Author Archive for danielle-citron

BRIGHT IDEAS: Barry Friedman’s The Will of the People

posted by Danielle Citron

Gerard recently blogged about Barry Friedman’s exciting new book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, and lucky for us at CoOp, I had a chance to talk to Friedman about the book.  Friedman is the Vice Dean and Jacob D. Fuchsberg Professor of Law at New York University School of Law whose vast and impressive scholarship focuses on constitutional theory and judicial decisionmaking in constitutional cases.   He answered several questions about the book; I produce his remarks below.

SO, WHAT LED YOU TO WRITE THIS BOOK?

FRIEDMAN:  The proper role of judicial review has always been one of the real challenging questions in constitutional law.  The goal of most scholars has been to find a theory that reconciles judicial review with democracy, necessarily seeing the two as inconsistent.  From the time I began teaching I hoped to jump into that debate – except that I never saw the two as inconsistent.  Whether it was Planned Parenthood v. Casey, Furman v. Georgia or Bowers v. Hardwick, I saw the Court as responsive to public opinion.  As some readers of the blog no doubt know, I wrote several (infelicitously named) law review articles looking at the question of when the “counter-majoritarian difficulty” took hold.  I then read a lot of political science.  Finally I decided a book was in order.

THERE ARE A LOT OF HISTORIES OF THE SUPREME COURT, AND OF JUDICIAL REVIEW.  WHAT MAKES YOURS DIFFERENT?

FRIEDMAN:  Well, the focus of most histories is on what the Court is doing at any given time – as well as why, and what the impact is on constitutional law.  Instead of focusing on the Court, my book is about how the public responded to judicial decisions, and how the interaction between the Court and the public shaped both the institution of judicial review, and the meaning of the Constitution.

DO YOU HAVE ANY PARTICULAR INTELLECTUAL ASPIRATION FOR THE PROJECT, BESIDES TELLING THE STORY?

FRIEDMAN:  Besides selling books?   Seriously, though, my hopes depend on the audience.  I certainly would like to put to rest what has been the dominant criticism of judicial review, that it necessarily trumps majority will.  That applies both in the general public and the academy (though I’m certainly more skeptical of success in the former).  But the book differs from a lot of books in one notable respect – the theory animating the history is at the end of the book, not the beginning.  There are two reasons for that.  First, on the advice of friends I came to understand that it was easier to “get” the theory having seen all the evidence.  But more important, I intended the book to suggest a research agenda.  We’ve been asking the wrong questions about judicial review for a long time; it is an auspicious moment for legal academics and their counterparts in the social sciences to pursue some new avenues, ones I believe are more apt. Read the rest of this post »

  November 17, 2009 at 9:18 am   Posted in: Uncategorized   Print This Post   No Comments

Just Talkin’

posted by Danielle Citron

For those still lingering over your morning coffee, here are two quotes worth distracting you from the Sunday funnies:

Michael Arrington (TechCrunch Founder): “I’m worried about privacy–the companies out there gathering data on us, the stuff we do on Twitter, the publicly scrapeable stuff on Facebook.  It’s amazing how much data there is out there on us.  I’m worried that it can be abused and will be abused.”

Phil Malone (Harvard Law School, Director of Berkman Center for Internet and Society’s Cyberlaw Clinic explaining that viruses can deposit illegal pornography on unwitting individuals’ computers causing the innocent to be branded sexual deviants): “Sometimes the dog does eat your homework.”

Thanks to Time and the Washington Times.

  November 15, 2009 at 8:39 am   Posted in: Uncategorized   Print This Post   2 Comments

BRIGHT IDEAS: Laura DeNardis on Protocol Politics

posted by Danielle Citron

Laura DeNardis has written a superb new book, Protocol Politics (MIT Press, 2009).  Laura, the Executive Director of the Yale Information Society Project, is a scholar of Internet governance issues who teaches Access to Knowledge at Yale Law School.  Protocol Politics tackles the political, economic, and technological ramifications of our vanishing supply of Internet protocol addresses and the selection and adoption of a new Internet protocol.  The book helps us see why this issue has a profound impact on Internet civil liberties, US military objectives, globalization, institutional power struggles, and democratic freedoms.  It offers recommendations for Internet standards governance, based not only on technical concerns, but also on principles of openness and transparency, and examines the global implications of looming Internet address scarcity versus the slow deployment of the new protocol designed to solve this problem.  I asked Laura about her book; her answers are below:

WHY DID YOU WRITE THIS BOOK?

