Author Archive for danielle-citron

First Amendment Architecture Online Symposium

posted by Danielle Citron

Next week, the Stanford Technology Law Review is holding its “First Amendment Challenges in the Digital Age” conference in celebration of its 15th year anniversary.  One of the panels will center on Marvin Ammori’s First Amendment Architecture article and the important concerns that he raises about doctrine and normative theory concerning speech spaces in our networked environment.  At CoOp, we will participate in that discussion online, bringing together guest blogger Marvin Ammori with thought leaders (and guest bloggers) Marc Blitz, Brett Frischmann, Gregory Magarian, Zephyr Teachout, and Tim Zick to discuss Marvin’s article and broader concerns about expressive spaces in the twenty-first century.

We will be holding an online symposium on Julie Cohen’s Configuring the Networked Self in March as well as one on Brett Frischmann’s book on Infrastructure (forthcoming Oxford University Press).  Hopefully, we can do the same for Tim Zick’s book on The Cosmopolitan First Amendment (forthcoming Cambridge University Press 2013).  This discussion will be a terrific way to begin our long-term commitment to thinking through what architecture means and should mean for civil liberties.

Here’s the abstract for Marvin’s article:

The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role of judicial doctrines in ensuring the availability of spaces for speech. Indeed, when scholarship addresses doctrines that are explicitly concerned with speech spaces such as public forums and media or Internet forums, it generally marginalizes these doctrines as “exceptions” to standard First Amendment analysis. By overlooking or marginalizing these decisions, scholarship has failed to explicate the logic underlying important doctrinal areas and what these areas reveal about the First Amendment’s normative underpinnings.

This Article adopts a different interpretive approach. It identifies and interprets the Court’s role in ensuring, requiring, or permitting government to make spaces available for speech. Across a range of physical and virtual spaces, the Article identifies five persistent judicial principles evident in precedent and practice that require or permit government to ensure spaces to further particular, substantive speech-goals.

Further, rather than quarantining these speech-principles as exceptions to the standard analysis, this Article explores the significance of these principles for “core” speech doctrine and theory. The resulting analysis poses fundamental challenges to conventional wisdom about the First Amendment and the normative principles generally believed evident in doctrine. Consequently, the Article provides timely guidance for legislators and judges, particularly for shaping access to the technology-enabled virtual spaces increasingly central to Americans’ discourse.

  February 3, 2012 at 10:50 am   Posted in: Symposium (First Amendment Architecture)   Print This Post   No Comments

Announcement for the Paul Murphy Prize

posted by Danielle Citron

The American Society for Legal History announces the Paul Murphy Prize to support the completion of a book on the history of civil liberties that addresses any topic or any time in American history. The award will be given out two times only, in 2012 and 2013. Recipients will receive $5000 to support their work. Nominees at all levels of seniority will be considered, however the award is not for the completion of a dissertation.

The award honors Paul L. Murphy (1923-1997), who spent much of his career at the University of Minnesota where he rose to the rank of Regent’s Professor of History and American Studies. At the time of his death, he was in the second year of his term as president of the ASLH. During his tenure at Minnesota he became one of the nation’s leading constitutional historians and a mentor to generations of undergraduate and graduate students. Among his most important books were: The Meaning of Freedom of Speech: First Amendment Freedoms from Wilson to FDR (1972); World War I and the Origin of Civil Liberties in the United States (1979); Historic Background of the Bill of Rights, Vol. 1 (1990); and The Shaping of the First Amendment: 1791 to the Present (1991). In addition, civil liberties played a fundamental role in the argument he developed in what was likely his most influential book, The Constitution in Crisis Times 1918-1969 (The New American Nation Series, 1972). Murphy’s commitment to civil liberties and his passion for the subject was evident in his deeds as well as his words. He was an ardent and committed member of the American Civil Liberties Union throughout his life. For additional information on Murphy please see the tribute to him in the Law and History Review, 16 (Spring 1998), ix-xi.

To be considered for this award, authors or nominators should send a book proposal with chapter descriptions, a discussion of the book’s contributions, and a time-line for completion; a sample chapter; and a c.v. to committee chair Mary L. Dudziak (mdudziak@law.usc.edu). Submissions via e-mail are preferred, and attachments can be in Word or PDF. Please put “Murphy Prize” in the subject line. If you must submit by hardcopy, please send four copies of these materials to arrive by the deadline to this address: Professor Mary L. Dudziak, USC Gould School of Law, 699 Exposition Blvd, Los Angeles, CA 90089. The deadline for receipt of proposals for this year’s award is June 30, 2012.

Members of the Murphy Prize Committee are:
Mary L. Dudziak, Chair, University of Southern California
Robert Kaczorowski, Fordham University
Serena Mayeri, University of Pennsylvania
David M. Rabban, University of Texas

 

  February 3, 2012 at 10:12 am   Posted in: History of Law   Print This Post   One Comment

The Daily You: A Mandatory Read

posted by Danielle Citron

Over at the Business Insider, Doug Weaver has a terrific review of our guest blogger Joe Turow’s new book The Daily You, demonstrating its practical importance to people in the field like Weaver as well as to policymakers and scholars.Here’s the review:

Listening to the insider discussions and industry reporting about online marketing provides a numbing sense of false comfort.  But every so often, we go outside the bubble and hear civilians talking about what we do.  I’m sure most of us have had someone at a party or family gathering share their ‘creeped out’ moment;  that instance where they finally saw clearly that somehow they were being ‘followed’ online.   Other times, they offer us largely unformed general concerns about online privacy: they don’t really have a sense of what’s going on but they instinctively know they don’t like it.  And once in a great while you’ll hear from someone who’s really done their homework and brings crystal clarity to the issue from the consumer point of view.

