« October 23, 2005 - October 29, 2005 | Main | November 06, 2005 - November 12, 2005 »

The Pretexual Prosecution of an Adult Webmaster

Eric Goldman (law, Marquette) has a very interesting post about the arrest and prosecution of the operator of an adult website where users could upload photos of people having sex. Goldman writes:

On October 7, Wilson was arrested by Florida state police and charged with 301 counts of obscenity (each of 100 photos have been charged with distribution, offering to distribute and conspiring to distribute; plus a bonus felony charge of wholesale distribution). My understanding is that the subject photos were all user-uploaded and that the charges are all based on state law (not federal law).

Let's assume the photos are truly obscene. This assumption may be questionable; the probable cause report indicates that they are extremely hard-core pornography but not out of the ordinary. But even if the photos are obscene, I simply can't understand this prosecution. If the photos are user-uploaded, then all state anti-obscenity laws trying to hold the webmaster liable for them should be preempted by 47 USC 230.

Wilson, the website operator, also allowed military personnel in Iraq and Afghanistan to load up photos of enemy corpses. Goldman writes:

There has been some speculation that Wilson has been singled out for prosecution because some in the military are unhappy about this aspect of his website.

If this is true, then the state prosecutors are engaged in a truly egregious abuse of their power--trying to censor socially-protected speech through an unrelated criminal prosecution.

Eric Goldman and I rarely agree on many issues, but I agree with him here that this prosecution is very troubling. I also think that Eric's blog is terrific, and it is well worth checking out.

Posted by Daniel Solove at 12:28 PM | TrackBack

Sony's Secret DRM and the Power of the Blogosphere

Sony BMG Music Entertainment placed Digital Rights Management (DRM) software onto its CDs in order to prevent people from copying the music on their computers. The software restricts the number of times that a person can copy a CD on his or her computer. According to a BBC article:

About 20 titles are thought to be using the XCP software and in May 2005 Sony said more than two million discs had been shipped using the technology. XCP is just one of several anti-piracy systems Sony is trying.

XCP only allows three copies of an album to be made and only allows the CD to be listened to on a computer via a proprietary media player. The hidden files are installed alongside the media player.

Sony had been using the software for about 8 months, until Mark Russinovich, a computer expert and blogger, discovered it and blogged about it on October 31, 2005.

According to an article in USA Today:

The controversy started Monday after Windows expert Mark Russinovich posted a Web log report on how he found hidden files on his PC after playing a Van Zant CD. He also said it disabled his CD drive after he tried to manually remove it.

Russinovich made the discovery while running a program he had written for uncovering file-cloaking "RootKits." In this case, the Sony program hid the anti-piracy software from view. Similar technology also has been used by virus and worm writers to conceal their code.

A firestorm quickly erupted over what appeared to be an attempt by the music company to retain control over its intellectual property by secretly installing hidden software on the PCs of unsuspecting customers.

Sony's End User License Agreement (EULA) said that software will be installed into people's computers, but it did not mention that it would be hidden or hard to delete.

According to the BBC article, there was reason for computer users to be concerned about the hidden files:

Mr Russinovich feared that diligent users trying to keep their systems clean of viruses could stumble across the hidden XCP files, delete them and inadvertently cripple their computer.

His worries were echoed by Mikko Hypponen, chief research officer at Finnish security firm F-Secure, who has been looking into XCP since he first came across it in late September.

"What we are scared of is when we find a new virus written by someone that relies on the fact that this [XCP] software is running on tens of thousands of computers around the world," he said. "The rootkit would hide that virus from pretty much any anti-virus program out there."

After Russinovich blogged about finding the Sony software, the blogosphere erupted into action. According to a Reuter's article:

Within 24 hours, online tech-news sites including SlashDot and CNet had posted news about Russinovich's account. And by November 2, Sony BMG had posted instructions on its own site (cp.sonybmg/xcp) for removing the DRM.

This incident raises a number of interesting issues.

First, to what extent are Sony's disclosures about the software adequate? This could potentially be a violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. §1030. I'm no expert here, but the Act prohibits different forms of unauthorized access to computers. For example the CFAA prohibits knowingly transmitting “a program, information, code, or command” or “intentionally access[ing] a protected computer without authorization” that causes damage to a protected computer. §1030(5)(A)(i).

An interesting discussion about the issue has emerged on Eric Goldman's (law, Marquette) Technology & Marketing Law blog. According to Goldman:

Sony has the right to protect its music via DRM. Doing so may require the installation of client-side software. Sony has disclosed the install in the EULA. It seems like everything is legally kosher.

(One possible angle I haven't seen addressed: when was the EULA presented, and what happened if a buyer balked at the EULA? In the context of a CD, it may be that the EULA wasn't presented until after purchase. If the EULA doesn't allow for a refund if the buyer doesn't agree with its terms, the EULA disclosure may be too late from a legal standpoint).

According to the EULA:

As soon as you have agreed to be bound by the terms and conditions of the EULA, this CD will automatically install a small proprietary software program (the “SOFTWARE”) onto YOUR COMPUTER. The SOFTWARE is intended to protect the audio files embodied on the CD, and it may also facilitate your use of the DIGITAL CONTENT. Once installed, the SOFTWARE will reside on YOUR COMPUTER until removed or deleted. However, the SOFTWARE will not be used at any time to collect any personal information from you, whether stored on YOUR COMPUTER or otherwise.

Although this informs people that software will be installed into their computers, it doesn't tell them much about the software, the fact that it is hidden, or the fact that it is very hard to remove or delete.

One issue is whether making the software hidden and difficult to delete constitutes "exceeding authorized access," which is also prohibited under the CFAA. People may authorize limited access to their computers, but that doesn't entitle one to have permanent access. If the software is hidden from view and extremely difficult to get rid of without causing damage, is it designed to stick around beyond what users are authorizing?

Second, how far can companies go in using DRM to protect their copyrights? This incident might very well run afoul of the law because Sony may not have made adequate disclosures to CD users. But what if Sony did clearly and explicitly disclose the facts about the software? Any potential CFAA violations would now be significantly harder to make.

Third, this incident displays the power of the blogosphere. Mark Russinovich's post ignited an uproar across the blogosphere, the mainstream media picked up the story, and Sony quickly responded.

