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The Google Subpoena Case: A Google Victory

On Friday, Judge James Ware, a U.S. District Judge in San Jose, CA, issued a decision in Gonzales v. Google, Inc., No. CV 06-8006MISC JW (Mar. 17, 2006), the case involving a government subpoena for Google search queries. A few days before Judge Ware released his opinion, he stated that he would be ordering Google to turn over some information, though not everything that the government was demanding. Media reports indicated a victory for the government, as these headlines suggest: "Judge Siding With Feds Over Google Porn Subpoena" (AP) and "Google Faces Order to Give Up Records" (Boston Globe).

But Judge Ware's written decision strikes me as much more of a victory for Google and privacy than for the government.

The subpoena was issued because the government wanted information for use in ACLU v. Gonzales, No. 98-CV-5591, pending in the Eastern District of Pennsylvania. That case involves a challenge by the ACLU to the Child Online Protection Act (COPA), 47 U.S.C. § 231. Google wasn't even a party to that case, but the government suboenaed from Google (1) URL samples: "[a]ll URL's that are available to be located to a query on your comapny's search engine as of July 31, 2005" and (2) search queries: "[a]ll queries that have been entered on your company's search engine between June 1, 2005 and July 31, 2005 inclusive." Subsequently, the goverment narrowed its URL sample demand to 50,000 URLs and it narrowed its search query demand to all queries during a 1-week period rather than the two-month period mentioned above. Google still raised a challenge, and the government again narrowed its search query request for only 5000 entries from Google's query log.

Under Federal Rule of Civil Procedure 26, a subpoena may be quashed if the "burden or expense of the proposed discovery outweighs its likely benefit." The court (Judge Ware) began by analyzing the government's request for a URL sample, pointing out the paucity of the government's explanation for its need for the information. The court observed:

The Government's disclosure of its plans for the sample of URLs is incomplete. The actual methodology disclosed in the Government's papers as to the search index sample is, in its entirety, as follows: "A human being will browse a random sample of 5,000-10,000 URLs from Google's index and categorize those sites by content" and from this information, the Goverment intends to "estimate . . . the aggregate properties of the websites that search engines have indexed." The Government's disclosure only describes its methodology for a study to categorize the URLs in Google's search index, and does not disclose a study regarding the effectiveness of filtering software. Absent any explanation of how the "aggregate properties" of material on the Internet is germane to the underlying litigation, the Government's disclosure as to its planned categorization study is not particularly helpful in determining whether the sample of Google's search index sought is reasonably calculated to lead ot admissible evidence in the underlying litigation.

One would think, after reading this paragraph, that the government has failed to establish a justification for the URLs. Nevertheless, the court attempted to "imagine[]" and "envision" a possible use for the information the government is seeking. The court then concluded that it would "give[] the Government the benefit of the doubt."

This was the partial victory that the government won, and it wasn't a very big victory. The second half of the opinion was all Google. This latter part of the opinion dealt with the government's demand for search queries -- the part of its demand that implicated privacy. The court rejected the government's request for the search queries -- even after the government had repeatedly backed away from its initial demands. The government had begun by demanding two months worth of search queries (constituting millions of queries); it then backed down and demanded queries for just a one week period (a substantial number of queries); and it recently had further retreated to asking for just 5000 queries. This was a dramatic retreat, but the court still sent the government packing.

According to the government, it planned to use the search queries as follows: "A random sample of approximately 1,000 Google queries from a one-week period will be run through the Google search engine. A human being will browse the top URLs returned by each search and categorize the sites by content." The court, without much analysis, concluded that "were the Government to run these URLs through the filtering software and analyze the results, the information sought would be reasonably calculated to lead to admissible evidence." Although the court ultimately denied the government's demand, I wonder whether the court should have so quickly conceded the government's need for the information. Why couldn't the government just create its own search queries and run them through Google's search engine? Why did it need a sampling of people's searches? It could certainly conduct a study of how various searches work with filtering software by using its own queries. Moreover, the fact that the government had begun with a wildly broad request and narrowed it significantly should at least spark some skepticism about whether the government was engaging on a fishing expedition.