That moment came for me when I stumbled on an NPR radio interview with Joseph Turow, author of “The Daily You: How the New Advertising Industry is Defining Your Identity and Your Worth.”  After using up my ten minute commute, I found myself sitting my car in the parking lot of my office for another 30 minutes just listening to this guy.  It was kind of like hearing someone talk about you in a bathroom when they don’t know you’re in one of the stalls.  Except they’re totally getting it right.  Turow, an associate dean at the Annenberg Communication school at Penn, has done a lot of homework.  The book is detailed and rigorous, but also extremely accessible to the curious consumer.  While it’s probably not going to sell millions of copies, I believe it’s going to be a hugely influential and important book for several reasons.

  February 1, 2012 at 5:47 pm   Posted in: Architecture, Articles and Books, Innovation, Political Economy, Privacy, Technology   Print This Post   No Comments

Announcing the Date: Configuring the Networked Self Online Symposium

posted by Danielle Citron

During the week of March 5, we’re going to hold an online symposium on Julie Cohen’s important and engrossing book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press).  As Rebecca Tushnet noted at a celebration of Julie’s book held at Georgetown Law School (see here for her post on the event), Cohen “challenges us to imagine better: understand culture’s power and make policies that both acknowledge and attempt to work with that power.”  Some of what appealed to Dan Solove is the book’s exploration of privacy and creativity together, with all of their nuances. As Dan explained, “copyright and privacy both concern control over information; tension because scholars who argue for limits on copyright are often arguing for more protection for privacy—less control/more control over information.  Is there a coherent way to argue for less copyright/more privacy?  Cohen’s work establishes the normative foundations for that.”  One of my favorite contributions is the book’s illumination of networked architecture’s impact on human flourishing and her development of the Capabilities Approach to address pressing challenges to the practice of everyday life.

Concurring Opinions is thrilled to welcome an all-star group of scholars to lead the discussion, including the author Julie Cohen:

Anita L. Allen

Ann Bartow

Kristin Eschenfelder

Edward Felten

Ian Kerr

Jaron Lanier

Paul Ohm

Hector Postigo

Ted Striphas

Valerie Steeves

Michael Zimmer

In the meanwhile, get your copy of the book and mark your calendars!

 

 

  February 1, 2012 at 5:10 pm   Posted in: Configuring the Networked Self Symposium   Print This Post   No Comments

The Front Page, for Whom?

posted by Danielle Citron

Recently, Arianna Huffington, founder of the Huffington Post, announced the debut of its French version and new editor, Anne Sinclair, a journalist and former television anchor who many know as the wife of Dominique Strauss-Kahn.  In discussing her role at Le HuffPo, she explained that her husband’s legal troubles and political career would not pose a conflict of interest for her work and that “All important news will be treated normally, as it would be treated elsewhere.  Anything that should be on the front page will be on the front page.”   What caught my interest wasn’t her assurance about her professionalism.  Rather, it was her suggestion that a front page exists for online papers, at least one that is static.  In our era of personalization, news sites not only personalize the ads that we see but also news deemed of interest to us — and hence what site visitors see as they open new sites.  Lucky for us, guest blogger Joseph Turow can shed light on the varied implications of such personalization — on our culture, politics, privacy, and more.

  January 30, 2012 at 11:05 am   Posted in: Culture, Current Events, Technology   Print This Post   No Comments

Kennedy and Szoka on U.S. v. Jones

posted by Danielle Citron

Charlie Kennedy and Berin Szoka of TechFreedom have an insightful op-ed in c/net yesterday.  It resonates with some of what my co-blogger Dan Solove said in his post and urges Congress to move on ECPA reform.  Here is the piece:

  January 30, 2012 at 10:37 am   Posted in: Privacy, Privacy (Law Enforcement), Privacy (National Security), Uncategorized   Print This Post   One Comment

(Re)introducing Guest Blogger David Gray

posted by Danielle Citron

  January 30, 2012 at 10:26 am   Posted in: Administrative Announcements   Print This Post   No Comments

Introducing Guest Blogger Joseph Turow

posted by Danielle Citron

I’m thrilled to introduce Professor Joseph Turow who will be guest blogging with us this month.  Professor Turow is the Robert Lewis Shayon Professor of Communication at the University of Pennsylvania’s Annenberg School for Communication.  He is an elected Fellow of the International Communication Association and was presented with a Distinguished Scholar Award by the National Communication Assn. A 2005 New York Times Magazine article referred to Professor Turow as “probably the reigning academic expert on media fragmentation.”

Professor Turow has authored nine books, edited five books, and written more than 100 articles on mass media industries. Yale University Press has just published his new book, The Daily You: How the New Advertising Industry is Defining Your Identity and Your Worth. In 2010 the University of Michigan Press published Playing Doctor: Television, Storytelling and Medical Power, which is a history of prime time TV and the sociopolitics of medicine. Routledge recently published the fourth edition of his text Media Today: An Introduction to Mass Communication. Other books reflecting current interests are Niche Envy: Marketing Discrimination in the Digital Age (MIT Press, 2006). Breaking Up America: Advertisers and the New Media World (University of Chicago Press, 1997; paperback, 1999; Chinese edition 2004); and The Hyperlinked Society: Questioning Connections in the Digital Age (edited with Lokman Tsui, University of Michigan Press, 2008).

Professor Turow’s continuing national surveys of the American public on issues relating to marketing, new media, and society have received a great deal of attention in the popular press as well as in the research community. He has written about media and advertising for the popular press, including American Demographics magazine, The Washington Post, Boston Globe and The Los Angeles Times. His research has received financial support from the John D. and Catherine T. MacArthur Foundation, the Kaiser Family Foundation, the Robert Wood Johnson Foundation, the Federal Communications Commission and the National Endowment for the Humanities, among others.

Professor Turow was awarded a Lady Astor Lectureship by Oxford University. He has received a number of conference paper and book awards, has lectured widely and been invited to give the Pockrass Distinguished lecture at Penn State University and to be a Chancellor’s Distinguished Lecturer at LSU. He has served as the elected chair of the Mass Communication Division of the International Communication Association. Professor Turow currently serves on the editorial boards of the Journal of Broadcasting and Electronic Media, Poetics, and New Media & Society.

