Author Archive for danielle-citron
Talent Wants To Be Free Symposium: Lending Support to Lawmakers and Raising Questions for Open Government Efforts
posted by Danielle Citron
Like my fellow symposium participants, I loved Orly’s book. As Catharine Fisk noted, Orly’s stories and lessons, informed by literature, experiments, and more, captivated me. Beside teaching me much, more importantly, it will educate policymakers. Talent Wants to Be Free serves as a slam-dunk rebuttal to those who say that legal scholarship lacks value in the real world. Orly’s book is a must read for state legislators interested in encouraging innovation in their backyards. Some lawmakers have proposed bills to limit or eliminate non-compete agreements as contrary to public policy. As Orly’s book demonstrates, good for them and for all of us. Orly’s book provides powerful arguments for the adoption of those laws and for other states to pay attention. And it sounds like an upcoming Restatement will recommend rules that would send judges in the opposite direction–towards less mobility, not more. They too need to read Orly’s original research and powerful arguments.
The book raised an interesting disconnect about our understanding of the mobility of talent. On the one hand, the media is all abuzz about companies that find talent for employers who presumably could move from their current jobs. As a recent New York Times piece discussed, analytics firms crunch data to search for and assess specialized talent in particular fields. Remarkable Hire scores a candidate’s talents by looking at how others rate her online contributions. Talent Bin and Gild create lists of potential hires based on online data. According to the Times, big-name companies like Facebook, Wal-Mart, and Amazon use these technologies to find and recruit job candidates. These stories don’t take into account the barriers that Orly’s book discusses: strictly interpreted non-compete agreements and their functional equivalents such as the inevitable disclosure of trade secrets concept. These analytics firm are likely to identify fabulous talent who cannot realistically move or at least may not be worth the money to buy them out of their non-competes. Of course, California companies like Facebook can gorge on Big Data about talent all they want–California lawmakers have banned non-competes.
A concern that came to mind is whether Government 2.0 efforts are worth it for employees. What if employees spend their free time innovating for government and it turns out that they shared some skill that their employer can claim ownership over or worse sue the employee for spilling trade secrets. Reading Orly’s book raised concerns about the practical problems and perils raised by lending one’s time to government hack-a-thons and the like. I don’t have any concrete answers to these problems except to tell lawmakers and employers to listen to Orly’s recommendations.
Upcoming Boston University Law Review Symposium: America’s Political Dysfunction, Constitutional Connections, Causes, and Cures
posted by Danielle Citron
On November 15-16, 2013, the Boston University Law Review is hosting a terrific symposium entitled “America’s Political Dysfunction: Constitutional Connections, Causes, Cures.”
In recent years and especially in recent months, many have despaired over America’s political dysfunction. A conference at University of Texas asked, “Is America Governable?” Some, like Mann and Ornstein, have contended that “it’s even worse than it looks.” Others, like Levinson, have claimed that we face a “crisis of governance.” Schlozman, Verba, and Brady have criticized “the broken promise of American democracy,” Gutmann and Thompson have lamented the breakdown in “the spirit of compromise,” and Lessig has argued that we have “lost” our republic through the corruption of money.
More generally, there is considerable talk of dysfunction, breakdown, and failure in the air these days. Just consider these titles: Bruce Ackerman, The Failure of the Founding Fathers, not to mention The Decline and Fall of the American Republic; Ronald Dworkin, Is Democracy Possible Here?; Alan Wolfe, Does American Democracy Still Work?; and Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), along with Framed: America’s 51 Constitutions and the Crisis of Governance.
BU Law Review is hosting a conference that will assess such claims about dysfunction, breakdown, and failure. But unlike some prior conferences, it will focus on constitutional connections, causes, and cures. Taking up the forms and manifestations of dysfunction, breakdown, and failure, the conference will ask “What, if anything, does the Constitution have to do with all this?” For example, are we experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an institutional failure, or a failure of policy that may or may not be directly related to the Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution? Do they stem from a feature or defect of the Constitution? Do they result from constitutional requirements? Are they made more likely by our constitutional design?
The conference will address not only whether there are such constitutional connections to and causes of dysfunction, but also whether any proposed cures would likely alleviate it. For example, Putnam has proposed building social capital. Sandel and Ackerman have called for reinvigorating the civic and deliberative dimensions of political and constitutional discourse and practice. Seidman has proposed “giving up on the Constitution.” Levinson, Lessig, and Sabato have proposed amending the Constitution or holding a constitutional convention to adopt a new one. Will such proposals alleviate dysfunction or will the conditions giving rise to them virtually insure that they will fail?
The papers and proceedings will be published in Boston University Law Review.
This conference will take place in Barristers Hall. All – including not only professors, law students, graduate students, and undergraduates, but also alumni and the general public – are welcome to attend. To register, please contact Elizabeth Aggott, Events & PR Manager, at email@example.com. If you have academic questions about the program, please contact Professor James E. Fleming at firstname.lastname@example.org. Read the rest of this post »
posted by Danielle Citron
Yesterday, the New York Times editorial board endorsed the efforts of the Cyber Civil Rights Initiative to criminalize revenge porn. As the editorial board urged, states should follow the lead of New Jersey in crafting narrow statutes that prohibit the publication of nonconsensual pornography. Such efforts are indispensable for victims whose lives are upended by images they shared or permitted to be taken on the understanding that they would remain confidential. No one should be able to turn others into objects of pornography without their consent. Doing so ought to be a criminal act.