Posted by Daniel Solove at 11:41 AM | Comments (6) | TrackBack

Finding Dad with a DNA Database

An interesting story from the N.Y. Daily News by Corky Siemaszko, with a soundbite from me:

Using his own spit and the Internet, a tech-savvy teenager tracked down the anonymous sperm donor who is his biological dad. . . .

"It shows that anybody can be a high-tech sleuth in this age," said Daniel Solove, a professor at the George Washington University Law School and author of "The Digital Person: Technology and Privacy in the Information Age." . . .

Sometime last year, the boy sent a swab of saliva and $280 to www.FamilyTreeDna.com, a DNA database that traces family trees - and is popular with descendants of Holocaust survivors looking for lost kin. . . .

Nine months later, the teen was contacted by two men who had registered with the site and whose Y chromosomes appeared to be close matches to that of the teen. Y chromosomes are passed down from fathers to sons.

Their surnames were the same, but spelled differently. So the teen went to another Web site, www.Omnitrace.com, where he plugged in the few details he got from the fertility clinic about his dad -- date and place of birth, his college degree. A few keystrokes later, he knew which one was his dad. . . .

More details on how the boy tracked down his sperm-donator father are included in this article from The Times (UK):

Though the biological father had never supplied his DNA to the site, his Y chromosome profile, shared by his son and closely matched by the two other men, suggested they must be related. The similarities in Y chromosomes between the teenager and the two men revealed a 50 per cent chance that all three had the same father, grandfather or great-grandfather.

According to New Scientist, which is publishing the report this week, both men who contacted the teenager had the same surname, although with different spellings.

Using this information, he then used a second website, www.omnitrace.com, to compare the surname with the few details of his biological father given by the fertility clinic, which include date and place of birth, and his college degree. The search brought up a match for his father.

Posted by Daniel Solove at 12:20 AM | Comments (0) | TrackBack

When the review just isn't expedited enough

Via a reader comes this query (with details murkified for obvious reasons):

Let us say that Levinson receives an offer from the Basic Law Review (BLR), set to publish in spring 05. BLR tells Levinson that they expect their issue to go out in March 2005. Levinson turns down competing offers to accept the offer from Basic L. Rev.

Levinson waits for the follow-up. And waits. And waits. By late February, Levinson still hasn't heard any follow-up. An e-mail draws no response. Levinson pokes around on the BLR website. It seems to indicate that they still have not published the first issue for their 2004-05 volume.

Levinson sends another e-mail to BLR, asking when they expect to publish the spring 05 issue. BLR article editor at last responds, indicates that in fact they are at least several issues behind, and that they can't give any estimate for when the spring 2005 issue will be published. It might be a full year late; perhaps more.

Would Levinson be justified at this point if she chose to withdraw her article entirely and re-submit it elsewhere? Should she approach the journals that had previously made her an offer on the piece? If she did so, would she be subject to blackballing, as a contract-breaking author?

Or does the article at some point become "available" once again due to the journal's foot-dragging?

I'll stop at this point to mention explicitly that I've never had to deal with this problem myself. My own experiences with American and Wisconsin were both great, and USF has already sent me a follow-up. Levinson is not me. Levinson does, however, exist.

My sense is that at some point, a journal may lose its exclusive publishing rights by failure to meet its own obligations to publish reasonably quickly.

After all, if Levinson does have the ability to escape at some point due to unreasonable delay, then she will suffer real harm. This may be exacerbated depending on her circumstances. She may be a junior professor up for tenure, or a new entrant on the market. Or perhaps the piece is a crucial step in her research agenda, setting out a theoretical framework on which her future articles will rest, and she cannot continue the arc as this piece remains unpublished. Given the possibility of real harm to her, I think that there has to be an ability to escape the contract due to delay.

On the other hand, such a right should not be overly broad. Authors should not have a unilateral right to back out of their contracts at the first hint of lateness. Many journals are a few weeks or a few months late. Being part of a January book that comes out in March never killed anyone. Too strong of a withdrawal right would allow authors to unfairly game journals, and back out of commitments, using delay as a pretext, in order to further play the placement game.

So where, exactly, is the dividing line between acceptably and unacceptably late? I'm not entirely sure, but my instinct is to call it a one-year bright-line rule: If the journal is unable to put a published article into an author's hands by one year after the date of acceptance, the author should be able to look elsewhere.

This line would be subject to reasonableness, of course. There's nothing magical about the one-year mark. If the piece is in final proofs at the 1-year mark, there is no strong reason to let the author pull it; it will be in print soon anyway.

The real bite of a one-year rule would come into play a few months before the deadline. Around the 8 month mark, if no progress has been made, it becomes clear that the book will not be published by the one-year deadline unless the journal begins work on it right then, and works on it nonstop until publication. Thus, at that point -- if the work on the article has not yet begun -- the author should be able to demand confirmation and evidence that the article is indeed moving forward. And if it is not, she should be able to withdraw.

Anyway, that's just my own instinct. I'm sure that someone disagrees with me. Am I being too harsh on the journals? Too easy on them? Feel free to let me know in the comments; perhaps we'll figure out the community consensus (if there is one) on this topic.

(UPDATE: P.S. If you're reading this and you're an Articles Editor at a top-25 journal, please be aware that this post is in no way an indication that I would ever back out of a commitment with your journal. This discussion is purely theoretical. So feel free to make me wait longer than a year -- after you accept my article, that is -- and I promise, I won't even try to back out!)

Posted by Kaimipono at 05:21 PM | Comments (2) | TrackBack

A jury is a jury is a jury is a jury... (or not)

Dave's post in defense of juries reminds me of one of the things that I dislike about our current debates over the jury system. Too often, the issue is presented in terms of a stark choice between judges as fact finders or juries as fact finders. The problem, of course, is that these choices do not exhaust our alternatives. For example, we might have -- as they do in some civil law systems -- a jury that deliberates in the presence of the judge, who acts as a kind of foreman. This might be a good way of getting at the problem of juries misunderstanding complex legal instructions.

One of the best criticisms of juries, I think, is that they are basically ignorant about some of the complex issues that they are called upon to decide. The problem, of course, is that judges are frequently just as ignorant. Karl Llewellyn once suggested a way of splitting the difference on this point. Borrowing from the lex mercatoria, he suggested that commercial cases be decided by merchant juries. The idea was that you would get expertise as well as community involvement. Ultimately, the Commission on Uniform State Laws shot down the idea, and hence it never made its way into the UCC. Still, it is a useful reminder that there are more juries in heaven and hell than are dreamt of it ATLA's or ATRA's philosophies.

