Author: Daniel Solove

4

The USA-PATRIOT Act: A Fraction of the Problem

usa-patriot1.jpgOver at Legal Affairs Debate Club, Geoffrey Stone and Judge Richard Posner are debating the USA-PATRIOT Act. The focus of the debate thus far is on Section 215 of the USA PATRIOT Act, which states:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Further, this section requires that the person ordered to turn over the materials shall not “disclose to any other person . . . that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

Stone calls for curtailing Section 215 and Posner comes out in favor of a modified version of it.

The problem with this debate, as with many debates over the USA-PATRIOT Act, is that it is focused only on the USA-PATRIOT Act. Many of the issues that people are debating about already existed in federal electronic surveillance law before the USA-PATRIOT Act.

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2

Why Blogging Is Good

Blog1.jpgRecently, there have been many thoughtful discussions about whether blogging is a good activity for academics to be engaging in. I sure hope it is! Jack Balkin at Balkinization has a terrific post about blogging. He writes: “It has become increasingly obvious to me (and to many others as well) that some academic writing works perfectly well as a blog posting.”

A recent essay in The Chronicle of Higher Education by Henry Farrell (political science, GW), a blogger at Crooked Timber, offers some fantastic observations. Here are a few nibbles (actually, more like a few bites, because it’s such a good essay):

Properly considered, the blogosphere represents the closest equivalent to the Republic of Letters that we have today. Academic blogs, like their 18th-century equivalent, are rife with feuds, displays of spleen, crotchets, fads, and nonsenses. As in the blogosphere more generally, there is a lot of dross. However, academic blogs also provide a carnival of ideas, a lively and exciting interchange of argument and debate that makes many scholarly conversations seem drab and desiccated in comparison. Over the next 10 years, blogs and bloglike forms of exchange are likely to transform how we think of ourselves as scholars. While blogging won’t replace academic publishing, it builds a space for serious conversation around and between the more considered articles and monographs that we write.

What advantages does blogging offer over the more traditional forms of academic communication? Blogging sacrifices some depth of thought — it’s difficult to state a complex thesis in the average blogpost — but provides in return a freedom and flexibility that normal academic publishing can’t match. Consider the length of time it takes to publish an article in a peer-reviewed journal. In many disciplines, a period of years between first draft and final publication is normal. More years may elapse before other academics begin to publish articles or books responding to the initial article. In contrast, a blog post is published immediately after the blogger hits the “publish” button. Responses can be expected in hours, both from those who comment on the blog (if the blog allows them) and from other bloggers, who may take up an idea and respond to it, extend it, or criticize it. Others may respond to those bloggers in turn, leading to a snowballing conversation distributed across many blogs. In the conventional time frame of academe, such a conversation would take place over several years, if at all. . . .

The essay wonderfully captures the positive influences blogging is having on the academy. More from Farrell’s essay:

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4

The Pathology of Picking Supreme Court Justices

sct1.jpgThe Supreme Court appointment process has become almost pathological . . . ironically, for rational reasons. The incentive is for presidents to select people who are: (1) young, so they have a reign on the Court that rivals Fidel Castro’s in length; and (2) obscure, so they have rarely taken any positions on any major issues. [Sadly, the future prospects for Supreme Court appointments for bloggers are not looking good.]

The nomination of Harriet Miers has left many people guessing. We know very little about her. Mark Graber writes on Balkinization: “What both John Roberts and Harriet Miers have in common is that the administration knows a lot more about them than the rest of us.” Jack Balkin calls her a “stealth candidate.” Orin Kerr is “quite puzzled.”

We should be selecting Supreme Court justices from the most accomplished and distinguished of legal figures. Instead, being a judge for a long time almost disqualifies a person for the Supreme Court.

The Senate confirmation hearings have turned into vapid ritual, where Senators posture and bluster, and the appointee does a well-rehearsed dance to reveal as little as possible. No appointee is going to go before the Senate and say: “Well, yes, Senators, I intend to legislate from the bench. I’ll be activist. I won’t follow the Constitution. Instead, I’ll decide cases based on what I’ve had for breakfast that day. I’ll be biased and I’ll try to twist the law to conform to my personal whims.”

I hope that in the debates that follow about Harriet Miers, the focus will also include the systematic problems with the appointments process more generally.