Professor Mary Anne Franks has been at the forefront of legislative efforts in New York, Wisconsin, and Maryland. Soon, I will be blogging about the work Franks and I have done with Maryland legislators. Now, I would like to shift our attention to the First Amendment. As free speech scholar Eugene Volokh has argued elsewhere, non-consensual pornography can be criminalized without transgressing First Amendment guarantees. Let me explain why from the vantage point of my book Hate 3.0 (forthcoming Harvard University Press) and an essay Franks and I are writing for the Wake Forest Law Review. Read the rest of this post »
posted by Danielle Citron
From the New York Times editorial board, an endorsement of the work of the Cyber Civil Rights Initiative (led by Holly Jacobs and on which Mary Anne Franks and I are Board members) in calling for the criminalization of non-consensual publication of sexually explicit images:
Revenge porn is one of those things that sounds as if it must be illegal but actually isn’t. It’s the term of art for publishing sexual photos of someone without his or her — usually her — permission, often after a breakup.
Consider Holly Jacobs, founder of the Cyber Civil Rights Initiative, who exchanged intimate pictures with a boyfriend while in graduate school. When the relationship ended he started posting them online. She sought help from law enforcement, but the police said she didn’t have a case because she was over 18 when the pictures were taken, and they were her ex-boyfriend’s property.
So far only two states have restricted this humiliating, reputation-killing practice. In 2004, New Jersey adopted an invasion-of-privacy law aimed at voyeurs, which also prohibits the dissemination of sexual recordings or pictures without consent. This month, California Gov. Jerry Brown signed a bill making revenge porn a misdemeanor punishable with up to six months in jail and a $1,000 fine. But it contains a large loophole: it applies only if the individual who distributed the pictures was also the photographer.
California’s law does not cover situations where someone took a self-portrait and shared it with a partner, who then uploaded it to the Internet. The Cyber Civil Rights Initiative has estimated that 80 percent of revenge-porn images were recorded by the victim.
California’s law, though inadequate, has at least brought attention to the problem, and other states are considering action. New York Assemblyman Edward Braunstein, a Democrat, and State Senator Joseph Griffo, a Republican, recently announced revenge porn legislation that would make non-consensual disclosure of sexually explicit images a Class A misdemeanor. It would include pictures taken by victims.
Neither current nor proposed state laws are likely to have an effect on the Web sites that make the explicit images available to the prurient public, because they can claim protection under the Communications Decency Act. Section 230 of that statute has been interpreted by courts to shield sites that host third-party content from liability, unless that content, like child pornography, violates federal law. (Or unless sites cross the line from aggregators to co-creators of the material in question.)
It is not clear how many people have been affected by revenge porn — activists rely on self-reporting — but Ms. Jacobs has said that over 1,000 victims have reached out to her since she started speaking out on this issue. And a tour through a site like Private Voyeur reveals a depressingly large cache of photographs.
Going through a breakup is bad enough; going through a breakup and finding out that your ex is a horrible person is worse. Although lawmakers can’t do much to help their constituents with these difficulties, they can work to provide recourse for when exes seek revenge through un-consensual pornography.
posted by Danielle Citron
Tomorrow, if you are in the D.C. area in the afternoon, Georgetown Law’s American Criminal Law Review, American Civil Liberties Union, and Criminal Law Association are hosting my brilliant colleague David Gray to talk about his article, A Spectacular Non Sequitur: The Supreme Court’s Contemporary Fourth Amendment Exclusionary Rule Jurisprudence (forthcoming in ACLR). His lecture will focus on the Exclusionary Rule and the recent cases involving the 4th Amendment. Location: Hotung 1000. Starts at 3:30 p.m. Will be worth it, indeed. Professor Gray is an illuminating and dynamic speaker.
posted by Danielle Citron
I’m delighted to introduce Professor Zephyr Teachout who will be a guest this month. Professor Teachout is an Associate Law Professor at Fordham Law School, where she teaches political law and property law. She writes about political law and has just completed a manuscript for Harvard University Press on the meaning of corruption in American law. She is a member of the Board of Center for Rights, the Public Campaign Action Fund, and the Antitrust League. She is the former National Director of the Sunlight Foundation and the Director of Online Organizing for Howard Dean’s 2004 Presidential campaign. She began her career as a lawyer representing people on death row in North Carolina.
posted by Danielle Citron
Avlana Eisenberg recently posted on SSRN her article “Expressive Enforcement” forthcoming in the UCLA Law Review. The piece makes an important contribution to the literature on hate crimes laws and enriches the literature on expressive theories of law. Eisenberg’s study of hate crimes charging decisions (based on a set of interviews with prosecutors in 23 states) finds some surprising patterns. While the prosecutors Eisenberg spoke to often don’t bother with hate crimes charges in archetypal hate crimes cases (because they already can get a serious conviction for a violent crime, and it’s not worth the difficulty of proving bias motives), many do charge hate crimes in certain kinds of cases that don’t really seem “hate”-related at all–for instance, frauds that target senior citizens. Such crimes may well involve “vulnerable victims,” but they do not involve the kind of group-based animus that hate crimes laws are generally intended to condemn. (I blogged about such prosecutions here). Eisenberg uses this to illustrate a broader point: when we talk about the “expressive message of a law,” we usually are thinking about the message legislators intended to express when they passed the law, or at least some message that is encapsulated, even if unintentionally, by the legislation itself. But the way the law plays out on the ground may be very different, and that affects the way the expressive message is actually heard by communities (and, in this case, risks devaluing it, by turning the threat of hate crimes prosecution into just another instrumental tool in prosecutors’ toolboxes).