The court then turned to the considerations on the other side -- the costs and burdens of Google's production of the information. Google argued that it would lose user trust if compelled to reveal the searches. The court began by using Google's privacy policy against it, stating: "Google's privacy policy does not represent to users that it keeps confidential any information other than 'personal information.'" The court then noted:

However, even if an expectation by Google users that Google would prevent disclosure to the Government of its users' search queries is not entirely reasonable, the statistic cited by Dr. Stark that over a quarter of all Internet searches are for pornography indicates that at least some of Google's users expect some sort of privacy in their searches. The expectation of privacy by some Google users may not be reasonable, but may nonetheless have an appreciable impact on the way in which Google is perceived, and consequently the frequency with which users use Google.

The court concluded that the goverment did not need both the URL samples and the search queries, and it required only the disclosure of the URL samples but not the search queries. The court concluded that "the marginal burden of loss of trust by Google's users based on Google's disclosure of its users' search queries to the Government outweighs the duplicative disclosure's likely benefit to the Government's study."

Beyond Google's argument about customer goodwill, the court also raised general privacy concerns as a public policy interest implicated by the subpoenas. In Rule 26, "considerations of the public interest, the need for confidentiality, and privacy interests are relevant factors to be balanced." Gill v. Gulfstream Park Racing Association, 399 F.3d 391, 402 (1st Cir. 2005). The government argued that it was only requiring the text of the search queries entered, not the identies of the users who entered them, and that therefore there was no privacy interest. But the court concluded:

Although the Government has only requested the text strings entered, basic identifiable information may be found in the text strings when users search for personal information such as their social security numbers or credit card numbres through Google in order to determine whteher such information is available on the Internet. The Court is also aware of so-called "vanity searches," where a user queries his or her own name perhaps with other information. . . . Thus, while a user's serach query reading "[user name] stanford glee club may not raise serious privacy concerns, a user's search for "[user name] thrid trimester abortion san jose," may raise certain privacy issues as of yet unaddressed by the parties papers. This concern, combined with the prevalence of Internet serches for sexually explicit material --- generally not information that anyone wishes to reveal publicly -- gives this Court pause as to whether the search queries themselves may constitute potentially sensitive information.

Moreover, there is the problem of what I'll call the subpoena two-step. Step One is using a subpoena to get a bunch of de-identified search queries. Then, if the government discovers search queries it deems "suspicious," it can use a subpoena (Step Two) to get any identifying information (e.g., an IP address, which can be linked to a user's identity via ISP records, and even sometimes a user's name if a user has an account with Google). I blogged about this possibility in an earlier post on this case. The court also appeared to recognize this problem:

Even though counsel for the Government has assured the Court that the information received will only be used for the present litigation, it is conceivable that the Government may have an obligation to pursue information received for unrelated litigation purposes under certain circumstances regardless of the restrictiveness of a protective order. The Court expressed this concern at oral argument as to queries such as "bomb placement white house," but queries such as "communist berkeley parade route protest war" may also raise similar concern. In the end, the Court need not express an opinion on this issue because the Government's motion is granted only as to the sample of URLs and not as to the log of search queries.

The court explicitly did not address the ECPA argument made by Google.

Overall, I view this opinion as a victory for information privacy. The government was not entitled to obtain information about people's search queries -- even the much more narrow request of a sample of 5000 of them.

UPDATE: Philipp Lenssen at Google Blogoscoped points out: "In retrospect, this decision also shows that MSN, Yahoo and others gave away their search logs even when they didn’t have to – even when they could’ve successfully and legally opposed to it."

Related Posts:
1. Solove, Do No Evil and Perhaps Do Some Good: Google, Privacy, and Business Records
2. Solove, Government vs. Google
3. Solove, Google’s Empire, Privacy, and Government Access to Data
4. Solove, Google’s New Privacy Policy

Posted by Daniel Solove at 02:09 PM | Comments (17) | TrackBack

Updated Law Professor Blogger Census

Thanks to the help of many people, I've been making several additions and subtractions to the law professor blogger census, now in Version 4.3.

