The Year in Privacy Books: 2008

Here's a list of notable books about information privacy published in 2008. Pick up a few to help stimulate the economy, save the publishing business, and learn more about privacy:

Colin J. Bennett, The Privacy Advocates: Resisting the Spread of Surveillance (MIT Press 2008)
A very informative account of those who work in the privacy advocacy community.

Anupam Chander, Lauren Gelman, and Margaret Jane Radin (editors), Securing Privacy in the Internet Age (Stanford University Press 2008)
A great collection of essays, from a symposium at Stanford Law School. A bit dated -- the symposium was held in 2003 -- but still worth reading. I have a piece in the book discussing data security vulnerabilities and the law -- originally penned back in 2003, so I can say "told ya so!"

William Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791 (Oxford University Press 2008)
The best and most comprehensive intellectual history of the Fourth Amendment ever written.

Cory Doctorow, Little Brother (Tor Teen 2008)
A contemporary version of Orwell's 1984 -- thought-provoking and engaging fiction, as usual from Doctorow.

Laura Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press 2008)
A detailed and compelling history of how 9/11 altered privacy and surveillance in the US and UK.

Sam Gosling, Snoop: What Your Stuff Says About You (Basic Books 2008)
A fascinating discussion of current psychological research about what the products we buy reveal about us.

Mohammad Hashim Kamali, The Right to Life, Security, Privacy and Ownership in Islam (Islamic Texts Society 2008)
A very interesting exploration of privacy in Islamic law.

Jon Mills, Privacy: The Lost Right (Oxford University Press 2008)
From my blurb on the book jacket: "Privacy: The Lost Right provides a clear, concise, and accessible synthesis of the field of information privacy."

Lena Cowen Orlin, Locating Privacy in Tudor London (Oxford University Press 2008)
An historical account of privacy in everyday life during the sixteenth century in England.

John Palfrey, Born Digital: Understanding the First Generation (Basic Books 2008)
A deft and accessible account of how the generation growing up today will face increasing challenges to their privacy.

Bruce Schneier, Schneier on Security (Wiley 2008)
This book is a collection of Bruce Schneier's essays. Schneier is always interesting and wise -- and he's always worth reading.

Wolfgang Sofsky, Privacy: A Manifesto (Princeton University Press 2008)
A. C. Grayling of The Times writes: "Its message, implied throughout, is that as one of the great values of civilisation and one of the essentials of personal and psychological integrity, privacy is worth fighting to regain."

Daniel J. Solove, Understanding Privacy (Harvard University Press 2008)
D. S. Dunn, in Choice writes: "Legal scholars will want to read this book, but so will psychologists, communication specialists, public policy makers, philosophers, and anyone interested in where to draw the line between public and private life."

Rob Walker, Buying In: The Secret Dialogue Between What We Buy and Who We Are (Random House 2008)
A compelling account of modern data mining and marketing practices.

Jonathan Zittrain, The Future of the Internet--And How to Stop It (Yale University Press 2008)
A fascinating examination of Web 2.0 and how new technologies can impede freedom and progress.

Posted by Daniel Solove at 01:54 PM | Comments (3) | TrackBack

William Cuddihy's The Fourth Amendment: Origins and Original Meaning 602-1791

I'm delighted to announce the publication of William J. Cuddihy's The Fourth Amendment: Origins and Original Meaning 602 - 1791 (Oxford University Press, January 2009). The book has just come out in print, hot off the press, and it's an absolutely essential volume for any scholar of constitutional history, criminal procedure, or the Fourth Amendment.

Cuddihy's book is the most comprehensive history of the Fourth Amendment I've ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it's worth every penny.

I first encountered the book as an unpublished manuscript (which was completed over 15 years ago) when I was doing research into the history of the Fourth Amendment. I kept seeing it cited in articles and judicial opinions (it was cited by the U.S. Supreme Court a few times) and so I tracked it down. I couldn't believe that this detailed, exhaustive, and immensely valuable research had never been published. William Cuddihy wrote it while a doctoral student under the late eminent legal historian Leonard Levy. I contacted Cuddihy and helped him find a publisher. And so I'm delighted that the manuscript is now in print, revised, updated, and with an afterward that responds to scholarship by Akhil Amar and Thomas Davies. I wrote a short preface for the book, in which I conclude:

No other work on the Fourth Amendment has synthesized so many sources, let alone done so as deftly and clearly as Professor Cuddihy's The Fourth Amendment: Origins and Original Meaning 602-1791. I am very honored to introduce it.

Get your copy today. Tell your librarian to get a copy for your school's library. It's truly an impressive book, and is indispensable for anyone who wants to understand the origins of the Fourth Amendment.

Posted by Daniel Solove at 06:41 PM | Comments (4) | TrackBack

Head Counting on the U.S. Courts of Appeals

Others have already commented on it (here and here), but I wanted to add my belated thoughts on the Wall Street Journal opinion piece on judicial appointments by Steve Calabresi, of some weeks back. In it, Calabresi outlines a true parade of horribles (including "the mass freeing of criminal defendants") that might befall on the country, if Barack Obama were to win the presidency and make significant appointments to the U.S. Courts of Appeals. (He was writing the week before the election.)

