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Author: Danielle Citron

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Introducing Guest Blogger Ari Waldman

picture_002_-_version_2I’m thrilled to welcome back as a guest blogger Ari Ezra Waldman. Professor Waldman is the Associate Director of the Institute for Information Law and Policy at New York Law School and the Paul F. Lazarsfeld Fellow at Columbia University where he is completing his Ph.D. in sociology. His research centers on the law and sociology of privacy and the Internet, but he is particularly focused on the injustices and inequalities that arise in unregulated digital spaces. He is a 2005 graduate of Harvard Law School and a 2002 graduate of Harvard College. He is also the Legal Editor at Towleroad, the country’s most popular LGBT-oriented news and politics website, where he writes a weekly column on gay rights and legal issues affecting the LGBT community.

His publications can be found here, including:

Durkheim’s Internet: Social and Political Theory in Online Society, 7 N.Y.U. J. LAW & LIBERTY 355 (2013)

Marriage Rights and the Good Life: A Sociological Theory of Marriage and Constitutional Law, 64 HASTINGS L. J. 739 (2013)

All Those Like You: Identity Aggression and Student Speech, 77 MISSOURI L. REV. 563 (2013)

Hostile Educational Environments,71 MARYLAND L. REV. 705 (2012)

Tormented: Anti-Gay Bullying in Schools, 84 TEMPLE L. REV. 385 (2012)

Exceptions: The Illogical Approach to HIV-Related Aggravated Assaults, 18 VA. J. SOC. POL’Y & L. 552 (2011)

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My Civil Procedure Syllabus: Hypothetical Problems Included

Like so many other law profs, I’m amidst drafting my syllabus for the fall. (It’s an amazing thing to be done with a draft of Hate 3.0: A Civil Rights Agenda to Combat Discriminatory Online Harassment (forthcoming HUP) and a substantive edit of “The Right to Quantitative Privacy” with my amazing colleague David Gray–now I can turn to my students!) For my civil procedure students, my syllabus is full of tips/questions/hypos, so that they don’t have to turn to commercial outlines (or so I hope). I just wrote a new hypo for subject matter jurisdiction, thanks to terrific guest blogger and civ pro scholar Howard Wasserman whose essay “A Jurisdictional Perspective on New York Times v. Sullivan” served as an inspiration.

Here is the newly drafted hypo for all of my civ pro teacher colleagues. Suggestions for improving it, so welcome!

In-class hypo (or for study group)[1]

The year is 1965. In Southern towns and cities, civil rights protestors are being beaten and intimidated by local police and private citizens. Montgomery, Alabama is no exception. To draw the public’s attention to the mistreatment of civil rights protestors, advocates put an advertisement in the New York Times highlighting the abuse in Montgomery, Alabama and in other Southern cities. Civil rights activists and four Alabama activists signed the ad, which appears here.

  A Montgomery, Alabama police official sued the ad’s publisher The New York Times and the four Alabama residents for defamation, alleging that the ad falsely suggested that he was responsible for the physical attacks on civil rights protestors. The Alabama plaintiff brought the case in state court, where with his luck it was assigned to a judge known to be a member of the Ku Klux Klan. The New York Times would like to remove the case to federal court, fearing that the state court judge would be hostile to the Northern newspaper agitating for civil rights. An important fact to consider too is that a year before the plaintiff filed the case, the Supreme Court found that in defamation claims involving public officials and alleged falsehoods about their public duties, the First Amendment requires that the plaintiff proves the defendant published the falsehoods with “actual malice,” that is, knowing they were false or reckless to their truth or falsity.

Let’s discuss whether the New York Times can remove the case to the federal court and whether it should be permitted to do so given the rationale underlying subject matter jurisdiction. What is the rationale behind diversity jurisdiction? How does it fit here? Would the constitution permit removal and what about Section 1332? What are other roadblocks to removal under diversity jurisdiction? What about federal question jurisdiction analysis? There is much to think about with the well-pleaded complaint rule and the Grable analysis.


[1] As a factual matter, I am riffing from the famous New York Times v. Sullivan case and borrowing the substantive findings about the First Amendment from the case; I take the idea for this hypo from Professor Howard Wasserman, “A Jurisdictional Perspective on New York Times v. Sullivan,” volume 107, Northwestern Law Review, page 901 (2013).