posted by Danielle Citron
Does hacker culture tell us anything about good citizenship (even as it is meritocratic)? As Biella Coleman commented in Nicklas’s post, hacker platforms are”laboratories” where “participants learn and refine a range of technical, legal, political, and legal skills.” As she notes, the time is ripe to revisit debates about democratic participation from the 1920s with Walter Lippmann championing the expert as the necessary bridge between the public and government and with John Dewey calling for citizen to participate directly in public life. That struck me as one of the most salient insights of Coding Freedom. Lippman’s expert is one and the same as the public citizen participant, or at least that person, the hacker, could be.
The hacker process of production creates a culture of an engaged citizenry. Debian developers have moral commitments to personal development, mutual aid, transparency, and collaboration. Reading Coding Freedom, one senses that hackers see themselves as Justice Brandeis saw citizens–duty-bound to speak/develop code for “mutual benefit of each other and society.” (p. 120). The inert, as Brandeis would say, are not welcome. Hackers expect quite a lot of themselves and of others. Hence, the “read the f***ing manual” response to those who don’t try to solve simple questions first on their own. At the same time, hacker developers do what they can to mentor newbies needing guidance. The fruits of their labors are transparent. As the Debian “Social Contract” pledges, “We will keep our entire bug-report database open for public view at all times.” (p. 131). Hackers often make decisions through rough consensus, though not always. To join Debian projects, hackers go through a process whereby they have to make clear that they share the community’s values. As Coleman aptly writes in her Epilogue, in the world of free software, developers “balance individualism and social cooperation, populism and elitism, and especially individualism and social cooperation.” Collaborators “make technology at the same time that they experiment in the making of a social commonwealth; it is there where the hard work of freedom is practiced.” (p. 210).
Hackers, if interested, could be the perfect marriage of the technical expert and the engaged public participant. State and federal governments have tried to interest hackers in their work, opening up data for hack-a-thons designed to identify solutions to tough problems. E-voting technology is crying out for the hacker’s tinkering. E-voting systems, built by private vendors, are notoriously inaccurate and insecure. Because the software is proprietary, hacker citizens cannot inspect the source code to ensure that it works or is safe. In too many cases, buggy software (or perhaps worse) has disenfranchised voters. Why not open up the source code to hackers who can help identify bugs and insecurities? Hackers could provide feedback on the privacy and security risks posed by e-voting systems. This feedback would exert pressure on vendors to fix problems that they might be inclined to ignore (and could ignore given the black box nature of proprietary software). Non-U.S. countries require the use of open source software in government offices. Australia’s open code e-voting project demonstrated this potential. A private company designed Australia’s e-voting system and posted all the drafts of its source code online for review and criticism. Interested tinkerers and independent auditors studied the source code and provided feedback. Serious problems were detected, and the vendor fixed the source code, shoring up the system’s security. Coding Freedom suggests the great potential of opening up the source code of government systems for hackers to perform as citizen tinkerers.
posted by Danielle Citron
This week, a deep bench of thinkers, tinkerers, and scholars will be blogging to discuss Professor Gabriella Coleman’s book Coding Freedom: The Ethics and Aesthetics of Hacking (Princeton University Press 2012). Coleman, the Wolfe Chair Scientific and Technical Literacy at McGill University, is a leading scholar and cultural guide in all matters concerning digital activism and engagement. Coding Freedom untangles and illuminates the contributions of computer hackers to the trajectory of intellectual property law specifically and liberalism generally. Joining Gabriella Coleman and the CoOp crew for this weeklong symposium are Karl Fogel, Amy Kapczynski, Edward W. Felten, Laura Denardis, Nicklas Lundblad, Julie Cohen, Steven Bellovin, Nabiha Syed, Lawrence Liang, and James Grimmelmann as well as permanent CoOp authors Deven Desai and Frank Pasquale. Welcome!