What struck me more than Steve's enumeration of dangers and threats, however, was an earlier comment in the piece.

After offering an audit of the membership on the D.C. Circuit by appointing president, and suggesting the likelihood that Obama will make a substantial number of appointments to that court, he states:

"The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals."

And he continues, turning to the balance of the courts of appeals:

"The balance will shift as well on almost all of the 12 other federal appeals courts. . . . Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeals."

I think my legal realist credentials are as good as the next guy, but what are we to make of such talk of "majorities" on the courts of appeals - as measured by the imprecise heuristic of appointing president, no less? Do federal court of appeals judges caucus by party - or even political preferences, for that matter? If so, who is the Democratic whip on the Second Circuit? On the Ninth!?!

I share much of the general sense of doubt about the possibility of judicial dispassion and neutrality, and about the notion of judges as simply "umpires." I suspect we go much too far, however, in conceptualizing the collective decision-making of the courts of appeals - or even the Supreme Court, I suspect - in terms of voting majorities of one party versus the other.

Such an approach is not merely inaccurate, however, but also harmful to public perception of the courts - and of the law generally. Perhaps especially because it perpetuates itself.

If Steve can tell a story of threatened Democratic majorities on nine of the thirteen courts of appeals, thus, The New York Times can respond in kind, as it did:

"Republican-appointed judges, most of them conservatives, . . . control 10 of the 13 circuits, while judges appointed by Democrats have a dwindling majority on just one circuit."

Not too sound too schoolmarm-y about it, but we really shouldn't be talking this way.

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"The market and the internet don't care if you make money."

Via Andrew Sullivan I came across this really angry comment about the future of book publishing. In it, Seth Godin (Tribes) argues that the book industry needs to adapt - quickly - from being a bunch of people who print and sell books to a group of "marketers and agents and managers and developers of content". Sounds like a cinch. I wonder why newspapers haven't thought of that.

Godin continues that maybe publishers should consider selling books for a dollar, because the audience will purchase them at that price, and let authors make money from "bespoke work and appearances and interactions". (That means, I think, personalized books written on demand for particular groups. I imagine Godin has read The Diamond Age more the once. If you haven't, you should, even though it retails at $10.20 new.)

I don't know enough about the economics of the book industry, and I'm trying to learn more. But I wanted to focus for a moment on Godin's argument (noted in the title to this post) that content providers shouldn't feel entitled to monetizing their talent, simply because they are creating a product that people want. Very true. That said, it is also worth pointing out that entrepreneurs probably won't create until they see a path to making a living from their work. The Grateful Dead model - appearances & interactions - appears to me to be an audacious hope, not a business model. Or to put it another way, if I were a budding author reading Godin's interview, I would put down my pen and go to law school. At least we've got a Guild to protect us from the forces of modernization.

(Image Source: Ezra Cornell's Book, Wikicommons)

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The Future of Reputation in Paperback

I'm very excited to announce that my book, The Future of Reputation: Gossip, Rumor, and Privacy (Yale University Press), is now in paperback. The best price is at Amazon.com. Of course, you can read it for free online -- but I know that you really want to have a hard copy.

Posted by Daniel Solove at 10:32 AM | Comments (0) | TrackBack

The Future of Reputation in Korean

Today, I received copies of the Korean translation of my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. The book begins with an incident in Korea -- the dog poop girl -- so I hope that the book becomes popular there. I have no idea what all the stuff written on the cover says, so if anybody can read Korean, please let me know (click on the image to see a larger version).

Posted by Daniel Solove at 03:57 PM | Comments (1) | TrackBack

The End of Privacy?

I've written an article for the September issue of Scientific American magazine called The End of Privacy? The article is available online here, with a slightly different title: Do Social Networks Bring the End of Privacy?.

The entire issue is devoted to privacy, and there are some other really interesting articles. Here are links to the other articles in the issue:

Whitfield Diffie and Susan Landau, Internet Eavesdropping: A Brave New World of Wiretapping

Steven Ashley, Digital Surveillance: Tools of the Spy Trade

Katherine Albrecht, How RFID Tags Could Be Used to Track Unsuspecting People

Anil K. Jain and Sharath Pankanti, Beyond Fingerprinting: Is Biometrics the Best Bet for Fighting Identity Theft?

Mark A. Rothstein, Tougher Laws Needed to Protect Your Genetic Privacy

Simson L. Garfinkel, Data Fusion: The Ups and Downs of All-Encompassing Digital Profiles

Peter Brown, Privacy in an Age of Terabytes and Terror

Esther Dyson, How Loss of Privacy May Mean Loss of Security

Anna Lysyanskaya, Cryptography: How to Keep Your Secrets Safe

Posted by Daniel Solove at 12:03 AM | Comments (0) | TrackBack

Eric Muller on the Lies of Hirabayashi

Professor Eric Muller (U. North Carolina School of Law) has posted a new paper, Hirabyashi: The Biggest Lie of the Greatest Generation on SSRN. From the abstract:

This Article presents newly discovered archival evidence demonstrating that government lawyers told a crucial lie to the United States Supreme Court in the case of Hirabayashi v. United States, 320 U.S. 81 (1943), which upheld the constitutionality of a racial curfew imposed on Japanese Americans in World War II. While the government's submissions in Hirabayashi maintained that the curfew was a constitutional response to the serious threat of a Japanese invasion of the West Coast, new archival findings make clear that military officials foresaw no Japanese invasion and were planning for no such thing at the time they ordered mass action against Japanese Americans. Even more disturbingly, the archival record demonstrates that at the time that Justice Department lawyers filed their brief in Hirabayashi emphasizing a threatened invasion, they knew this emphasis was false.