My latest tally is 235 bloggers, with 47 new bloggers and 14 bloggers who departed the blogosphere since my last census in November 2005. [Someone needs to coin a term for a blogger who has left the blogosphere -- "blogged out" perhaps?] That's a net increase of 33 bloggers since November 2005, where I had counted 202.

And for those interested in stats, here's one more stat:

Schools Adding the Most Bloggers Since the Last Census
Illinois +3 (includes lateral of Christine Hurt)
Virginia +3
Cornell +2
Temple +2
William Mitchell +2

Posted by Daniel Solove at 01:41 PM | Comments (0) | TrackBack

Where Your Tax Dollars Go

Check out this website for a very interesting visual representation of how federal budget dollars are allocated. You can enlarge the image substantially at the site.

Hat tip: BoingBoing

Posted by Daniel Solove at 12:35 AM | Comments (2) | TrackBack

Empirical Legal Studies Blog

The ELSblog has been on fire recently, including posts on law clerk loyalty and legal research; IRB Boards; the relationship between empirical work and theory; and a little dip into the old student-review incompetence debate. Based on quality-of-post, the blog should be getting more hits than it does. I'm thinking that their current motto ("advancing productive interdisciplinary discourse among empirical legal scholars") is a little unwelcoming. But otherwise, they are doing neat work. Go check 'em out!

Posted by hoffman at 12:02 AM | Comments (3) | TrackBack

Should Silence Be Free?

The invaluable Lyle Denniston reports on Zacarias Moussaoui's new filing before Judge Brinkema :

The new filing also contended that the government, with aviation security evidence, would be seeking to prove something that the government had not planned when it initially proposed a death sentence. In the notice of intent to seek the death penalty, the reply noted, the government said that it would show as an act justifying such a sentence that Moussaoui had lied, and that act connected him with the deaths on Sept. 11. Now, according to the defense, the government is seeking an opportunity to prove that the deaths were due to Moussaoui's failure to tell the truth. That would contradict his right to remain silent, the lawyers contended . . .
"While an incarcerated defendant may not lie to authorities, he certainly is not required to tell the truth, for he is not required to say anything," the reply said. "It would be an extraorindary proposition -- and like the Court, the defense is unaware of any such case -- to execute a defendant for an omission, including his failure to take the affirmative step of telling the truth. But that is precisely what the government is now attempting to do..."

This is strong rhetoric in support of a freedom - the right to withhold life-saving information from the government - that probably finds little support among citizens. Indeed, the popularity of discussions of the "ticking time bomb" justification for torture suggests that most people don't really believe there is a freedom to be silent when in possession of information that could prevent catastrophic crime. To the contrary, the overwhelming majority of the country seem to think that society has the moral right to compel the silent to speak. By compel, I mean inflicting extreme physical pain until you surrender your "determination, courage, and will," and talk. (The quote is from the abstract to Michael Seidman's forthcoming book, Silence and Freedom). Indeed, I imagine that most citizens would want to immunize officers in a real ticking bomb scenario were the tortured suspect die before speaking: thus, the freedom to be silent is, like all constitutional guarantees, contextually rooted at best.

That is, while I understand the legal basis behind Moussaoui's motion, and I'm uncomfortable with the idea of an omission leading to an execution, I don't think the defense struck quite the right note. The government has a powerful counter-narrative at hand: the Constitution does not celebrate silence in service of evil. Right?

Posted by hoffman at 11:24 PM | Comments (6) | TrackBack

Moussaoui and the Government Litigator

I don’t claim insight on the criminal laws involving terrorism. But terrorists prosecutions, as far as I can tell, tend to reveal that terrorists, or at least the ones who hope to attack America, don’t exactly operate like SPECTRE does in the movies. The massive government effort against them accordingly tends to look unbalanced, a major bureaucratic initiative against a tiny number of marginal outcasts who live in a twisted fantasyland. It’s Max Weber against a particularly vile Charles Bukowski novel.