Secret Adjudications: the No Fly List, the Right to International Air Travel, and Procedural Justice?
posted by Danielle Citron
Latif v. Holder concerns the procedures owed individuals denied the right to travel internationally due to their inclusion in the Terrorist Screening database. Thirteen individuals sued the FBI, which maintains the No Fly list and the Terrorist Screening database. Four plaintiffs are veterans of the armed forces; others just have Muslim sounding names. All of the plaintiffs are U.S. citizens or lawful residents. The plaintiffs’ stories are varied but follow a similar trajectory. One plaintiff, a U.S. Army veteran, was not allowed to return to the U.S. from Colombia after visiting his wife’s relatives. Because he could not fly to the U.S., he missed a medical exam required for his new job. The employer rescinded his offer. Another plaintiff, a U.S. Air Force veteran, was in Ireland visiting his wife. He spent four months trying desperately to return to Boston. Denied the right to travel internationally, the thirteen plaintiffs lost jobs, business opportunities, and disability benefits. Important family events were missed. The plaintiffs could not travel to perform religious duties like the hajj. Some plaintiffs were allegedly told that they could regain their right to fly if they served as informants or told “what they knew,” but that option was unhelpful because they had nothing to offer federal officials. Plaintiffs outside the U.S. were allowed to return to their homes on a one-time pass. When back in the U.S., they turned to the TSA’s redress process (calling it “process” seems bizarre). The process involves filling out a form that describes their inability to travel and sending it via DHS to the Terrorist Screening Center. The Terrorist Screening Center says that it reviews the information to determine if the person’s name is an exact match of someone included in the terrorist database or No Fly list. All of the plaintiffs filed redress claims; all received DHS determination letters that neither confirmed nor denied their inclusion on the list. The letters basically told the plaintiffs nothing–they essentially said, we reviewed your claim, and we cannot tell you our determination.
The plaintiffs sued the federal government on procedural due process and APA grounds. They argued that the DHS, FBI, and TSA deprived them of their right to procedural due process by failing to give them post deprivation notice or a meaningful chance to contest their inclusion in the terrorist database or No Fly list, which they have to presume as a factual matter based on their inability to travel though some of the plaintiffs were told informally that they appeared on the No Fly list. The standard Mathews v. Eldridge analysis determines the nature of the due process hearings owed individuals whose life, liberty, or property is threatened by agency action. Under Mathews, courts weigh the value of the person’s threatened interest, the risk of erroneous deprivation and the probable benefit of additional or substitute procedures, and the government’s asserted interests, including national security concerns and the cost of additional safeguards.
Most recently, the judge partially granted plaintiffs’ summary judgment motion, ordering further briefing set for September 9. In the August ruling, plaintiffs were victorious in important respects. The judge found that plaintiffs had a constitutionally important interest at stake: the right to fly internationally. As the judge explained, plaintiffs had been totally banned from flying internationally, which effectively meant that they could not travel in or out of the U.S. They were not merely inconvenienced. None could take a train or car to their desired destinations. Some had great difficulty returning to the U.S. by other means, including boat, because the No Fly list is shared with 22 foreign countries and U.S. Customs and Border Patrol. Having the same name as someone flagged as a terrorist (or the same name of a misspelling or mistranslation) can mean not being able to travel internationally. Period. The court also held that the federal government interfered with another constitutionally important interest — what the Court has called “stigma plus,” harm to reputation plus interference with travel. She might also have said property given the jobs and benefits lost amounted to the plus deprivation. That takes care of the first Mathews factor. Now for the second. The court assessed the risk of erroneous deprivation under the current DHS Redress process. On that point, the court noted that it’s hard to imagine how the plaintiffs had any chance to ensure that DHS got it right because they never got notice if they were on the list or why if they indeed were included. Plaintiffs had no chance to explain their side of the story or to correct misinformation held by the government–what misinformation or inaccuracy was unknown to them. In the recent “trust us” theme all too familiar these days, defendants argued that the risk of error is minute because the database is updated daily, officials regularly review and audit the list, and nomination to the list must be reviewed by TSC personnel. To that, the court recognized, the DOJ’s own Inspector General had criticized the No Fly list in 2007 and in 2012 as riddled with errors. Defendants also contended that plaintiffs could seek judicial review as proof that the risk of erroneous deprivation was small. The court pushed off making a determination on the risk of erroneous deprivation and valued of added procedures because it could not evaluate the defendants’ claim that plaintiffs could theoretically seek judicial review of determinations on which they have no notice. Defendants apparently conceded that there were no known appellate decisions providing meaningful judicial review. The court required the defendants to provide more briefing on the reality of that possibility, which I must say seems difficult if not impossible for plaintiffs to pursue. Because the court could not weigh the second factor, she could not balance the first two considerations against the government’s interest.
I will have more to say about the decision tomorrow. The process provided seems Kafka-esque. It’s hard to imagine what the defendants will file that the public can possibly learn. The briefing will surely be submitted for in camera review. Details of the process may be deemed classified. If so, defendants may invoke the state secrets doctrine to stop the court’s ever meaningfully addressing the rest of the summary judgment motion. It would not be the first time that the federal government invoked the state secrets doctrine to cover up embarrassing details of mismanagement. Since its beginnings, the state secrets doctrine has done just that. The parties were supposed to provide the court a status update today. More soon.
posted by Danielle Citron
During the week of September 16, Concurring Opinions will be hosting a deep bench of thinkers, tinkerers, and scholars to discuss Professor Gabriella Coleman’s important book Coding Freedom: The Ethics and Aesthetics of Hacking (Princeton University Press 2012). Professor Coleman, the Wolfe Chair in Scientific & Technological Literacy at McGill University, is a leading scholar and cultural guide in all matters involving digital activism and engagement. The Chronicle of Higher Education aptly deemed Professor Coleman “the world’s foremost scholar on Anonymous.”