The Article seeks to understand what might have led otherwise ethical Justice Department lawyers to present such a big and consequential lie, suggesting that the then-prevalent racial schema of the "Oriental" as an invading horde may have overpowered the lawyers' evaluation of the facts. And perhaps more importantly, the Article demonstrates that the Hirabayashi decision - which has never been repudiated in the way that the more famous Korematsu decision has been, and which remains a potent precedent for race-conscious national security measures - deserves to be installed in the Supreme Court's Hall of Shame, alongside Korematsu, Dred Scott, and the Court's other biggest mistakes.

According to Eric's blog post about his article: "My article documents all of this from primary archival sources, and then goes on to speculate about what might have led Justice Department lawyers to such a large and consequential deception."

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

General Georges Doriot as Teacher

I'm reading Spencer Ante’s interesting new biography of Georges Doriot, who founded the nation's first venture capital firm, American Research and Development, in Boston in 1946. Doriot immigrated to the U.S. from France in 1921, when he was 21 years old, to attend MIT. On arrival in Cambridge Doriot met the President of Harvard, who convinced him that Harvard Business School was where he belonged, and Doriot promptly enrolled. By age 30, Doriot had become a full professor at HBS. Not bad for a decade's work.

Doriot loved to teach and was one of HBS's most popular professors. But he learned there can be too much of a good thing. The HBS Dean at the time (Wallace Donham) recognized Doriot’s talents in the classroom and asked him to take over courses where other professors had proved unpopular. In one passage, Ante writes:

The Dean…told Doroit that there was something amiss with the class on Business Policy, a required second-year, full-year course. Over the past few years, students had complained about several teachers, and had even taken to stamping their feet ‘during lectures they considered boring or irrelevant.’ Like he had done with the class on factory problems, Dean Donham told Doriot to take over the course and recast his Manufacturing lectures as a Business Policy course. Doriot accepted the assignment even though he did not want to teach a required course with an enormous enrollment. His boss was relying on him, and he had to come through.

In a subsequent letter to a friend, Doriot complained of the new arrangement:

I have started teaching. It takes an enormous amount of energy to teach 330 men. Trained teachers having for the past years made a mess of that course, I quite realize that the odds are against me. I shall do my best anyway even if I have to pass out doing it.

Channeling Larry’s post from last week, now that’s a lot of contact hours!

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"For Every Three Judges, Two Are in the Fire": Richard Posner and the Usul al-Fiqh

I've been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner's theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are -- and ought to be -- forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn't preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the "the law" as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual -- albeit practically constrained -- judgement about what would -- all things considered -- be best. One doesn't get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner's decisions is really bad, it really is Judge Posner's fault.

Where Judge Posner's theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God's law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur'an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered -- not deduced from or promulgated in accordance with -- with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur'an is not a legal code. Rather it is a collection of "recitations" -- often in the form of religious poetry -- given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these "recitations" were collected into the Qur'an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will." Hence, there was no sense in which a jurist could hide behind some abstraction like office or "the law" to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.

According to one Muslim legal aphorism, "For every three judges, two are in the fire." The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one's eternal soul was on the line. I don't think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.

Posted by oman at 12:37 PM | Comments (7) | TrackBack

A Dream Summer Reading List

Which books, lost in history or yet unwritten, would you most like to see released and available for purchase this summer?

I ask in part because I was watching The Name of the Rose recently, with its focus on the (lost) second book of Aristotle's Poetics on comedy. There are, of course, a ton of books lost in time out there - even a book on lost books. (Be cautioned, however, by the book's review by Publisher's Weekly: "Inevitably, the thesis is more charming than the lengthy execution, and one suspects this would have been much more effective in condensed form as a whimsical article in Harper's or the Atlantic.")

So what are the books you'd most want to read at the beach or while procrastinating in the office, but can't? A few of mine are easy - Robert Caro's LBJ Part IV: The Presidency, and George R. R. Martin's A Dance With Dragons. But I'd also like to see Bob Clark come out with a new edition of Corporate Law. How about you?

Posted by hoffman at 03:30 PM | Comments (3) | TrackBack

Information Privacy Law Journal at SSRN

I'm pleased to announce that Christopher Hoofnagle (Berkeley Center for Law & Technology) and I have launched a new journal at SSRN -- Information Privacy Law. If you submit new papers and abstracts to SSRN and they involve information privacy law issues, please select our journal as one of the classifications for your work.

You can subscribe to the journal by clicking the link at the top of the journal's page that says "subscribe to this journal" or by clicking here. This will enable you to receive periodic emails about new abstracts and papers filed in the journal.