This may be appropriate criminal law enforcement. But in the Moussaoui case, it has made for a very weird trial, where an unhinged defendant has been paired with a well-resourced and experienced team of defense lawyers. To push the analogy some more, it's Weberian order against the half-crazy and half-slick. The trial only got weirder when a TSA lawyer helping out on the case got much of the government’s sentencing phase evidence suppressed by prepping a number of witnesses.

I do know something about civil litigation on behalf of the government, but criminal law must be very different. Here’s my takeaway on what the TSA lawyer did:
- she appears to have violated a court order relating to witness prep by emailing a transcript of the opening statement to witnesses, and by briefly summarizing the testimony of another government witness.
- having an agency lawyer advise agency witnesses on the government’s theory of the case and on what they should expect when they go in to testify in court is, as a general matter, essential to government litigation (unproblematically, in my view, this lawyer also theorized about the kinds of questions defense counsel would ask and suggested how to handle them). In fact, I can’t imagine any person going to testify in any civil case without checking with their in-house counsel in this way first. Others disagree.
- I’m surprised that the prosecutors the TSA lawyer was trying to help called her witness prep “reprehensible” and “unfathomable.” Those words will appear in every defense brief related to this issue.
- I recommend sympathy for the bureaucrat; this lawyer’s career is over, there’s talk of not just disbarment, but jail time, she’s been sold out by her co-counsel (and rather incompetently, might I add), the judge seems eager to make her a whipping boy, the case has been affected, and all of this is because she tried to keep her clients informed, through hardly unprecedented short cuts like emailing them all at once and attaching pleadings and other publicly available court documents. She was trying to do her job, but by God, she won’t get to do it any more.

It’s all made a circus even circusier. So here's my final, larger point: no wonder the government doesn’t want to put the Guantanamo detainees through a similar sort of public process. I doubt that prosecutors and other law enforcement officials relish the prospect of hundreds of wild-eyed Moussaouis getting sophisticated defense teams and some form of public process – and creating hundreds of opportunities for prosecutorial mistakes along the way.

Posted by David_Zaring at 01:40 AM | Comments (11) | TrackBack

Lawrence, FAIR, Scalia, and the "Homosexual Agenda"

Two years ago, in his Lawrence dissent, Justice Scalia warned us of an ominous development. The court, Scalia argued, had not just gotten the law wrong. It had also taken a specific side in the culture wars:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

That's a lengthy statement, and characteristically snappy; Justice Scalia certainly knows how to turn a phrase. But what of its substance? Let me pull out a few of the highlights.

-"[Lawrence] is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda"
-"the Court has taken sides in the culture war"
-"So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream' . . ."

Justice Scalia made those statements in 2004, four years after the Court in Dale upheld the ability of the Boy Scouts to exclude gays. And it sounded overwrought then. Now, in 2006, those statements look even more silly.

After all, the Court -- this court that has bought into a "homosexual agenda" -- has just ruled in FAIR v. Rumsfeld. And the court unanimously upheld the government's ability to use monetary incentives to protect the military's ability to recruit on Universities. This was a loss for the gay rights movement. Even more, it seems to have been, as various news accounts indicate (such as Adam Liptak in the New York Times), a complete rejection by the court of gay-rights arguments made by a group of law professors.

The paper trail doesn't lie. Three high-profile gay rights decisions since 2000; Dale, Lawrence, FAIR. Two of the three going against gay-rights advocates, including one -- the most recent -- unanimously. That kind of paper trail is, apparently, the product of a court that has "largely signed on to the so-called homosexual agenda" and has "taken sides in the culture war." A court that is "imbued" with "the law profession's anti-anti-homosexual culture."

Since I'm a nice guy, let me offer a rewrite of one of Justice Scalia's sentences, to bring it into conformity with the actual record:

So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream' tends to rul against gay rights, and has just unanimously rejected the latest gay-rights argument to be made by law professors.

