Author: Daniel Solove

9

Sober = Drunk in Washington, DC

wine2.jpgI’m quite in favor of cracking down on DUI, but this story from the Washington Post is really disturbing:

Debra Bolton had a glass of red wine with dinner. That’s what she told the police officer who pulled her over. That’s what the Intoxilyzer 5000 breath test indicated — .03, comfortably below the legal limit.

She had been pulled over in Georgetown about 12:30 a.m. for driving without headlights. She apologized and explained that the parking attendant must have turned off her vehicle’s automatic-light feature.

Bolton thought she might get a ticket. Instead, she was handcuffed, searched, arrested, put in a jail cell until 4:30 a.m. and charged with driving under the influence of alcohol.

Bolton, 45, an energy lawyer and single mother of two who lives in Alexandria, had just run into a little-known piece of D.C. law: In the District, a driver can be arrested with as little as .01 blood-alcohol content.

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2

Juris Novus

jurisnovus.jpgWe are pleased to announce that Concurring Opinions is now a feed on the terrific resource site, Juris Novus. Juris Novus is now posting links to the headlines of our most recent postings.

Juris Novus also contains the headlines of postings at some other great legal blogs such as The Volokh Conspiracy, Leiter Reports, Lessig Blog, The Becker-Posner Blog, PrawfsBlawg, Conglomerate, JD2B, and more.

Juris Novus is part of the Meta Novus network, a group of sites that provide headlines from blogs about law (Juris Novus), technology (Machina Novus), politics (Polis Novus), science (Scientia Novus), and more. These are very useful sites, and they are definitely worth visiting.

5

Do We Really Want Perfect Law Enforcement?

speeding3.jpgI just wrote a post about the possibility of cell phones being used to nab speeders. This raises a larger question regarding law enforcement. If we employ new technologies of surveillance to achieve a more efficient enforcement of various laws, the most obvious concern that comes to mind is the threat posed to privacy. There’s also another problem worth thinking about – Is it desirable to have very efficient enforcement of certain laws?

Of course, we’d want as perfect enforcement as we could get when it came to crimes such as murder and kidnapping. But what about speeding?

Consider what happened in 2000, when the Hawaii transportation department began using cameras mounted on vans to catch speeders. Tickets were issued for all drivers exceeding the speed limit by six miles per hour. The program resulted in an enormous public outcry. As one journalist observed, “it became possibly the most hated public policy initiative in Hawaii history, almost uniformly disliked, even by those who thought it actually worked.” Mike Leidemann, Few Saying Aloha to Van Cams Fondly, Honolulu Advisor, Apr. 14, 2002. Some drivers referred to the vans as “talivans” and radio stations broadcast their location.

In 2002, the program was cancelled. Where the cameras were used, traffic accidents and fatalities were down significantly. [In a recent post, however, I discuss a study of DC traffic cameras that reveals the opposite conclusion – that traffic cameras had no effects on accident or fatality rates.]

So why was there such a public outcry against the program?

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4

Using Cell Phones to Catch Speeders

speeding-cartoon1.jpgA glimpse into the not-too-distant future . . .

You’re driving along the highway. There is only light traffic on the road, and there’s not a cop in sight. You decide to give in to that dastardly rebel within and go 10 miles over the speed limit. You get to your destination without incident, a few minutes early. The sun is shining in the sky; there’s not a cloud in sight. It’s a happy day. Life is good.

But then a few weeks later, you discover that the day wasn’t as cheery as you had thought. That’s because you were caught for speeding that day. Your ticket arrives in the mail. But there were no police officers along the route, no speed traps, no surveillance cameras. How did you get caught?

You were ratted out, betrayed by a traitor in your car. No, not a secret agent, not a rat, not a mole. Instead, it was something you trusted the most, an inseparable companion . . . it was your cell phone.

According to the AP:

Driving to work with your cell phone on, you notice the traffic beginning to slow down. Instantly and unbeknown to you, the government senses your delay and flashes a traffic congestion update over Web sites and electronic road signs.

Other motorists take heed, diverting to alternative routes or allowing more time for their trips.

Futuristic as it might seem, the scenario actually is pretty close to becoming reality.

In what would be the largest project of its kind, the Missouri Department of Transportation is negotiating with private contractors to monitor thousands of cell phones, using their movements to produce real-time traffic conditions on 5,500 miles of roads statewide.

Cell phone users won’t even know anyone’s watching them. But transportation and technology leaders assure there is no need to worry – the data will remain anonymous, leaving no possibility of tracking specific people from their driveway to their destination.

I have a quote in the story, but I’m not saying anything really profound, so I won’t bother excerpting it.