We created the journal because there is an increasing amount of scholarship devoted to privacy law issues. In the month of May alone, we had 22 abstracts and papers filed in the journal. A lot of really interesting work is being done in the field, and we hope that the journal will enable people to more readily keep up with it.

Posted by Daniel Solove at 10:12 AM | Comments (1) | TrackBack

Network Power: Forced and Free

A friend from law school, David Grewal, has recently published Network Power (presently advertised at left). I'm happy to see the book favorably reviewed in the FT by Christopher Caldwell, and I hope to see more attention to it. Grewal's fundamental insight is that the "individual choice" celebrated in markets (and many other settings) is often simultaneously both "forced and free:"



[T]he network power of English isn’t the result of any intrinsic features of English (for example, “it’s easy to learn”): it’s purely a result of the number of other people and other networks you can use it to reach. . . . The idea of network power captures the ways in which the systematic features of our social world emerge from human action and remain intelligible in light of it, even while they constrain us in ways that do not reduce straightforwardly to the power of command. It explains how the convergence on a set of common global standards is driven by the accretion of individual choices that are free and forced at the same time.

The idea of "network effects" is a familiar one to legal economists, and I have critiqued self-defeating "arms races" of positional competition that erode human welfare. Grewal's book contributes to these conversations by transcending economic analysis and examining the political, sociological, and philosophical implications of network formation and standards adoption.

Though Grewal's discussion of gold and English as economic and linguistic standards is fascinating, his discussion of technical standards may be of most interest to lawyers. Both Microsoft Word and the ISO 9000 standards gained power in a self-reinforcing way; as more people adopted them, others anticipated their further adoption and "fell into line" in promoting the standards. Grewal worries that "privately owned technological standards not only [threaten] the freedom of users to choose the best standards for their needs . . . [but also result in] . . .a great deal of power [being] handed over to the private owner of that standard." What to do in response?

I tend to think that one answer is to treat dominant standards or platforms as infrastructural, or even as sharing characteristics with public utilities. I think that Google is a prime example of network power, and spin out some implications in this paper. My basic contention is that the network effects and governmental interventions we readily see as crucial to the success of telephone and cable companies also played a role in Google's rise, and that it makes sense to impose some of the basic obligations of these older carriers on new web "bottlenecks" that similarly shape the fundamental structure of online life. Perhaps dominant social networks are the next logical place to extend the analogy.

There are going to be many battles in coming years over the management of information flows online. Grewal's work should remind us throughout these debates that the rise of any one dominant network player--be it in search, social networking, or carriage of bits--has as much to do with "force" as "free choice." Just as Robert Hale noted that leading businesses of his day were dependent on mutable laws that could easily shift favor from one corporate player to another, Grewal has given us reason to re-examine the bases of the success of today's new economy juggernauts.

The so-called “free development” of dominant Web 2.0 intermediaries was itself a product of particular legal choices about the extent of intellectual property rights and the responsibilities of intermediaries made in legislative and judicial decisions in the 1990s. For example, many fortuitous legal and regulatory decisions paved the way to Google's success. Perhaps its technology in search was and is better than any search engine competitor. But its uniquely dominant place in the internet ecology could have been snuffed out at many points over the past 10 years. Various entities have tried to bring Google to heel--including telcos, cable companies, content providers, search engine optimizers, trademark owners, and consumer advocates. In traditional information law, claims under trademark, defamation, and copyright law might pose serious worries for the company. However, communications and intellectual property law provide safe harbors that can trump legal claims sounding in each of these other areas. Immunities from tort liability provided under the Communications Decency Act (“CDA”) were originally intended for carriers regulated by the Federal Communications Commission, but have been extended by courts to cover search engines

Conditioning continued enjoyment of the rights won by online intermediaries in those decisions on some transparency and public service commitments is a legitimate response their growing importance to our collective lives. Once we recognize the inextricable intertwining of "force" and "freedom" in the network power that structures online life, we can better start balancing intermediaries' rights with the responsibilities that publicly accountable standards should bear.

Posted by Frank_Pasquale at 08:56 PM | Comments (0) | TrackBack

My New Book, Understanding Privacy

I am very happy to announce the publication of my new book, UNDERSTANDING PRIVACY (Harvard University Press, May 2008). There has been a longstanding struggle to understand what "privacy" means and why it is valuable. Professor Arthur Miller once wrote that privacy is "exasperatingly vague and evanescent." In this book, I aim to develop a clear and accessible theory of privacy, one that will provide useful guidance for law and policy. From the book jacket:

Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information more and more available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.

In this concise and lucid book, Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues.

Understanding Privacy will be an essential introduction to long-standing debates and an invaluable resource for crafting laws and policies about surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.