Posted by oman at 03:04 PM | Comments (0) | TrackBack

Lithwick's Real Problem

Dahlia Lithwick's article in Slate today makes, I think, an excellent point about the nature of the current debates over judicial nominees. She points out that the public discussion of the judiciary is, broadly speaking, dominated by the right, and that the left has yet to offer a similarly compelling script of what all of the fighting is about. She writes:

I won't credit the efforts of the Democrats on the judiciary committee to see into John Roberts' heart, or probe whether his kids play soccer with poor immigrant children, as efforts to put forth a competing jurisprudence. Those questions were clumsy proxies for the clumsy theory that judges should just fix life for sad people. I am calling for something else. It's time for Senate Democrats to recognize that a) there is a national conversation about the role of judges now taking place; and that b) thanks to their weak efforts, it's not a conversation—it's a monologue.

What Lithwick wants is for someone to step forward and offer a compelling defense of the various versions of judicial humility in vogue amonst the legal left at present. The problem with this, she claims, is that "There's no cheap sound bite for Justice Stephen Breyer's notion of "active liberty" or for Cass Sunstein's program of judicial "minimalism" or Jack Balkin's principled "centrism." Or perhaps there is a cheap sound bite embedded in those ideas—it simply hasn't been excavated yet."

I had two reactions to Lithwick's article. My first is that it repeated the rather lame liberal trope that their arguments lack traction with the public because they are just too dang complicated and nuanced. The problem with this apologia, of course, is that contrary to how they are portrayed by Lithwick and others, the various judicial philosophies on the right are complicated and nuanced as well. The difference is that the right has found ways of boiling its philosophies down to meaningful slogans. Lithwick doesn't really acknowledge this fact, largely because one suspects that she thinks that conservative judicial philosophies are sound-bite smokescreen for a regressive political agenda rather than jurisprudential theories. In other words, what Lithwick takes to be evidence of bad conservative theorizing is simply evidence of good conservative communication, and what she takes as evidence of superior liberal nuance is simply evidence of inferior liberal communication. Or so say I.

My second reaction is that the real problem for the left is Roe. Principled centrism and judicial minimalism are all well and good, but Roe is not a product of such philosophies. Rather, Roe comes from a different intellectual world, ultimately the world of the Warren Court and its faith in the ability of the judiciary to be a powerful engine for progressive change. Hence, minimalism and centrism can serve as conservative justifications for keeping Roe in place. They can't tell us why Roe was a good idea in the first place. This is an inherent rhetorical weakness in the current liberal position.

Ironically, it seems to me that the liberal argument for centrism and minimalism would be much more powerful in a world in which Roe was not hung around the neck of the legal left.

Posted by oman at 03:00 PM | Comments (1) | TrackBack

Is Alito Strongly Pro-Privacy?

An interesting report written by U.S. Supreme Court nominee Samuel Alito has surfaced from 1972 entitled The Boundaries of Privacy in American Society. In the report, Alito takes a very strong stance toward privacy. Here are some of the highlights:

· "At the present time . . . we sense a great threat to privacy in modern America; we all believe that the thret to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy."

· "We believe the potential for invasions of privacy through the use of comptuers is so great that all private computer systems should be licensed by the federal government."

· "[W]e are convinced that in recent years government has often used improper means to gather informtion about individuals who posed no threat either to their government or to their fellow citizens. . . . Most of the problem in this area involves surveillance by the federal governemnt of persons it believes to be subversive. In general, this is the province of the Federal Bureau of Investigation and it is completely improper for the Central Intelligence Agency to enter the field as it has apparently done in recent years. It is also quite wrong for military intelligence to get deeply involved in domestic surveillance."

· Alito calls for strengthening the privacy protections of federal electronic surveillance law. He calls for shortening the period in which court orders can allow the government to engage in surveillance; and he recommends adding provisions to the law to regulate surveillance even when one party to the communication consents.

· "The Conference believes that no private sexual act between consenting adults should be forbidden."

· "We propose the following measures to prevent invasions of privacy by private consumer reporting agencies: 1. only "hard," factual verifiable data should be collected; 2. only authoritative sources, such as employers, doctors, and public records should be consulted to obtain information; 3. only "relevant" information should be collected; 4. the qualified privilege against libel and defamation suits now granted to consumer reporting agencies should be rescinded."

What conclusions should one draw from this report?

The report was written over 30 years ago, so it is unclear whether it reflects Alito's current views. The views expressed in the report reflect the great concern over privacy in the 1960s and early 1970s that swept over the country in the early days of the computer. Alito's views were thus not uncommon at that time.

The report appears to be written on behalf of "The Conference on the Boundaries of Privacy in American Society," and Alito is the group's chairman. Thus, he may simply be reporting the group's conclusions, not his own personal convictions.

In the end, I don't give this report much weight in evaluating Alito's views, but it is an interesting document nonetheless.

Posted by Daniel Solove at 02:57 AM | Comments (5) | TrackBack

Microsoft: A Pro-Privacy Company?

Microsoft has recently announced that it supports comprehensive national privacy legislation. According to a white paper by Microsoft Senior Vice President and General Counsel Brad Smith:

Over the past few years, however, several factors have altered the privacy landscape in such a way and to such a degree that we now believe the time has come to support national privacy legislation as a component of a multifaceted approach to privacy protection. As a strong supporter of free-market solutions, Microsoft did not come to this decision without careful consideration. But it is one we now believe is the right course in order to provide meaningful protections for individuals, while avoiding unnecessary obstacles to legitimate business activities.

I applaud Microsoft's shift from calling for self-regulation to calling for comprehensive privacy regulation. I have long believed that self-regulation has not worked effectively.

My main concern with Microsoft's proposal is its call for federal preemption of state regulation:

To address the current patchwork of state and federal law, federal privacy legislation should pre-empt state laws that impose requirements for the collection, use, disclosure and storage of personal information. Only a uniform national standard can address the complexities, inconsistencies and incompleteness of current laws, and bring the clarity and consistency needed to benefit consumers and businesses.