DeNardis:  Internet technical protocols, the ‘agreed upon’ blueprints that enable interoperability among technologies, are largely invisible to Internet users but structure how we access information, influence which corporations will gain market dominance, and make direct decisions about our Internet freedoms.  I wrote this book for four reasons.  First, I wanted to bring this largely hidden world of Internet standards setting and protocol design to a wider audience and explain why citizens should be engaged in protocol debates. Second, I used the new Internet Protocol – IPv6 – as the primary case study because it is at the center of a very real global dilemma.  The reserve of Internet addresses necessary for every connection to the Internet is nearly depleted and the migration to the new protocol designed to solve this problem has barely begun.  The progression of Internet address depletion, as well as more than a decade of unrealized promises about the new protocol, is one of the most fascinating stories in the history of the Internet. Third, I wanted to present a framework for Internet governance that moves beyond the usual ICANN issues to include a different set of questions about standardization, communication rights, critical Internet resources, and intellectual property.  Finally, I wanted to present a framework for openness and transparency in technical standardization that has the technical rationale of maximizing interoperability, the economic rationale of encouraging competition, and the political goal of maximizing the legitimacy of private standards-setting organizations to make decisions that establish public policy in areas such as individual civil liberties, democratic participation, and user choice. Read the rest of this post »

  November 12, 2009 at 3:37 pm   Posted in: Bright Ideas   Print This Post   No Comments

Ensuring that We Leave Children Behind

posted by Danielle Citron

Talk about children, their educations, and security abound.  Politicians declare their devotion to children’s issues.   Singers and actors assure us that “children are our future.”  Books enlist villages to raise them.  But when the rubber hits the road we routinely fail children in so many ways, including privacy.  Today, Joel Reidenberg’s Center on Law and Information Policy released a report attesting to our utter inability to protect the privacy of children’s educational records.  Reviewing publicly available information from all 50 states, the CLIP study found that states collect information far in excess of what law requires, including data about pregnancy, mental illness, family wealth, jail sentences,  and Social Security numbers.  Despite the sensitive nature of the information collected, state databases have weak privacy protections.  The study found that oftentimes the flow of information from local schools to state departments of education failed to comply with the privacy requirements of the Family Educational Rights and Privacy Act.

This appalling state of affairs cannot stand.  Such databases are ripe for identity thieves and hackers who will enjoy plundering the Social Security numbers.  They can lead to discrimination based on inappropriately shared health information.  The CLIP study  has offered a number of wise recommendations, including the minimization of data collection, adoption of clear retention policies, and maintenance of audit logs.  It also suggests the anonymization of data through the use of dual database architectures, which I wonder if Paul Ohm’s important work on the myth of anonymity would question.  Otherwise, this study must be read and heeded.

  October 28, 2009 at 1:28 pm   Posted in: Current Events, Education, Privacy   Print This Post   No Comments

Privacy’s Zietgeist Moment

posted by Danielle Citron

Privacy has seemingly come center stage.  Companies like Google, Microsoft, and eBay have joined forces to support a federal law that would impose uniform standards for the collection, use, and transfer of information across the private sector.  Activists and officials hope to update the Privacy Act of 1974 for the twenty-first century.  Senator Leahy has a renewed interest in data breach legislation, proposing the Personal Data Privacy and Security Act in July.  The American Recovery and Reinvestment Act of 2009, the stimulus bill, includes a data breach notification requirement for health providers.  The Federal Trade Commission recently published its final rule on data breach notification for e-health records.

Strengthening the nation’s commitment to privacy is crucial.  But, as Paul Schwartz’s engrossing Preemption and Privacy essay (Yale Law Journal) illuminates, a unitary federal information privacy statute should give us pause.  Today’s information privacy law landscape is mainly comprised of federal sector-specific statutes and stronger state regulation.  Schwartz makes a compelling case for remaining on that course, rather than adopting a uniform federal privacy statute.  As Schwartz underscores, a uniform federal approach would likely preempt stronger state law rules, eliminating successful experimentation at the state level.  California exemplifies this trend:  its privacy innovations include allowing consumers to freeze their credit in the face of identity theft among others.  New York and Connecticut are now considering bills that would set limits on companies that track consumers across websites to deliver targeted advertisements based on their online behavior.  A uniform federal law would likely extinguish state-driven innovations whereas most federal sectoral privacy laws, such as the Gramm-Leach-Bliley Act, only provide a federal floor for information privacy and security, not a ceiling.  Schwartz highlights the possibility that a comprehensive information privacy law may ossify, thus making the loss of state experimentation all the more grave.  The piece also spearheads an important discussion about whether the centralizing forces at work today undermines the contributions of competitive federalism.