Here's a brief summary of Understanding Privacy. Chapter 1 (available on SSRN) introduces the basic ideas of the book. Chapter 2 builds upon my article Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002), surveying and critiquing existing theories of privacy. Chapter 3 contains an extensive discussion (mostly new material) explaining why I chose the approach toward theorizing privacy that I did, and why I rejected many other potential alternatives. It examines how a theory of privacy should account for cultural and historical variation yet avoid being too local in perspective. This chapter also explores why a theory of privacy should avoid being too general or too contextual. I draw significantly from historical examples to illustrate my points. I also discuss why a theory of privacy shouldn't focus on the nature of the information, the individual's preferences, or reasonable expectations of privacy. Chapter 4 consists of new material discussing the value of privacy. Chapter 5 builds on my article, A Taxonomy of Privacy, 154 U. Pa. L.. Rev. 477 (2006). I've updated the taxonomy in the book, and I've added a lot of new material about how my theory of privacy interfaces not only with US law, but with the privacy law of many other countries. Finally, Chapter 6 consists of new material exploring the consequences and applications of my theory and examining the nature of privacy harms.

Understanding Privacy is much broader than The Digital Person and The Future of Reputation. Whereas these other two books examined specific privacy problems, Understanding Privacy is a general theory of privacy, and I hope it will be relevant and useful in a wide range of issues and debates.

For more information about the book, please visit its website.

Posted by Daniel Solove at 12:03 AM | Comments (5) | TrackBack

Little Brother

Cory Doctorow’s latest novel, Little Brother, is technically a young adult novel, but there is something in there for anyone interested in cyberlaw, security, national security law, and oh yeah, a rather fun, although at times scary, tale. In classic Cory fashion, he has made the book available for free (yes well before law profs such as Benkler and Zittrain did so, Cory has been a leader in the world of I-make-money-by-giving-away-my-creations). He also allows people to remix and share the new work. The downloads and remixes are licensed under a Creative Commons Attribution-Noncommercial-ShareAlike license. Now that is a business model of the new economy. For those wondering whether this approach works, it does for Cory if making the New York Times Kids Bestseller list matters. (Scoff at your own risk. Remember kids are a tremendous market). So on to the book.

Some tech/sci-fi writers give up story for ideas. They offer great fun and build excellent worlds, but when it comes to ending the story, they fall short. (I am thinking of early Stephenson here) Little Brother, however, delivers both ideas and story. That is great because one can dive in and enjoy the characters as they navigate the modern day 1984 world of the United States.

Despite, or perhaps because, the characters and the story draw one in, the details of this world are not all fun and games. Hacking, government power, security, racism, freedom, and more swirl around as decent teens trying to have a life, trying to grow and express themselves, and trying to make mischief, crash into a new world. Anyone who remembers useful acts of rebellion and the learning that goes with them should be able to identify with these kids. The beauty of having kids as main characters is that kids often have parents. Doctorow uses the parents quite well. They express the natural desire for stability and the way that once freedom-loving individuals can easily change as they age and see the world through a lens of how-do-I-protect-my-family? Whether they will protect their kids and what the protection will look like was a subtle but important theme which Doctorow navigates well. Perhaps thoughts of becoming a father fueled this sensitivity; perhaps not. Either way it works.

Some of the text tantalizes with ways for individuals to keep their communications free, secret, and/or anonymous as context requires. Exploring those issues allows Doctorow to investigate how trust of other individuals, businesses, and the government work together to create the world we enjoy or what happens if that trust fails. Cory is not shy. He does not stop there. The relationship between federal and state government, the role of the press, and how individuals can or cannot impact the system are all in play as well.

I will stop here as I do not want to give away the details. There is more to discuss, but I also hate spoilers. So here is a possible solution. For those wishing to see Cory’s take on his book check out his post on John Scalzi’s Big Idea series. In addition, Cory is quite busy, but we hope to do a phone interview this summer. That way the law issues can be addressed and those who wish to avoid spoilers can. No promises but if he and I can connect, it should be fun.

Last, you may wonder whether I’d say buy the book given that it can be downloaded for free. Well yes I would say buy it as it keeps Cory funded. Yet, what if you decide to download it? Should you donate to Cory? No. In fact he would prefer you buy a copy for you or someone you love as it works better for his publisher and him. Or ever the innovative person, Cory has another idea you may wish to pursue: a donation program for the book. In short, Cory and his assistant have assembled a list of libraries and schools that want the book. He suggests that people who downloaded the book and want to give him money, find a library or school, buy the book online, and ship it to the school. Everybody wins: the public, the publisher, and Cory (who will receive royalties). Cory sent me the file before he put it online so I could review it. Still, I plan on following his suggestion and donating a book.

Image: Courtesy of Pablo Defendini
The image is an early sketch for a potential paperback cover. Mr. Defendini has a portfolio that you may enjoy too.

Posted by Deven_Desai at 12:50 PM | Comments (1) | TrackBack

Docketology in Print

I'm happy to point out that my article, Docketology, District Courts and Doctrine, is now in print in Volume 85 of the Washington University Law Review. You can find previous discussion of the piece on this blog, starting here. The final version is significantly improved over the drafts, so I hope you'll check it out. If anyone is motivated by the article to try some dockets research, let me know know, and I will tell you all the ways I've messed it up in the past!

Coming next: Docketology, Part II.