 

  January 30, 2012 at 10:20 am   Posted in: Administrative Announcements   Print This Post   One Comment

Barry Friedman on United States v. Jones

posted by Danielle Citron

Professor Barry Friedman’s opinion piece in the New York Times on Jones is characteristically insightful: we’ve featured his work in our Bright Ideas series and other posts.  His piece adds an important layer to, and echoes, the conversation our experts have been having this past week.  If you haven’t seen it, here it is:

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?

The Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment. The justices’ 9-to-0 decision to protect constitutional liberty from invasive police use of technology was celebrated across the ideological spectrum. Read the rest of this post »

  January 29, 2012 at 7:50 am   Posted in: Constitutional Law, Criminal Procedure, Privacy (Law Enforcement)   Print This Post   2 Comments

Updated Privacy Intrusions

posted by Danielle Citron

A classic intrusion on seclusion case, Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964), involved a couple whose landlord placed a recording device in their bedroom to listen to their conversations and sounds.  The couple’s privacy tort claim sought recovery for their mental distress and humiliation after discovering the device.  The husband explained that he could not perform his normal duties as husband and father.  According to the wife, the experience curtailed the couple’s sex life.

A more recent case reminded me of just these sorts of psychic wounds — embarrassment and shame accompanying feelings of exposure and intrusion on sacred activities — and the ways that networked technologies can exacerbate them.  A Louisiana city planner hid a camera inside his workplace’s urinal to photograph and film coworkers (over 50 men worked at the city planning office).  In July 2011, his co-worker discovered the tiny camera, which had been duct taped to the urinal.  The camera’s memory device contained images of several men with their private parts exposed.  (Check out this video reenactment of what happened). The city turned over the employee to the local police who charged him with video voyeurism.  It’s unclear how long the camera recorded the goings on in the urinal or what the city planner did with the photos and videos captured on the device.

Although the camera-in-the-urinal case involved criminal charges and no tort claims have been filed, it involves just the sort of intrusions and harms in classic intrusion case.  One imagines that some of the city planner’s co-workers felt embarrassed that a co-worker might have recorded their bathroom activities.  More to the point, they no doubt worried about what the city planner did and could do with those videos.  Now, there’s no evidence that the city planner posted the pictures and videos online or in other ways distributed them.  But networked technologies change the stakes of recorded intrusions.  With today’s technologies, memory decay has all but disappeared, at least in the United States.  (See Jane Yakowitz’s Forbes commentary on the proposed European Commissions’s right to delete proposals; I will have more to say on those proposals too, and Viktor Mayer-Schonberger’s Delete is an excellent read).  If the city planner posted the videos on a site like Private Voyeur (or anywhere), then the material could remain indexed and searchable far into the future, an “eternal return” of private embarrassing information.  Of course, posting the information online would implicate another privacy tort — the public disclosure of private fact — whose reach, though narrow, would likely include what happened here (pictures of bathroom activity hardly seems newsworthy).  But it’s important to recognize the changing stakes of privacy intrusions and disclosures in our networked environment and perhaps put into context proposals like that of the European Commission.

 

  January 28, 2012 at 9:45 am   Posted in: Privacy, Privacy (Consumer Privacy)   Print This Post   No Comments

Welcoming Experts to Discuss the Supreme Court’s Decision in United States v. Jones

posted by Danielle Citron

As my co-blogger Dan Solove noted, the Supreme Court ruled in United States v. Jones, finding the warrantless GPS surveillance of a car unconstitutional.  There’s much to discuss about the majority opinion written by Scalia (with Roberts, Thomas, Kennedy, and Sotomayor), a concurrence written by Sotomayor, and a concurrence by Alito (with Ginsburg, Breyer, and Kagan).  We’re lucky to have experts on board to help us sort it out: Margot E. Kaminski, Executive Director of the Yale Information Society Project and Research Scholar and Lecturer at Yale Law School whose scholarship focuses on civil liberties, privacy, and surveillance, guest blogger Paul Ohm, Associate Professor of Law at the University of Colorado School of Law and former computer programmer and network systems administrator who has authored many important pieces on privacy and surveillance, and Priscilla “Cilla” Smith, Senior Fellow at the Yale Information Society Project who has co-authored “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches,” 121 The Yale Law Journal Online 177 (2011) (with Nabiha Syed, David Thaw and Albert Wong).   In a week or so, we will also be hearing from my colleague Renée Hutchins, Associate Professor of Law at the University of Maryland Francis King Carey School of Law, whose article “Tied Up in Knotts?” GPS and the Fourth Amendment, 55 UCLA Law Review 1 (2007) appeared in many district and Court of Appeals decisions wrestling with warrantless GPS tracking on cars.

  January 24, 2012 at 8:26 am   Posted in: Civil Rights, Constitutional Law, Criminal Procedure, Privacy, Privacy (Law Enforcement)   Print This Post   One Comment

Levitt v. Yelp: Why Twombly/Iqbal Are Regrettable

posted by Danielle Citron

I’m just at the start of my pleadings journey with my Civil Procedure II students, which has got me reading lots of terrific scholarship on the regrettable impact of Twombly and Iqbal.  Federal district court Judge Chen’s recent dismissal of the third amended complaint in Levitt v. Yelp, 2011 WL 5079526, seems a perfect example of why Twombly and Iqbal’s insistence upon factual plausibility before discovery transforms FRCP 12(b)(6) motions into something far different from sussing out “fair notice” and more like summary judgment as Suja Thomas astutely suggests.  (Scott Dodson and Adam Steinman also have insightful pieces on Twombly and Iqbal — New Pleading, New Discovery” and “The Pleading Problem,” respectively).