Federal legislation must do more than just create a “floor” above which states are free to impose additional requirements. . . . The only realistic solution that protects consumers, while minimizing the operational burdens on responsible businesses, is to adopt a nationwide privacy standard. That standard should certainly be robust, but it should apply uniformly.

Although I'm sympathetic to business concerns about dealing with many different state standards, I am wary of federal preemption for several reasons.

First, many of the most innovative solutions to privacy problems have emerged at the state level. The data security breach notification emerged in the states, not in Congress.

Second, Congress has often been slow to respond to privacy problems. Congress is still wrangling out a response to the litany of data security breaches that occurred earlier this year. A number of states had strong protections against identity theft in place long before; and many quickly passed legislation afterwards while Congress spun its wheels. Things seem to get done at the state level. They don't seem to get done in Congress.

I used to quickly dismiss notions of federalism and extolled the efficiency and power of national laws. But I've increasingly warmed to the virtues of giving states more power to experiment with regulation, even when it can be less efficient and more unweildy. That's because in the privacy field, states have been more creative, more effective, more responsive, and more expeditious.

Third, the preemption power is often seized upon by companies as a way to reduce privacy protection rather than increase it. Thus, a low federal standard replaces and preempts stronger state standards, thus locking in a uniform weak standard. From my experience following privacy legislation thus far, it appears that many states have produced more balanced laws. Of course, a truly strong and effective federal standard would be welcome, but I'm increasingly wondering whether that's just a dream.

So part of IBM's call may be answered -- we'll get a federal standard that preempts state laws -- but it could be a low and ineffective standard that will lead to a net reduction in privacy protection. I don't believe that this is what IBM wants -- IBM strikes me as acting in good faith -- but it may be what the process ultimately yields after companies in countless industries deploy their lobbyists to tenderize any comprehensive federal privacy bill.

Therefore, I view Microsoft's new pro-privacy stance with great enthusiasm, but also with some trepidation.

See also Chris Hoofnagle's blog for a good discussion of the issue.

Posted by Daniel Solove at 12:50 AM | Comments (0) | TrackBack

Fantasy Law School League

Folks have joked about the idea of running a "Fantasy Law School" league (a la a fantasy football league) for some time now. But the recently-posted Leiter rankings, combined with USNews and a wealth of statistics (pseudo and otherwise), indicate that we are entering a brave new era in the evaluation of law school quality and talent. No more fuzzy and impressionistic scouting of talent; bring on the new and more scientific "Moneyball" approach. Herewith, some proposed rules (comments and suggestions welcome):

1. Season: 1 year, starting Sep. 1

2. Maximum 10 law schools per league, 15 law professors per school.

3. Required positions: Dean, Contracts, Property, Torts, Civil Procedure, Criminal Law, Constitutional Law, Corporations, Evidence, Tax, Junior Faculty Member (less than 5 years), Student Body (pick school). Remaining positions are optional, but must be in different subject matters. Subject matter positions are for teaching, and may be completely disconnected from research.

4. Statistics:

(a) donations: $200k = 1 point.
(b) citations: 1 cite in Westlaw's JLR or SCT = 1 point.
(c) ssrn downloads: 10 downloads = 1 point. (gaming of downloads will result in forfeit).
(d) law review articles: top-10 journal = 10 points. 10-30 journal = 5 points. remaining = 1 point.
(e) books: top-5 academic press = 20 points. casebook, new = 10 points, new edition = 5 points. all others = 1 point.
(f) entering class median LSAT: 170-180 = 10 points, 165-170 = 5 points, 160-165 = 1 point.
(g) entering class median GPA: 3.8-4.0 = 10 points, 3.6-3.8 = 5 points, 3.4-3.6 - 1 point.
(h) blogging: 20 posts = 0 points. 40 posts or more = -1 point.

5. Multiplier: points will be doubled for junior faculty (under 5 years)

6. Draft: date: August 1. random initial order, S-draft (e.g. first round: 1,2,3 ... second round: 10,9,8 ...).

7. Trades: no limits on number of trades. trades may be vetoed w/in 2 days by vote of 50% of other players.

8. Waivers: players may pick up unclaimed professors at any time, subject to maximum professor limit.

Now if only we could get someone to write a program to track this ...

Posted by Joseph_Liu at 11:25 PM | Comments (7) | TrackBack

Stealth Legislation

Want to pass a controversial law? Why debate it? Why discuss it? Why hold hearings about it? Just slip it into a massive budget bill that nobody could possibly vote against. And it gets through.

I don't know if such a technique has a name, but I'd call it something like "stealth legislation." It is the tactic of attaching a particular legislative measure to a bill that's sure to pass. This what is happening with the 9th Circuit split. The 9th Circuit is a large unweildy federal court covering the entire West Coast. For years, proposals to split it up have been discussed, but little progress has been made. That's because California accounts for the lion's share of the cases, nobody wants to split off California into its own circuit court, and nobody wants to split California in half or into pieces. The problem has been difficult and there's been a big struggle over resolving it.

But instead of debating the issue, of resolving it through a legitimate legislative process, some in Congress have chosen a different approach:

Their proposal to split the 9th U.S. Circuit Court of Appeals stalled in the U.S. Senate last year. So House Republicans have taken a new approach this year: Attach a split proposal to a provision for new judgeships and tuck it into a $35 billion spending-cut bill.

While the House voted last year to split the 9th Circuit, the Senate blocked a similar bill, with even some Republicans voting against it. So the latest split proposal is structured to sidestep debate in the Senate Judiciary Committee and discussion on the floor, reaching the Senate only in the budget conference committee.

The Real ID Act was another example of this tactic. Instead of hearings or deliberation, it was passed by inserting an amendment into a funding bill that would have been political suicide to vote against.

These tactics strike me as despicable. They cut against most reasons why we view the legislature as a legitimate lawmaking institution. When legal process theorists point out the virtues of the legislative process vis-a-vis the judicial process, they point to the fact that Congress holds hearings, debates about an issue, and then the elected representatives vote on the merits of the issue. But all of these things are not occurring with this tactic of stealth legislation. Stealth legislation is akin to pork barrel -- a gamesmanship of the system that represents a serious problem in the legislative process.

Should courts treat all laws passed by Congress with equal respect and deference? Or should laws passed via such tactics and gamesmanship be treated less deferentially because they do not have the same democratic genesis as other laws? Is it appropriate for courts to examine such questions? If not, what should be done to halt stealth legislation? Is it possible to erradicate or reduce the use of this tactic?

