Author: Daniel Solove

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

paparazzi2.jpg

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

dhs-nuala.jpg

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

keyboard1.jpg

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 . . .

newblog3a.jpg

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.

0

Of Privacy and Poop: Norm Enforcement Via the Blogosphere

Dog Poop Girl 4.jpgThis post was originally posted at Balkinization on June 30, 2005.

By way of BoingBoing comes this fascinating incident in Korea. A young woman’s dog pooped inside a subway train. Folks asked her to clean it up, but she told them to mind their own business. A person took photos of her and posted them on a popular Korean blog. Another blogger, Don Park, explains what happened next:

Within hours, she was labeled gae-ttong-nyue (dog-shit-girl) and her pictures and parodies were everywhere. Within days, her identity and her past were revealed. Request for information about her parents and relatives started popping up and people started to recognize her by the dog and the bag she was carrying as well as her watch, clearly visible in the original picture. All mentions of privacy invasion were shouted down with accusations of being related to the girl. The common excuse for their behavior was that the girl doesn’t deserve privacy.

While the girl clearly behaved badly, those Korean netizens’ behavior is even worse and inexcusably so. Abuse by the mob is indistinguishable from abuse by dictators yet they just don’t see it in the heat of righteousness.

I posted a while ago about how norm enforcers can be valuable in promoting social norms of etiquette and civility. These norm enforcers police norms for free, sometimes even doing so at a cost to themselves. According to the article I discussed, the “tendency to sanction breaches of social norms is the key to human cooperation.”

But norm-enforcement also has a dark underbelly. As Richard McAdams argues, certain norms are unnecessary and undesirable; and even desirable norms can be enforced to an undesirable degree. See Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 412 (1997).

The dog-shit-girl case involves a norm that most people would seemingly agree to – clean up after your dog. Who could argue with that one? But what about when norm enforcement becomes too extreme? Most norm enforcement involves angry scowls or just telling a person off. But having a permanent record of one’s norm violations is upping the sanction to a whole new level. The blogosphere can be a very powerful norm-enforcing tool, allowing bloggers to act as a cyber-posse, tracking down norm violators and branding them with digital scarlet letters.

And that is why the law might be necessary – to modulate the harmful effects when the norm enforcement system gets out of whack. In the United States, privacy law is often the legal tool called in to address the situation. Suppose the dog poop incident occurred in the United States. Should the woman have legal redress under the privacy torts?

Some commentators to Don Park’s blog contend that the behavior of these cyber norm-enforcers is justifiable because that the woman was in public and thus had no privacy:

The initial blogger. Do I think he had every right to post her? Yep. She was in public, and it really doesn’t matter if she was in front of 100 or 1,000,00 people, she was willing to act that way in the public sphere. So an upset person chose to mention how upset he was to others. I agree with the earlier poster’s mention of a college newspaper doing something along the same lines: it is a minor issue, but sometimes we have power to change behavior with our voices. In this case, I’d bet that many other people are suddenly more conscious of their dog poop and are more likely to serve the public good by cleaning it up.

Yet another commentator writes:

I really don’t think it matters that it came out on the internet. It happened in a public place so it is excusable to discuss it in a public forum. This isn’t going to ruin her life, it might make her clean up her dog’s mess for a month though while the story goes around. We are a fickle bunch and she will be forgotten before the end of the season.

But this comment is wrong. She will not be forgotten. That’s what the Internet changes. Whereas before, she is merely remembered by a few as just some woman who wouldn’t clean up dog poop, now her image and identity are eternally perserved in electrons. Forever, she will be the “dog-shit-girl”; forever, she will be captured in Google’s unforgiving memory; and forever, she will be in the digital doghouse for being rude and inconsiderate.

Consider the famous incident involving the “Star Wars Kid,” a sad tale of a nerdy 15-year kid who filmed himself waving a golf ball retriever around as if it were a lightsaber. To tease him, some other kids digitized it and posted on the Internet along with his name. It was downloaded by millions around the world, and new versions of it quickly emerged replete with special effects and music. Forever, this person will be known as the Star Wars Kid. There’s even a Wikipedia entry for him!

Another tale involves involves a person whose private email to her friends was spread around cyberspace. James Grimmelmann has a wonderful essay about this email incident and social norms on LawMeme.

