opponent of the alleged quote.
(4) Originally set out in a set of paragraphs decrying Measure 37 opponents as "extremists."
(5) Originally set out to be a target of ridicule, and
(6) Uncorroborated.

Based on these facts, I'm going to suggest that, absent documentation to the contrary, it is highly likely that the quote is bogus.

I have now received documentation showing that the quote is clearly drawn from a real source. Thus, per the terms of my original post (which contained an explicit assertion that my position would change if shown documentation), I make no further claim that the quote is bogus.

I hope, however, that the larger point I was trying to make isn't lost in the issue of whether this particular quote was correct or not. My broader argument was to question whether bloggers, who are quick to criticize the mainstream media for sometimes being loose on corroborating facts, should subject themselves to the same kind of criticism. Perhaps we as bloggers should be skeptical of the material we quote and use in our posts.

The quote at issue had many fishy indicia, and what I hoped to suggest is that we as bloggers can be great bogus fact detectors when we want to criticize the mainstream media, but we can readily push aside our bogus fact detection mindset when we're whisking out our own posts. Ironically, I'm just as guilty of this myself, as I should have done further investigation on the veracity of the quote. Nevertheless, my point is that the quote sure smelled bogus, and I was trying to act in the blogging tradition of questioning something that struck me as highly suspicious. Whenever I use quotes that I think could be dubious, I will try to point out some of my doubts about the quote. Blogger skepticism is one of the great features of the blogosphere, and bloggers should unleash this skepticism on themselves too, not just on the mainstream media.

The quote seemed bogus then, and given the same facts I would make the same call again, ten times out of ten. I don't trust advocacy groups to be honest with facts (recall that I previously took the AFJ to task for a deceptive definition of courts "controlled by the extreme right"); I don't have high confidence in anonymous quotes, particularly those that are held up for scorn; I have strong reservations about quotes that seem to play too closely into the quoting party's hobbyhorse.

In addition, while my original assertions were overbroad, the quoted language is not without real problems. My own and Todd's investigatory efforts led me to the quote's source, and as far as I can ascertain, the quote is not in fact drawn from a lawyer bringing the suit to overturn the law, but rather from an independent lawyer not involved in any organized efforts against the ballot measure. Thus, as presented at both Volokh.com and Bizzyblog (as a quote from one of the lawyers involved in the Measure 37 lawsuit), the quoted language appears to be misleading.

Finally, I should note that having seen the e-mail in question, I have serious reservations about whether it is being used out of context. At the very least, there are real questions here, though it may be possible for reasonable minds to disagree on this point. Pending further discussion and analysis, I may post more on that topic.

But for the moment, enough time has passed, and it's time for me to publicly acknowledge the factual errors in my original post.

Posted by Kaimipono at 11:00 AM | Comments (6) | TrackBack

Is There One Best Method of Constitutional Interpretation?

Although the Supreme Court feels some pressure for consistency via precedent, it doesn’t seem to strive at all for consistency in interpretive approach. Thus, the Court’s opinions are all over the map when it comes to the method of constitutional interpretation. Sometimes the Court reads the Constitution broadly and dynamically; sometimes it interprets the Constitution narrowly; sometimes it becomes a textualist; sometimes it becomes obsessed with original intent. And all this can happen in the same year!

When it comes to interpreting the Constitution, the Court will pay attention to precedent as to the substantive meaning of a constitutional provision, but it will often repeatedly shift around in its interpretive method. There seems to be little attempt to develop a precedent for the appropriate method of constitutional interpretation. Institutionally, why does the Court strive for consistency with regard to substance but not consistency with regard to method?

In contrast, theorists strive to develop a consistent method of constitutional interpretation. Recently, I posted about process-based approaches to constitutional interpretation. A process-based approach seeks to define a method of interpreting the Constitution and of deciding cases that is coherent and consistent. Most process-based theorists, whether liberal or conservative, seek to articulate an approach toward deciding cases that should be adhered to at all times. They seek to articulate the best approach, not just the best approach for a particular time in our history.

There is thus a disjunction between theory and practice. Theorists seek the best interpretive method, one that is to be applied to all parts of the Constitution and consistently throughout history. In practice, however, the Constitution has been interpreted in radically different methods from case to case, as well as from one historical period to another. Different interpretive methods have been applied to different parts of the Constitution – one Amendment may be strictly construed whereas another may be read quite expansively beyond the confines of its text.