Hmm. Less inflammatory, to be sure. But it has the benefit of actual fidelity to the facts. Now I guess that "homosexual agenda" sentence in the dissent probably needs a rewrite too . . .

Posted by Kaimipono at 12:48 AM | Comments (10) | TrackBack

Is a Promise to a 419 Scammer Enforceable?

Via Andrew Sullivan, I read this not work-safe, and often offensive, site purporting to be the record of correspondence between two satirizing vigilantes and a Prince Soki Mobutu, a scam artist. As Sullivan notes, the two email vigilantes respond to Mobutu's offer of a hidden hoard of loot from the Congo with the following enticing line: "Hello. My name is Mike. Sorry I didn't get back to you sooner but I haven't checked my email in awhile. Your proposal sounds very interesting to me and I want to help . . . I work in the music industry. I'm hoping to cut an album with my boy B-Smooth later next month. I was thinking that if I helped you get this money, then I would have enough to cover our expenses and even make a music video. What do you think?" We can imagine the recipient of this message, in some dingy internet cafe (My bet: in south Jersey), chuckling with evil glee. Little did s/he know.

The two guys who run the site have apparently made it their business to sucker email scam artists into counter-traps, getting them to pose holding various silly messages as the last step before they promise to send cash. In this particular correspondence chain, the two purported rappers, after some Ali-G-like nonsense dialogue, pretend to have flown to Europe to meet Mobutu, then Spain, and to they have wired money, after they got Mobutu to perform various tasks. The most significant task was to have someone posing as Mobutu to send a picture of himself wearing t-shirt with an obscene message on it. It is actually really funny. If you can handle nasty, off-color, satire, go ahead and read it. It might take a while, especially if you read the lyrics to the fake raps.

My human side here is happy for a victory over scam artists. My lawyer side wonders: if you promise a scam artist that if s/he does X, you will provide him cash Y in return for the counter-promise of more cash Z, are you contractually bound when (a) your first promise is a joke, that reasonable English-speakers would understand but foreign-born speakers might not; (b) his/her return promise to do X is not a joke, and, in fact, was apparently performed; and (c) his/her return promise to obtain cash Z is almost certainly fraudulent?

Of course, part c here probably turns the analysis. Fraud is always a good defense to contractual enforcement.

But let's say that in fact this is that rare actual heir of an real fortune, who for some reason, as the exchange tells us, will provide "10% of the total sum if you assist me in claiming the fund from the security vault in Holland where my father deposited the box containing the fund as gemstones, gold, and jewelry before his death." At least this possibility isn't, strictly speaking, impossible. Under such circumstances, traditional American law would probably find a contract early in the process, and certainly when "Mobutu" get photographed wearing the message on the t-shirt. Lawyers, and students, might think that this looks like false consideration, misled by the common classroom hypothetical of a homeless person being asked to go to a thrift store. But if you read the exchange, that particular hypothetical quickly becomes distinguishable. (The key bit of the exchange comes right before a description of a violent incident at a Krispy Kreme franchise involving a "dougnut mixing spoon.")

So, the moral of the story is: check the bona fides of a scam artist you wish to counter-scam.

Posted by hoffman at 12:06 AM | Comments (0) | TrackBack

Even Tearing Up Your Credit Card Applications Isn't Enough

One of the reasons why identity thieves are the luckiest criminals alive is because credit card companies make their crime really easy. This person at Cockeyed.com tried an experiment. He tore up his credit card application into little pieces, meticulously taped it back up, and then filled it out as follows:

Now, I wasn't going to be able to check my mailbox for a few weeks, so I marked this little checkbox and CHANGED MY ADDRESS to my parent's address, who are blessed with a very secure mailbox.

I wanted the BRAND NEW CARD to go to a DIFFERENT ADDRESS.

Also, I used my CELL PHONE NUMBER on the application. I'm not always at home, so I didn't want to have to call from my real home to authorize the card.

The result? A shiny new credit card was sent to his parent's address.

Check out the full story here.