Let me first tell you a bit about the Levitt suit against Yelp.  Plaintiffs, two subclasses of business owners, alleged that Yelp unlawfully manipulated its business review pages to induce them to pay for advertising in violation of California’s civil extortion statute.  In a previous ruling, the court dismissed the complaint with leave to amend because it lacked factual allegations from which a threat might be plausibly inferred.  The Third Amended Complaint (TAC) added allegations concerning Yelp’s dealing with plaintiff Wheel Techniques (WT) in late 2008 and early 2009.  According to the TAC, soon after WT noticed negative reviews on its Yelp page that did not correspond with its actual customers, it received calls from Yelp representatives seeking advertisements.  Plaintiffs alleged that Yelp created false reviews to induce WT to advertise with it and that “200 Yelp employees or individuals acting on their behalf have written reviews of businesses on Yelp.” Plaintiffs alleged that when Wheel Techniques contacted Yelp to ask why a competitor had a high rating on Yelp, the Yelp representative told him the competitor advertised and “we work with your reviews if you advertise with us.” Id. ¶ 78. On March 8, 2010, Wheel Techniques was again contacted to purchase advertising. Upon declining, Plaintiffs allege that a 1–star review was moved to the top of the business page “within minutes” as a threat to induce Wheel Techniques to advertise. Id. ¶¶ 79–81. Plaintiffs allege that Wheel Techniques owner John Mercurio was told several Yelp employees had been fired and computers had been frozen “as a result of scamming related to advertising.” Id. ¶ 82.

The district court ran through the Twombly-Iqbal standard, with a few tweaks.  It explained that a complaint may be dismissed for failure to state a claim if it lacks a cognizable legal theory or sufficient facts alleged under a cognizable legal theory.  Citing Twombly, the court noted that a motion to dismiss should be granted if a plaintiff fails to plead “enough facts to state a claim to relief that is plausible on its face.” “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”  The court stated that “allegations of material fact are taken as true and construed in the light most favorable to the non-moving party.”  (The “construed in the light most favorable” to the non-movant language was absent in Iqbal).  Citing Iqbal, the court said that: it “need not, however, accept as true pleadings that are no more than legal conclusions or the ‘formulaic recitation of the elements’ of a cause of action.   Determining whether a complaint states a plausible claim for relief … [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”  The court dismissed the complaint for failure to state a claim.  Here’s the court’s explanation:

The TAC, like the SAC, fails to allege facts sufficient to support a conclusion that Yelp created any content. Plaintiffs have added an allegation that “approximately 200 Yelp employees or individuals acting on behalf of Yelp have written reviews of businesses on Yelp,” TAC 37, and that “Yelp has paid users to write reviews,” id. ¶ 38. Despite these allegations, however, it remains “entirely speculative that Yelp manufactures its own negative reviews or deliberately manipulates reviews to the detriment of businesses who refuse to purchase advertising,” and “[t]he [TAC] provides no basis from which to infer that Yelp authored or manipulated the content of the negative reviews complained of by plaintiffs,” Order Dismissing SAC at 17.  That Yelp employees have written reviews, even for pay, does not raise more than a mere possibility that Yelp has authored or manipulated content related to Plaintiffs in furtherance of an attempt to “extort” advertising revenues. See Iqbal, 129 S.Ct. at 1950 (“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]‘-‘that the pleader is entitled to relief.’ ”) (quoting Fed.R.Civ.P. 8(a)(2)). Similarly, that Wheel Techniques noticed negative reviews of its business that did not match its customer records does not support the logical leap that Yelp created those reviews. See TAC ¶¶ 74–75. Nor does an allegation that Mr. Mercurio (Wheel Techniques’ owner) “was told” by an unnamed source “that a former Yelp employee stated that Yelp, upon information and belief, terminated a group of sales employees … as a result of scamming related to advertising” and that “the computers of sales employees were, at one point, frozen to prohibit employees from being able to change reviews” raise more than a speculative possibility that Yelp employees created or substantively manipulated the content of Plaintiffs’ reviews in this case. See TAC ¶ 82. “Scamming related to advertising” could have referred to a host of practices not involving manufacturing of false reviews.

Despite the court’s claim that it would draw all inferences in plaintiffs’ favor, it seemed to do the opposite.  The plaintiffs provided a factually plausible account of extortion: that Yelp employees write reviews; that after WT notice negative reviews that did not accord with its customer records, a Yelp representative called seeking advertising; that a Yelp employee told WT that it works with customers that advertise with it; that as soon as WT refused Yelp’s advertising solicitation, a one-star rating appeared at the top of its Yelp page; and that WT’s owner learned that Yelp employees had been fired due to scamming related to advertising.  Nonetheless, the court reads the allegations seemingly in the light most favorable to defendant movant, reasoning that scamming related to advertising could have referred to a host of practices not involving false reviews and that even if Yelp hired people to write reviews it does not raise more than a mere possibility that it manipulated content regarding WT to extort advertising revenues.  The court seemingly ignores the allegations related to the solicitation calls and the subsequent negative review appearing on WT’s page after it declined Yelp’s second advertising solicitation.  It’s difficult to imagine what more plaintiffs could have alleged at this stage in the game.  Taking a cue from Scott Dodson’s article “New Pleading, New Discovery,” plaintiffs need discovery to figure out if Yelp employees did what the circumstances suggest–manipulate reviews to bully WT and other plaintiffs into buying advertising.  In the end, Suja Thomas has it right.  This whole endeavor sounds a lot more like a summary judgment motion than a motion to dismiss.

  January 21, 2012 at 3:55 pm   Posted in: Civil Procedure   Print This Post   13 Comments

Supporting the Stop Online Piracy Act Protest Day

posted by Danielle Citron

As my co-blogger Gerard notes, today is SOPA protest day.  Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live.  Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today.  There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates.  Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online.  In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said.  So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill.  “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so.  I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA.  I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill.  As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship.  Cybersecurity is at issue too, and we need to pay attention.  Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills.  But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.