If we tried to bridge the gap between theory and practice, one way would be to change the practice – urge the Court to adopt institutionally a precedent for the appropriate method for constitutional interpretation. All justices would feel bound by precedent to employ the same basic method of constitutional interpretation, and the Court would strive for consistency in this regard. All majority opinions, therefore, would either be originalist or textualist or something else. The method of interpretation, therefore, would become more of an institutional decision rather than one left to the vagaries of each individual justice.

An alternative might be to rethink the theory. Perhaps different methods of constitutional interpretation work for different times. And perhaps different methods work for different provisions of the Constitution. Thus, one Amendment may be strictly construed whereas another may not be . . . and this is perfectly ok.

For a long time, I was on the theory side, striving to find the ideal method of constitutional interpretation. But perhaps there’s some wisdom in the practice. As haphazard and unprincipled as it is, the current practice might just be the best approach. Maybe there isn’t an ideal method after all.

But if this were so, the theory needs to catch up. Those advancing methods of constitutional interpretation rarely tie their justifications for them to a specific historical period. In other words, the question asked is which approaches are better or worse, not which approaches are better or worse for the particular times we’re living in. Maybe we should start exploring this latter question. Arguments about whether the Constitution should be strictly or expansively construed, for example, would have to examine why a particular constitutional provision at this particular point in time should be construed in such a manner. This would be a difficult and sophisticated discussion to have, but I certainly think it would be preferable to the kind of constitutional discussions we’re having now, which often just throw around hollow phrases like “strict constructionist,” “judicial activism,” and “legislating from the bench.”

Posted by Daniel Solove at 12:07 AM | Comments (14) | TrackBack

BlackProf Blog

BlackProf, a new blog created a few weeks ago, has quickly become a must-read in the blogsophere. My colleagues, Spencer Overton and Paul Butler are blogging there, along with a very distinguished group of professors from other law schools. And they've recently had a wonderful group of guests, including Michelle Adams (my former colleague from Seton Hall Law School), Congressman John Conyers, and Richard Delgado. Recent topics include school vouchers, the neo-Nazi march in Ohio, journalists and security clearances, race-based medicine, the NBA's new dress code, affirmative action, law school diversity, and voting rights.

So if you don't already read it, be sure to check out BlackProf.

Posted by Daniel Solove at 10:37 PM | Comments (0) | TrackBack

Paging the Department of Bogus Quotes . . . there's a Mr. Zywicki here to see you

Over at the Volokh Conspiracy, Todd Zywicki discusses Oregon's Measure 37, criticizing a "direct quote" from an alleged Measure opponent:

On Friday, a judge overturned the measure as unconstitutional under Oregon's state constitution. Tom quotes one of the lawyers who brought the action to overturn the law:

I will put a couple of enlightened attorneys up against a million Oregonians any day, since the masses do not make right in this Republic, no matter how many you stack up against the wall!!

Frankly, I'm surprised at Zywicki's unreserved use of a "direct quote" that looks very suspicious on the surface, and that gets no better upon investigation.

UPDATE: I have received new information about the source of the quotation in question. At least some of my assumptions were factually incorrect, and I will post an updated entry shortly. See here for my updated entry.

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Posted by Kaimipono at 02:40 PM | Comments (9) | TrackBack

The Yale Law Journal's Pocket Part

The Yale Law Journal has just introduced The Pocket Part, a website where readers and authors can discuss articles published in the Journal. Great idea!

Hat tip: Orin Kerr

Posted by Daniel Solove at 12:25 AM | Comments (0) | TrackBack

What Exactly Does “Legislating from the Bench” Mean?

In the discussions surrounding the recent Supreme Court appointments, it seems that the big judicial no-no is to “legislate from the bench.” Orin Kerr has an interesting post about the ambiguity of this phrase as used by the White House. What exactly does “legislating from the bench” mean?

Currently, the phrase “legislating from the bench” means little more than “I know it when I see it.” Despite being thrown about rather vaguely and carelessly, the notion of not legislating from the bench appears to be based on a particular approach toward constitutional interpretation, one that I will call the “principled conservative process-based approach.” By “process-based,” I am referring to conservatives who seek to articulate an approach toward judging--a method--not just a set of results they desire for particular cases.