It is amazing how irresponsible credit card companies can be.

Hat tip: Ann Bartow. Chris Hoofnagle has more ridiculous credit card application stories.

Related Posts
1. Solove, Free Credit Reports: My Exciting Adventure (Concurring Opinions) (October 2005)
2. Solove, Public Records and Identity Theft (Concurring Opinions) (March 2006)
3. Solove, Identity Theft: Increasingly an Affliction of the Young (Concurring Opinions) (January 2006)
4. Solove, Youngest ID Theft Victim? (PrawfsBlawg) (July 2005)
5. Solove, Why Identity Theft Isn’t Pretty (PrawfsBlawg) (July 2005)
6. Solove, Identity Theft Fears and Online Shopping (PrawfsBlawg) (June 2005)
7. Solove, Identity Thief Professors (PrawfsBlawg) (June 2005)

Posted by Daniel Solove at 12:05 AM

OrinKerr.com

As Orin would say, lots of good stuff going on at OrinKerr.com.

Posted by Daniel Solove at 11:35 PM | Comments (0) | TrackBack

Law Professor Blogger Census (Version 4.3)

NEW VERSION 4.3

UPDATE: Thanks to Ian Best and a special thanks to Christine Hurt for pointing out a number of omissions. New tallies are below.

It’s time again for a new census of law professor bloggers. A lot has happened in the blogosphere since the last census (Version 3.1) was completed in November 2005.

Earlier Versions of the Census: In Version 2.0 (June 2005), there were 130 bloggers (28 female, 102 male), and schools with the largest number of bloggers included: San Diego (7), UCLA (5), George Mason (5), Cincinnati (4), Ohio State (4), GW (3), Georgetown (3), Stanford (3), St. Thomas (3), Chapman (3), Villanova (3).

In Version 3.1 (November 2005), there were 202 bloggers (50 female, 152 male), and schools with the largest number of bloggers included: Chicago (14); UCLA (7); San Diego (7); GW (5); Cincinnati (5); George Mason (5); Stanford (4); Northwestern (4); Ohio State (4); U.C. Davis (4); American (4); Case Western (4); St. John's (4).

NEW VERSION 4.3 STATS:

Number: There are 235 law professor bloggers.

Growth: Since the last census in November 2005, the number of bloggers has grown by 33 bloggers -- from 202 to 235 -- an increase of about 16%.

Additions and Subtractions: : There were several bloggers who departed the blogosphere. In all, I counted 14 departed bloggers. There were 47 new bloggers, resulting in a net gain of 33.

Gender: Of the bloggers, 58 are female and 177 are male. Thus, about 25% are female and 75% are male. These are roughly the same percentages as in the last census. Female bloggers increased by 14% and male bloggers increased by 16%.

Schools: Schools with the most bloggers include:
Chicago (15)
San Diego (7)
GW (6)
Illinois (6)
UCLA (6)
George Mason (5)
William Mitchell (5)

Illinois, it seems, is placing its bets on bloggers. It has recently hired several bloggers as laterals – including Christine Hurt and Lawrence Solum – and is home to the well-known blogger Larry Ribstein.

There were quite a few schools with 4 bloggers, including American, Case Western, Cardozo, Cincinnati, Cornell, U.C. Davis, Georgetown, Lewis & Clark, Michigan, Northwestern, Ohio State, Stanford, St. John's, and Temple.

Please note: I have listed professors whose lateral moves have been announced (see here) with their new institutions.

Schools in the U.S. News Top 20 rankings account for 67 bloggers
1. Yale (3)
2. Harvard (3)
3. Stanford (4)
4. Columbia (1)
5. NYU (1)
6. Chicago (16)
7. Pennsylvania (0)
8. Michigan (4)
8. Virginia (3)
10. Northwestern (4)
11. Cornell (4)
11. Duke (2)
11. Berkeley (0)
14. Georgetown (4)
15. UCLA (6)
15. Texas (3)
17. Vanderbilt (1)
18. USC (0)
19. Minnesota (2)
20. Boston University (0)
20. George Washington (6)

Bloggers from the Top 20 increased from 61 to 67, an increase of about 10%. The Top 20 schools have a disproportionately large representation in the blogosphere -- roughly a third (30%) of the total number of bloggers (230). Only 4 schools in the Top 20 have no bloggers – Berkeley, Pennsylvania, USC, and Boston University.