To whet our appetites for next week, let me say a little bit about the book. Coding Freedom explores the contributions of computer hackers to the trajectory of intellectual property law specifically and liberalism generally. Professor Coleman spent two years of fieldwork in San Francisco, the Netherlands, and online studying the efforts, values, and social norms that guide the production of Free and Open Source Software.
As Coding Freedom explores, computer hackers—technical experts with a passion for tinkering and a commitment to information freedom—have profoundly shaped the social meaning of civil liberties in our digital age. Through technical production and political engagement, computer hackers have recast and buttressed privacy and free speech.Before 1990, source code, the blueprints of software, was rarely cast as free speech. Nearly twenty-five years later, F/OSS participants have erected an alternative legal regime to intellectual property rights on free speech and free information grounds. Hacker culture has provided crucial lessons for liberal governance by reinvigorating our commitments to debate, collaboration, mentoring, engagement, transparency, and accountability. In short, F/OSS has changed the politics of intellectual property law and liberalism.
Next week, the following experts, including Professor Gabriella Coleman, will be joining us to talk about Coding Freedom:
posted by Danielle Citron
I’m thrilled to welcome back Professor Thomas Crocker to the blog! Professor Crocker is an Associate Professor of Law at the University of South Carolina School of Law. His research interests focus on issues in constitutional law, including privacy and the public sphere, the First Amendment, interpretive theory, presidential power, and national security. He also keeps his eye on debates in law and philosophy. He teaches courses in Constitutional Law, Criminal Procedure, Free Speech and Democracy, National Security and the Constitution, and Jurisprudence. Having benefitted from a fellowship as a Visiting Scholar at the American Academy of Arts & Sciences in Cambridge, MA, he is finishing a book under contract with Yale University Press entitled Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism.
Before joining the faculty at South Carolina, Tommy clerked for the Honorable Carlos F. Lucero, on the United States Court of Appeals for the Tenth Circuit. He earned a J.D. from Yale Law School, and a Ph.D. in Philosophy from Vanderbilt University. He also taught philosophy at St. Lawrence University.
His publications include:
Order, Technology, and the Constitutional Meanings of Criminal Procedure, 103 J. Crim. L. & Criminology 685 (2013).
Who Decides on Liberty?, 44 Conn. L. Rev. 1511 (2012).
Presidential Power and Constitutional Responsibility, 52 Boston College L. Rev. 151 (2011).
The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010).
From Privacy to Liberty: The Fourth Amendment After Lawrence, 57 UCLA L. Rev. 1 (2009).
Torture, with Apologies, 86 Tex. L. Rev. 569 (2008).
posted by Danielle Citron
I’m delighted to introduce Professor Paul Gowder who will be joining us this month as a guest blogger. Professor Gowder teaches constitutional law and professional responsibility at the University of Iowa. His research straddles the boundaries between jurisprudence, constitutional law, political philosophy, game theory, and, occasionally, ancient history. His J.D. came from Harvard in a year, 2000, that might itself be described as ancient history, and he has a Ph.D in political science from Stanford from a year that by contrast—2012—seems like yesterday.
His current research focuses on the idea of the rule of law. Recently, he has published The Rule of Law and Equality, 32 Law & Philosophy 565 (2013), which gives a new account of what the rule of law is, paired with an argument about the moral/political value that it serves. Several more pieces of the rule of law project are to appear shortly: forthcoming in the Iowa Law Review is Equal Law in an Unequal World, in which he argues that the rule of law, expressed in the U.S. Constitution in the Equal Protection Clause, protects a robust right of social equality that can extend, among other ways, to a critique of poverty. And the Buffalo Law Review will shortly contain Democracy, Solidarity and the Rule of Law: Lessons from Athens, which explores the way the rule of law worked and supported the equality in Classical Athens.
Having gone to the trouble of learning Attic Greek for that last paper, he is now working on a book manuscript about the rule of law, as well as on some secondary projects on, among other things, the relationship between judicial review and democracy, the difference between taxes and regulations in NFIB v. Sebelius, and several interventions on the debate about liberty in normative political theory.
Before joining the academy, Professor Gowder was a civil rights and legal aid lawyer, and, briefly, a New Orleans jazz band manager.
posted by Danielle Citron
I’m thrilled to welcome back as a guest blogger Ari Ezra Waldman. Professor Waldman is the Associate Director of the Institute for Information Law and Policy at New York Law School and the Paul F. Lazarsfeld Fellow at Columbia University where he is completing his Ph.D. in sociology. His research centers on the law and sociology of privacy and the Internet, but he is particularly focused on the injustices and inequalities that arise in unregulated digital spaces. He is a 2005 graduate of Harvard Law School and a 2002 graduate of Harvard College. He is also the Legal Editor at Towleroad, the country’s most popular LGBT-oriented news and politics website, where he writes a weekly column on gay rights and legal issues affecting the LGBT community.