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18

California’s Tougher Anti-Paparazzi Law and the First Amendment

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Recently, Governor Arnold Schwarzenegger signed a law that toughened California’s Anti-Paparazzi Act, Cal. Civ. Code §1708.8. The original act was passed in 1998 in response to Princess Diana’s death, which was caused when her car was fleeing aggressive paparazzi.

Paparazzi photos can fetch a lot of money. A photo of Princess Diana and Dodi al-Fayed sold for over $3 million.

Arnold Schwarzenegger is not stranger to paparazzi. In one instance, they chased him and his wife, Maria Shriver, off the road to take photos of him.

The Anti-Paparazzi Act creates heightened penalties when a person commits a trespass “in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.” A person can also be liable even if there is no trespass if he “attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device.”

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4

Miers’s Political Contributions to Al Gore and Lloyd Bentsen

Harriet Miers’s

political contribution history doesn’t look surprising until you get to the

two earliest entries.  On the later entries, she gave to George Bush (R), Kay

Bailey Hutchison (R), Pete Sessions (R), and Phil Gramm (R).  But the two

earliest entries, from the late 1980s, strike me as very odd. 

MIERS, HARRIET E MS

DALLAS, TX

75219

LOCKE PURNELL RAIN HARRELL

GORE,

AL (D)

President

ALBERT GORE JR FOR PRESIDENT COMMITTEE INC

$1,000

primary

02/16/88

MIERS, HARRIET E MRS

DALLAS, TX

75201

LOCKE PURNELL ETAL

BENTSEN, LLOYD SENATOR (D)

Senate – DC

SENATOR LLOYD BENTSEN ELECTION COMMITTEE

$1,000

primary

03/30/87

Hat tip:

Larry Solum

2

The DHS Privacy Office

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Nuala O’Connor Kelly left the DHS privacy office last week. I have mixed reviews of her performance. On the good side, she did not rubber stamp DHS policies. She criticized the TSA, for example, for improperly gathering airline passenger records from Jet Blue Airlines. But on the negative side, she acted more as an internal facet of DHS than as an external overseer. Her role was more akin to an in-house privacy counsel who would advise behind the scenes than to an independent agent.

This wasn’t necessarily O’Connor Kelly’s fault. The DHS privacy office lacks essential powers, like the ability to subpoena documents. It lacks the independence to rebuff the DHS. It lacks any real teeth to enforce sanctions when the DHS violates the law. Although it produces public reports about its activities, the privacy office could do more to ensure greater public accountability for DHS, which often operates in manner that isn’t transparent.

We need a privacy agency, one that has teeth. For a good proposal for such an entity, see Robert Gellman, A Better Way to Approach Privacy Policy in the United States: Establish a Non-Regulatory Privacy Protection Board, 54 Hastings L.J. 1183 (2003). As Gellman notes: “The failure of the United States to have a national privacy agency is, perhaps, the single most important difference in approach to data protection between the United States and most other industrialized countries.”

3

When Clacks Squawk: The New Keystroke Surveillance

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You thought keyboard clacking was just annoying noise. Little did you know your clacking is broadcasting what you’re typing!

Berkeley researchers have developed a way to monitor your keystrokes without installing a device into your computer. Thus, far, keystrokes can be monitored via special software or other devices installed into people’s computers (either directly or via a virus or spyware). This new technique relies on the clacking of your keyboard. According to the AP:

If spyware and key-logging software weren’t a big enough threat to privacy, researchers have figured out a way to eavesdrop on your computer simply by listening to the clicks and clacks of the keyboard.

Those seemingly random noises, when processed by a computer, were translated with up to 96 percent accuracy, according to researchers at the University of California, Berkeley.

“It’s a form of acoustical spying that should raise red flags among computer security and privacy experts,” said Doug Tygar, a Berkeley computer science professor and the study’s principal investigator.

Researchers used several 10-minute audio recordings of people typing away at their keyboards. They fed the recordings into a computer that used an algorithm to detect subtle differences in the sound as each letter is struck.

On the first run, the computer had an accuracy of about 60 percent for characters and 20 percent for words, said Li Zhuang, a Berkeley graduate student and lead author of the study. After spelling and grammar checks were deployed, the accuracy for individual letters jumped to 70 percent and words to 50 percent.

The software learned to improve as researchers repeatedly fed back the same recordings, using results of spelling and grammar checks as a gauge on correctness. In the end, it could accurately detect 96 percent of characters and 88 percent of words.