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Predictive Policing and Reasonable Suspicion (Part II)

Last week, I blogged about law enforcement’s use of automated predictions. There, the “Super Cruncher” system mines data to highlight high-crime areas so that police departments can best allocate resources. What if those predictions provided the sole basis of an officer’s stop and frisk of a particular location? Suppose the computer suggested that a particular corner was a red-hot zone. When the officer saw someone standing at that particular corner at midnight, he took the computer as its prediction and stopped and frisked the person, revealing an illegal firearm. Would the computer’s prediction form the basis of reasonable suspicion supposing that the person standing on the corner did nothing else to raise any concerns about illegality? Last week, I suggested that the retail question would likely be straightforward. The computer’s prediction about a location could not be said to infer anything revealing about a particular person in that location, right?

Professor Orin Kerr brought a recent case to my attention that while not exactly on point is nonetheless illuminating about the value of automated judgments in evaluating a stop for Fourth Amendment purposes. In United States v. Antonio Esquivel-Rios, a trooper pulled over a defendant driving a car with temporary Colorado tags. When the trooper initially called in the tag, the dispatcher told him that the automated system found that the tags were not registered (as the dispatcher explained, the system did not “return the tag”). The dispatcher also cautioned the trooper that Colorado tags “usually do not return.” Said another way, the dispatcher qualified the system’s finding that the tags were not officially on file (and thus could be fraudulent) with the warning that Colorado tags usually did not show up in the system. Why that was the case for Colorado tags was not explained to the trooper. Nonetheless, the trooper pulled over the defendant and got consent to search the car. It turns out the defendant had a pound of meth in his secret glove compartment. In challenging the constitutionality of the stop, the defendant argued that the trooper relied on an unreliable automated finding that could not support a finding of reasonable suspicion. Said another way, the computer’s “no tags” determination did not amount to particularized suspicion because the system’s findings as to Colorado tags was not reliably revealing of criminality.

The opinion began by noting that a “maniacally all-knowing, all-seeing” HAL 9000 computer in government’s hands would raise Fourth Amendment concerns. The Tenth Circuit did not say more about that point, but I take the court to be saying that computers making “pre-crime” Minority Report-ish adjudications about individuals implicates constitutional concerns–procedural due process is certainly at issue. After making that threshold point, the court then got down to business to explore whether the trooper had reasonable suspicion to stop the defendant based on the computer’s “no return” finding and the dispatcher’s qualification of that finding. As the court explored, reasonable suspicion is far less than probable cause, there needs to be some particularized suspicion of criminality. Concerns about the quality of evidence can be offset with quantity, that is, something more suggesting criminality. If there are questions about the system’s reliability, worries about its reliability can diminish if there are other independent indicia of criminality. The trooper, however, only relied on the database report to justify his stop. The computer “no return” hit, the court suggested, could have been enough for reasonable suspicion if the system was reliable. There, such a computer finding would concern the specific individual, not a particular location as I suggested in my initial post. The court’s point is well-taken. In that case, it would have been permissible to rely on computer finding to support a stop because the computer’s finding would relate to evidence about the specific defendant (or his car). In this case, the court explains, the trooper had reason to doubt that the computer hit meant something suspicious about the car’s tags. That Colorado usually does not return hits could mean that Colorado is having bureaucratic problems inputting temporary tags into the system; it could mean that some, most, or vanishingly small number of “no return” findings say something about the tags’ verifiability. What goes into the database impacts the reasonableness of the seizure relying upon it, garbage in, garbage out. The court notes, relying on Professor Kerr’s work, that reasonable suspicion is not a statistical determination, much as probable cause isn’t. But in this case, the database had reliability problems and as the sole reason for the stop, it had to be assessed with a eye to its statistical value. With its concern about the computer finding’s reliability made clear, the court remanded the case to the district court to reconsider the constitutionality of the stop and the evidence found as a result of the stop. The Tenth Circuit’s finding makes a lot of sense, indeed. It also suggests that computer adjudications have to have an indicia of reliability and must relate to a specific individual (rather than location) to support reasonable suspicion.

 

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Brave New World of Biometric Identification

120px-Fingerprint_scanner_identificationProfessor Margaret Hu’s important new article, “Biometric ID Cybersurveillance” (Indiana Law Journal), carefully and chillingly lays out federal and state government’s increasing use of biometrics for identification and other purposes. These efforts are poised to lead to a national biometric ID with centralized databases of our iris, face, and fingerprints. Such multimodal biometric IDs ostensibly provide greater security from fraud than our current de facto identifier, the social security number. As Professor Hu lays out, biometrics are, and soon will be, gatekeepers to the right to vote, work, fly, drive, and cross into our borders. Professor Hu explains that the FBI’s Next Generation Identification project will institute:

a comprehensive, centralized, and technologically interoperable biometric database that spans across military and national security agencies, as well as all other state and federal government agencies.Once complete, NGI will strive to centralize whatever biometric data is available on all citizens and noncitizens in the United States and abroad, including information on fingerprints, DNA, iris scans, voice recognition, and facial recognition data captured through digitalized photos, such as U.S. passport photos and REAL ID driver’s licenses.The NGI Interstate Photo System, for instance, aims to aggregate digital photos from not only federal, state, and local law enforcement, but also digital photos from private businesses, social networking sites, government agencies, and foreign and international entities, as well as acquaintances, friends, and family members.