His publications can be found here, including:
Durkheim’s Internet: Social and Political Theory in Online Society, 7 N.Y.U. J. LAW & LIBERTY 355 (2013)
Marriage Rights and the Good Life: A Sociological Theory of Marriage and Constitutional Law, 64 HASTINGS L. J. 739 (2013)
All Those Like You: Identity Aggression and Student Speech, 77 MISSOURI L. REV. 563 (2013)
Hostile Educational Environments,71 MARYLAND L. REV. 705 (2012)
Tormented: Anti-Gay Bullying in Schools, 84 TEMPLE L. REV. 385 (2012)
Exceptions: The Illogical Approach to HIV-Related Aggravated Assaults, 18 VA. J. SOC. POL’Y & L. 552 (2011)
posted by Danielle Citron
Yesterday, CNN published my op ed “Revenge Porn should be a crime.” Here is the piece.
posted by Danielle Citron
Like so many other law profs, I’m amidst drafting my syllabus for the fall. (It’s an amazing thing to be done with a draft of Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment (forthcoming HUP) and a substantive edit of “The Right to Quantitative Privacy” with my amazing colleague David Gray–now I can turn to my students!) For my civil procedure students, my syllabus is full of tips/questions/hypos, so that they don’t have to turn to commercial outlines (or so I hope). I just wrote a new hypo for subject matter jurisdiction, thanks to terrific guest blogger and civ pro scholar Howard Wasserman whose essay “A Jurisdictional Perspective on New York Times v. Sullivan” served as an inspiration.
Here is the newly drafted hypo for all of my civ pro teacher colleagues. Suggestions for improving it, so welcome!
In-class hypo (or for study group)
The year is 1965. In Southern towns and cities, civil rights protestors are being beaten and intimidated by local police and private citizens. Montgomery, Alabama is no exception. To draw the public’s attention to the mistreatment of civil rights protestors, advocates put an advertisement in the New York Times highlighting the abuse in Montgomery, Alabama and in other Southern cities. Civil rights activists and four Alabama activists signed the ad, which appears here.
A Montgomery, Alabama police official sued the ad’s publisher The New York Times and the four Alabama residents for defamation, alleging that the ad falsely suggested that he was responsible for the physical attacks on civil rights protestors. The Alabama plaintiff brought the case in state court, where with his luck it was assigned to a judge known to be a member of the Ku Klux Klan. The New York Times would like to remove the case to federal court, fearing that the state court judge would be hostile to the Northern newspaper agitating for civil rights. An important fact to consider too is that a year before the plaintiff filed the case, the Supreme Court found that in defamation claims involving public officials and alleged falsehoods about their public duties, the First Amendment requires that the plaintiff proves the defendant published the falsehoods with “actual malice,” that is, knowing they were false or reckless to their truth or falsity.
Let’s discuss whether the New York Times can remove the case to the federal court and whether it should be permitted to do so given the rationale underlying subject matter jurisdiction. What is the rationale behind diversity jurisdiction? How does it fit here? Would the constitution permit removal and what about Section 1332? What are other roadblocks to removal under diversity jurisdiction? What about federal question jurisdiction analysis? There is much to think about with the well-pleaded complaint rule and the Grable analysis.
 As a factual matter, I am riffing from the famous New York Times v. Sullivan case and borrowing the substantive findings about the First Amendment from the case; I take the idea for this hypo from Professor Howard Wasserman, “A Jurisdictional Perspective on New York Times v. Sullivan,” volume 107, Northwestern Law Review, page 901 (2013).
August 6, 2013 at 11:26 am Tags: Let’s discuss whether the New York Times can remove the case to the federal court and whether it should be permitted to do so given the rationale underlying subject matter jurisdiction. What is the ra Posted in: Civil Procedure Print This Post 13 Comments
posted by Danielle Citron
Last week, I blogged about law enforcement’s use of automated predictions. There, the “Super Cruncher” system mines data to highlight high-crime areas so that police departments can best allocate resources. What if those predictions provided the sole basis of an officer’s stop and frisk of a particular location? Suppose the computer suggested that a particular corner was a red-hot zone. When the officer saw someone standing at that particular corner at midnight, he took the computer as its prediction and stopped and frisked the person, revealing an illegal firearm. Would the computer’s prediction form the basis of reasonable suspicion supposing that the person standing on the corner did nothing else to raise any concerns about illegality? Last week, I suggested that the retail question would likely be straightforward. The computer’s prediction about a location could not be said to infer anything revealing about a particular person in that location, right?
Professor Orin Kerr brought a recent case to my attention that while not exactly on point is nonetheless illuminating about the value of automated judgments in evaluating a stop for Fourth Amendment purposes. In United States v. Antonio Esquivel-Rios, a trooper pulled over a defendant driving a car with temporary Colorado tags. When the trooper initially called in the tag, the dispatcher told him that the automated system found that the tags were not registered (as the dispatcher explained, the system did not “return the tag”). The dispatcher also cautioned the trooper that Colorado tags “usually do not return.” Said another way, the dispatcher qualified the system’s finding that the tags were not officially on file (and thus could be fraudulent) with the warning that Colorado tags usually did not show up in the system. Why that was the case for Colorado tags was not explained to the trooper. Nonetheless, the trooper pulled over the defendant and got consent to search the car. It turns out the defendant had a pound of meth in his secret glove compartment. In challenging the constitutionality of the stop, the defendant argued that the trooper relied on an unreliable automated finding that could not support a finding of reasonable suspicion. Said another way, the computer’s “no tags” determination did not amount to particularized suspicion because the system’s findings as to Colorado tags was not reliably revealing of criminality.