  January 18, 2012 at 10:11 am   Posted in: Architecture, Civil Rights, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Law Talk, Media Law, Social Network Websites, Technology, Web 2.0   Print This Post   2 Comments

Introducing Guest Blogger Derek Bambauer

posted by Danielle Citron

We are thrilled to welcome aboard Professor Derek Bambauer as a guest blogger.  Professor Bambauer is an Associate Professor of Law at Brooklyn Law School, where he teaches Internet law and intellectual property. Next year, he will join the faculty of the University of Arizona James E. Rogers College of Law. He writes about Internet censorship, cybersecurity, and intellectual property. He has also written technical articles on data recovery and fault tolerance, and on deployment of software upgrades. A former principal systems engineer at Lotus Development Corp. (part of IBM), Professor Bambauer spent two years as a Research Fellow at the Berkman Center for Internet & Society at Harvard Law School. At the Berkman Center, he was a member of the OpenNet Initiative, an academic consortium that tests and studies Internet censorship in countries such as China, Iran, and Vietnam. He holds an A.B. from Harvard College and a J.D. from Harvard Law School.

His most recent publications include (see here for many more):

  January 13, 2012 at 2:01 pm   Posted in: Administrative Announcements   Print This Post   No Comments

BRIGHT IDEAS: Anita Allen’s Unpopular Privacy

posted by Danielle Citron

Lucky for CoOp readers, I had a chance to talk to Professor Anita Allen about her new book Unpopular Privacy, which Oxford University Press recently published.  My co-blogger Dan Solove included Professor Allen’s new book on his must-read privacy books for the year.  And rightly so: the book is insightful, important, and engrossing.  Before I reproduce below my interview with Professor Allen, let me introduce her to you.  She is a true renaissance person, just see her Wikipedia page.  Professor Allen is the Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Law School.  She is also a senior fellow in the bioethics department of the University of Pennsylvania School of Medicine, a collaborating faculty member in African studies, and an affiliated faculty member in the women’s studies program.  In 2010, President Barack Obama named Professor Allen to the Presidential Commission for the Study of Bioethical Issues. She is a Hastings CenterFellow.  Her publications are too numerous to list here: suffice it to say that she’s written several books, a casebook, and countless articles in law reviews and philosophy journals.  She also writes for the Daily Beast and other popular media.

Question: You began writing about privacy in the 1980s, long before the Internet and long before many of the federal privacy statutes we take for granted. What has changed? 

 I started writing about privacy when I was a law student at Harvard in the early 1980s and have never stopped. Unpopular Privacy, What Must We Hide (Oxford University Press 2011) is my third book about privacy in addition to a privacy law casebook Privacy Law and Society (West Publishing 2011).  My original impetus was to understand and explore the relationships of power and control among governments, individuals, groups, and families.  In the 1970s and 1980s, the big privacy issues in the newspapers and the courts related to abortion, gay sex, and the right to die.  Surveillance, search and seizure, and database issues were on the table, as they had been since the early 1960s, but they often seemed the special province of criminal lawyers and technocrats.

To use a cliché, it’s a brave new world.   Since my early interest in privacy, times have indeed changed, the role of electronic communications and the pervasiveness of networked technologies in daily life has transformed how personal data flows and how we think about and prioritize our privacy.  Terms like webcam, “text messaging,” “social networking,” and “cloud computing” have entered the lexicon, along with devices like mobile, personal digital assistants, and iPads.

The public is just beginning to grasp ways in which genetics and neuroscience will impact privacy in daily life—I have begun to reflect, write, and speak more about these matters recently, including in connection with my work as a member of President Obama’s Presidential Commission for the Study of Bioethical Issues.

Question: Your book coins the phrase “unpopular privacy.”  In what way is privacy unpopular?  

First let me say that I think of “popular privacy” as the privacy that people in the United States and similar developed nations tend to want, believe they have a right to, and expect government to secure.  For example, typical adults very much want privacy protection for the content of their telephone calls, e-mail, tax filings, health records, academic transcripts, and bank transactions.

I wrote this book because I think we need to think more about “unpopular” privacy. “Unpopular” privacy is the kind that people reject, despise, or are indifferent to.  My book focuses on the moral and political underpinnings of laws that promote, require, and enforce physical and informational privacy that is unpopular with the very people that those laws are supposed to help or control.  (I call such people the beneficiaries and targets of privacy laws.)  “Don’t Ask, Don’t Tell,” for instance, was an unpopular government mandated privacy for military service members.  My book suggests that some types of privacy that should be popular aren’t and asks what, if anything, we should do about it.

Question: If people don’t want privacy or don’t care about it, why should we care?

We should care because privacy is important.  I urge that we think of it as a “foundational” good like freedom and equality.  Privacy is not a purely optional good like cookies and sports cars.  Since the 1960s, when scholars first began to analyze privacy in earnest, philosophers and other theorists have rightly linked the experience of privacy with dignity, autonomy, civility, and intimacy. They have linked it to repose, self-expression, creativity, and reflection. They have tied it to the preservation of unique preferences and distinct traditions.  I agree with moral, legal and political theorists who have argued that privacy is a right.

I go further to join a small group of theorists that includes Jean L. Cohen who have argued that privacy is also potentially a duty; and not only a duty to others, but a duty to one’s self.  I believe we each have a duty to take into account the way in which one’s own personality and life enterprises could be affected by decisions to dispense with foundational goods that are lost when one decides to flaunt, expose, and share rather than to reserve, conceal, and keep.