Such a comprehensive biometric database would surely be accessed and used by our network of fusion centers and other hubs of our domestic surveillance apparatus that Frank Pasquale and I wrote about here.

Biometric ID cybersurveillance might be used to assign risk assessment scores and to take action based on those scores. In a chilling passage, Professor Hu describes one such proposed program:

FAST is currently under testing by DHS and has been described in press reports as a “precrime” program. If implemented, FAST will purportedly rely upon complex statistical algorithms that can aggregate data from multiple databases in an attempt to “predict” future criminal or terrorist acts, most likely through stealth cybersurveillance and covert data monitoring of ordinary citizens. The FAST program purports to assess whether an individual might pose a “precrime” threat through the capture of a range of data, including biometric data. In other words, FAST attempts to infer the security threat risk of future criminals and terrorists through data analysis.

Under FAST, biometric-based physiological and behavioral cues are captured through the following types of biometric data: body and eye movements, eye blink rate and pupil variation, body heat changes, and breathing patterns. Biometric- based linguistic cues include the capture of the following types of biometric data: voice pitch changes, alterations in rhythm, and changes in intonations of speech.Documents released by DHS indicate that individuals could be arrested and face other serious consequences based upon statistical algorithms and predictive analytical assessments. Specifically, projected consequences of FAST ‘can range from none to being temporarily detained to deportation, prison, or death.’

Data mining of our biometrics to predict criminal and terrorist activity, which is then used as a basis for government decision making about our liberty? If this comes to fruition, technological due process would certainly be required.

Professor Hu calls for the Fourth Amendment to evolve to meet the challenge of 24/7 biometric surveillance technologies. David Gray and I hopefully answer Professor Hu’s request in our article “The Right to Quantitative Privacy” (forthcoming Minnesota Law Review). Rather than asking how much information is gathered in a particular case, we argue that Fourth Amendment interests in quantitative privacy demand that we focus on how information is gathered.  In our view, the threshold Fourth Amendment question should be whether a technology has the capacity to facilitate broad and indiscriminate surveillance that intrudes upon reasonable expectations of quantitative privacy by raising the specter of a surveillance state if deployment and use of that technology is left to the unfettered discretion of government. If it does not, then the Fourth Amendment imposes no limitations on law enforcement’s use of that technology, regardless of how much information officers gather against a particular target in a particular case. By contrast, if it does threaten reasonable expectations of quantitative privacy, then the government’s use of that technology amounts to a “search,” and must be subjected to the crucible of Fourth Amendment reasonableness, including judicially enforced constraints on law enforcement’s discretion.

 

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Brandon Garrett on the Court’s Recent Criminal Procedure Decisions

Professor Brandon Garrett has an interesting post on three important criminal procedure cases from the past Term (including his take on Maryland v. King):

With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.

First, the Court continues to recognize that innocence should be an important consideration for federal judges reviewing prisoners’ habeas petitions. InMcQuiggan v. Perkins, the Court recognized for the first time that evidence of a prisoner’s innocence can provide an exception to the restrictive one-year statute of limitations imposed in 1996 by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). However, the Court somewhat gratuitously emphasized that this innocence exception would be “severely confined” and that the class of prisoners able to show that a jury presented with new evidence would be likely not to convict may be quite small.

Moreover, the Court still has not recognized an outright constitutional claim of innocence. Innocence is merely a “gateway” to excuse complex procedural barriers, but innocence is not a stand-alone ground for relief in federal courts. More than two-decades into the DNA era, judges are now far more aware than in the past that prisoners can prove their outright innocence of serious crimes. But as I describe in Convicting the Innocent, judges have only slowly and reluctantly loosened their grip on technical rules that make it extremely difficult for even innocent convicts to secure their freedom.