Posted by hoffman at 03:41 PM | Comments (0) | TrackBack

One train may hide another

Readers interested in criminal procedure, or constitutional law, or law and sexuality, or just a good read with some fascinating historical details, might enjoy David Sklansky’s “One Train May Hide Another”: Katz, Stonewall, and the Secret Subtext of Criminal Procedure. Without rejecting the commonplace claim that the development of constitutional criminal procedure was a matter of racial justice, driven largely by the civil rights movement and efforts to end mistreatment of black defendants, Sklansky suggests that this area of law was also shaped by concerns about “the long, sordid history of the policing of sexuality”--and the policing of homosexuality in particular. Of particular interest, given Larry Craig’s arrest last year, is the discussion of spying in public toilet stalls. Apparently, this practice was a standard police tactic used to detect homosexual conduct and arrest those who engaged in it. Katz v. United States focuses on the public phone booth, but the “secret subtext” may have been a concern about privacy in the public toilet stall.

And, one train may hide another. For me, the appeal of this article is not just the substantive argument, but an introduction to Kenneth Koch’s poem from which Sklansky takes the title phrase. Koch was traveling in Kenya and saw a sign at a railroad crossing: “One train may hide another.” The line inspired him, and here's how his poem of that title begins:

In a poem, one line may hide another line,

As at a crossing, one train may hide another train.

That is, if you are waiting to cross

The tracks, wait to do it for one moment at

Least after the first train is gone. And so when you read

Wait until you have read the next line--

Then it is safe to go on reading.

In a family one sister may conceal another,

So, when you are courting, it's best to have them all in view

Otherwise in coming to find one you may love another.

The whole poem is here. And thanks to Melissa Murray, who recommended Sklansky’s article to me.

Posted by Alice_Ristroph at 06:09 PM | Comments (1) | TrackBack

Data Mining and the Security-Liberty Debate

My short essay, Data Mining and the Security-Liberty Debate, 74 U. Chi. L. Rev. 343 (2008) has just been published. I've posted the final version on SSRN. Here's the abstract:

In this essay, written for a symposium on surveillance for the University of Chicago Law Review, I examine some common difficulties in the way that liberty is balanced against security in the context of data mining. Countless discussions about the trade-offs between security and liberty begin by taking a security proposal and then weighing it against what it would cost our civil liberties. Often, the liberty interests are cast as individual rights and balanced against the security interests, which are cast in terms of the safety of society as a whole. Courts and commentators defer to the government's assertions about the effectiveness of the security interest. In the context of data mining, the liberty interest is limited by narrow understandings of privacy that neglect to account for many privacy problems. As a result, the balancing concludes with a victory in favor of the security interest. But as I argue, important dimensions of data mining's security benefits require more scrutiny, and the privacy concerns are significantly greater than currently acknowledged. These problems have undermined the balancing process and skewed the results toward the security side of the scale.

The essay critiques arguments by Richard Posner and William Stuntz, as well as Eric Posner and Adrian Vermeule's Terror in the Balance: Security, Liberty, and the Courts.

Posted by Daniel Solove at 12:51 AM | Comments (1) | TrackBack

The Digital Person Free Online!

Last month, Yale University Press allowed me to put my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet online for free. The experiment has gone quite well. The book's website received a big bump in traffic, with many people downloading one or more chapters. The book's sales picked up for several weeks after it was placed online for free. Sales have now returned to about the same level as before the book went online.

I'm delighted to announce that NYU Press has allowed me to put my book, The Digital Person: Technology and Privacy in the Information Age (NYU Press, 2004) online for free.

Here's a brief synopsis of The Digital Person from the book jacket:

Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. These databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases--which Daniel J. Solove calls “digital dossiers”--has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.

Digital dossiers impact many aspects of our lives. For example, they increase our vulnerability to identity theft, a serious crime that has been escalating at an alarming rate. Moreover, since September 11th, the government has been tapping into vast stores of information collected by businesses and using it to profile people for criminal or terrorist activity. In THE DIGITAL PERSON, Solove engages in a fascinating discussion of timely privacy issues such as spyware, web bugs, data mining, the USA-Patriot Act, and airline passenger profiling.

THE DIGITAL PERSON not only explores these problems, but provides a compelling account of how we can respond to them. Using a wide variety of sources, including history, philosophy, and literature, Solove sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

Book reviews are collected here.

Posted by Daniel Solove at 12:08 AM | Comments (0) | TrackBack

Ranking Banks Based on Incidents of Identity Theft

Chris Hoofnagle just released a new report entitled Measuring Identity Theft at Top Banks. In the report, he ranks the top 25 US banks according to their relative incidence of identity theft. The report is based on consumer-submitted complaints to the FTC where the victim identified an institution.

In a previous paper called Identity Theft: Making the Unknown Knowns Known, Chris argued that there should be mandatory public disclosure of identity theft statistics by banks. Since the financial institutions don't currently release such data, we have no idea which institutions are being more effective at reducing identity theft than others.

For his new paper, Chris made a FOIA request last year to the FTC for two years of consumer complaint data. The FTC found it too burdensome to release two years' worth of data, so "the request was limited to three randomly-chosen months in 2006, January, March, and September. These months included data from 88,560 complaints, with 46,262 names of institutions were identified by victims." Chris's paper is based on an analysis of this data.