So what is the method? As I understand it, the method involves a combination of at least three elements: (1) a reluctance to stray beyond the constitutional text or a commitment to interpreting the Constitution according to original intent or a combination of both; (2) a posture of judicial deference toward the Legislative and Executive Branches, as well as other government institutions; (3) a respect for precedent and a Burkean view toward making radical changes in the law.

Far too often, the conservative process-based approach is thought and spoken about with Roe v. Wade in mind. But I wonder what applying the conservative process-based approach would have meant for some of the other famous Supreme Court cases of the past century. Consider the following cases:

· Korematsu v. United States (1944) – the Court upheld the Japanese Internment under an Equal Protection Clause challenge.   The Court’s decision was based upon Hirabayashi v. United States (1943), where the Court employed judicial deference toward the government’s judgments about the danger posed by Japanese-Americans and the necessity of the Internment. 

· Brown v. Board of Education (1954) – the Court held that separate but equal school facilities violated the Equal Protection Clause.  This decision overturned Plessy v. Ferguson (1896), a precedent of nearly 60 years.  It had a radical effect on the law in many states. 

· Mapp v. Ohio (1961) – held that evidence seized in violation of the Fourth Amendment shall be excluded from evidence at trial.  The “exclusionary rule,” originally devised by the Court in Weeks v. United States (1914), is now the primary way that the Fourth Amendment is enforced.  It is not mentioned at all in the text of the Fourth Amendment.

· New York Times v. Sullivan (1964) – the Court required that public officials suing others for defamation must prove actual malice – a requirement that was not previously in the defamation torts.  This radically altered the defamation torts of libel and slander which had existed for centuries. 

· Griswold v. Connecticut (1965) – the Court struck down a law restricting contraceptives as violating the constitutional “right to privacy.”  The right to privacy was not explicitly mentioned in the text of the Constitution, but the Court held that it could be inferred by reading several of the rights in the Bill of Rights in combination. 

· Miranda v. Arizona (1966) – the Court held that the Fifth Amendment requires that a defendant be informed of his rights before being subjected to custodial interrogation.  The Fifth Amendment does not explicitly say this; the Court held that the clause prohibiting being forced to incriminate oneself required that defendants be warned about waiving their rights before being questioned.

· Katz v. United States (1967)  – the Court held that the Fourth Amendment protected against electronic eavesdropping even though it was carried out without a physical trespass into the home, dramatically reversing Olmstead v. United States (1928), a case decided nearly 40 years before.

· New York Times v. United States (1971) – the Court held that the government could not impose a prior restraint upon the publication of the Pentagon Papers.  The Court refused to defer to the government’s claim that the release of the Pentagon Papers would jeopardize national security.

What would a conservative process-based approach have meant for these cases?

Of course, the conservative process-based approach might not do anything to unsettle these opinions now based on its view about precedent. In this regard, the approach’s respect for precedent would dominate over the other two elements.

But my thought experiment is to imagine how a Supreme Court justice with a conservative process-based philosophy would have decided the above cases at the time they occurred, not how they would resolve the issues today with the precedents already on the books.

Would the justice have deferred to the government in Korematsu as the Court did? Would the justice also have deferred in the Pentagon Papers case unlike what the Court did? Adhered to precedent in Brown and Katz? Adhered to text in Griswold? Been reluctant to radically alter an ancient tort in New York Times v. Sullivan? Been reluctant to craft the exclusionary rule in Weeks and Mapp and reluctant to create the rule in Miranda? In these cases, would the approach have led to better constitutional law?

Anyway, I would be interested in a more concrete discussion of how the conservative process-based approach toward constitutional interpretation would have worked as an alternative to the interpretative approaches that were actually employed in the cases discussed above.

Posted by Daniel Solove at 12:05 AM | Comments (8) | TrackBack

A Reply to Richard Epstein on Genetic Testing

In his first post to the relatively new Chicago Law Faculty Blog (which has turned out to be a really interesting blog by the way), Professor Richard Epstein argues against my recent post about genetic testing in the workplace. Epstein disagrees with my general view that it is better to restrict employers from using genetic information in making employment decisions.