Posted by Daniel Solove at 07:57 PM | Comments (9) | TrackBack

Why Congress Shouldn't Subpoena Judge Alito's Clerks.

This morning, I read this Sunstein-influenced NYT article which reads the tea-leaves of Judge Alito's dissents to better predict his future rulings. The guessing game is pretty risky for many political players. Both sides of the aisle face retribution from their bases if Judge Alito deviates from (their respective views of) his predicted path. Senate Republicans have more at stake: if Judge Alito does not vote to overturn Roe, which seems at least possible given the malleability of Casey, the base would be irritated beyond all measure.

If Senators want more information about a nominee than that found in his or her public record (including financial record!), they've a few places to go: (1) the administration (through private and public channels); (2) the Judge (through written and oral Q&A); (3) the Judge's friends, family and colleagues, and (4) the Judge's former law clerks.

UTR has already gotten us going on this last track, summarizing the reactions from a few of Judge Alito's former clerks. But, obviously, these reactions are highly self-selective. Let's assume that the Senate really wanted to know more from the clerks about Judge Alito's privately expressed (but legal) views about abortion, gay marriage, the death penalty, securities law, executive detention, etc. Could the Senate subpoena the law clerks and force them to talk?

There are at least two legal reasons and one prudential reason to think not.

First, there is a common-law judicial privilege protecting inter-chambers communications. See United States v. Nixon, 418 U.S. 683, 708 (1974) ("[T]he claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in...decisionmaking.") It isn't clear to me what would happen were a law clerk to assert the privilege under questions from the judiciary committee. There are reasons to think that Congress ought to be able to create its own evidentiary rules, including one which does not recognize such privileges. Moreover, presumably the situation would come up when Congress called a clerk who had already publicly spoken out in favor of a nominee, raising the question of who owns the privilege: the judge, the clerk, or (perhaps even) the head of the federal judiciary himself.

Second, there might be separation of powers problems in calling a law clerk to testify as to a judge's considered, but private, views. Such problems were highlighted in last year's battles over federal judge's sentencing practices. I think most commentators believe that congress had the power to subpoena judicial inter-chamber written documents -- and that greater power probably subsumes the lesser power of merely requiring testimony.

Fortunately for our (hypothetical) law clerk, the challenges to a subpoena would be played out in a court, in a hearing considering a motion to quash, before a judge, who will have certain incentives to deny the Congressional intrusion into judicial affairs.

All of this has put to one side the strong prudential reason not to subpoena law clerks - clerks arguably make modern judging possible. That is, if you subpoena Judge Alito's clerks, it opens the door to similar summons for all nominations, further degrading the nomination process, and, more importantly, making it foolish for ambitious federal and state judges to employ clerks. There is an argument that having clerks has made public judicial work product (opinions) less strong, especially in cases where clerks take the lead in drafting (habeas, social security). But this view of judging underestimates the amount of time spent on management of complex dockets, a task that would hard, or even impossible, without the help and counsel of clerks. Even if getting rid of law clerks would make opinions "better", it would make judging worse.

So, even to the extent that the Senate could subpoena law clerks to inform its nomination deliberation, it should not. This will probably be a relief to those close friends of mine who might otherwise have been a target of yet another (foolish) attempt by Senators to buy political insurance.

Posted by hoffman at 01:26 PM | Comments (5) | TrackBack

Jury Finds for Merck: Will its Critics Notice?

The NJ jury hearing the latest Vioxx case found Merck & Co. not liable for the death of Frederick "Mike" Humeston after seven and a half hours of deliberation. The ruling contrasted with an earlier Texas jury's determination that Merck was liable for the death of Robert Ernst.

Following the Ernst verdict, a hue and cry arose against the jury system, with some claiming, for instance, that "this incident . . . raises serious questions as to the competence of lay jurors to resolve technical issues." Now that we've another anecdote in hand, is it possible that these earlier critics owe the American jury system an apology?

Posted by hoffman at 11:14 AM | Comments (5) | TrackBack

Becker and Posner Mull Price Gouging

Over at the Becker-Posner Blog, the resident luminaries have gotten around to discussing the problem of whether and when to punish "price gouging" after natural disasters. Judge Posner makes the expected moves ("sheer ignorance of basic economics"; "[t]he only beneficiaries will be people with low costs of time and nonurgent demand"; "higher prices for gasoline are a source of substantial external benefits".) However, he does concede that price gouging regulations might be appropriate under two types of circumstances.

First, he acknowledges a possible "rare situation in which the consequence would be an intolerable gap between wealth and welfare." In layman's terms, this is the Judge's concession that wealth sometimes is a bad proxy for aggregate happiness, and that allocating scare goods to those most able to pay for them can lead to net losses in utility.

I am interested in whether there is empirical support for Judge Posner’s intuition that such situations are "rare". I am particularly dubious of the Judge’s resort to the old argument that excess profits might be taxed and then redistributed. I'll believe it when this Congress imposes a special tax on Exxon's heaping profits over the last year.

Second, Judge Posner distinguishes ordinary price raises by gas stations from opportunistic profit taking. He refers to the distinction between natural scarcities and artificial ones (citing Alaska Packers v. Domenico, a great contracts case about modification and duress). In the latter situation, Posner argues that intervention might correct for inefficiencies resulting (I take it) from transaction costs; while the former (natural and unexpected) windfalls should be left where they fall.

[Incidentally, for my students who read this blog, Posner’s distinction here is identical to the one he makes in the efficient breach context.]

I've addressed this topic before (here and here). The smart commenters to my posts convinced me that the gas station example is a particularly tough place for defenders of price gouging regulation to make a stand - which is why I'm a bit disappointed that Judge Posner didn't take on price gouging regulations in the much harder hotel context.

I'm also somewhat surprised that Judge Posner didn't discuss the enforcement mechanism of these regulations, and the relationship between price gouging and the little-FTC/unconscionability standards. I have been unable to find any good studies of the deterrent effects of anti-gouging statutes on gas station price-hikes versus, say, hotel chains. Now, both Posner and Becker might argue that thinking about deterrence doesn’t matter if the activity in question should always be encouraged, but I don’t think that is really their claim.

In sum (and I was going somewhere with this post!), these two leading legal economists are just too quick to dismiss price gouging regulation as inefficient demagoguery.