Second, although DNA testing continues to reshape the criminal justice system, the Supreme Court’s decision this term in Maryland v. King may encourage some of the worst tendencies in the law enforcement use of DNA. The Court endorsed police taking DNA from people at the time of arrest for purposes of “identification,” but also to permanently enter that DNA in the national databank to search against any number of past and future unsolved crimes. Given my interest in using DNA to potentially free the innocent, one might expect that I would welcome any and all expansion of DNA databanks. However, I co-authored an amicus brief with Erin Murphy taking the other side and offering a detailed explanation of our thinking. We argued that the federal government and states should absolutely invest in collecting DNA from serious criminals, and in using DNA to potentially free the innocent. But taking DNA from vast numbers of mere arrestees, who have not been convicted of any crime, is counterproductive. It is a serious burden on the privacy of vast numbers of people, including innocent people who are cleared after arrest. By the same token, taking DNA from arrestees has not been shown to improve crime fighting; in fact, it can dilute the power of DNA databases. Read More

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Introducing Guest Blogger Karen Czapanskiy

I’m thrilled to introduce my colleague Professor Karen Czapanskiy who will be joining us this month as a guest blogger. Professor Czapanskiy joined the faculty of the University of Maryland Carey School of Law in 1983.  During her early years at the law school, she and her clinic students created a full-service program for women who had been abused by an intimate partner, representing them in criminal cases and family law matters, undertaking legislative advocacy and staffing a clemency project for women imprisoned for killing an abusive partner.  Later, she worked with clinic students, lawyers at the Homeless Persons Representation Project and other faculty to help women faced with the impacts of welfare reform on them and their families.  Her work in practice informed multiple publications on domestic violence, family law, welfare reform and gender bias.  More recently, she has been writing about law and policy as they affect families raising children with special needs.  Professor Czapanskiy teaches courses in family law and property and seminars on families raising special needs children.a40dedc79f748f2d67e7e45776bdf016

A graduate of the University of California at Berkeley and the Georgetown University Law Center, Professor Czapanskiy clerked for the Honorable Rita C. Davidson, the first woman appointed to an appellate bench in Maryland.  Before joining the faculty, Professor Czapanskiy was an attorney at the U.S. Department of Justice, taught at the University of Hawaii Law School and the Washington College of Law.  Since joining the faculty in 1983, Professor Czapanskiy has served as the reporter for the Maryland Joint Special Committee on Gender Bias in the Courts and as a member of the Charter Review Commission of Montgomery County, Maryland.  She held the William J. Maier, Jr., Chair at West Virginia University College of Law, and has visited at the Washington College of Law of American University and the Columbus School of Law at the Catholic University of America.  Beginning in the mid-1980s, she was one of the organizers of the Maryland/DC/Virginia Women Law Teachers Group. In 1992, she chaired of the Section on Women in Legal Education of the AALS.   She is a member of the American Law Institute and the Prytanean Society.  Professor Czapanskiy spent the fall semester of 1994 as a Fulbright lecturer at the University of Durban-Westville, South Africa.  She is a member of the American Law Institute and the Prytanean Society.  Since 2002, she has been active in electoral politics at the local and national levels.

Her most recent publications include:

Books

Family Law: Cases, Text, Problems (5th ed. 2010) (with others).

Articles

Special Kids, Special Parents, Special Education, 46 Michigan Journal of Law Reform (forthcoming 2013).

1992: A Year of Women, Bravery, and Growth, 80 UMKC Law Review 751 (2012).

Disabled Kids and Their Moms: Caregivers and Horizontal Equity, 19 Georgetown Journal on Poverty Law and Policy 43 (2012).

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Letting the Air Out

The NSA and the rest of our surveillance state apparatus is shrouded in secrecy. As captured in Frank Pasquale’s superb forthcoming book, governmental surveillance is a black box. Gag orders prevent Internet companies from talking about their participation in PRISM; nearly everything revealing is classified; the Executive Branch is telling us half truths or no truths. To counter massive governmental overreach, Bradley Manning, Edward Snowden, and others have exposed some sunlight on our surveillance state. That sunlight isn’t coming from those who are betraying the country, but those who are trying to save it, at least that’s what many registered voters think. According to a Quinnipiac poll released today, American voters say “55 – 34 percent” that NSA consultant Edward Snowden is a “whistleblower rather than a traitor.” According to the assistant director of the Quinnipiac University Polling Institute, “Most American voters think positively of Edward Snowden,” at least they did before he accepted asylum in Russia. From July 28 to July 31, 1,468 registered voters were surveyed on the phone. These sorts of leaks seem inevitable, at least culturally given our so-called commitment to openness and transparency. The leakers/whistleblowers are trying to nudge the Executive Branch to honor its commitments to the Fourth Amendment, the sentiments of the Church Report, and the Administration’s 2009 Openness and Transparency memo. Let’s see if letting the air out moves us closer to the kind of country we say we are.