From the abstract:

There is no reliable way for consumers, regulators, and businesses to assess the relative incidence of identity fraud at major financial institutions. This lack of information prevents more vigorous competition among institutions to protect accountholders from identity theft. As part of a multiple strategy approach to obtaining more actionable data on identity theft, the Freedom of Information Act was used to obtain complaint data submitted by victims in 2006 to the Federal Trade Commission. This complaint data identifies the institution where impostors established fraudulent accounts or affected existing accounts in the name of the victim. The data show that some institutions have a far greater incidence of identity theft than others. The data further show that the major telecommunications companies had numerous identity theft events, but a metric is lacking to compare this industry with the financial institutions.

This is a first attempt to meaningfully compare institutions on their performance in avoiding identity theft. This analysis faces several challenges that are described in the methods section. The author welcomes constructive criticism, suggestions, and comments in an effort to shine light on the identity theft problem.

This is a fantastic endeavor, as more information on how institutions are protecting against identity theft is sorely needed. Chris admits that his study has some limitations and could be improved if financial institutions would supply more information to the public. But based on the information Chris could find out, this report is quite revealing. Hopefully, it will spark more transparency from financial institutions in the future.

Here is one of many charts in the paper. The chart below is of incidents of identity theft relative to the size of each institution.

Posted by Daniel Solove at 11:06 AM | Comments (1) | TrackBack

Should Publishers Put Their Books Online for Free?

Yesterday, Yale University Press allowed me to post my book online for free. Over at the NYT's Freakonomics blog, Melissa Lafsky writes about the growing trend of publishers posting free electronic copies of their books online. HarperCollins, for example, has started posting its books free online. In addition to my book, Yale University Press has allowed for the posting of Yochai Benkler's The Wealth of Networks for free online.

One commenter to Lafsky's post writes:

Imagine if books went the route of music and charged something like 1 or 2 dollars per download. Hardly a cumbersome fee when you consider most books will be over 10$ in a brick and mortar. Now, if a free ebook can sell 1 million copies in 1 day after some publicity on Oprah, imagine how many copies a trivially priced edition could sell over the span of several months. Certainly a few million, I’d expect.

Money is saved on raw materials, processing, printing, distribution. The only costs would be for the content and the server to house the content and some for publicity. So, say the split goes something like 70/30 for author/distributor. That’s still a great deal of income with extremely low overhead.

Another commenter writes:

Why can’t book publishers use the same business model that magazines use? Namely, inserting advertisements among the pages to offset the costs of production.

I for one, would gladly put up with some ads in favor of a lower price. Imagine paying $5 for a new release, rather than $30.

From the Associated Press:

More than 1 million copies of Suze Orman's "Women & Money" have been downloaded since the announcement last week on Winfrey's television show that the e-book edition would be available for free on her Web site, http://www.oprah.com. . . .

According to Saturday's statement, more than 1.1 million copies of Orman's financial advice book were downloaded in English, and another 19,000 in Spanish. The demand compares to such free online sensations as "The 9-11 Commission Report," which the federal government made available for downloads, and Stephen King's e-novella, "Riding the Bullet."

The publishing community has endlessly debated the effects of making text available online, with some saying that free downloading is a valuable promotional tool and others worrying that sales for paper editions would be harmed. The Authors Guild and the Association of American Publishers each have sued Google for its plans to scan and index books for the Internet.

The offer for "Women & Money," originally released a year ago by Spiegel & Grau, a division of Random House, Inc., has not kept people from buying the traditional version. As of Saturday, the book ranked No. 6 on Amazon.com. The paper edition of "The 9-11 Commission Report," published in 2004 by W.W. Norton and Co., was a best seller for months.

"I can tell you that with respect to the `9-11 Report,' the free download did not seem to hurt sales at all," Norton publisher Drake McFeely told The Associated Press on Saturday. "There were people who wanted it quickly, in a less convenient form, and that was clearly a different market from the people who wanted the traditional book." . . .

Is this trend a wise thing for publishers to do? Will it help sales? Hurt sales? I'm curious what readers think.

Posted by Daniel Solove at 04:08 PM | Comments (5) | TrackBack

Preaching to the Court House and Judging in the Temple

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts.The full version of my research is now up on SSRN for those interested. Here is the abstract:

A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century's end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession's claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons' rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the "public law" side of this story, showing how the federal government's effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.

Dowload it while its hot!

Posted by oman at 12:41 PM | Comments (0) | TrackBack

Criminal Law Conversations

Professors Paul Robinson (Penn. Law School) and Kimberly Ferzan (Rutgers-Camden School of Law) invite criminal law scholars from around the world to contribute to a peer-engaged project of criminal law "conversations" to be published collectively as a book. Concise "core" papers not to exceed 5000 words (approximately ten single-spaced pages) presenting a theory or position will each be followed by a number of short comments (normally no more than 800 words – approximately two pages or less), with a final reply to the comments by the original core paper author.