Schwartz’s piece is a must read.  Here is the abstract for Preemption and Privacy: Read the rest of this post »

  October 27, 2009 at 11:08 am   Posted in: Current Events, Cyberlaw, Privacy   Print This Post   No Comments

When Joining Forces Spells Trouble: Proposed Merger of E-Voting Companies

posted by Danielle Citron

Last month, Diebold announced that ES&S would purchase its e-voting business for $5 million plus some outstanding revenue.  Diebold’s shareholders no doubt rejoiced: while the company’s ATM machines have a strong reputation, its e-voting machines brought the company only grief.  Diebold even changed its e-voting unit’s name to Premier to protect the company’s otherwise strong brand name.

This merger, however, is bad news for voters.  It would entrust 3/4s of e-voting machines into the hands of a company whose machines rival Diebold’s for inaccuracy and insecurity.  Consider this recent example.  In 2008, ES&S machines allocated votes cast in one race to a different race that was not even on the ballot.  As a result, the wrong candidate won a state House nomination race.  Given the consolidation of the e-voting market, we can have little hope that future machines will be more secure.  Ed Felten explains that  “[t]he odds of one major e-voting company breaking from the pack and embracing up-to-date security engineering are now even slimmer than before.”  Because breaking into the e-voting business is expensive due to high accreditation costs, ES&S may face limp competition in bids for upcoming contracts.  Voting administrators thus may be unable to obtain important terms crucial to transparency and accountability, such as the placement of source code in escrow.

Although voters should lament this development, all isn’t lost.  As Joe Hall notes,  California Secretary of State Debra Bowen has provided wise advice to the Election Assistance Commission with regard to the integrity of e-voting systems.  Bowen urges that the EAC require greater disclosure of vulnerabilities, the adoption of procedures that jurisdictions can follow to collect and report data about incidents they experience with their voting systems, and the systematic collection of data from election officials about how voting systems perform during general elections.  This recalls the important work of Heather Gerken in her book The Democracy Index: Why Our Election System is Failing and How to Fix It.  The EAC would be wise to adopt these proposals, especially in light of the upcoming merger.

  October 24, 2009 at 2:17 pm   Posted in: Administrative Law, Architecture, Current Events, Technology, Uncategorized   Print This Post   One Comment

Government’s Data Glut

posted by Danielle Citron

Government is increasingly automating its services.  From Medicaid coverage to building permits, machines help determine individuals’ ability to take advantage of important governmental benefits and services.  Agencies collect huge amounts of data in the process.  Mayor Michael Bloomberg recently remarked that the real payoff of such automation is “actually us[ing] the data.”  With that mission in mind, agencies emphasize the importance of linking government databases to take full advantage of tools that mine data for insights.  In the effort to make its city “smarter,” Dubuque, Iowa is working on a project that will use sensors, software, and networked computing to give its government and individuals the digital tools to measure, monitor, and alter the way that they use water, electricity, and transportation.

To be sure, computer algorithms can analyze linked databases to identify fraud and waste, as well as simply help government make better decisions and policy.  But one hopes that government is not following the “adopt first-think later” model (as with e-voting machine purchases) when it comes to privacy, security, and auditability of these linked systems.  To what extent are vendors accounting for these concerns?  As my work on Technological Due Process and Open Code Governance explores, government’s automated systems overwhelmingly fail to incorporate audit trails that would reveal where information comes from and who has been using it.  We see this problem at the state level, where agencies often collect information free of intrusive regulation such as the Privacy Act of 1974 and perhaps even if they did would contend that the merging of data to allow intra-agency access would constitute a “routine use.”  No matter, managing this data glut in an accountable and privacy-protective manner is crucial as we move forward.

On a related note, Ken Bamberger’s Technologies of Compliance: Risk and Regulation in a Digital Age does a superb job exploring another side to the automated systems story.  His piece addresses firms’ automation of their compliance with laws mandating risk management.  Click here to read the abstract.  A must read.

  October 14, 2009 at 1:12 pm   Posted in: Administrative Law, Privacy, Technology, Uncategorized   Print This Post   No Comments

Exciting Addition for Public Choice Profs

posted by Danielle Citron

My colleague, Max Stearns, and Todd Zywicki of the George Mason University School of Law have just published their new course book, Public Choice Concepts and Applications in Law (West Publishing Company).  This course book, the only one of its type, introduces law students to the concepts of public choice and the implications of those concepts for a host of substantive legal doctrines and for features of institutional design of various lawmaking bodies.  Covered concepts include an general economic reasoning (including an overview of price theory), interest group theory, social choice theory, and elementary game theory. The institutional applications unit includes chapters that consider the implications of covered concepts for legislatures, the judiciary, the executive branch (and bureaucracies), and constitutions as governing documents.  The book is designed for courses or seminars in public choice or for use as a supplement courses as legislation, administrative law, or jurisprudence.  Students will love this: the book is in paperback.  Max tells me that he and Todd will be submitting the Teachers’ Manual to West this week and that West will quickly make that available to potential adopters.  In addition, they are working toward posting supporting materials for part III on line.  That part which will include various chapters on discrete topics of law to be used in connection with the bound volume and that will be updated over time.  Max tells me that he is happy to respond to any questions or comments that you have by email.   Having sat in on Max’s public choice seminar and enjoyed, and learned from, his vast body of work in the area, I have no doubt that Public Choice Concepts and Applications in Law is a great contribution to the classroom and beyond.

