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Author: Deven Desai

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More Rule of the Clan Over at Cato

Those of you who enjoyed our symposium on The Rule of the Clan should check the latest on Mark Weiner’s excellent book over at Cato. The event called The State, the Clan, and Individual Liberty. Mark’s initial essay is up. Essays by Arnold Kling, March 12; Daniel McCarthy, March 14; and John Fabian Witt, March 17 will follow. It promises to be another round of heady discussion about core questions on how we order our society.

Here Mark’s opening to get you started:

Many conservatives argue as a basic tenet of their political thought that individual liberty thrives when the state is limited and weak. “As government expands, liberty contracts,” explained President Ronald Reagan in his farewell address, calling the principle “as neat and predictable as a law of physics.” This view is especially pronounced among libertarians, and for libertarians of an anarchist perspective, the opposition between the individual and the state is fundamental and irreconcilable.

I believe this view is significantly mistaken. From the perspective of comparative law and legal history, it represents a dangerous illusion characteristic of citizens who already enjoy the benefits of modern liberal government. Although the state can be an instrument of tyranny, robust government capable of vindicating the public interest is vital for individual autonomy.

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How Is Privacy Not a Class at all Law Schools?

Privacy law does not exist, but it should be taught at every law school. There is no one law of privacy. That is why I love teaching Information Privacy (Solove and Schwartz (Aspen) is the text I use). The class requires students to reengage with and apply torts, Constitutional law (First and Fourth Amendment at least), and statutory interpretation. It also lends itself to learning about sectoral approaches to regulation in health, finance, commerce, and education. Given that the idea and problems of privacy are everywhere, there are jobs in them thar hills. Yet, schools often see the course as a luxury or somehow part of IP. That is a mistake.

Schools should not pander to skills and job training demands, but sensitivity to areas of practice that have large needs is not pandering. Much of the skills, ready-to-practice rot comes from a small segment of the legal practice (i.e., big firms with huge profits who are not willing to pay for training their employees). That said, law schools tend to use the same playbook. For example, the rarified world of public corporation law is a standard part of business associations course materials. Yet according to the Economist, the number of public companies peaked at around 7,888 in 1997. Of course folks will say “Don’t teach to the bar.” Amen brothers and sisters, but why teach for a tiny portion of students in a core course? To be clear, I love teaching business associations and think it is useful, because agency and limited liability forms are so important. They are important, because being able to compare and contrast the forms for a client makes the attorney worth her pay. Grasping the beauty and nuances of the system unlocks the ability to be a true counselor. There are many, many businesses that are not, and may never become, public and that could benefit from having an attorney set up their project from the start. Privacy is similar. It reaches across many aspects of our lives and businesses.

Privacy issues come up in such a large range of practice that the course can allow one to address doctrinal mastery while also moving students beyond the silo approach of first year law. Seeing how property and trespass ideals reappear in criminal procedure, how assumption of risk permeates issues, and so on, shows students that the theories behind the law work in not so mysterious, but perhaps unstated ways. The arguments and counter-arguments come faster once you know the core idea at stake. That is the think-like-a-lawyer approach working well. It does not hurt that along the way students pick up knowledge of an area such as HIPPA or criminal procedure and technology that will make them a little more comfortable telling an employer or future client “Yes, I know that area and here’s how I’d approach it.”

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Protecting the Precursors to Speech and Action

The Constitution cares deeply about the pre-cursors to speech. Calo wondered where my paper, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, parts ways with Solove; it does and it doesn’t. On the one hand, I agree with Dan’s work and build it out. I of course look to the First Amendment as part of understanding what associational freedom is. I also want that understanding to inform criminal procedure. On the other hand, I think that the Fourth Amendment on its own has strong protection for associational freedom. I thus argue that we have missed that aspect of the Fourth Amendment. Furthermore, since Solove and after him Kathy Strandburg, wrote about First Amendment connections to privacy, there has been some great work by Ashutosh Bhagwat, Tabatha Abu El-Haj, John Inazu, on the First Amendment and associational freedom. And Jason Mazzone started some of that work in 2002. I draw on that work to show what associational freedom is. Part of the problem is that when we look to how and why we protect associational freedom, we mistake what it is. That mistake means Fourth Amendment becomes too narrow. We are stuck with protection only for speech acts and associations that speak.