Epstein’s argument is based in part on his view that privacy is a form of misrepresentation, tantamount to a kind of fraud by concealing disreputable and harmful information. In this regard, he agrees with his colleague, Richard Posner, who makes a similar argument. If a person knows he will drop dead in a month from a fatal disease, it would be fraud to deliberately conceal this information on a life insurance application. So why not when seeking employment, Epstein asks, since employers often invest heavily in training a person?

Epstein contends that genetic information should not be treated differently than other information – there is nothing that makes genetic information any more special than other health information. He argues that “genetic information is in principle no different from any other kind of information that can be asked about a given person.”

Genetic information, however, is sometimes different than other forms of health information in that genetic testing often doesn’t reveal the presence of a particular disorder, just the fact that a person is at a higher risk than normal to develop such a disorder. People with genetic predispositions for certain disorders can be perfectly fine at present, and they may never develop the debilitating condition. Should they be treated disadvantageously because of the greater possibility of developing some future condition? In a way, they are being treated differently from others because we are better able to assess the risk for their potential health disorders. In other words, people with predispositions to develop genetic conditions often come with more information than people who might develop non-genetic conditions. The information becomes a curse, a form of baggage that can result (at least partially) in that person already being treated as if she has the condition she is predisposed for.

It is true that it is rational for employers to discriminate against people with genetic conditions. But I believe it is rational for society to limit the extent to which employers can discriminate on this basis and the extent to which employers can learn this information. That’s because the employer’s ability to make efficient business decisions is not the only social value at stake.

One countervailing social value is ensuring individual freedom and autonomy. Work for many people is more than just an income stream. It is a central part of their life. I, for one, do my job because I see it as essential to who I am, not because of the money, as I could be earning much more working for a law firm or in other position. Work isn’t just about “show me the money.” As I asked in my initial post, do we want a world like that in the movie Gattaca, where people cannot pursue their dreams because of genetic predispositions?

Another countervailing social value is privacy. In an article I published a few years ago, I took on Epstein on this point. There is a lot of information that employers might find useful in determining an employee’s health risks: her eating habits, sex life, family health history, hobbies (does she like to do risky things like skydiving?), financial condition, children’s health (after all, if an employee has an unhealthy child, this can detract from workplace productivity), and more. There are limits, however, imposed both by law and by social norms, on what employers can demand to know about employees. And for good reason. Even though the information might help the employer make a rational decision, we value privacy. Privacy certainly isn’t free – it comes at a cost, but that cost might well be worth paying.

Epstein also takes issue with the argument that without privacy, people will be deterred from undergoing genetic testing:

One argument is that people will shy away from finding out their genetic position if they are subject to the test. Don’t believe all this. By assumption, there is good reason to believe that the information that is acquired from genetic sources is of value not only to the employer but also to the employee. Suppose that a women has the gene that renders her susceptible to breast cancer, which if identified would allow for certain prophylactic choices. Does it really make sense to think that she would choose not to get that information if she had to disclose it to a prospective employer? Hard to believe that workers would take that kind of risk with their own lives.

Ultimately, the extent of deterrence is an empirical question that neither of us has the data to answer. Epstein makes his argument in terms of what the hypothetical rational person would do. And at that level, I can offer a counterargument. In his example of the woman getting genetic testing for breast cancer, he assumes that the woman would clearly not want to risk her life just to keep her job. But many people risk their lives for their jobs. Look at the soldiers in Iraq, police officers, firefighters, and others. Thus, it is not entirely clear that the rational person wouldn’t put her health at risk for her job. And people don’t always act as the rational economic actors as assumed by some law and economics scholars. There are many people who are already reluctant to find out information about their health, even when it could help them. Risking damage (or even an end) to one’s career can make this reluctance all the greater.

Posted by Daniel Solove at 12:04 AM | Comments (11) | TrackBack

In the Annals for Dumb Criminals

Tip: If you run a crack house, don’t put up a sign that says “Crack House” when you’re open for business.

According to the article:

Memphis police say brazen drug dealers are behind bars after a sting operation called "Operation Blue Crush". All is quiet at 3293 Rosamond. That's because the alleged gang members who took over the house are in jail. Police say the suspects were so bold they advertised the fact that this was a crack house. When they were open for business, they'd flip an address sign over that read "Crack house."