  October 12, 2009 at 12:39 pm   Posted in: Administrative Law, Economic Analysis of Law, Jurisprudence   Print This Post   No Comments

Making the Internet Safer, the NSA Way

posted by Danielle Citron

Securing our networked environment is both crucial and difficult.  Six months ago, President Obama declared his Administration’s commitment to protect cyberspace from sabotage of all stripes.  For the President, the rise of online theft, electronic espionage, and military-related cyber assaults necessitated the appointment of a cyber czar to protect our cyber “national assets.”  The President has tried to fill that spot: Shane Harris of National Journal explains that “more candidates had declined the job than were still in the running for it.”  And despite our failed efforts at CoOp to recruit Orin Kerr for the job, the cyber czar position remains empty.

This state of affairs may be due to the difficult nature of the task at hand.  Former NSA head General Michael Hayden recently said: “There is no regime for us to work within to respond to cyberattack.  We are in a place where technology has long outstripped policy–let alone law–in term of what’s available.  We are going to have to rely on heroism instead of a plan.”  If Hayden has it right, it is no wonder that no one wants the job.

Nonetheless, the Administration may have already charted its path, one that entrusts the National Security Agency with protecting cyberspace.  According to the National Journal, Lt. General Keith B. Alexander, the NSA’s director, has been “setting up the central nervous system in the government’s campaign to defend cyberspace.”  The NSA will now, unlike the past, help oversee the networks of civilian government and privately-owned, criticial infrastructure (dams, railroads, hospitals, banks, food industry, hotels, telecommunications, postal, shipping, retail, transportation, and well everything else).  This is true even though DHS is charged with defending civilian networks and coordinating private sector protection.  Homeland Security Security Secretary Janet Napolitano said that NSA will provide DHS “technical assistance” on this issue.  In short, DHS will rely on the NSA for the tools, expertise, and resources to protect cyberspace.

So the NSA apparently will be overseeing and securing private networks, the same NSA that engaged in wholesale warrantless surveillance of Americans after 9/11 (and the agency that monitored telegrams coming in and out of the United States to detect individuals with communist ties in the 1950s and 1960s)?  Congress has, of course, limited the NSA’s warrantless wiretapping and the President has promised us greater transparency in government decision-making.  Nonetheless, NSA’s oversight over privately-owned systems and wholesale access to their contents raises serious concerns.  And because the NSA will direct these efforts in the name of national security and intelligence, little transparency will be forthcoming.  On another note, the question remains whether it was agency turf-war antics that led to Melissa Hathaway’s decision to leave government–she was the DHS official and most senior cyber expert in the White House who had been a leading candidate for the cyber czar post.  At the time of her resignation, Hathaway told the Washington Post that she “wasn’t willing to continue to wait any longer,” and she wasn’t “empowered” to make any changes.

  October 6, 2009 at 9:12 am   Posted in: Architecture, Cyberlaw, Privacy, Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized   Print This Post   One Comment

Introducing Guest Blogger Linda McClain

posted by Danielle Citron

I am delighted to introduce Professor Linda McClain who will be guest blogging with us in October.  Linda is the Paul M. Siskind Research Scholar Professor of Law at Boston University School of Law.  Her scholarship addresses the respective roles of families, other institutions of civil society and of government in fostering citizens’ capacities for democratic and personal self-government.  Her work has engaged with prominent communitarian, civic republican and feminist critiques of liberal legal and political theory and offered a reconstructive liberal feminist approach to such matters as privacy, family and marriage, reproductive issues and welfare law.  Her work also addresses sex equality as a legal and constitutional commitment and public value, the responsibility of government to promote equality, and societal tensions over equality and its relationship to other values. She has published numerous articles in law reviews and books and spoken in many academic and public settings. Linda has also organized major conferences and symposia.

Before joining the faculty of Boston University School of Law in Fall 2007, Linda was the Rivkin Radler Distinguished Professor of Law at Hofstra Law School, where she was also co-director of the Institute for the Study of Gender, Law, and Policy. Prior to entering the legal academy, she practiced litigation at Cravath, Swaine & Moore. A former faculty fellow at the Harvard University Center for Ethics and the Professions, she has been a visiting professor of law at Harvard, the University of Pennsylvania and the University of Virginia. Linda is on the executive committee of the Association of American Law Schools Section on Family Law and Law and Communication Studies, and is a member of the Council on Contemporary Families. She is also on the advisory board of the Georgetown Journal of Gender and Law and the Feminist Sexual Ethics Project.