As I put it in the paper:

Our current understanding of associational freedom is thin. We over-focus on speech and miss the importance of the precursors to speech—the ability to share, explore, accept, and reject ideas and then choose whether to speak. Recent work has shown, however, that the Constitution protects many activities that are not speech, for example petition and assembly, because the activities enable self-governance and foster the potential for speech. That work has looked to the First Amendment. I show that these concerns also appear in Fourth Amendment jurisprudence and work to protect us from surveillance regardless of whether the acts are speech or whether they are private.

In that sense I give further support to work by Julie Cohen, Neil Richards, Spiros Simitis, and Solove by explaining that all the details that many have identified as needing protection (e.g., our ability to play; protection from surveillance of what we read and watch) align with core ideals of associational freedom. This approach thus offers a foundation for calls to protect us from law enforcement’s ability to probe our reading, meeting, and gathering habits—our associational freedom—even though those acts are not private or speech, and it explains what the constitutional limits on surveillance in the age of data hoarding must be.

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It’s About Data Hoards – My New Paper Explains Why Data Escrow Won’t Protect Privacy

A core issue in U.S. v. Jones has noting to do with connecting “trivial” bits of data to see a mosaic; it is about the simple ability to have a perfect map of everywhere we go, with whom we meet, what we read, and more. It is about the ability to look backward and see all that information with little to no oversight and in a way forever. That is why calls to shift the vast information grabs to a third party are useless. The move changes little given the way the government already demands information from private data hoards. Yes, not having immediate access to the information is a start. That might mitigate mischief. But clear procedures are needed before that separation can be meaningful. That is why telecom and tech giants should be wary of “The central pillar of Obama’s plan to overhaul the surveillance programs [which] calls for shifting storage of Americans’ phone data from the government to telecom companies or an independent third party.” It does not solve the problem of data hoards.

As I argue in my new article Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding:

Put differently, the tremendous power of the state to compel action combined with what the state can do with technology and data creates a moral hazard. It is too easy to harvest, analyze, and hoard data and then step far beyond law enforcement goals into acts that threaten civil liberties. The amount of data available to law enforcement creates a type of honey pot—a trap that lures and tempts government to use data without limits. Once the government has obtained data, it is easy and inexpensive to store and search when compared to storing the same data in an analog format. The data is not deleted or destroyed; it is hoarded. That vat of temptation never goes away. The lack of rules on law enforcement’s use of the data explains why it has an incentive to gather data, keep it, and increase its stores. After government has its data hoard, the barriers to dragnet and general searches—ordinarily unconstitutional—are gone. If someone wishes to dive into the data and see whether embarrassing, or even blackmail worthy, data is available, they can do so at its discretion; and in some cases law enforcement has said they should pursue such tactics. These temptations are precisely why we must rethink how we protect associational freedom in the age of data hoarding. By understanding what associational freedom is, what threatens it, and how we have protected it in the past, we will find that there is a way to protect it now and in the future.

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Radio Shack – Will 3D Printing Help It Reach 100? Maybe RS Will Be MakerLabs at Scale

Few companies last more than 50 years. The 100 year mark is even rarer. IBM stands out as a company that has done that. But who knew that Radio Shack is nearing that mark? And some are noting its possible death knell, because of the recent announcement that it is closing about 1,100 stores. The pundits have gone over the mistakes and decried Radio Shack’s inability to play n the modern tech space. I think there is hope and mistake.

Radio Shack appealed to techies. It needs to return to that. My dad made me read the basics of stereos before I could get his old stereo. It was a Radio Shack book. Mobile phones and the like are not for hobbyists. Radio Shack has been at its best helping folks who want to deal with early tech that is tipping consumer. Radios, hi-fi stereos, wires, circuits, transistors, early computers (some might recall when folks took them apart and played with them).