Posted by hoffman at 12:10 AM | Comments (3) | TrackBack

Using Lawsuits to Unmask Anonymous Bloggers

An interesting recently-filed lawsuit raises the issue of whether a company can file a lawsuit just to find out the identity of an anonymous blogger in order to fire him.

The case involves an employee of Allegheny Energy Service who posted an anonymous comment to a Yahoo! message board devoted to his company. He made the posting from his home computer. In the post, he attacked the company's management as well as the company's diversity program, using a racial slur in the process.

The company filed a "John Doe" lawsuit against the anonymous blogger for a tort claim of "breach of fiduciary duty and breach of duty of loyalty." The employee was completely unaware that a lawsuit had been filed against him.

Three months after filing the lawsuit, the company filed an emergency motion to prevent "John Doe" from posting more messages. It claimed that Doe's posting violated the company's anti-harassment policy. The company obtained a subpoena and served it on Yahoo. Yahoo sent an email to the employee that Yahoo would respond within 15 days unless the employee filed a motion to quash. The employee claimed he never received the email. Yahoo subsequently turned over the employee's identity to Allegheny Energy. Afterwards, Allegheny Energy filed papers to discountinue its civil action against the employee. The employee was then fired for making the racial slur.

The employee has now sued, claiming: (1) abuse of process; (2) wrongful use of civil proceedings; (3) intrusion upon seclusion; (4) public disclosure of private facts; and (5) wrongful discharge.

Had the subpoena been challenged, many courts would have been reluctant to enforce the subpoena for the employee's identity. The First Amendment protects the anonymity of speakers. As a result, to obtain an anonymous speaker's identity, the company would have to establish that it had a bona fide case that could withstand a motion to dismiss -- and even, as one court held in a recent case, a motion for summary judgment. I don't know much about the merits of the cause of action that the company brought its case under, but I'm dubious about it given that the case was devised solely to unmask the employee's identity.

The filing of the lawsuit with the primary motive of obtaining the employee's identity strikes me as an improper use of the legal process. This cause of action is outside my expertise, so I really can't assess how strong a case the employee has.

The employee may have a strong claim for intrusion upon seclusion. The company deliberately sought to ferret out information about the employee that was private. The key issue will be whether the method of filing a lawsuit to obtain the information is highly offensive to a reasonable person, which it must be in order for the employee to prevail on this claim.

The claim for public disclosure, however, is weaker, in that the disclosure of the employee's identity was only done to other company employees. The tort requires widespread disclosure, and this disclosure may not be widespread enough. There are, however, a minority of jurisdictions that will allow for a case where the disclosure is to a more limited audience.

I also wonder about the employment law issues. I'm not an expert here, but can a person create a hostile work environment by posting something on the Internet while at home and not at work? Was the termination of the employee against public policy? If it was based on the wrongful obtaining of his identity, then it very well might be.

The case also raises larger policy issues about employee speech and privacy outside of the workplace. The comment made by the blogger was quite offensive. He wrote: "[W]e were force fed ‘love thy n*****’ with [Allegheny Energy’s] DIVERSITY program." Should a company have any business in finding out which employee made this comment and disciplining him even though he made the comment at his home?

Related Posts:

1. Solove, A Victory for Anonymous Blogging

Posted by Daniel Solove at 12:01 AM | Comments (13) | TrackBack

What Next, Google Filmstrips?

I use audio-visual materials pretty extensively in my intellectual property classes, but I never thought to use them for my first-year property class. That is, until this year.

Google Maps and Google Images have made it possible to illustrate property disputes in a way I never could have before. Take, for example, the classic case, Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., involving two hotels on Miami Beach. The Fontainebleau starts building a 14-storey addition which will cast a shadow over the neighboring Eden Roc's pool and beach area.

Here's a picture from Google Maps, showing the shadow (imagine the shadow slowly moving clockwise as the sun crosses the sky, eventually covering the Eden Roc's pool area):

On the continuation page, you can also see a picture from a different perspective.

Every year, it seems I rely more and more on some kind of tool created by Google (whether Search, GMail, Images, Maps, whatever). Yet another sign that Google is taking over the world.

UPDATE: I should note that credit for finding the above picture goes to the very tech-savvy Michelle Kanter, BCLS class of '08.

Here's another picture showing the lovely addition, from the perspective of the Eden Roc:

Finally, check out this very cool site, which provides street-level pictures, allowing you to virtually "stroll" along a street. (Hat tip to Chris Tracey, BCLS '05, for this one).

Posted by Joseph_Liu at 08:30 PM | Comments (7) | TrackBack

When Alito Is Unbound: On Mining Judge Alito's Judicial Record

All eyes are now scrutinizing Judge Alito's judicial record. His opinions are being mined for clues about where he stands on many key issues. The University of Michigan Law Library, for example, has posted an extensive collection of Alito's opinions. But I'm wondering how much weight we should give an appellate court judge's prior opinions in assessing what kind of Supreme Court justice her or she will be.

Court of appeals judges often sit in a very constrained position. They are constrained by the findings of fact and the issues raised on appeal at the district court level. They are also constrained by the precedent of their own court as well as that of the Supreme Court.

Following precedent by a higher court (and especially the Supreme Court) is a foremost imperative for appellate court judges. If they don't, they'll either be slapped down by the Supreme Court, and they will be viewed as lawless and derelict in the legal community.

But when a judge is transformed to justice, all of a sudden Supreme Court precedent becomes much less sacred. Justices can bend and twist the precedent; they can overrule cases; they can radically alter the direction of the law. What happens when an appellate judge is unshackled in this way?

It is easy to comb through Alito's opinions and either like or dislike some of the legal conclusions he reached. But we must be careful to not just look for holdings where we simply like or dislike the results, as these may be mandated by existing law. We must look for opinions where Alito examines a question not squarely addressed by Supreme Court precedent. To the extent to which Alito departs from Supreme Court precedent (or inteprets it in manipulative ways), this can be telling. But cases where he just follows the dictates of the law -- whether we agree or disagree with the outcome -- don't tell us much except that he was applying the law as he should have.

Of course, there are a number of federal court of appeals judges who are bold and creative in the way they shape the law. There are those who are very constrained and attempt to paint as closely within the lines set forth by the Supreme Court. With the indications thus far, Alito appears to be more in the mold of the constrained judge.