Linda is currently working on several book projects, including Rights and Irresponsibility (with BU Law Professor James Fleming), Why Is Equality So Hard?: Men, Women, and Social Cooperation, The Place of Associations, and an anthology (with Daniel Cere) on competing paradigms of parenthood.

Her works include:

Gender Equality: Dimensions of Women’s Equal Citizenship (Cambridge University Press, 2009) (co-edited with Joanna Grossman)

The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard University Press 2006)

Supreme Court Justices, Empathy, and Social Change: A Comment on Lani Guinier’s Demosprudence Through Dissent, B.U. Law Review (forthcoming 2009).

Red Versus Blue (and Purple) States and the Same-Sex Marriage Debate: From Values Polarization to Common Ground?, 77 Univ. Missouri-Kansas City Law Review 416 (2008).

Unleashing or Harnessing Armies of Compassion?: Reflections on the Faith-Based Initiative, 39 Loyola Chicago Law Review 361 (2008).

  September 30, 2009 at 1:15 pm   Posted in: Uncategorized   Print This Post   No Comments

Introducing Guest Blogger Spencer Weber Waller

posted by Danielle Citron

I have the great pleasure of introducing Professor Spencer Weber Waller who teaches at Loyola-Chicago and will be guest blogging with us in October.  Spencer kindly wrote a welcome post, so I include it below.  We are so happy to have you blogging with us!

Thanks to Danielle Citron and all the regular contributors at Concurring Opinions for allowing me to guest for the month of October.  For those of you who aren’t familiar with my work and background, I have been teaching at Loyola-Chicago since 2000, teaching and writing mostly in antitrust and consumer protection, and directing the Institute for Consumer Antitrust Studies.  Before that, I spent ten wonderful years on the faculty of Brooklyn Law School following eight years of law practice with the government and with a firm in Chicago.  I am also a recidivist Associate Dean having served in different capacities with that title at both Brooklyn and Loyola.

As a scholar, I spent most of my first ten years writing about the application of US antitrust law to foreign commerce, the growth of foreign competition law, and other developments in international and comparative antitrust.  Of late, I have been increasing interested in issues at the intersection of antitrust and intellectual property.  Both of these areas seem to be where the action is in my fields and overly dominated by fairly narrow neo-classical economic analysis.

Most recently, I have working with fellow Concurring Opinons contributor Deven Desai on a large piece on the power of brands and how neither trademark law nor antitrust has captured the importance of brands in our modern economy or created a meaningful legal regime to regulate when become an enduring source of market power.  But more about that in future posts.

In my month or so with you, I plan to share more thoughts about the power of brands, a few of the activities of the Institute for Consumer Antitrust Studies, antitrust enforcement in the Obama Administration, and occasional musings about legal academia.  Thanks for having me.

Here are a few of Spencer’s recent articles:

-The Law and Economics Virus, Cardozo L. Rev. (forthcoming 2009).
-Justice Stevens and the Rule of Reason, 61 SMU L. Rev. 693 (2009).
-Areeda, Epithets, and Essential Facilities, 2008 Wisc. L. Rev. 360.
-Revitalizing Essential Facilities, 75 Antitrust L. J. 1 (2008) (co-author Brett Frischmann)

  September 30, 2009 at 6:17 am   Posted in: Administrative Announcements, Uncategorized   Print This Post   2 Comments

Tweeting for the Party

posted by Danielle Citron

During the 2008 election, Democrats effectively used Web 2.0 platforms to garner interest in the campaign and win supporters.  President Obama has been widely hailed as the first “Tech President,” and he seems to have trounced the Facebook landscape.  To date, President Barack Obama has over 6.6 million Facebook friends, while Sarah Palin only has 848, 614 Facebook pals and Mitt Romney has 70, 130.

Although the President has proven his mettle on Facebook and MySpace (where he has over 1.8 million friends), Republicans rule the day on the micro-blogging front.  The Congressional Research Service reports that congressional Republicans out-tweeted their Democratic counterparts during two one-week periods this summer.  Nancy Scola attributes Congressional Republicans’ Twitter dominance to their desire to regain the public’s attention and favor now that they are in the minority.  AMERICAblogs’ John Aravosis worries that Democrats have ceded their online advantage.