If people are completely morally and legally free to pick and choose the degrees of privacy they will enter, they are potentially deprived of highly valued states that promote their vital interests, and those of their fellow human beings. For me, this suggests that we need to restrain choice—if not by law, then by ethics and other social norms.  Respect for privacy rights and the ascription of privacy duties must comprise a part of a society’s formative project for shaping citizens. Read the rest of this post »

  January 13, 2012 at 9:24 am   Posted in: Bright Ideas, Feminism and Gender, Privacy, Privacy (Consumer Privacy), Race, Technology, Web 2.0   Print This Post   No Comments

Needed Steps Forward on the Privacy and Civil Liberties Oversight Board

posted by Danielle Citron

Thanks to terrific privacy blogger Melissa Ngo and privacy scholar and change maker Peter Swire, I’ve learned about some exciting developments about the Privacy and Civil Liberties Oversight Board.  One might say: “Privacy and Civil Liberties Oversight Board, what?”  And that ignorance would not be surprising–it’s been dormant for too long, at least until some recent activity.  The 9/11 Commission recommended the creation of a privacy and civil liberties oversight board, which was created in 2004 and placed within the White House.  The original Board members included Carol E. Dinkins, of Texas, Chairwoman; Alan Charles Raul, of the District of Columbia, Vice Chairman; Theodore B. Olson, of Virginia; and Francis X. Taylor, of Maryland. The Chairwoman and Vice Chairman were confirmed by the Senate on February 17, 2006.  In 2008, Congress passed and President Bush signed the “Implementing the 9/11 Commission Recommendations Act of 2007,” which took the Privacy and Civil Liberties Oversight Board out of the White House and established it “as an independent agency within the executive branch.”  One of the Board’s tasks was to review the FBI’s use of national security letters.  Terms for the original board expired in January 2008, but President Bush delayed the nomination of new board members for many months and none were confirmed by the Senate.  That’s pretty much where things stayed–a Privacy and Civil Liberties Oversight Board with no members and no action.

Last year, President Obama nominated the terrific James X. Dempsey, Vice President for Public Policy at the Center for Democracy and Technology, and Elisebeth Collins Cook, who worked in the Justice Department in the Bush administration. In turn, privacy groups, including Melissa Ngo’s Privacy Lives, called for the nomination and confirmation of  experts to the board.   In December 2011, the White House has announced that President Obama has sent more nominations to the oversight board to the Senate: Rachel L. Brand, of Iowa, to be a Member of the Privacy and Civil Liberties Oversight Board for a term expiring January 29, 2017; David Medine, of Maryland, to be Chairman and Member of the Privacy and Civil Liberties Oversight Board for a term expiring January 29, 2018, and Patricia M. Wald, of the District of Columbia, to be a Member of the Privacy and Civil Liberties Oversight Board for a term expiring January 29, 2013.  It’s a terrific group, and hopefully the Senate won’t take its time moving forward.

Without question, this is a crucial step forward.  We need oversight on a host of issues, from airport screening and cyber security to fusion centers.  As my co-blogger Frank Pasquale and I have documented, state run and federally funded fusion centers are in dire need of accountability, network accountability to be precise.  At any one of the existing 72 fusion centers, one might find state law enforcement working alongside DHS, FBI, and DEA agents as well privacy security analysts.  In the case of the Washington Joint Analytical Center, an employee from Boeing is co-located at the fusion center, having access to information from the fusion center and sharing Boeing’s intelligence capabilities.  As a Boeing executive said, the company hopes to “set an example of how private owners of critical infrastructure can get involved in such centers to generate and receive criminal and anti-terrorism intelligence.”  Let’s think through what this means: private sector partners have access to intelligence that certain individuals, possibly job candidates, pose potential “threats.”  We’ve seen from fusion center blunders that ordinary citizens engaging in political speech have been placed on watch lists.  In one case, the Maryland fusion center shared inaccurate and damaging information with the Information Sharing Environment.  It reported to the DEA and NSA and others that 53 activists from Greenpeace and Moms Against the War, including two Catholic nuns and a Democratic candidate for local office, were “terrorists.”  And as we have seen, much to the chagrin of serious Republican contender Ron Paul, the Missouri Information Analysis Center’s 2009 report to highway patrolmen explained that “violent extremists” typically associate with third party candidates, such as Ron Paul and Bob Barr, and that “potential threats” included anti-immigration and anti-tax advocates.  According to the report, violent extremists could be identified through their use of bumper stickers  indicating support for libertarian groups.  In a similar vein, a California fusion center warned local police to expect violence at antiwar protests: “You can make an easy kind of link that, if you have a protest group protesting a war where the cause that’s being fought against is international terrorism, you might have terrorism at that protest.  You can almost argue that a protest against the war is a terrorist act.”  Ever hear about the First Amendment’s freedom of expression and association?  Oversight is in order.

H/T: Peter Swire

Wikimedia Commons Image (NJ fusion center)

  January 12, 2012 at 11:30 am   Posted in: Civil Rights, Constitutional Law, Privacy, Privacy (National Security)   Print This Post   4 Comments

Sherrilyn Ifill’s The Chief Strikes Out

posted by Danielle Citron

Lucky for us, guest blogger and my brilliant colleague Sherrilyn Ifill has written a guest post on Chief Justice Roberts’s defense of the Court’s recusal standards and his dismissal of related concerns with regard to upcoming cases, including the health care challenge.  Here is Professor Ifill’s post entitled “The Chief Strikes Out.”

The Chief Justice of the United States is too polite to tell those of us who’ve raised concerns about Supreme Court ethics and recusal standards to go jump in a lake.  So instead, he invited us to a baseball game.  In his 2011 State of the Judiciary address to Congress, Chief Justice John Roberts invoked the 1919 Chicago White Sox baseball scandal to explain why, in his view, the justices of the Supreme Court need not formally adhere to the Code of Judicial Conduct that governs the conduct of every other judge in the country or modify its current recusal practice.  It’s not worth arguing with the Chief about the significance of the Judge Kennesaw Landis‘ role in resolving what was then the worst scandal in sports history.  I have elsewhere taken issue with what I regard as the Chief Justice’s inadequate conception of the role of umpires in his confirmation hearing opening statement.   But as every true sports fans knows, you can’t win a sports argument.

Justice Roberts deserves credit for devoting his entire State of the Judiciary address to responding to the growing swell of critics in Congress, in the academy and in the advocacy community for changes in the Court’s recusal practice [although very persuasive critiques suggest that the Chief might well have spoken in his remarks directly to the crises effect the lower federal court judges] .  Given the fact that one of the biggest problems with the Supreme Court’s ethics and recusal practices is the silence and secrecy that shrouds them, Roberts’ public and detailed defense constitutes a welcome indication that the Court is willing to engage respectfully with its critics. But Roberts’ forthrightness cannot overcome the fundamental inadequacy of his response to the concerns raised about the Court’s ethics and recusal practice.