In the chart that follows, I indicate new bloggers with NEW.

LAW SCHOOL	BLOGGER	GENDER	BLOG
American	Kenneth Anderson	M	Kenneth Anderson's Law of War
American	Darren Hutchinson	M	BlackProf
American	Billie Jo Kaufman	F	Out of the Jungle
American	Paul Williams	M	Grotian Moment: The Saddam Hussein Trial Blog
Arizona	Gabriel (Jack) Chin	M	CrimProf Blog
Ave Maria	Richard Myers	M	Mirror of Justice
Ave Maria	Stephen J Safranek	M	Contracts Prof
Buffalo	Jim Milles	M	Out of the Jungle
Capital	David Mayer	M	MayerBlog
Cardozo	Dan Crane NEW	M	Antitrust Review
Cardozo	Susan Crawford	F	Susan Crawford Blog
Cardozo	Peter Tillers	M	Tillers on Evidence
Cardozo	Richard Weisberg	M	Law & Humanities Blog
Case Western	Jonathan Adler	M	The Commons Blog
Case Western	Peter Freidman	M	RawBlog
Case Western	Andrew Morriss	M	The Commons Blog and St. Maximos' Hut
Case Western	Michael Scharf	M	Grotian Moment: The Saddam Hussein Trial Blog
Chapman	Tom Bell	M	Agoraphilia and The Technology Liberation Front
Chapman	Hugh Hewitt	M	Hugh Hewitt.com
Chapman	John Eastman	M	The Remedy
Chicago	Al Alschuler	M	Chicago Law Faculty Blog
Chicago	Richard Epstein	M	Chicago Law Faculty Blog
Chicago	William Ford NEW	M	Empirical Legal Studies Blog
Chicago	Todd Henderson	M	Chicago Law Faculty Blog
Chicago	Saul Levmore	M	Chicago Law Faculty Blog
Chicago	Doug Lichtman	M	Chicago Law Faculty Blog
Chicago	Anup Malani	M	Chicago Law Faculty Blog
Chicago	Tracey Meares	F	BlackProf
Chicago	Martha Nussbaum	F	Chicago Law Faculty Blog
Chicago	Randy Picker	M	Chicago Law Faculty Blog
Chicago	Eric Posner	M	Chicago Law Faculty Blog
Chicago	Judge Richard Posner	M	Becker-Posner Blog
Chicago	Geoffrey Stone	M	Chicago Law Faculty Blog
Chicago	Lior Strahilevitz	M	Chicago Law Faculty Blog
Chicago	David Strauss	M	Chicago Law Faculty Blog
Chicago	Cass Sunstein	M	Chicago Law Faculty Blog
Chicago-Kent	Sungjoon Cho NEW	M	International Economic Law and Policy Blog
Cincinnati	Paul Caron	M	TaxProf Blog
Cincinnati	Mark Godsey	M	CrimProf Blog
Cincinnati	Elizabeth Malloy	F	Health Law Prof Blog
Cincinnati	Barbara McFarland	F	Legal Writing Prof Blog
Cleveland State	Adam Thurschwell NEW	M	Before the Law
Colorado	Victor Fleischer	M	Conglomerate
Columbia	Petros Mavroidis NEW	M	International Economic Law and Policy Blog
U. Conn	Laura Dickinson	F	Grotian Moment: The Saddam Hussein Trial Blog
Cornell	Theodore Eisenberg NEW	M	Empirical Legal Studies Blog
Cornell	Michael Heise NEW	M	Empirical Legal Studies Blog
Cornell	Bradley Wendel	M	Legal Ethics Forum
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Cumberland	Michael DeBow	M	Southern Appeal and Point of Law
U.C. Davis	Jennifer Chacón	F	ImmigrationProf Blog
U.C. Davis	Anupam Chander	M	Anupam Chander
U.C. Davis	Bill Hing	M	ImmigrationProf Blog
U.C. Davis	Kevin Johnson	M	ImmigrationProf Blog
DePaul	M. Cherif Bassiouni	M	Grotian Moment: The Saddam Hussein Trial Blog
Drexel	Dan Filler NEW	M	Concurring Opinions
Duke	Stuart Benjamin	M	Volokh Conspiracy
Duke	Joost Pauwelyn NEW	M	International Economic Law and Policy Blog
Emory	Michael Perry	M	Mirror of Justice
Fordham	Chantal Thomas NEW	F	International Economic Law and Policy Blog