Posted by Daniel Solove at 09:30 PM | Comments (0) | TrackBack

The Philosophical Significance of the Repo Man

It is time to consider a much neglected topic in legal thought: the philosophical significance of the repo man. Aside from providing the grist for cult movies, the repo man also poses some very basic questions about the nature of the social contract and the autonomy of private law.

The twentieth century was not kind to the idea of private law. Starting with Holmes's "The Path of the Law" generations of American legal intellectuals have been trained to think of private law as a form of regulation basically indistinguishable from public law. To be sure, the distinctions continue as a matter of curricular convenience, but the almost universal assumption was that there is no real philosophical life in them and that in any case anyone who takes them seriously should be treated as a neo-Langdellian troglodyte. The last decade or so, however, has seen a renaissance in the philosophy of private law. Most dramatically, Ernest Weinrib has argued that private law represents a unique form of moral reasoning. Others have made less sweeping claims, while nevertheless arguing that private law possesses distinctive features that ought to give us pause about treating it as simply another species of regulation whose differences with public law are purely accidental or historical.

In his article on private law for the Oxford Handbook of Jurisprudence and the Philosophy of Law (where do they find these snappy titles?), Benjamin Zipursky argued that one of the key things that must be explained when looking at private law is the fact that it is organized around the idea of a civil cause of action. In other words, private law does not simply enforce social norms on human conduct. Rather, it gives someone who has suffered a legally cognizable wrong the right to pursue a remedy against the wrongdoer in court. Looking at the issue through the lens of classical social contract theory, Zipursky argues that in the state of nature people enjoy a natural right of self-help to extract compensation from wrong doers. The civil right of action represents an imperfect transfer of this right to the state. The state becomes the agent for deciding and enforcing legal claims, but the right to pursue (or not pursue) such claims remains with the individual. And this is where the repo man comes into the picture.

The law of private repossession is not something that most law professors think about. Rather, it gets relegated to a footnote in the class on debtor and creditor relations. Here is the basic gist of it: A person with a valid security interest in some piece of personal property has the right to take the property in the event of default on the loan that the property secures. You don't have to get a judgment or call the sheriff in. You can sneak into someone's car port in the dead of night, break into their unpaid-for BMW and drive it away. There are limits of course. The repo man cannot use any kind of physical violence to take the property, and he must retire in the face of opposition from the possessor of the property. Nevertheless, the repo man represents a form a pure self-help existing quite comfortably within our legal system.

Building on Zipursky's argument, the repo man is another bit of evidence for the thesis that private law represents a Hobbsian world of self-defense and self-help which is partially -- but only partially -- constrained by the state. Put in another way, the repo man represents the extreme ragged edge of the social contract where the distinction -- in Hobbsian terms -- between Leviathan and nature becomes porous. If the criminal law represents the pole of social regulation from which the private law has been viewed for a century or more (i.e. "Private law is not private but consists of the enforcement of purely collective norms"), then the repo man represents another pole from which we might look at the core institutions of property, contract, and tort, namely the world of self-help and the war of all against all.

Posted by oman at 01:50 PM | Comments (1) | TrackBack

Miers, Frum, Congress, and Respect

At National Review, David Frum's criticms of the Miers nomination continue apace. Frum is now discussing John Fund's op-ed from yesterday, which focused on a conference call where religious leaders were told about Miers' alleged beliefs about Roe v. Wade. If true, this creates a number of potential problems. Frum notes one particularly salient problem:

If Fund is right, the White House was acting in such a way as to persuade a group of religious leaders that they were being given more information on a nomination than would be given to the US Senate.

Such behavior, if true, would be inexcusable. Either the White House is giving religious leaders greater access to nominee information than Congress -- which would be outrageous. Or the White House is simply letting religious leaders think (wrongly) that they're getting more information than Congress -- which would be evidence of blatant hypocrisy, dishonesty, and deep contempt for its own supporters. Neither option looks good for the White House.

Probably the best way out is to hang the two call participants (who allegedly knew Miers' preferences) out to dry, painting them as rogue agents or loose cannon loudmouths. But can that be done -- to two close Miers associates -- without negative consequences for Miers herself?

Posted by Kaimipono at 01:03 PM | Comments (0) | TrackBack

Preparing for the Flu

A very frightening link from Writing for the Web: Preparing for the Coming Influenza Pandemic.