Since there is no tracking that can be linked to identifiable people, the cell phone tracking described by the article appears to pose little of a privacy concern. However, it isn’t too hard to imagine in the future new ways that these devices can be used. Previously, I blogged about how cell phones can function as an RFID device to track people’s movement. With the technology described in the AP article, it doesn’t seem far-fetched to imagine cell phones being used to determine a driver’s rate of speed. Would there be a problem if cell phones were used as a way to nab speeders?

This raises another question regarding the enforcement of the law. When we devise ways to more perfectly enforce laws such as speeding, is this desirable? To keep this post from getting too long, I will explore this question in a separate post.

79

The Airline Screening Playset: Hours of Fun!

After blogging a few weeks ago about the airline screening playset, I went ahead and ordered one.

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Each day, I would check my mailbox, eager with excitement about its arrival. Today, it finally arrived. I rushed to open it and began what would be hours of exciting play. Here’s what came in the playset:

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I was a bit disappointed in the toy’s lack of realism. There was only one passenger to be screened. Where were the long lines? The passenger’s clothing wasn’t removable for strip searching. The passenger’s shoes couldn’t be removed either. Her luggage fit easily inside the X-ray machine. There were no silly warning signs not to carry guns or bombs onto the plane. And there was no No Fly List or Selectee List included in the playset.

Another oddity was that the toy came with two guns, one for the police officer and one that either belonged to the X-ray screener or the passenger. The luggage actually opened up, and the gun fit inside. I put it through the X-ray machine, and it went through undetected. Perhaps this is where the toy came closest to reality.

The biggest departure from reality was that the passenger had a cheery smile on her face.

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To make the toy more realistic, I required the passenger to show her ID, which she didn’t have. Indeed, the playset didn’t come with an ID card, so it wasn’t the passenger’s fault. But I had the screener cheerfully deny her the right to board the plane. Ha!

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But she still had that silly smile.

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I wasn’t ready to give up, however, so I decided to have her searched from head to toe with the magnetic wand.

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But she still had that smile.

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2

Hurricane Katrina and Credit Scores

creditscore1.jpgBob Sullivan at MSNBC writes:

A second storm surge may soon start slamming into Gulf coast residents hit by hurricanes Katrina and Rita. Mounting unpaid bills will lead to a surge of black marks on victims’ credit reports, say consumer advocates, sinking their credit scores. And now, they say, efforts to convince the nation’s credit bureaus to develop new systems to account for victims’ temporary bill-paying troubles have hit a major snag.

Consumers who can’t make their house payments any more – even if that house has been completely swept away by the storm – may face the ultimate penalty in America’s credit-driven society: A credit score so low they won’t qualify for the loans they need to start rebuilding.

Consumer groups, anticipating the coming surge of late payments and account defaults, have asked credit bureaus to help. The consumer groups proposed that the bureaus take a pre-Katrina credit score snapshot of all residents in the affected areas. Later, when victims apply for loans, the pre-Katrina score could be used to identify whether victims were good credit risks before the storm.

This sounds like a sensible proposal, something that will help the survivors of the hurricane rebuild their lives. After all, without good credit, it is much more costly to take out a loan, and sometimes nearly impossible to get a loan or credit.

Fair Issac, the company that creates the formula for generating credit scores supports this proposal. The credit reporting agencies, however, won’t have any of it:

But on Thursday, consumer groups revealed that the nation’s three bureaus – Experian, Trans Union, and Equifax – have declined to participate in the plan.

The reasons are:

A second score likely wouldn’t comply with parts of the Fair and Accurate Credit Transaction Act, the firm indicated in a letter sent to Consumers Union.

Equifax’s David Rubinger said the presence of a second score could create confusion both for lenders and consumers. Also, credit bureaus and lenders sometimes use alternate scoring systems, he said, so a snapshot FICO score would be of little use to those lenders.

First of all, I’m not familiar with a provision of the Fair Credit Reporting Act (FCRA) that would prohibit reporting a second score. If there is something in the law that prohibits reporting another score, then Congress should make an exception for victims of certain sudden catastrophes.

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7

The Blog Impersonators

mierblog3.jpg

Harriet Miers, as my co-blogger Kaimi pointed out, is the first Supreme Court Justice nominee to have her own blog – Harriet Miers’s Blog!!! Her first entry:

OMG I CAN’T BELIEVE I’M THE NOMINEE!!!

This is BIGGEST DAY OF MY LIFE!!! EVER!!!!

OMG OMG OMG

Needless to say, it’s a fake. And so is a blog called Luttig’s Lair purportedly written by Judge J. Michael Luttig.

Anyone can sign up on a free blogger platform, such as Blogger, and create a blog. In anybody’s name. In your name. You might have a blog and not even know about it.