H/T: Yale ISP’s Christina Spiesel for the Quinnipiac Poll

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Predictive Policing and Technological Due Process

Police departments have been increasingly crunching data to identify criminal hot spots and to allocate policing resources to address them. Predictive policing has been around for a while without raising too many alarms. Given the daily proof that we live in a surveillance state, such policing seems downright quaint. Putting more police on the beat to address likely crime is smart. In such cases, software is not making predictive adjudications about particular individuals. Might someday governmental systems assign us risk ratings, predicting whether we are likely to commit crime? We certainly live in a scoring society. The private sector is madly scoring us. Individuals are denied the ability to open up bank accounts; they are identified as strong potential hires (or not); they are deemed “waste” not worthy of special advertising deals; and so on. Private actors don’t owe us any process, at least as far as the Constitution is concerned. On the other hand, if governmental systems make decisions about our property (perhaps licenses denied due to a poor scoring risk), liberty (watch list designations leading to liberty intrusions), and life (who knows with drones in the picture), due process concerns would be implicated.

What about systems aimed at predicting high-crime locations, not particular people? Do those systems raise the sorts of concerns I’ve discussed as Technological Due Process? A recent NPR story asked whether algorithmic predictions about high-risk locations can form the basis of a stop and frisk. If someone is in a hot zone, can that very fact amount to reasonable suspicion to stop someone in that zone? During the NPR segment, law professor Andrew Guthrie Ferguson talked about the possibility that the computer’s prediction about the location may inform an officer’s thinking. An officer might credit the computer’s prediction and view everyone in a particular zone a different way. Concerns about automation bias are real. Humans defer to systems: surely a computer’s judgment is more trustworthy given its neutrality and expertise? Fallible human beings, however, build the algorithms, investing them with bias, and the systems may be filled with incomplete and erroneous information. Given the reality of automated bias, police departments would be wise to train officers about automation bias, which has proven effective in other contexts. In the longer term, making pre-commitments to training would help avoid unconstitutional stops and wasted resources. The constitutional question of the reasonableness of the stop and frisk would of course be addressed on a retail level, but it would be worth providing wholesale protections to avoid wasting police time on unwarranted stops and arrests.

H/T: Thanks to guest blogger Ryan Calo for drawing my attention to the NPR story.

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Announcement: Invitation for Papers for Micro-Symposium on Stanley Fish and the Meaning of Academic Freedom

FIU Law Review and the FIU College of Law invite contributions for a Micro-Symposium, Stanley Fish and the Meaning of Academic Freedom, to be published in FIU Law Review in 2014. Micro-symposium commentaries will accompany the papers and proceedings of a live roundtable discussion on academic freedom and Stanley Fish’s forthcoming book, Versions of Academic Freedom: From Professionalism to Revolution. Roundtable participants include Dean Robert Post (Yale), Frederick Schauer (Virginia), Fish, and several others. The program will be held at FIU College of Law on Friday, January 24, 2014.

In the book, Fish argues

The academy is the place where knowledge is advanced, where the truth about matters physical, conceptual and social is sought. That’s the job, and that’s also the aspirational norm—the advancement of knowledge and the search for truth. The values of advancing knowledge and discovering truth are not extrinsic to academic activity; they constitute it. . . . These goods and values are also self-justifying in the sense that no higher, supervening, authority undergirds them; they undergird and direct the job and serve as a regulative ideal in relation to which  current ways of doing things can be assessed and perhaps reformed. (The “it’s just a job” is not positivism; it does not reify what is on the books.)

It follows from this specification of the academy’s internal goods that the job can be properly done only if it is undistorted by the interests of outside constituencies, that is, of constituencies that have something other than the search for truth in mind. There are thus limits both on the influences academics can acknowledge and the concerns they can take into account when doing their work. . . . It must be conducted (to return to the l915 Declaration) in “in a scholar’s spirit”, that is with a view to determining what is in fact the case and not with a view to affirming a favored or convenient conclusion. If that is the spirit that animates your academic work, you should be left free to do it, although, with respect to other parts of the job (conforming to departmental protocols, showing up in class, teaching to the syllabus), you are constrained. 

Commentaries may discuss any and all legal, ethical, moral, social, practical, personal, and theoretical aspects of academic freedom, Stanley Fish’s new book, or his extensive body of work on academic freedom or any other topic. Interested commenters will be provided manuscripts of Fish’s book, on request.

Commentaries can be a maximum of 600 words, including text, footnotes, and title.

Contributions must be received by October 1, 2013. Submit to: bcreg001@fiu.edu.

Expressions of interest, requests for the manuscript, and other inquiries can be directed to Ben Crego, Law Review Editor-in-Chief, at bcreg001@fiu.edu or to Prof. Ediberto Roman at romane@fiu.edu.