Among the tips: Get a vaccine (even of the regular flu); stockpile Tamiflu; keep extra supplies of food and water; find a safe rural area to avoid the riots.

And make sure that your will is up to date.

Posted by Kaimipono at 12:52 PM | Comments (0) | TrackBack

A Day in the Life of Blogging

Wake up
Check email
Check blog – see if co-bloggers have posted anything and read comments to posts
Check site meter stats – see how many people visited and who’s linking to the blog
Check Technorati – see who’s linking to the blog
Check out blogs linking to the blog
Check The Truth Laid Bear – see the latest ranking of the blog
Check other blogs for ideas for blog posts
Check news sites for ideas for blog posts
Write blog post
Check email
Check blog
Check site meter
Lunch
Check blog
Check email
Check site meter
Check blogs and news websites
Write blog post
Check Technorati again
Check email again
Check site meter again
Dinner
Check blog
Check other blogs
Think of ideas for tomorrow’s blog posts
Check email
Check Technorati
Check out blogs linking to the blog
Check site meter
Bedtime

Repeat the above for life . . . .

Posted by Daniel Solove at 12:01 AM | Comments (27) | TrackBack

More Kelo at Barros-blog

Readers itchy for their next fix of Kelo-blogging should check out PropertyProf, where Ben Barros is now discussing the Berman conference notes. Between this post and his prior post on Midkiff conference notes, Ben is opening up many interesting new questions about the validity of the conventional wisdom (that because of Berman and Midkiff, Kelo was inevitable).

Posted by Kaimipono at 08:59 PM | Comments (0) | TrackBack

Naked celebrities make the best magazine covers

The American Society of Magazine Editors has chosen the best magazine covers of the past 40 years. In first place is the Rolling Stone cover featuring a nude John Lennon In second place is the Vanity Fair cover featuring a nude Demi Moore. I think I'm seeing a trend here -- for great magazine covers, take pictures of nude celebrities! (Nude Dixie Chicks, however, were only #27).

And since you're wondering, the classic New Yorker cover came in fourth overall.

Posted by Kaimipono at 07:57 PM | Comments (0) | TrackBack

Fund on Miers

A number of prominent conservative pundits – among them George Will, Bill Kristol, Ann Coulter, Rush Limbaugh, Michele Malkin, and Charles Krauthammer – have publicly opposed the Harriet Miers nomination. However, the nomination has been supported by some social conservatives including Hugh Hewitt and James Dobson. In today’s WSJ, John Fund suggests one reason why some social conservatives might be supporting Miers:

On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. One of the people on the call took extensive notes, which I have obtained. According to the notes, two of Ms. Miers's close friends--both sitting judges--said during the call that she would vote to overturn Roe.

If this is accurate, how does it change the calculus? (And how can we gauge its accuracy?)

Perhaps this information brings conservatives on board. If Roe is a trump card, perhaps a guaranteed no-on-Roe overrides concerns about her views in other areas, or about her lack of a paper trail, or even about her SMU sheepskin. On the other hand, perhaps this information only serves to drive away moderate supporters. Does Harry Reid still support her candidacy now?

And is it possible that Dobson has managed to torpedo Miers' candidacy by his earlier declaration that "I know something secret," which (perhaps) brought Fund in to investigate in the first place?

Posted by Kaimipono at 06:11 PM | Comments (2) | TrackBack

The Two Towers

Dan S. has already given good advice on what to say at the AALS. (A partial dissent by Paul Horwitz posits that brilliance is overrated). The web already contains a plethora of good advice, from sources like Brian Leiter (here) and Gordon Smith (here). My goal in this post is more limited. I hope to strike the right amount of terror into candidates' hearts as they contemplate the destructive force weilded by The Two Towers.

Since time immemorial, the meat market has been held in Middle Earth, a location dominated by two towers: The Wardman Tower, which is inhabited by Saruman the White, and the Park Tower, which is inhabited by the Dark Lord Sauron. The approximate walking time from the base of one tower to the base of another tower is four to six minutes. The approximate mad-dash time from one to the other is about three minutes. Rumors persist of particularly desprate and speedy candidates who have clocked in at under two minutes, but attempting such velocity is not recommended.