Given my focus on 3D printing I may be biased. Heck. Sure. I am biased. But I am pretty certain RS could re-invigorate itself if it hires relatively savvy people to help with the next wave of home tech. As Nest, 3D printing, and more mean we are automating and tinkering, RS could be a great source for parts and knowledge where no one is competing. (Unlike the mobile market). That is where RS thrives. Of course when I went to one and knew more about speaker wire than the floor person, it was clear RS has lost its way. But there’s a time to reap and sow. Now is the time to sow. RS could be a place for drone, maker, and other tech hobbyists/enthusiasts. The core community is used to online discussions and help. But as the tech goes mainstream there is a gap between I dig it but need help and brainless consumer purchase. RS should embrace that. That is value many consumers who are starting to play with this technology would love. Or at least I would.

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Does Apple Reject That Education Has To Train Skills?

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet. And as Kevin J.H Dettmar argues at The Atlantic, the film is “a terrible defense of the humanities.” He points out that the film celebrates enthusiasm over any critical thought” “Keating doesn’t finally give his students anything in its place besides a kind of vague enthusiasm.”

Having gone to a prep school, I am less upset by the film than Dettmar. But then I may project my experience onto the film’s gaps. Even before prep school I went to a grade school where the boring “Latin—Agricolam, Agricola, Agricolae, Agricolarum, Agricolis, Agricolas, Agrilcolis” was part of the curriculum in eighth grade. That teacher happened to have done his own translation of Caesar’s Road to Gaul. He’d re-enact charges of legions and evoke swords. In high school we had many inspiring teachers. They kicked our butts for fake enthusiasm. Larry McMillin once asked me a question about Shaw’s Man and Superman. I came up with some ramble. He said “That’s not Shaw. That’s just Desai,” in his Southern gentlemen’s voice that somehow had scorn yet support. Support. For what? He called me out but made me see that I could do more. How?

Rigor. To the waste bin with brownie points for showing up. Be gone empty claims of it’s good, because I said it. Learn the fundamentals. Master the material. As Phillipe Nonet said to my class in college when someone started a sentence with “I think”, “That you think it, does not matter. It matters what it says.”

It turns out that free thinking is much more difficult than Keating realizes. The rigor of learning the fundamentals allows us to be liberated. Liberal arts are about freedom and how we are unmoored from habit. But knowing the foundations is how you might see where they may not operate anymore. So sure contribute your verse. But if you want it to be a good one, let alone a great one, let alone one that might allow you to eat, put in the work. Grab everything you can from college and post-graduate schools. Contrary to recent pushes from big law (note that with 30-505 margins the big firms can absorb training costs), law schools training people to think in sharp and critical ways are providing an education that connects to the law and much more. But that requires diligence, drudgery, and didactic moments. Those happen to turn into gifts of knowledge, skill, and the ability to learn on your own. At that point, your verse might be worth something.

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3D Printing, Maybe It Is Magic

More and more 3D printing seems like it’s magic. In Patents, Meet Napster: 3D Printing and the Digitization of Things Gerard and I explain that it is not quite magic yet. And our argument is that the law can perhaps make sure the technology has a chance to reach a magical stage. That said each day we wrote a new report made me wonder at how quickly the technology is moving.

Forbes reports that a jewelry company is using 3D printing and Google Earth to print $250,000 jewelry. A couple weeks ago UC Hastings put on a Symposium to Illuminate Legal Issues Posed by 3D Printing Technology. I spoke and had a great time meeting more folks interested in the technology and in seeing it thrive. Mark Lemley gave the key note and is poking at many ideas that resonate with me and my work. He spoke about how technology is changing scarcity and will affect labor. The Forbes piece captures the shift:

Shoppers can completely customize their own design and have the finished product delivered in 3 or 4 days. “We’ve had a great deal of difficulty competing with cheap labor overseas,” said Bakhash, whose father Charlie founded American Pearl in New York’s diamond district in 1950.