5

Yet Another New Blog . . .

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Just what the world needs – another new blog! I used to blog primarily at PrawfsBlawg and occasionally at Balkinization. I’m now shifting my PrawfsBlawg blogging to this new blog. Why? Because I want to grab land in the blogosphere while they’re still handing out forty acres and a mule. PrawfsBlawg is a great place, and I’ll still be stopping by a lot, but I think it’s time to cultivate a new plot of land.

If you enjoyed my posts at PrawfsBlawg and Balkinization, please come by and visit me here. Concurring Opinions will be a group blog, and other co-bloggers will be joining me shortly. Together, we’ll cover issues involving law, culture, and current events. We’ll focus on technology, privacy, intellectual property, contract, property, torts, constitutional law, criminal law and procedure, literature and humanities, legal theory, sociology, and more.

We promise we’ll try our best to be interesting and entertaining. And we’ll invite interesting and entertaining guest bloggers. All for free! Yes, all this content and you don’t have to pay a dime. What a great deal! Who ever said you don’t get something for nothing?

Please bookmark this website. Add it to your blogrolls. Spread the word far and wide. Visit many times per day. Comment frequently. Link to the posts. And you’re certainly welcome to send in large donations. That’s not too much to ask, is it?

0

Internet Shaming Redux: The Case of the Stolen Cell Phone

cellphoneshame2.jpgThis post was originally published at PrawfsBlawg on August 31, 2005.

A story from Wired describes the latest Internet shaming episode:

A New York stock clerk who had his camera phone swiped from his car this month says he was able to peer into the life of the gadget’s new owner. The thief evidently didn’t realize the copious photos and videos he was taking with the hot phone were accessible through a web account. . . .

Because the camera phone can only hold a limited number of images, Sprint lets subscribers upload photos from the device to a web account. “I decided to go and check out the web space and see if there were any pictures uploaded to it, and he had taken almost 40 pictures and five movies and uploaded them all,” says Clennan [the theft victim].

Most of the images show the same young man, flexing for the camera in various states of dress, kissing a young woman, posing with apparent friends and family members, and generally having a good time with a new toy.

When Clennan checked the account’s e-mail outbox, he found the new owner had forwarded some of the photos to a particular Yahoo e-mail account.

Clennan sent his own message: “Like to steal cell phones and use them to take pics of yourself and make videos…. HA! (G)uess what pal … (I) have every pic you took and the videos. I will be plastering the town with pics of your face.”

The article continues:

Far from chastised, the man fired back a taunting one-line note, apparently with his own name in the header, dropping the name of a woman Clennan had been dating, and who’d sent text messages to the stolen phone.

Clennan retaliated by posting the story and some of the photos to a Long Island web board, where it immediately began gathering the kind of interest that accumulates to photo-driven internet phenomena like the Korean Dog Poop Girl and the New York subway flasher.

Urged on by netizens, Clennan says he finally took the trove of evidence to the Suffolk County, New York, police last week, and they’re considering filing petty theft charges in the case. “The detective actually laughed,” says Clennan. . . .

Contacted by e-mail, the camera phone’s new owner told Wired News he didn’t steal the device, but merely found it on a street corner. The young man says he’s 16 years old, and Wired News has elected not to report his name.

The case provides another instance of Internet shaming to discuss and debate. In recent posts, I’ve been critical of Internet shaming. One of the problems with this incident is that the facts are still unsettled about how the teenager acquired the camera.

In this case, the theft victim placed online many pictures of the person — as well as images of other people who appeared in the pictures. These pictures were then copied by netizens, morphed into “Wanted” posters, and plastered about the Internet. I’ve included an example in this post, but have blocked out the person’s face and name, both of which appear in the original version. I checked the website where the theft victim placed the photos and here’s his latest update:

[EDIT]

THE PICTURES HAVE BEEN REMOVED TO PROTECT THE PRIVACY OF MINORS. WHEN I FIRST POSTED THIS STORY I DID NOT REALISE THE PERSONS IN QUESTION ARE MINORS. I ENCOURAGE ALL OTHERS WITH PHOTOS OF THESE PEOPLE TO DELETE THEM FROM THEIR WEBSITES AS WELL. [EDIT]

The pictures, however, still float around the Internet. Despite the theft victim’s change of heart, it’s too late to take the pictures back.