Given the geography, if you are a meat market candidate, you should bear in mind a few quick navigation tips regarding the two towers:

1. At some point, you will learn the locations of your interviews. The most important digit of a room number is the second. The second number of a suite tells you what tower the room is in:

Room 8320 = Floor 8, Wardman Tower, Suite 20
Room 8020 = Floor 8, Park Tower, Suite 20.

The approximate transit time between 8320 and 7320 is one minute. The approximate transit time between 8320 and 8020 is eight to ten minutes.

2. The elevators are not fast. In fact, they are preternaturally slow. I cannot stress this point enough. You cannot depend on elevator speed.

It can take up to a full five minutes for an elevator to go up to, or down from, the eighth floor of any tower. This is because there is a limited number of elevators -- three in one tower and six in the other, as I recall -- and they will stop on every floor. Thus, if a candidate arrives at the elevator bank at the wrong time, she will have to wait as elevators stop every floor on the way down, then on the way back up to her, and finally back down again.

Why do the elevators stop on every floor? Because there are so many interview suites on every floor, and because each suite is both entering and exiting candidates. Thus, it is all but guaranteed that there will be someone wanting to go up (and down) at floor 3, floor 4, floor 5, floor 6, and so on. With someone pushing the button at every floor, they'll stop at every floor -- in effect, the elevators become Sabbath elevators. And because they stop at every floor, you have zero chance of a quick ride down from the eighth floor.

3. This means that you should never schedule a back-to-back between towers if you can help it. (That is, don't schedule a 3:00 in the Park Tower and a 3:30 in the Wardman). And in particular, avoid scheduling high floors of competing towers in back to back slots. Avoid the 8348 to 8032 dash like the plague -- you just won't make it in five minutes.

That said, sometimes you'll have no choice. You may have set up these interviews before finding out the room number. Or you may have no other options for that particular slot -- the University of Poughkeepsie calls late in the game, and the only mutually open slot is Friday at 3:30, which is back-to-back with a competing tower.

If this happens, you'll need to make decisions. First, you decide how much you value each school, comparatively. Second, you'll have to make a spot judgment during the earlier interview. If the first interview is going well, and you like the earlier school better, then you stick out that interview and show up slightly late to the second. If the first interview is going poorly, and you didn't like that school much anyway, then you excuse yourself a few minutes early.

And if your first interview is going well, but you also like the second school quite a bit?

Each hobbit answers that question differently.

Posted by Kaimipono at 04:53 PM | Comments (3) | TrackBack

Exponential Growth of Blogospheric Proportions

The blogosphere is big . . . and it's getting bigger. According to today's post by David Sifry of Technorati, who periodically issues reports tracking the growth of the blogosphere:

• As of October 2005, Technorati is now tracking 19.6 Million weblogs
• The total number of weblogs tracked continues to double about every 5 months
• The blogosphere is now over 30 times as big as it was 3 years ago, with no signs of letup in growth
• About 70,000 new weblogs are created every day
• About a new weblog is created each second
• 2% - 8% of new weblogs per day are fake or spam weblogs
• Between 700,000 and 1.3 Million posts are made each day
• About 33,000 posts are created per hour, or 9.2 posts per second
• An additional 5.8% of posts (or about 50,000 posts/day) seen each day are from spam or fake blogs, on average

Sifry says that a big growth area for blogs is China. Also note his estimate that between 2% to 8% of new blogs are splogs, which are the fake spam blogs I just posted about.

Posted by Daniel Solove at 01:14 PM | Comments (0) | TrackBack

Splogs

What's a "splog" you might ask? It's the newest kid on the block, the ugly offspring spawned when spam and blogs mate. As one blogger describes them:

Splogging is a term coined by Mark Cuban to describe blogs with no added value, existing solely to trick people into visiting and exposing them to advertising. Splogs are often encountered in two ways: by searching for a key word on a search engine, or receiving it as a fradulent hit through your RSS aggregator. More often than not, they're automated, linking to countless blogs and other websites, using keywords selected solely to attract more eyeballs and click-throughs for their advertising. And automation means that splogs are being created at a dizzying pace, to the point that when you do a search for almost any term, you're bound to get a bunch of hits that are nothing but money-hungry splogs.

Yes, the person who coined the term "splog" is Mark Cuban, the owner of the Dallas Mavericks basketball team.