No matter the current political victor in this social media landscape, Government 2.0 is here to stay.  It surely has great potential to shine light on government policymaking and to marshal public participation, especially from people who otherwise wouldn’t bother getting involved with government policymaking.  Adding the President as a friend on MySpace and joining live chats may seem to be a relatively costless endeavor as compared to writing letters or commenting on agency rulemakings.  But Government 2.0 also poses privacy risks: social media sites not only give government access to people’s policy insights but also access to all of individuals’ social media data, such as their videos, photos, walls musings, “Top 25 things you don’t know about me” lists, and the like.  Soon, I will be posting on SSRN a draft of my essay “The One-Way Mirror: Enhancing Participation and Securing Privacy for Government 2.0″ (forthcoming George Washington Law Review) and hope to get your feedback.

  September 28, 2009 at 12:11 pm   Posted in: Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Social Network Websites, Technology, Uncategorized   Print This Post   No Comments

Burglars Like Facebook, Too

posted by Danielle Citron

Facebook offers much to law enforcement, perhaps more than many might think.  Last week, a Pennsylvania man was arraigned for felony burglary, having allegedly broken into a woman’s home and stolen jewelry.  The defendant seemingly played a big role in ensuring his capture: he checked his Facebook page during the burglary.  The victim noticed that the defendant’s Facebook account appeared on her computer after the burglary.  No joke.  This takes harming oneself through social networking to a new level.

  September 22, 2009 at 11:53 am   Posted in: Anonymity, Criminal Law, Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement), Technology, Uncategorized, Weird   Print This Post   No Comments

Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan

posted by Danielle Citron

Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.”  Why?  Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments.  The department suspects that some of the posters could be department employees.  Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.”  The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.

The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials.  Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods.  It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.”  Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors.  It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”

Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves.  We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job.  Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.”  Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece.  Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007.  I wonder what the Austin ACLU thinks now.

H/T Slashdot for the story

  September 21, 2009 at 9:46 am  Tags: free speech  Posted in: First Amendment, Google & Search Engines, Technology, Tort Law, Uncategorized   Print This Post   No Comments

Professional Responsibility Meets Facebook, Another Oops the Bar

posted by Danielle Citron

Every year, my small section reads a New Yorker “On the Town” squib called “Oops” to kick off a discussion on care and professional responsibility in their legal careers.  “Oops” tells the story of a summer associate who, in 2003, mistakenly sent the following email to lawyers with whom he worked on a deal: “I’m buy doing jack shit.  Went to a nice 2hr sushi lunch today at Sushi Zen.  Nice place.  Spent the rest of the day typing e-mails and bullshitting with people.”  The summer associate signed  off the email: “So yeah, Corporate Love hasn’t worn off yet. But give me time.”  The summer associate meant to send the email to his friend.  Oops.

For a moment, let’s put aside the stark difference between the world (and law firm environment) facing the summer associates of 2003 and the one facing the summers of 2009 and turn to Sunday’s New York Times story “A Legal Battle: Online Attitude Vs. Rules of Bar.”  The Times talked about recent cases where lawyers do violence to their careers through their online activities.  Lawyers blog about judges:  one wrote that he thought a named judge was an “Evil, Unfair, Witch” and questioned the judge’s competence.  Another lawyer friended a judge on Facebook and later posted about his/her drinking and motorbiking.  The problem: the lawyer asked the judge to delay a trial because of a death in the family in the same week that the lawyer shared the drinking tales with his/her social network.  The lawyers in those cases have suffered serious consequences (the first is facing a reprimand from the bar, the second faced the wrath of his/her firm–the judge told the lawyer’s bosses what happened).

Now, the 2003 summer associate made a big mistake, but perhaps not on the same order as the lawyers covered in yesterday’s Times.  The summer associate had a slip of the finger perhaps, a hasty moment that changed the way those in his firm saw him.  But the lawyers arguably dove into the pool of their fate head first: one might say that they knowingly risked their careers and should suffer the consequences (to the extent the Bar desires and the First Amendment permits).  Social scientists like Alessandro Acquisti and danah boyd and legal scholars like James Grimmelmann offer an explanation for why people are so foolish online.  People write carelessly not because they have “a reduced sense of privacy” but because they felt anonymous.  As danah boyd explains, social network participants “live by ‘security through obscurity’ where they assume that as long as no one cares about them, no one will come knocking.”  They operate under the norm that people with no social connection to them “could look at your profile, but shouldn’t.”  They assume that only close friends are paying attention to their online activities.  All of this is to say that perhaps President Obama shouldn’t just talk to young people about the perils of oversharing online.  Maybe lawyers need the lesson too.