I found Justice Roberts’ defense of the status quo in the Supreme Court’s recusal practice to be the most unsatisfying aspect of his remarks.  As the Chief notes, Title 28, section 455 (a) of the United States Code requires federal judges to withdraw from cases in which their “impartiality might reasonably be questioned.”  Unlike the Code of Judicial Conduct which, by its express terms does not cover Supreme Court justices, 455(a) applies to justice on the High Court which even Justice Roberts concedes when he tells us that “individual Justices decide for themselves whether recusal is warranted under 455.”  The Supreme Court has said that this standard does not require proof of actual bias and is to be judged by an objective standard, not the subjective view of the judge about his own impartiality.  The standard is based on that of the “reasonable person.”  In this regard, even the mere appearance of bias may require withdrawal.  This comports with the Supreme Court’s view even before 455(a) was amended that include an objective standard that  “justice must satisfy the appearance of justice.”

In addressing the recusal question, Justice Roberts rejects outright calls for Justices Thomas and Kagan to recuse themselves from hearing the case involving challenges to the health care law. But concerns about the Court’s recusal practice transcend the particulars of the health care case.  Questions about the Court’s contemporary recusal practice date back to Chief Justice Rehnquist’s decision to participate in the Laird v. Tatum case in 1973, a year after he had testified before Congress in defense of the surveillance practices at issue, as an Assistant Attorney General in the Nixon Administration, and continued through Rehnquist’s decision sit in the 2000 Microsoft case, potential conflicts among several justices in Bush v. Gore , and through the controversy surrounding Justice Scalia’s duck-hunting trip with then-Vice President Dick Cheney while a case against the Vice President was pending in the Court.

The key issues at the center of the controversy are those of transparency and consistency.  How do individual justices apply the standard for recusal set out in 455(a)?  The Court’s recusal practice is entirely opaque.  Justices are not required to, and most often do not, write decisions explaining why they have declined to recuse themselves from cases in which their withdrawal has been requested by parties.  That’s why Justice Scalia’s 22-page memorandum opinion in response to the duck hunting controversy was so extraordinary and welcome, despite the many flaws in Scalia’s reasoning.  We simply have no sense of how the justices apply the reasonable person standard in recusal cases.

In the absence of an opinion, even when the justices do recuse themselves, the parties and the public have little understanding of the basis upon which an individual justice took that action.  It’s easy enough when there is an actual financial connection between a justice and one of the parties, or when the child or close relative of a justice is a lawyer for one of the parties.  But the “appearance” standard set out in 28 U.S.C. 455 does not require actual bias.  As a result we have very little sense of what – to the understanding of members of the Court – actually constitutes the appearance of partiality.  This has the effect of increasing the controversy when, for example, Justice Thomas’ wife engages in high profile political behavior in opposition to the health care law, and Thomas makes comments that appear to approve her recent conduct.  There is endless speculation, but very little Supreme Court precedent to guide a sound discussion of whether in fact recusal is warranted.

Roberts may be right that neither Thomas nor Kagan should recuse themselves.  But this is not a matter the Chief can simply determine based on his confidence in the integrity of his colleagues.  The question of recusal in neither instance is as much of a slam-dunk as Roberts and some ethicists have suggested, and is entitled to careful consideration by each of the justices in accordance with the standards of 455(a).  While it is a comfort that Justice Roberts has “complete confidence in the capability of his colleagues to determine when recusal is warranted” that is simply not the standard set out in 455, or in the Court’s jurisprudence interpreting that statute. And frankly, many Americans simply do not share that confidence.  Moreover, the lawyers who practice in the Court should have the opportunity to rely on more than the assurances of the Chief, in assessing the adherence of individual justices to the legal standard for recusal. Read the rest of this post »

  January 4, 2012 at 12:14 pm   Posted in: Courts   Print This Post   4 Comments

Neil Richards on Why Video Privacy Matters

posted by Danielle Citron

Our guest blogger Neil Richards, a Professor of Law at Washington University School of Law, turns his sights on video privacy in this guest blog post.  It whets our appetite for his forthcoming book on Intellectual Privacy.  So here is Professor Richards’s post:

The House of Representatives recently passed an amendment to a fairly obscure a law known as the Video Privacy Protection Act.  This law protects the privacy of our video rental records.  It ensures that companies who have information about what videos we watch keep them confidential, and it requires them to get meaningful consent from us before they publish them.  The House, at the urging of Netflix and Facebook, has passed an amendment that would allow these companies to share our movie watching habits much more easily.  The Video Privacy Act was passed after the Washington City Paper obtained the video rental records of Supreme Court nominee Robert Bork and published them in order to politically discredit him.  It worked.  The Video Privacy Act rests on the enduring wisdom that what we watch is our own business, regardless of our politics.  It allows us to share films we’ve watched on our own terms and not those of video stores or online video providers.

What’s at stake is something privacy scholars call “intellectual privacy” – the idea that records of our reading habits, movie watching habits, and private conversations deserve special protection from other kinds of personal information.  The films we watch, the books we read, and the web sites we visit are essential to the ways we make sense of the world and make up our minds about political and non-political issues.  Intellectual privacy protects our ability to think for ourselves, without worrying that other people might judge us based on what we read.  It allows us to explore ideas that other people might not approve of, and to figure out our politics, sexuality, and personal values, among other things.  It lets us watch or read whatever we want without fear of embarrassment or being outed.  This is the case whether we’re reading communist or anti-globalization books; or visiting web sites about abortion, gun control, cancer, or coming out as gay; or watching videos of pornography, or documentaries by Michael Moore, or even “The Hangover 2.”