I doubt Alito will suddenly shift in temperament from being a relatively restrained judge to being one like Justice Scalia, who is far from shy in overturning precedent and taking the law in dramatically new directions. But we really can't know for sure. Mining Alito's judicial record may not tell us all that much, because he's been following a very different set of rules with regard to precedent. What happens when the constrained judge becomes unbound? This is the important question to be pondering during the appointment process.

Posted by Daniel Solove at 10:56 AM | Comments (3) | TrackBack

CJR on Judge Richard Posner

This article in the Columbia Journalism Review discusses Judge Richard Posner, with a focus on some of his First Amendment cases. From the article:

Still, for every decision that hints at a rigidity in his thinking, I find an article or opinion that contradicts it. Posner confounds categorization. He’s not a water-carrier, he’s not a true ideologue, he’s not even a pure free-marketeer. He’s trying to convince us all — lawyers, students, his readers, and now journalists — that moral reasoning, idealism, and the entire messy spectrum of human feeling are all imperfect ways of ordering the law. He’s just looking for the mathematical formula to prove it.

Hat tip: Political Theory Daily Review

Posted by Daniel Solove at 02:00 AM | Comments (2) | TrackBack

Information Privacy Law (2nd Edition)

Shameless Self-Promotion Alert: Within the next week or two, the second edition of my casebook, Information Privacy Law (with Marc Rotenberg & Paul Schwartz) will be out in print. This book is a significant revision from the first edition, and it covers most topics in greater depth. Click here for the book's website (where updates and other information are posted) and here to peruse the table of contents.

For those professors interested in adopting the book for their spring 2006 information privacy law courses, the book's ISBN is 0735555761. To obtain a free review copy as soon as possible, contact Daniel Eckroad at Aspen Publishers via email or by calling 617-349-2937. If you have any questions about the book or the course, I'd be delighted to answer them.

For those law professor readers who have never taught a course in information privacy law before, I've reposted here an earlier post at PrawfsBlawg where I explain why I believe information privacy law is a rewarding course to teach.

For those of you who are interested in the book, but are not law professors, you'll unfortunately have to shell out a small fortune to buy the book, which you can do here.

Posted by Daniel Solove at 12:57 AM | Comments (1) | TrackBack

Leiter, Caron and Hodnicki and a Typology of Successful Academics

It has been well-reported that Brian Leiter, Paul Caron and Joe Hodnicki have teamed up to produce the latest non-USNews law school ranking data. One part of their project measures faculty quality using the proxy of the citations of the more productive members of each faculty. The list is here.

I know our legal readers are way (way) beyond rankings, so they might not actually visit the site. That would be a shame, because the trio wrote a fascinating introductory section discussing six ways in which citation studies may be distorted. The basic theme seems to be that although we would normally assume that work that is cited more often is "better" than work that isn't, some folks' work will get cited more often than quality alone would dictate. Those distorted writers are (to paraphrase):

1. Drudges.

2. Treatise writers.

3. Flash-in-the pans faddists.

4. The very wrong.

5. "[O]nce-productive dinosaurs."

6. Public law scholars, constitutionalists and crits.

I love this list. In part, in my mind’s eye I picture my progress on these distorted way-stations at sequential points my own career (I'm currently in phase 3, and possibly 4 and 6; it would be hard to avoid being a 1 at some point, and 2 and 5 are nice sunset goals.) But more importantly, I respect that the authors are so upfront at the deep potential skew of their results.

One factor they don't mention is that faculty citation counts would seem to be highly influenced by law journal placement, which in turn is path dependant on which school you are currently working for. That is, a scholar who has a very high hit count in a less-traditionally-prestigious school might,in some hypothetically objective way, be more impressive than a similar hit count coming from a Chicago, Harvard or Yale faculty member. Such scholars would, in turn, burnish the reputations of their schools to a high degree, but Leiter et al. appear to be working to correct against this very effect by using median impact scores.

In any event, worth checking out.

Posted by hoffman at 12:02 AM | Comments (0) | TrackBack

Teaching Information Privacy Law

This post was originally posted on PrawfsBlawg on May 10, 2005. I have made a few small edits to this post.

For the law professor readers of this blog, especially newer professors (or professors-to-be) who are still figuring out the courses they want to teach, I thought I’d recommend information privacy law as a course you might consider teaching. (I have a casebook in the field, so this is really a thinly-disguised self-plug.)

Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools. I’m hoping to change all that. So if you're interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

1. It’s new and fresh. Lots of media attention on privacy law issues these days. Students are very interested in the topic.

2. Lively cases and fascinating issues abound. There’s barely a dull moment in the course. Every topic is interesting; there is no rule against perpetuities to cover!

3. It’s a way to teach fascinating First Amendment, Fourth Amendment, and other constitutional law issues. Often, those wanting to teach in these areas have to wait in line until the course is “released” by professors who already teach it. Getting the First Amendment course, for example, is about as easy as unseating an incumbent in Congress. Information privacy law lets you teach really interesting First Amendment issues and there’s usually not a long succession line to teaching an information privacy law course. Moreover, many law schools already have somebody teaching cyberlaw, and information privacy law covers some incredibly interesting law and information technology issues.

4. The field is growing . . . big time. There are many new jobs in privacy law – jobs at privacy advocacy organizations, most major companies, financial institutions (must have a privacy officer per Gramm-Leach-Bliley Act), health institutions (must have a privacy officer per HIPAA regulations), and the government (DHS privacy office, etc.). Many new laws are being passed regarding privacy, and cases involving these issues are multiplying.

5. The field has some staying power. As long as computers and information remain in fashion, privacy will remain a big issue. It’s not going away . . . the field, that is. Privacy . . . well, that’s a different story.

6. Plenty of material for a three-unit course. You can teach the course with a focus on law enforcement and security issues, or on cyberspace and computer issues, or on media and entertainment issues, or on regulatory issues about healthcare and financial data. Because there is so much material to work with, you can teach the course in many different ways.

7. Great synergies between teaching and scholarship. There’s a lot left to write about in the field, and teaching the course helps tremendously in developing good ideas for scholarship. The community of folks who write in privacy law is wonderful – a really neat group of professors. We love to welcome new folks into this great club.

8. The course is very intellectually rich. There are lots of interesting theoretical issues to ponder. And the theory doesn’t turn off students -- they really dig it. Really!