The easy reaction is to steel ourselves and chalk it up to life in the digital age. But that’s just giving up. The stakes are too high to do that. Consider the thoughts of another commentator to Don Park’s blog:

It reminds me of the struggles that editors face when deciding about what pictures to run in the newspaper. Those editors need to make a judgement call based on the value of the picture and its relevance to the story. But here, the person was outraged and ran the picture of the girl. That’s totally different. It shows the dangerous flip side of citizen media. Moral outrage is easy to flame. But the consequences can be mortal. Will the ease in inciting moral outrage create a mob driven police state? It may be when the powerful realize how they can use citizen “reporters,” to influence mobs. That seems to be one of the real dangers of citizen journalism. . . .

Compounding the problem is the fact that the norms of the blogosphere are just developing, and they are generally looser and less well-defined than those of the mainstream media. Thus, cyberspace norm police can be extremely dangerous – with an unprecedented new power and an underdeveloped system of norms to constrain their own behavior. Remember the famous saying about police surveillance: Who will watch the watchers? In the blogosphere, we might ask: Who will norm the norm police?

I believe that, as complicated as it might be, the law must play a role here. The stakes are too important. While entering law into the picture could indeed stifle freedom of discussion on the Internet, allowing excessive norm enforcement can be stifling to freedom as well.

All the more reason why we need to rethink old notions of privacy. Under existing notions, privacy is often thought of in a binary way – something either is private or public. According to the general rule, if something occurs in a public place, it is not private. But a more nuanced view of privacy would suggest that this case involved taking an event that occurred in one context and significantly altering its nature – by making it permanent and widespread. The dog-shit-girl would have been just a vague image in a few people’s memory if it hadn’t been for the photo entering cyberspace and spreading around faster than an epidemic. Despite the fact that the event occurred in public, there was no need for her image and identity to be spread across the Internet.

Could the law provide redress? This is a complicated question; certainly under existing doctrine, making a case would have many hurdles. And some will point to practical problems. Bloggers often don’t have deep pockets. But perhaps the possibility of lawsuits might help shape the norms of the Internet. In the end, I strongly doubt that the law alone can address this problem; but its greatest contribution might be to help along the development of blogging norms that will hopefully prevent more cases such as this one from having crappy endings.

1

Law Professor Blogger Census (Version 2.0)

census.jpgThis post was originally posted on PrawfsBlawg on June 16, 2005.

UPDATED! On Monday, June 13, I posted the beta version of our attempt to take a census of current law professors who are blogging about legal issues and/or the life of law professors. Kaimi Wenger, Ethan Leib, and Dan Markel of PrawfsBlawg as well as Orin Kerr at VC all assisted me in this endeavor. Many readers posted comments and emailed with bloggers we missed, and we are very grateful for the assistance. When I decided to undertake this project, I thought that there would be around 30 or so law professor bloggers. Had I known the number would be over 100, the task would have struck me as too daunting to begin!

A few statistics

· There are quite a lot of law professor bloggers – 130 in all.

· The schools with the largest amount of bloggers include San Diego (7), UCLA (5), George Mason (5), Cincinnati (4), Ohio State (4), GW (3), Georgetown (3), Stanford (3), St. Thomas (3), Chapman (3), Villanova (3).

· Of the bloggers, 28 are female and 102 are male.

This is version 2.0 of the census, which incorporates the assistance of our readers. The statistics have been updated.

There are a few blogs by law professors that I haven’t added to the census, as these are blogs solely about personal hobbies or experiences without connections to the law or the life of law professors. I discussed my decision not to include these blogs here. After posting the beta version of the census, I learned from Ann Althouse that there are three other blogs I didn’t list from Wisconsin law professors. I located two of them, both of which had posts that they preferred not to be included in the census. I will respect their wishes. Professor Stephen Bainbridge has a blog about wine, but I am not listing it because it has no legal themes at all. But it’s a neat blog nonetheless! Anyway, there is no strong litmus test for inclusion, just at a minimum some posts about issues relating to law, academics, politics, or the life of law professors, law students, or lawyers.

We hope that this census will prove useful for discussing who is blogging, the “blogospherics” (demographics) of the bloggers, and the law schools that have heavy blogging populations. We note that there are many very interesting blawgs by lawyers and law students, but we have restricted this list to law professors. Additionally, blogs without activity over the past month were not included.

We might update this census from time to time, so please email me about your blog if you were left out of this list or if you know of others we overlooked. And, of course, please email me if you start a new blog.

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