For generations, librarians have understood this.  Libraries were the Internet before computers – they presented the world of reading to us, and let us as patrons read (and watch) freely for ourselves. But librarians understood that intellectual privacy matters.  A good library lets us read freely, but keeps our records confidential in order to safeguard our intellectual privacy.   But we are told by Netflix, Facebook, and other companies that the world has changed.  “Sharing” as they call it is the way of the future.  I disagree.  Sharing can be good, and sharing of what we watch and read is very important.  But the way we share is essential.  Telling our friends “hey – read this – it’s important” or “watch this movie – it’s really moving” is one of the great things that the Internet has made easier.  But sharing has to be done on our terms, not on those that are most profitable for business.  Sharing doesn’t mean a norm of publishing everything we read on the Internet.  It means giving us a conscious choice about when we are sharing our intellectual habits, and when we are not.

Industry groups are fond of saying that good privacy practices require consumer notice and consumer choice.  The current Video Privacy Act is one of the few laws that does give consumers meaningful choice about protecting their sensitive personal information.  Now is not the time to cut back on the VPPA’s protections.  Now is the time to extend its protections to the whole range of intellectual records – the books we buy, our internet search histories, and ISP logs of what we read on the Internet.  As a first step, we should reject this attempt to eviscerate our intellectual privacy.

  January 4, 2012 at 11:42 am   Posted in: Legal Theory, Privacy, Privacy (Consumer Privacy), Web 2.0   Print This Post   No Comments

Introducing Guest Blogger Gabriella Coleman

posted by Danielle Citron

I’m thrilled to introduce Professor Gabriella (Biella) Coleman who will be guest blogging with us this month.  Trained as an anthropologist, Professor Coleman researches and teaches on digital activism and the culture and politics of hacking. Her first book, Coding Freedom: The Aesthetics and the Ethics of Hacking is forthcoming in the fall of 2012 with Princeton University Press and she is currently working on a new book on Anonymous and digital activism.  She is the Wolfe Chair in Scientific and Technological Literacy in the Department of Art History and Scientific Literacy at McGill University.  We are so lucky to have Professor Coleman with us–welcome!

  January 3, 2012 at 1:22 pm   Posted in: Administrative Announcements   Print This Post   No Comments

Surveillance, For Your Benefit?

posted by Danielle Citron

Bloomberg Businessweek reports on retailers’ use of camera surveillance to glean intelligence from shoppers’ behavior.  A company called RetailNext, for instance, runs its software through a store’s security camera video feed to analyze customer behavior.  It describes itself as the “leader in real-time in-store monitoring, enabling retailers and manufacturers to collect, analyze and visualize in-store data.”  According to the company, it “uses best-in-class video analytics, on-shelf sensors, along with data from point-of-sale and other business systems, to automatically inform retailers about how people engage in their stores.”  RetailNext’s software can integrate data from hardware such as RFID chips and motion sensors to track customers’ movements.  The company explains that it “tracks more than 20 million shoppers per month by collecting data from more than 15,000 sensors in retail stores.”  Its service apparently helps stores figure out where to place certain merchandise to boost sales.  T-Mobile uses similar technology from another firm 3VR, whose software tracks how people move around their stores, how long they stand in front of displays, and which phones they pick up and for how long.  3VR is testing facial-recognition software that can identify shoppers’ gender and approximate age.   Businessweek explains that the “software would give retailers a better handle on customer demographics and help them tailor promotions.”  What we are seeing is, according to 3VR’s CEO, just “scratching the surface as someday “you’ll have the ability to measure every metric imaginable.”

Indeed.  Little imagination is needed to predict the future in light of our present.  As Joseph Turow‘s important new book The Daily You: How the New Advertising Industry Is Defining Your Identity and Worth (Yale University Press) explores, data collection and analysis of individuals is breathtaking.  In the name of better, more relevant advertising and marketing efforts, companies like Acxiom have databases teeming with our demographic data (age, gender, race, ethnicity, address, income, marital status), interests, online and offline spending habits, and heath status based on our purchases and online comments (diabetic, allergy sufferer, and the like).  Consumers are sorted into categories such as “Corporate Clout,” “Soccer and SUV,” “Mortgage Woes,” and “On the Edge.”  eXelate gathers online data of over 200 million unique individuals per month through deals with hundreds of sites: their demographics, social activities, and social networks.  Advertisers can add even more data to eXelate’s cookies– data from Nielsen, which includes Census Bureau data, as well as data brokers’ digital dossiers.  Data firms like Lotame track the comments that people leave on sites and categorize them.  Now, let’s consider weaving in facial recognition software and retailer cameras of companies like 3VR and RetailNext.  And to really top things off, let’s think about linking all of this data to cellphone location information.  The surveillance of networked spaces would be totalizing.

Turow’s book exposes important costs of these developments.  This post will discuss a few–hopefully, I can have Professor Turow on for a Bright Ideas feature.  This sort of targeting and hyper surveillance leaves many with far more narrow options and with social discrimination.  Marketers use these databases to determine if Americans are worthy “targets” or not-worth-bothering with “waste.”  For the “Soccer and SUV” moms between 35 and 45 who live in the West Coast and want to buy a small car, car companies may offer them serious discounts via online advertisements and e-mail.  But their “On the Edge” counterparts get left in the cold with higher prices–why bother trying to attract people who don’t pay their debts?  All of this sorting encourages media to offer soft stories designed to meet people’s interests, as secretly determined by those gathering and analyzing our networked lives.  This discussion brings to mind to another important read: Julie Cohen‘s Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press).   As Professor Cohen thoughtfully explores, this sort of surveillance has a profound impact on the creative play of our everyday lives.  It creates hierarchies among those watched and systematizes difference.  I’ll have lots more to say about Cohen’s take on our networked society more generally, soon.  In March, we will be hosting an online symposium on her book–much to look forward to in the new year.

  December 25, 2011 at 4:15 pm   Posted in: Architecture, Privacy, Privacy (Consumer Privacy), Privacy (Medical), Social Network Websites, Technology   Print This Post   No Comments

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