9. It’s easy to teach. The field is very accessible. Currently, there are many great books, articles, websites, and other resources in the field.

10. I don't have a tenth reason, but I thought that I'd do something to round this list out to ten.

So think about adding information privacy law to your course package. It’s a rewarding and fascinating course. Many law schools still don’t have a course in the field, and it is my hope that someday it will be offered everywhere.

Posted by Daniel Solove at 12:01 AM | Comments (0) | TrackBack

Horwitz on Sensitive Corporate Judges

Over at Prawfs, Paul Horwitz has been trying to get some precision on what it would mean for a judge to be "sensitive" to business interests.

Here is a taste:

If I were writing opinions in these [employment discrimination cases] that were "sensitive" to business, I would fully acknowledge that employees may use Title VII to try to turn garden-variety dismissals, demotions, etc. into discrimination cases, in the hope that the corporate defendant will settle after protracted litigation, and that this may ultimately drive down the incentive to hire; that class actions similarly attempt to induce settlement and may discourage innovation; and that consumer arbitration clauses are one way to efficiently channel disputes without the significant burden of litigation. But I might also "sensitively" acknowledge that proferring legitimate nondiscriminatory reasons is hardly the same thing as proving a dismissal was not, in fact, motivated by discrimination; that courts may be so tough on Title VII cases in part because they are caseload-driven; that businesses do in fact sometimes commit mass torts, and may even (at least until recently) collude in settlements that primarily serve the interests of the corporate defendant and plaintiffs' counsel; that businesses may prefer arbitration because they think it ups their chances of success, particularly before repeat-player arbitrators, and deters consumers from pursuing their claims; and that there may be something qualitatively different between a commercial business contract and a boilerplate arbitration clause in a consumer or employment agreement. In short, I don't know at first blush whether the corporate interest would win or lose; but I would be "sensitive" about the issues faced by business. So it doesn't seem to me that a pro-business record of judicial rulings really tells us anything about whether that judge is sensitive to business interests. He may simply be insensitively supportive of them.

Go ahead and read the whole thing.

Posted by hoffman at 12:01 AM | Comments (0) | TrackBack

Law Professors and Consulting

A question for lawprofs out there: what role, if any, does consulting play in your life as a professor? My sense is that lawprofs have widely diverging experiences on this score, and I'd be interested in hearing about some of them.

Because of the whole tenure-thing, I've made very little time for consulting. Yet on a couple of occasions, I've helped out on litigation raising interesting issues in my area of expertise. And those experiences have, on the whole, been extremely positive, informing my understanding of these areas in important ways (and sometimes helping to pay the bills, to boot).

Yet this has largely been the result of happenstance, without any concrete plan. Do other folks approach this more systematically? What considerations go into deciding whether to consult? Do you view consulting as an integral part of your research agenda? Or more like a side-activity?

Posted by Joseph_Liu at 09:18 AM | Comments (2) | TrackBack

Who Pays for the Law?

A couple of posts discussing the Google Print case have mentioned how they see it as an opportunity to get a court decision clarifying the scope of fair use on line. This makes me wonder: is there a public goods problem with respect to fair use law itself?

Fair use is notoriously fuzzy. Judicial opinions reduce the fuzziness somewhat by providing additional data points. These opinions benefit a wide range of parties by providing them with more guidance. Yet the cost of producing a ruling is borne largely by the private parties engaging in the litigation. So, in theory, will the existing system under-produce fair use law?

Perhaps it's not meaningful to talk about an "optimal" level of legal guidance. But it remains the case that: (a) many potential fair users (particularly small-scale users) operate with insufficient guidance about what constitutes fair use; and (b) these folks are dependent upon large companies like Google being willing to litigate these (or analogous) issues to a decision.

So, if we want more clarity regarding the scope of fair use, how do we best produce it? Should we somehow subsidize fair use litigation (for example, by fee-shifting)? Or should we rely on a regulatory mechanism, like fair use regulations promulgated by the copyright office? (Michael Carroll of Villanova has a very interesting draft, proposing an administrative solution). Or are we comfortable with the existing level of guidance?

I assume this issue is not unique to copyright, and would be interested to find out whether other areas of the law have adopted responses to this.

Posted by Joseph_Liu at 09:13 AM | Comments (1) | TrackBack

Madison on Law P0rn

Oscar Madison has been tracking the amount of law p0rn he receives. The numbers are staggering. He's getting a pound per day of the stuff. And it's far less titillating than the name suggests -- it's and endless stream of law-school brochures, all designed to elicit positive U.S. News responses. Madison's (illustrated!) post mocks numerous the lunch presentation lists (all involving places he would never go). And he reserves special ire for NYU's magazine with its "Dworkin on Dworkin" cover story.

We've got the solution for you, Oscar. Leave behind all that law p0rn and focus on blawg p0rn! Our brochures are much lighter than NYU's -- we promise!

Did you know that Concurring Opinions just brought in a rising star, Dave Hoffman, as a lateral addition to the blog? Or that our blawg-and-privacy center has just tripled its budget? You're invited to a free lunch presentation tomorrow, by the way, which will be held at an undisclosed location in rural Virginia. I hope that you can make it. And even if not, perhaps you've got time to read this month's highlight article, "Solove on Solove."

[UPDATE: In the interest of avoiding drawing in people running google searches for p0rn, I've switched to misspelling the term with a zer0.]

Posted by Kaimipono at 12:45 AM | Comments (4) | TrackBack

Blog Posts: Conversation or Publication?

Blog posts exist in an uneasy position between permanent publications and more informal discussion. How ought they to be viewed when assessing a person's reputation as a thinker and writer?

This question was inspired by a recent discussion about the propriety of deleting blog posts one strongly regrets posting. Christine Hurt (law, Marquette) at Conglomerate wrote:

[B]loggers are not just diary-keepers in pj's but contributors to a national dialogue. Of course, journalists seek to be skeptical of this notion, and I think that suspicion is warranted if bloggers live by different rules, including the rule that any post can be deleted if the poster has a change of heart. When a television journalist says something on television, those words are recorded forever. When someone writes an op-ed for the NYT, then once the paper is printed, the op-ed is there forever.

What exactly are blog posts? Publications such as op-eds? Or just talk in an ongoing conversation? Or some