Splogs are used to increase the page ranking of a website in Google. It is a way to game the Google system, to get one's website to appear higher up on the result list for particular searches. Splogs work by generating a lot of links. They are not real blogs; instead, their content is generated by randomly grabbing chunks of text from other blogs. And they are easy to create, given that Google's Blogger service allows anybody to create a blog for free. They are often constructed automatically by computer programs. Here's an image of part of what appears to be a splog:

Thus far, the best article I've been able to find about splogs is one by Online Media Daily. According to the article:

To keep itself alive, a splog will crawl the Internet using directories, search engines, RSS feeds, etc., collecting information to give the appearance that a real person is adding content. In many cases, this involves automated "theft" of original and often copyrighted content from other authors, without their knowledge, permission, or even attribution.

There are lots of different kinds of splogs that have different ways to disguise themselves as real blogs, but commonly they contain key search terms repeated dozens or even hundreds of times. One researcher did a test on a "Dance teaching" spam blog, where the word "dance" was found 948 times on a single page. The total number of words on the page was around 2048. That means half of the page was "dance." Splogs often send any human visitor to an entirely different site, either through clickable links, or the more annoying practice of automated redirects.

To give you an idea of the magnitude of the problem, in the United Kingdom there is a company with over 15,000 spam blogs at last count. There were well over 10,000 spam blogs on BlogSpot alone related to the Triple Crown horse races. Of course, each time a visitor clicks on a paid search term, the advertiser pays for it and the "splogger" gets a revenue share.

There's a website where readers can report splogs called Splog Reporter. But what I can't seem to figure out is exactly what happens when a blog gets reported as a splog to this website. What are the consequences? I wonder whether this website will be an effective way to combat splogs.

Over at the Privacy and Security Law Blog, Lance Koonce proposes:

But how about taking it a step farther with a take-down system along the lines of that employed under the Digital Millenium Copyright Act, but implemented by the major blog hosts. The system would not be triggered by infringing content, but rather by the absences of content. Under a take-down system, if I identify a splog I would send an email to the host (even better --and probably unrealistic -- the host could require a “Click Here if You Think This is a Splog” button on every site, or something similar to the "Flag as Objectionable" icon on the Blogger NavBar could perhaps be utilized) and the host would automatically send a notice to the splog owner requiring a response explaining that the site is not a splog.

In a perfect world, this notification/response system would be designed in such a way that the responses themselves could not easily be automated. If no response is received, the splog would be taken down automatically. If a response is received, the host company would have to actually take a look at the site and make a determination whether or not the site is a splog.

Koonce recognizes some of the problems with his solution:

This is, of course, where it would get tricky, and where the hosts may balk – reviewing individual sites is time-consuming and expensive. Also, how does a host determine what constitutes a blog – no original content, less than 10% original content? Whatever definition is decided upon, that definition would then have to become part of the host’s terms of use, but the line-drawing would still be difficult.

Unfortunately, I'm not sure that there is an easy solution, and I think we're going to be hearing more about splogs in the future.

Posted by Daniel Solove at 01:02 PM | Comments (2) | TrackBack

Law Teaching Interview Advice

The AALS law teaching interview season will be commencing soon, and since a number of our readers will be interviewing for law teaching jobs, here are a few quick words of advice.

First, keep in mind that your interview lasts only for 30 minutes, and the law professors interviewing you will be interviewing dozens of people. They will be cooped up in a stuffy room all day, meeting one bright-eyed candidate after the next. Only a few of these scores of people will be invited back to the law school for a full all-day interview. This means that at the end of the day, your 30 minutes needs to be memorable. You need to make an impression on them. But what kind of impression?

Here's the ideal impression, in my opinion, that you should create:

(1) You are a true intellectual, who is a thoughtful and careful thinker.

The interviewers are trying to imagine you as a law professor. They don't want a political hack; instead they want a scholar. They want somebody who is genuinely interested in thinking about things, not just winning an argument. The interview isn't an argument before a court. You don't have to have all the answers. Instead, you want to convey that you think deeply about issues, that you understand the problems in your positions, that you have an intellectual curiosity. The interviewers don't expect you to have it all worked out and the answers to every issue that you're thinking about. They want to see whether you think about things in an open-minded and thoughtful way. It's more impressive to demonstrate how you wrestle with issues rather than how you think you have conquered them.

(2) You have a coherent sch