Wikimedia Commons Image

  September 14, 2009 at 3:58 pm   Posted in: Cyberlaw, Law Practice, Privacy, Psychology and Behavior, Uncategorized   Print This Post   3 Comments

Advice, For Law Students Too

posted by Danielle Citron

This Sunday, The New York Times offered superb advice for undergraduates from a wonderful array of scholars, including my favorite (and for so many others) Martha Nussbaum.  Law students can learn from some of their insights as well.  Here are the highlights (with a few comments):

1. Reading great newspapers will help your writing. Most articles are models of clarity and substance–they banish jargon (and latin phrases) and so should you.  Follow their lead; you can’t go wrong.  (Linda Greenhouse, Dahlia Lithwick, David Margolick’s At the Bar columns from the past, and many more come to mind).

2.  Get lost in great books.  Don’t forget to read for you, not just for class.  It will help your writing and thinking.  (This summer, I re-read Anthony Lewis’s Make No Law: The Sullivan Case and the First Amendment, Rod Smolla’s Deliberate Intent: A Lawyer Tells the True Story of Murder By the Book, Martha Nussbaum’s Hiding From Humanity: Disgust, Shame, and the Law, and Dan Solove’s Understanding Privacy for just that reason).

3.  Take classes that stretch your mind, that interest you, rather than just focusing on classes that prepare you for the job.

4.  Seek out wonderful professors–what is lasting is how they’ve made you think, not the specifics of any given course.

5.  Write as much and as often as you can, and think about classes that ensure you do that.

6.  Don’t alienate your professor (and your colleagues–for better or for worse, you are part of a legal community now).

  September 9, 2009 at 10:54 am   Posted in: Uncategorized   Print This Post   9 Comments

Bernie Madoff and the Unfortunate Consequences of Celebrity Bias

posted by Danielle Citron

Celebrity is intoxicating.  We have long been willing to play the fool to the rich and powerful, even if that means turning a blind eye to signs of trickery.  In the late 1980s, a 37-year-old con artist convinced Duke University administrators and students that he hailed from the wealthy Rothschild family of France despite the fact that he spoke no French, drove a run-down car, and offered clipped out magazine articles to show his family’s homes. During a two-year charade, the imposter borrowed (stole) thousands of dollars from Duke and joined a fraternity. (I was an Duke undergraduate at the time, but alas did not know him).  More recently, Christopher Chichester tricked many into believing that he was a Rockefeller despite his gauche manners and outrageous claims (e.g, that he owned “the key to Rockefeller Center”).  As Clark Rockefeller, he gained admission to exclusive clubs and married a partner at McKinsey Consulting.  Only after Mr. Chichester kidnapped his daughter from his ex-wife did the police discover his true identity and connection to unsolved murders.

Perhaps such celebrity bias had some role in the SEC’s bungling of the Bernie Madoff fiasco.  On Thursday, the S.E.C.’s Inspector General’s Report explored why the agency missed so many “red flags” about Madoff since 1992.  The report discussed missed leads, bureaucratic snafus, and investigators’ inexperience.  Investigators were far too believing because they were simply awed by him.  One investigator described Madoff as “a wonderful storyteller” and a “captivating speaker.”  As with the faux Rockefeller and Rothschild incidents, Madoff’s ruse worked for so long despite the clues of foul play perhaps because investigators and investors could not shake their sense of Madoff as a rich, powerful, and trusted financial guru.  Madoff’s celebrity reputation anchored their thinking, permitting Madoff to get away with his scheme for far longer than it should have.  As Madoff’s victims’ stories attest, celebrity bias had profoundly destructive consequences.

StockXchange Image; Wikimedia Commons Image

  September 5, 2009 at 3:39 am   Posted in: Behavioral Law and Economics, Corporate Law, Culture, Current Events, Psychology and Behavior, Securities Regulation, Uncategorized   Print This Post   No Comments

Reservoirs of Patient Data: Next Generation’s Privacy Problem

posted by Danielle Citron

Patients of rare diseases find that drug companies have little interest in devoting limited R&D budgets to diseases of small populations.  As a result, patients have begun to strike out on their own in the search of cures.  As The New York Times explains, patients increasingly share their medical information (including details about their everday experiences living with a disease) online in the hopes that other similarly-situated patients will do the same.  This would permit interested academic researchers to mine the data for observations about their diseases.  Patients see online communities as offering new ways to transform medical research–especially into rare diseases that elude the current model of large-scale studies of widespread conditions.

Some experts are skeptical, asking how these sites will guarantee patient privacy.  One imagines that these sites will respond to privacy concerns by employing anonymization practices.  For instance, sites might delete personal identifiers like names and social security numbers and remove other potential identifiers, such as names of next of kin or student ID numbers.  This ostensibly permits researchers to use the amassed data without concomitant privacy risks.  But, as Paul Ohm’s important and engrossing new paper Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization argues, technology renders this privacy-protection option obsolete.  Computing advances now permit clever adversaries to reidentify or deanonymize the people hidden in anonymized databases.  This means that datasets that were meant to be kept apart are easily rejoined, allowing sensitive secrets to be  revealed.