“Now, with the advent of our platform, we’re no longer taking off-the-shelf parts and welding. There’s no jeweler at a bench with a blowtorch. The cost and labor savings is phenomenal. And we’re empowering consumers to make jewelry in real-time.”

The process starts on AmericanPearl.com, or its sister site AmericanDiamondShop.com, where a customer is able to create a unique piece, whether a $400 pair of earrings or a necklace that goes for six figures.

The Maker movement and the new wave of customized things is fascinating and exciting. But it may be that the hand-crafted, Etsy moment will be short-lived and the automated, design and print world will take over. I think that the result will be a hybrid. Folks will use the tech to produce more and to make customized goods for less cost. Some labor will be eliminated. Some labor such as design will be valuable. But just like the shifts in copyright, we will see strange and large shifts in who makes money and how it is made. Then again not all of us can be poets and also eat. More on that in another post.

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Great Interview with Rod Serling Before Twilight Zone Aired

The video below is well worth the 21 minutes. Serling goes into sponsors as censors, consumerism, the potential for great television, and much more. He had experience with trying to engage race issues on T.V. and finding that his story was gutted. He talks about precensorship – themes writers avoid. He explains the way the system converges to make that so. There is a great story about Lassie having puppies and some crazy controversy about that being a sex show. Want associational harm? A line was cut about gas chambers from Judgment at Nuremberg because a sponsor that sold gas stoves for kitchens did not want that connection. As I recall another story was set in the British navy and so asked for tea. A sponsor sold coffee. The compromise. A tray of unspecified drinks was served.

Behold a man. Smart. Dedicated. Passionate. Turned to science fiction from drama. The reason? To avoid that place he created, The Twilight Zone.

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3D Printing Train Continues, Interview on TakePart Live tonight

I will be on TakePart Livetonight at 9 p.m. Pacific/11 Central/12 Eastern, to talk about 3D printing and all the fun it brings. I will be joined by a 3D printer entrepreneur who runs Deezmaker, a comic, and of course the hosts Jacob Soboroff and Cara Santa Maria. I was on the show last fall to talk about privacy and data hoarding. The hosts and crew are HuffPo veterans and a blast. The show is part of Pivot TV, which is available on DirectTV and Dish as well as some cable carriers. Looking forward to great night.

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Driverless Irony and Maybe Car Drone Drivers Coming Soon

Assumptions can break models and render rules incoherent. Some states such as California have required that a driverless or autonomous vehicle still have a licensed driver at the wheel in case the systems fail. A friend noted that this idea is useful in the rare case the vehicle encounters a situation it cannot handle. The idea may work today. It won’t work in the future.

What happens when the next generation is raised on driverless cars? Today we can assume that drivers have enough hours behind the wheel so that they might be able to take over if need be. But in five or ten years, what exactly will driver’s ed look like? Would we require youthful drivers, somewhat dangerous based on lack of experience, to drive more? That seems to defeat the upside to the technology. Yet if a generation of drivers never really drives, how can we expect them to take over for a sophisticated system pressed beyond its capabilities? As with pilots we might use simulators and such. Yet how many hours of that will be needed? Would it test the moments when the car cannot handle the situation? These points remind of the early days of Westlaw and Lexis. When I was in school, we were required to use analog research to start. The idea was that we may be without a terminal or access to legal databases. This problem would arise in courthouses. It was true at the time, but a few years later, the Internet and web based access negated that idea. There may still be some training on the old ways, but how much anyone needs or uses them is unclear. With cars, there will be a gap period when some will have the systems and some won’t. But at some point, I’d guess that most cars will have the system, and/or fewer people will own cars at all. Many may subscribe to services instead of owning a vehicle. Driving by hand will be a special art for the rich and old schoolers as they head to stores that sell LPs.

So what may be the supercool solution? Like Onstar, a car maker may have a group of drone operators for the outlier problems. If a car fails, a signal is sent. A video game junkie, err drone expert, takes over to handle the vehicle by remote. That person is training on cars and drone operation of them all the time. They have the expertise to take over when needed. Yes, you may cue the creepy music at this point.