The Miers and Luttig blogs are quite funny because everybody knows they’re phony. But it is easy to imagine a case where reality and parody are not so readily discernable. What’s to stop me from creating a blog by you? (Don’t even think of vice-versa!)

The law provides at least two potential remedies. One is the tort of libel, which provides for damages when a person publishes falsehoods that damage the reputation of another. This wouldn’t apply to Miers because the blog is an obvious parody – no reasonable person would think it were true.

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3

Wiki Your Papers?

Wikipedia.jpgNeed a proofreader and fact checker? Let the collective community of the Internet do it for you. According to CNET:

When Esquire magazine writer A.J. Jacobs decided to do an article about the freely distributable and freely editable online encyclopedia Wikipedia, he took an innovative approach: He posted a crummy, error-laden draft of the story to the site.

Wikipedia lets anyone create a new article for the encyclopedia or edit an existing entry. As a result, since it was started in 2001, Wikipedia has grown to include nearly 749,000 articles in English alone–countless numbers of which have been edited by multiple members of the community. (There are versions of Wikipedia in 109 other languages as well.) . . . .

Jacobs decided to craft an article about Wikipedia, complete with a series of intentional mistakes and typos, and post it on the site. The hope was that the community itself would be able to fix the errors and create a clean version that would be ready for publication in Esquire’s December issue. The original version was preserved for posterity.

“The idea I had–which Jimmy (Wales, Wikipedia’s founder) loved–is that I’d write a rough draft of the article and then Jimmy would put it on a site for the Wikipedia community to rewrite and edit,” Jacobs wrote on the page introducing the experiment. Esquire “would print the ‘before’ and ‘after’ versions of the articles. So here’s your chance to make this article a real one. All improvements welcome.” . . .

According to the Wikipedia page for Jacobs’ story, the article was edited 224 times in the first 24 hours after Jacobs posted it, and another 149 times in the next 24 hours.

What result?

On the latest version of the article, the original author writes:

Hello Wikipedians,

I just wanted to thank you all so much for participating in this experiment. It was absolutely fascinating. I was riveted to my computer, pressing refresh every 45 seconds to see the next iteration. And the next and the next. For the last few days, my wife has been what you might call a Wikipedia Widow.

I feel like I should submit all my articles to the community to get them Wikipedia-ized. I can’t wait to print this in Esquire magazine.

Thanks again.

AJ Jacobs

If any students are reading, don’t even think about it . . .

Hat tip: Michael Zimmer

6

Have a Question? Ask a Philosopher

philosopher1.jpgAn interesting experiment, as described by Inside Higher Ed, involves a website called Ask Philosophers where people send in their questions and philosophers respond with answers. The website is designed for the general public:

“I just thought that the Web offered philosophers a chance to do public service of the kind that they haven’t always had,” says Alexander George, chair of philosophy at Amherst College and creator of the site. “Philosophy is ubiquitous in people’s lives, but there is an unfortunate disconnect between the interests of most people in philosophy and their access to information about philosophy and the great ideas and history of philosophy.”

George recruited 34 other philosophers — many from Amherst and colleges in New England, but others from colleges elsewhere in the United States or the world. The panelists were selected for having expertise in different areas — medical ethics, Chinese philosophy, African philosophy, the philosophy of love and sex. . . .

The way the site works is that George reviews questions that are submitted by reviewers and posts those that are appropriate. . . . Then panelists pick questions to answer — George hopes they will tackle 1-2 questions a week. Those who want to comment on the answers or converse among themselves can do so on a Google group that George has also created.

13

Airport X-Ray Peep Shows

x-ray2.jpgAccording to the New York Times, the TSA is moving closer to deploying a new kind of X-ray machine at airports, one that sees through people’s clothing:

Among the most controversial technology being looked at by the Transportation Security Administration is the backscatter body scanner. The device – a boxy contraption that beams low-level X-rays through people’s clothing – has received a lot of attention because of the explicit images of passengers’ bodies it can produce.

This summer, for instance, Lori Borgman, a family humor columnist, wrote that such images were “bound to find their way to the break room, the Internet and the tabloids.” The American Civil Liberties Union has called the backscatter a “virtual strip search.”

As a result, the Transportation Security Administration has approached the deployment of the machines tentatively over the last several years. “I think that as we make the decision to roll out and go to pilot tests and move forward, we need to be sure we’re doing it in a responsible manner,” said the agency’s chief technology officer and assistant administrator, Clifford Wilke. “A person’s first experience with a new technology will determine their perception.”

But there are signs that the T.S.A. is preparing to make its move. The agency said it did not have a specific timeline, but statements made in early August by the two manufacturers of the technology – American Science and Engineering and Rapiscan Systems, a division of the OSI Systems electronics company – indicated that the plans could be made public within the next two months.

Does this technology establish the appropriate balance between privacy and security?

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