0

Journalist Privilege and the Valerie Plame Case

This post was originally posted at Balkinization on July 5, 2005.

Almost lost amid the Supreme Court fireworks last week was its decision to deny certiorari on a challenge by two reporters to a grand jury subpoena for the identity of White House sources.

The imbroglio began back in 2003, when former Ambassador Joseph Wilson disputed White House claims about weapons of mass destruction in Iraq. How outrageous! To retaliate, some White House officials leaked to several reporters the fact that his wife, Valerie Plame, was a CIA agent, blowing her cover. Among the journalists receiving the information was the conservative pundit Robert Novak as well as Time Magazine reporter Matthew Cooper and New York Times reporter Judith Miller.

Leaking the identity of a CIA agent is a crime, and a grand jury was convened to investigate. It subpoenaed from the reporters the identities of their sources.

Cooper and Miller refused to comply with the subpoenas. District Court Judge Thomas Hogan ordered that the reporters comply or else face jail time for contempt. (It is unclear what happened regarding Novak – either he divulged his sources or for some reason he’s not being pressed for the information.)

When the Supreme Court denied cert. on the case, Time Magazine announced that against the wishes of Cooper, it would turn over his notes. Time was criticized by the media for caving in.

Should the journalists be required hand over the notes? Doctrinally, the issue appears to be yes. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that there is no First Amendment journalist privilege against grand jury requests for evidence. In spite of the Court’s ruling, the journalist privilege has still thrived. Lower courts have adopted a qualified privilege, one that is balanced out on a case-by-case basis. Despite this, however, with grand jury subpoenas, most courts require journalists to disclose.

As a policy matter, the question is more complicated in my opinion. First Amendment scholar and Chicago law professor Geoffrey Stone argues although that Congress should pass a statute providing for a journalistic privilege, it shouldn’t apply in this case:

But even if Congress did this, such legislation would afford no succor to Judith Miller and Matt Cooper. . . .

The purpose of the reporter-source privilege is to encourage sources to disclose information of legitimate public concern to reporters so they can then inform the public. There is no public policy of encouraging sources to leak information when the leak itself is a crime and when the purpose and effect of the leak are to use the reporter to facilitate a criminal act.

The disclosure of Valerie Plame’s identity as a CIA operative by White House offcials violated federal law. In “leaking” this information, those officials were attempting to enlist reporters in a criminal act. Even under the most expansive conception of the journalist-source privilege, those sources have no privilege to do that, and thus Miller and Cooper are protecting no one but themselves. They are not Woodward and Bernstein.

I agree with a lot of what Stone says, but diverge on one point. His law would not apply “when the leak itself is a crime and when the purpose and effect of the leak are to use the reporter to facilitate a criminal act.” I believe that this approach is too broad. Many valuable leaks by government officials are criminal acts . . . the Pentagon Papers, for example.

Stone speaks favorably of the Pentagon Papers case in his book Perilous Times. He writes: “The publication of the Pentagon Papers was a major event in the history of American journalism.” (p.512). The Pentagon Papers Supreme Court decision is not really relevant here, as it involved a prior restraint on a newspaper printing the information; in contrast, the Plame case involves an after-the-fact probe into the sources. But the Pentagon Papers case provides a good example of the kinds of leaks we want to promote.

In the Pentagon Papers case, Daniel Ellsberg was indicted on felony charges. Stone agrees that Ellsberg should be punished: “The law against theft can constitutionally be applied to the person who steals a camera to make a movie. If the would-be moviemaker can be punished, shouldn’t Ellsberg and Russo be punishable as well?” (p.515).

I believe that if an Ellsberg leaks Pentagon Papers anonymously, journalists should not be forced to divulge his identity – even though Ellsberg is committing a crime. The test should be whether disclosure is in the public interest. Applying the “criminal act” test gives the government too much power to chill whistleblowers.

After all, the government can just criminalize leaking or enhance the penalties and then ferret out the leakers by forcing journalists to reveal the names. The better approach, in my opinion, is a public interest test not tied to whether the leaking is a crime.

A public interest approach can best separate the Pentagon Papers from the Plame disclosure. The leaking of the Pentagon Papers was in the public interest. But the Plame disclosure was not. It had no redeeming social value – instead, the leak was just a retaliatory act. Therefore, the sources should not be protected.