The opinion began by noting that a “maniacally all-knowing, all-seeing” HAL 9000 computer in government’s hands would raise Fourth Amendment concerns. The Tenth Circuit did not say more about that point, but I take the court to be saying that computers making “pre-crime” Minority Report-ish adjudications about individuals implicates constitutional concerns–procedural due process is certainly at issue. After making that threshold point, the court then got down to business to explore whether the trooper had reasonable suspicion to stop the defendant based on the computer’s “no return” finding and the dispatcher’s qualification of that finding. As the court explored, reasonable suspicion is far less than probable cause, there needs to be some particularized suspicion of criminality. Concerns about the quality of evidence can be offset with quantity, that is, something more suggesting criminality. If there are questions about the system’s reliability, worries about its reliability can diminish if there are other independent indicia of criminality. The trooper, however, only relied on the database report to justify his stop. The computer “no return” hit, the court suggested, could have been enough for reasonable suspicion if the system was reliable. There, such a computer finding would concern the specific individual, not a particular location as I suggested in my initial post. The court’s point is well-taken. In that case, it would have been permissible to rely on computer finding to support a stop because the computer’s finding would relate to evidence about the specific defendant (or his car). In this case, the court explains, the trooper had reason to doubt that the computer hit meant something suspicious about the car’s tags. That Colorado usually does not return hits could mean that Colorado is having bureaucratic problems inputting temporary tags into the system; it could mean that some, most, or vanishingly small number of “no return” findings say something about the tags’ verifiability. What goes into the database impacts the reasonableness of the seizure relying upon it, garbage in, garbage out. The court notes, relying on Professor Kerr’s work, that reasonable suspicion is not a statistical determination, much as probable cause isn’t. But in this case, the database had reliability problems and as the sole reason for the stop, it had to be assessed with a eye to its statistical value. With its concern about the computer finding’s reliability made clear, the court remanded the case to the district court to reconsider the constitutionality of the stop and the evidence found as a result of the stop. The Tenth Circuit’s finding makes a lot of sense, indeed. It also suggests that computer adjudications have to have an indicia of reliability and must relate to a specific individual (rather than location) to support reasonable suspicion.
posted by Danielle Citron
Professor Margaret Hu’s important new article, “Biometric ID Cybersurveillance” (Indiana Law Journal), carefully and chillingly lays out federal and state government’s increasing use of biometrics for identification and other purposes. These efforts are poised to lead to a national biometric ID with centralized databases of our iris, face, and fingerprints. Such multimodal biometric IDs ostensibly provide greater security from fraud than our current de facto identifier, the social security number. As Professor Hu lays out, biometrics are, and soon will be, gatekeepers to the right to vote, work, fly, drive, and cross into our borders. Professor Hu explains that the FBI’s Next Generation Identification project will institute:
a comprehensive, centralized, and technologically interoperable biometric database that spans across military and national security agencies, as well as all other state and federal government agencies.Once complete, NGI will strive to centralize whatever biometric data is available on all citizens and noncitizens in the United States and abroad, including information on fingerprints, DNA, iris scans, voice recognition, and facial recognition data captured through digitalized photos, such as U.S. passport photos and REAL ID driver’s licenses.The NGI Interstate Photo System, for instance, aims to aggregate digital photos from not only federal, state, and local law enforcement, but also digital photos from private businesses, social networking sites, government agencies, and foreign and international entities, as well as acquaintances, friends, and family members.
Such a comprehensive biometric database would surely be accessed and used by our network of fusion centers and other hubs of our domestic surveillance apparatus that Frank Pasquale and I wrote about here.
Biometric ID cybersurveillance might be used to assign risk assessment scores and to take action based on those scores. In a chilling passage, Professor Hu describes one such proposed program:
FAST is currently under testing by DHS and has been described in press reports as a “precrime” program. If implemented, FAST will purportedly rely upon complex statistical algorithms that can aggregate data from multiple databases in an attempt to “predict” future criminal or terrorist acts, most likely through stealth cybersurveillance and covert data monitoring of ordinary citizens. The FAST program purports to assess whether an individual might pose a “precrime” threat through the capture of a range of data, including biometric data. In other words, FAST attempts to infer the security threat risk of future criminals and terrorists through data analysis.
Under FAST, biometric-based physiological and behavioral cues are captured through the following types of biometric data: body and eye movements, eye blink rate and pupil variation, body heat changes, and breathing patterns. Biometric- based linguistic cues include the capture of the following types of biometric data: voice pitch changes, alterations in rhythm, and changes in intonations of speech.Documents released by DHS indicate that individuals could be arrested and face other serious consequences based upon statistical algorithms and predictive analytical assessments. Specifically, projected consequences of FAST ‘can range from none to being temporarily detained to deportation, prison, or death.’
Data mining of our biometrics to predict criminal and terrorist activity, which is then used as a basis for government decision making about our liberty? If this comes to fruition, technological due process would certainly be required.