Fordham	Amelia Uelmen	F	Mirror of Justice
Florida A&M	Jacqueline Dowd	F	The 13th Juror
Florida Coastal	Jandeep Bhandari NEW	M	Law and Econ Prof Blog
Florida State	Dan Markel	M	PrawfsBlawg
George Mason	David Bernstein	M	Volokh Conspiracy and Point of Law
George Mason	Donald Boudreaux	M	Café Hayek
George Mason	Michael Krauss	M	Point of Law
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George Mason	Todd Zywicki	M	Volokh Conspiracy
GW	Paul Butler	M	BlackProf
GW	Steve Charnovitz NEW	M	International Economic Law and Policy Blog
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GW	Spencer Overton	M	BlackProf
GW	Daniel Solove	M	Concurring Opinions
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Georgetown	Mark Tushnet	M	Balkinization
Georgetown	Rebecca Tushnet	F	Rebecca Tushnet’s Blog
Georgia	Kevin Jon Heller	M	Opinio Juris
Harvard	David Barron NEW	M	Law Culture
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Hastings	Ethan Leib	M	PrawfsBlawg
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Hofstra	Julian Ku	M	Opinio Juris
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Ohio State	Douglas Berman	M	Sentencing Law and Policy
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UCLA	Eugene Volokh	M	Volokh Conspiracy
UMKC	Barbara Glesner Fines	F	Family Law Prof Blog
UNLV	Keith Rowley	M	Contracts Prof Blog
Vanderbilt	Michael Newton	M	Grotian Moment: The Saddam Hussein Trial Blog
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Villanova	Patrick Brennan	M	Mirror of Justice
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Virginia	Peter Brooks NEW	M	Law Culture
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Washington U.	Sam Bagenstos	M	Disability Law Blog
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Washington U.	Leila Nadia Sadat	F	Grotian Moment: The Saddam Hussein Trial Blog
Wayne State	Peter Henning	M	White Collar Crime Prof Blog
Western New England College School of Law	William Childs NEW	M	MassTort.org and TortsProf Blog
Widener	Benjamin Barros	M	PropertyProf Blog
Willamette	Laura Appleman	F	Legal Ethics Forum
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William & Mary	Linda Malone	F	Grotian Moment: The Saddam Hussein Trial Blog
William Mitchell	Kim Dayton	F	Elder Law Prof Blog
William Mitchell	Robert E. Oliphant	M	Family Law Prof Blog
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Wisconsin	Ann Althouse	F	Althouse
Wisconsin	Gordon Smith	M	Conglomerate
Yale	Ian Ayres	M	Balkinization
Yale	Jack Balkin	M	Balkinization

Posted by Daniel Solove at 11:06 PM | Comments (17) | TrackBack

Boutique Medicine: Tax it, Don't Ax It

Sick of waiting weeks for a doctor’s appointment? Or hurried visits? Well, “concierge physicians” have got a deal for you. Just pay a retainer to a practice (usually between $2,000 and $5,000 annually), and you’ll get immediate attention, long visits, and personalized preventive care. There’s just one catch—when you and, say, 400 other health care “consumers” sign-up at a given practice, it drops the other 1500 patients it had been serving to concentrate solely on retainer patients.

Is this problematic? Some important