Patients may of course be willing to take that risk if their particpation in open-source research leads to cures of rare diseases.  Yet patients also jeopardize their offsprings’ privacy: if medical information can be reidentified with ease and linked with other datasets, a patient’s children may get caught up in that web of re-identification.  This may lead to genetic discrimination in the grown-up child’s life.  Grown-up children may be willing to bear that risk–it is, however, worth considering this possibility when assessing privacy concerns related to such open-source research efforts.

  September 1, 2009 at 4:05 pm   Posted in: Anonymity, Privacy, Privacy (Medical), Technology, Uncategorized   Print This Post   One Comment

Cyber Gender Harassment: “Skanks of NYC”

posted by Danielle Citron

Dan, Kaimi, and Elizabeth have offered some terrific insights on the issues raised by the court’s unmasking of the “Skanks of NYC” blogger.  Kaimi’s post “Cyber Civil Rights vs Privacy in the ‘Skanks in NYC’ case” in particular did a superb job capturing the issue as discrimination.  I write here to follow up on issues related to the case that folks have discussed with me.

Some have asked whether this case warrants treatment as a cyber civil rights issue since it “is just a girl cat fight.”  To be sure, women can deprive other women of their right to be free of unequal treatment on the basis of their gender.  But the larger concern is, for me, convincing skeptics to see the blog attacks on Ms. Cohen as more than just an interpersonal disagreement between two women, something that tort law can handily address on its own, but rather as gender discrimination.  Tort law would not reach the harm experienced by Ms. Cohen, women, and society due to the blog’s interference with her right to equal treatment.  It would not address the stigma that Ms. Cohen experienced a a result of the blog’s message that she had worth only as a sex object.  Much like sexual harassment in the workplace, the blog suggested that Ms. Cohen constitutes an object of sexual derision, not a person worthy of respect.  Moreover, they interfered with Ms. Cohen’s right to work as an equal.  According to Ms. Cohen, potential employers asked her about the blog, which quite possibly deterred them and others from hiring her.  In a world filled with aspiring models, employers might chose to work with someone who comes with less baggage, even if they do not believe the postings a wit.  And the blog postings harm women as a group and a society as a whole by entrenching gender hierarchy in cyberspace.  Whether current law would support such a claim is certainly in dispute, but such a law could be crafted.  Such a law would play an important expressive role–it would change the social meaning of such harassment of women.

Indeed, as privacy scholar Ian Kerr suggested, maybe the media’s attention to the case can be attributed to its leering interest in a “battle” between two beautiful women?  Maybe coverage of the issue reflects a deeper misogyny: the story has attracted so much attention because it produces an image of women as female wrestlers of sorts, battling it out in their bikinis?

Read the rest of this post »

  August 26, 2009 at 12:58 pm   Posted in: Anonymity, Civil Rights, Cyber Civil Rights, Cyberlaw, Privacy, Uncategorized   Print This Post   2 Comments

Booze, Budget Cuts, and Politics: A Facebook Tell-All

posted by Danielle Citron

Every summer, the Maryland Association of Counties (MACO) sponsors a networking bonanza where pols solidify contacts over drinks.  With the budget disaster, Maryland Governor Martin O’Malley promised a “sober” MACO outing.  Surely, partying on the state’s dime would seem in poor taste given the state’s continued layoffs and furloughs.  Well, that was the plan, at least in theory.

During the MACO conference, a gubernatorial staffer posted 115 party pics on Facebook, documenting the Governor, Mayor, county executives, and staffers having drinks during the event.  It took little time for the pictures to leak: they now reside on the blog Maryland Politics Watch despite the staffer’s delection of the pictures from his Facebook page.

Why would the staffer post the party pics given the Governor’s admonition for a sober event and given the dour economic outlook in the state?  Guest blogger James Grimmelmann’s important “Saving Facebook” article, just published in the Iowa Law Review, explains why.  Social network site users have a powerful sense of privacy.  Facebook’s design produces the sense that users engage in private conversations.  Users see their friends’ pictures and names when they send messages and post wall missives, pictures, and videos.  They sense that users are “just like them” and thus would be unlikely to betray them.  We also trust others because double nuclear annihilation lurks.  If we publicize our friends’ pictures and videos beyond the Facebook walls, we can expect the same in turn.  As Grimmelmann convincingly develops, social network site users cannot appreciate the real privacy risks of sharing on Facebook: we are cognitively limited in that way.  Grimmelmann’s piece develops a strategy for addressing these issues and is a must read.

  August 24, 2009 at 7:15 am   Posted in: Culture, Current Events, Privacy, Privacy (Consumer Privacy), Uncategorized   Print This Post   4 Comments

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