Professor Hu calls for the Fourth Amendment to evolve to meet the challenge of 24/7 biometric surveillance technologies. David Gray and I hopefully answer Professor Hu’s request in our article “The Right to Quantitative Privacy” (forthcoming Minnesota Law Review). Rather than asking how much information is gathered in a particular case, we argue that Fourth Amendment interests in quantitative privacy demand that we focus on how information is gathered. In our view, the threshold Fourth Amendment question should be whether a technology has the capacity to facilitate broad and indiscriminate surveillance that intrudes upon reasonable expectations of quantitative privacy by raising the specter of a surveillance state if deployment and use of that technology is left to the unfettered discretion of government. If it does not, then the Fourth Amendment imposes no limitations on law enforcement’s use of that technology, regardless of how much information officers gather against a particular target in a particular case. By contrast, if it does threaten reasonable expectations of quantitative privacy, then the government’s use of that technology amounts to a “search,” and must be subjected to the crucible of Fourth Amendment reasonableness, including judicially enforced constraints on law enforcement’s discretion.
posted by Danielle Citron
With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.
First, the Court continues to recognize that innocence should be an important consideration for federal judges reviewing prisoners’ habeas petitions. InMcQuiggan v. Perkins, the Court recognized for the first time that evidence of a prisoner’s innocence can provide an exception to the restrictive one-year statute of limitations imposed in 1996 by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). However, the Court somewhat gratuitously emphasized that this innocence exception would be “severely confined” and that the class of prisoners able to show that a jury presented with new evidence would be likely not to convict may be quite small.
Moreover, the Court still has not recognized an outright constitutional claim of innocence. Innocence is merely a “gateway” to excuse complex procedural barriers, but innocence is not a stand-alone ground for relief in federal courts. More than two-decades into the DNA era, judges are now far more aware than in the past that prisoners can prove their outright innocence of serious crimes. But as I describe in Convicting the Innocent, judges have only slowly and reluctantly loosened their grip on technical rules that make it extremely difficult for even innocent convicts to secure their freedom.
Second, although DNA testing continues to reshape the criminal justice system, the Supreme Court’s decision this term in Maryland v. King may encourage some of the worst tendencies in the law enforcement use of DNA. The Court endorsed police taking DNA from people at the time of arrest for purposes of “identification,” but also to permanently enter that DNA in the national databank to search against any number of past and future unsolved crimes. Given my interest in using DNA to potentially free the innocent, one might expect that I would welcome any and all expansion of DNA databanks. However, I co-authored an amicus brief with Erin Murphy taking the other side and offering a detailed explanation of our thinking. We argued that the federal government and states should absolutely invest in collecting DNA from serious criminals, and in using DNA to potentially free the innocent. But taking DNA from vast numbers of mere arrestees, who have not been convicted of any crime, is counterproductive. It is a serious burden on the privacy of vast numbers of people, including innocent people who are cleared after arrest. By the same token, taking DNA from arrestees has not been shown to improve crime fighting; in fact, it can dilute the power of DNA databases. Read the rest of this post »
posted by Danielle Citron
I’m thrilled to introduce my colleague Professor Karen Czapanskiy who will be joining us this month as a guest blogger. Professor Czapanskiy joined the faculty of the University of Maryland Carey School of Law in 1983. During her early years at the law school, she and her clinic students created a full-service program for women who had been abused by an intimate partner, representing them in criminal cases and family law matters, undertaking legislative advocacy and staffing a clemency project for women imprisoned for killing an abusive partner. Later, she worked with clinic students, lawyers at the Homeless Persons Representation Project and other faculty to help women faced with the impacts of welfare reform on them and their families. Her work in practice informed multiple publications on domestic violence, family law, welfare reform and gender bias. More recently, she has been writing about law and policy as they affect families raising children with special needs. Professor Czapanskiy teaches courses in family law and property and seminars on families raising special needs children.
A graduate of the University of California at Berkeley and the Georgetown University Law Center, Professor Czapanskiy clerked for the Honorable Rita C. Davidson, the first woman appointed to an appellate bench in Maryland. Before joining the faculty, Professor Czapanskiy was an attorney at the U.S. Department of Justice, taught at the University of Hawaii Law School and the Washington College of Law. Since joining the faculty in 1983, Professor Czapanskiy has served as the reporter for the Maryland Joint Special Committee on Gender Bias in the Courts and as a member of the Charter Review Commission of Montgomery County, Maryland. She held the William J. Maier, Jr., Chair at West Virginia University College of Law, and has visited at the Washington College of Law of American University and the Columbus School of Law at the Catholic University of America. Beginning in the mid-1980s, she was one of the organizers of the Maryland/DC/Virginia Women Law Teachers Group. In 1992, she chaired of the Section on Women in Legal Education of the AALS. She is a member of the American Law Institute and the Prytanean Society. Professor Czapanskiy spent the fall semester of 1994 as a Fulbright lecturer at the University of Durban-Westville, South Africa. She is a member of the American Law Institute and the Prytanean Society. Since 2002, she has been active in electoral politics at the local and national levels.
Her most recent publications include:
Family Law: Cases, Text, Problems (5th ed. 2010) (with others).
Special Kids, Special Parents, Special Education, 46 Michigan Journal of Law Reform (forthcoming 2013).
1992: A Year of Women, Bravery, and Growth, 80 UMKC Law Review 751 (2012).
Disabled Kids and Their Moms: Caregivers and Horizontal Equity, 19 Georgetown Journal on Poverty Law and Policy 43 (2012).