The goal of Criminal Law Conversations (CLC) is to promote thoughtful critiques of important issues. Too often opposing advocates talk past each other. CLC's web-based virtual "conversations" are designed to help opponents join issue. The website is not a blog but rather a vehicle for nominating and organizing the project's topics and contributors.

The selection of core texts will be made by the criminal law scholarly community at large, as people express interest in the topics on which they would like to comment. All scholars are invited to submit nominations for the subject of a "core text" based on either previously published articles or new material. All are also invited to submit comments on any one or more of the nominated core texts.

The book collection will be assembled by late 2009. Oxford University Press has expressed an interest in publishing the volume. In addition, there will be a permanent CLC website that contains core texts and commentaries not included in the published volume. The permanent website also will allow the future submission of comments on the published volume’s contents, and may be used to produce subsequent collections.

The selection of core texts and responses will be coordinated by the CLC webpage.

Posted by Daniel Solove at 01:06 PM | Comments (0) | TrackBack

Creating Legal Scholarship? Are We Writers?

Do we who write legal scholarship, books and articles, think of ourselves as "creative writers"? And if so, how do we write? A wonderful new book, Off the Page: Writers Talk About Beginnings, Endings and Everything In Between (edited by Carole Burns, (WW.Norton & Co. NY,2008), providing excerpts of writers on writing from the pages of the Washington Post, suggests some interesting questions for us to think about. How do we start a project of legal writing or scholarship? A contested area of law? A hypenated title (a wise dean once said to me every law review article needs a colonic purge)? The juxtaposition of two conflicting ideas (my own student note was inspired in this way over 30 years ago ("The Inevitable Interplay of Title VII and the NLRA" -- contradictions in ideas about union seniority and promotion of affirmative action ideas). Do we conjure up a color (as A.S. Byatt does)? Or a character ( particular legal actors) as Michael Cunningham does? Or must the article or book have a legal "plot" or story? Or a "flash" or an "irritant" (Gish Jen)?

It might be interesting for legal scholars to write and think about their own creative processes. Over the years, friends and colleagues have reported quite different ways of "creating" legal scholarship. One colleague reported she wrote out her argument first and then had student research assistants find the footnote support for her. Another said she wrote to create a coherent "story" of how the law should be and then dealt with the "actual" law later in the footnotes. I have always felt that my entire writing style was shaped by law review writing. I can't say anything without dropping a footnote (fortunately, I can't do that so easily here), looking for authority for what I say and then taking a very interesting digression into all the books and articles I have accumulated to document what I already think or have learned from others. One can avoid writing for days, weeks, even months that way!

With the development of seminars, fellowships, and materials (see e.g. Eugene Volokh and Alex Kozinski, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers and Getting On Law Review, 3rd. ed., 2007) which attempt to teach law students and young scholars how to conceive of and complete a work of legal scholarship, what might we learn about thinking, writing and creating from creative writing?

Think about:

1. How do we begin? (Research/thesis first? or "free writing" from a thought, inspiration, class comment, argument with a colleague, disagreement with a decision or legal policy?)

2. How actively or passively do we write? (A feminist friend of mine once wrote a whole article about the history of feminist thought without naming a single person who created or litigated feminist legal theory.) Are there legal actors in our stories or are we "objective" and neutral observers about how the law develops.

3. Where do our ideas come from? (How original, how do we check for intellectual, as well as case or law "pre-emption" or creativity? How interdisciplinarily do we think?

4. How do we write? (In disciplined, so many words, hours at a time, or as the "flow" directs us-- between classes, babies crying, student meetings, faculty seminars)

5. Where do we write? (in the library, at home, on laptops in the skies, now in exotic leave of absence locales, far away from an American law book, inspired or not by comparative legal systems and actors?)

6. What words/language style do we use? Clear, accessible, or full of jargon and speciality vocabulary?

7. Whom do we show our writing to? (Critics at the office, at home, distantly admired mentors and leaders in their fields, non-lawyers, children, significant others, judges for whom we have clerked?)

8. How often do we revise?

9. What does it feel like when someone writes a better version or has the same thought or the law changes or the world changes and all your work seems for naught?

10. To what audience do we write? (The Supreme Court, other academics, our spouses, our mothers, our mentors, our students, practicing lawyers, prize committees, tenure committees)

11.How do we know we have said something worth saying? (Being disagreed with, hits on SSRN, citation listings.I once complained about how I was being criticised as a "vulgar Gilliganite" ("difference feminism"), when an academic colleague pointed out, "at least you are being read and talked about, if misinterpreted...now you can respond.". Now, I get invited to teach and lecture all over the world because someone has read my texts on ADR and I feel more "listened to" abroad than at home).

12. How much do we read, think about and consider what has gone before us? (As an increasingly older scholar I sometimes marvel at how little junior scholars read and cite those who had the same idea decades ago--I now realise I was guilty of this myself as a younger scholar...Either there is "nothing new under the sun" or each moment we "make ourselves anew.") How appreciative we should be to those whose shoulders we stand on. (see Robert Merton, The Shoulders of Giants).

13. How do we know when we have been moved/stimulated by really good writing? (Joe Singer, thank you for The Nihilist and the Cards, Yale L. J. so many years ago, and Marc Galantaer, Why The Haves C