Author: Daniel Solove


Two New Cases Regarding NSA Surveillance

The 9th Circuit has decided a pair of cases involving the NSA Surveillance Program.

In Jewel v. NSA, the 9th Circuit concluded that plaintiffs had standing to raise constitutional challenges against NSA telephone surveillance:

At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.  In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury.

In In re NSA Telecommunications Litigation, the 9th Circuit held that § 802 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1885a (the FISA Amendments
Act) is constitutional.  The Act retroactively immunized telecommunication companies for cooperating with the NSA.


Law School Debt

This report by the Center for American Progress has some interesting statistics about law school debt:

The high demand for legal education is somewhat surprising given its hefty price tag. The average tuition and fees at private, nonprofit law schools in 2010 was $34,656 per year.  At public universities, in-state students paid $19,912 yearly on average in tuition and fees, and out-of-state students paid $32,247 per year. And unlike enrollments or degree completions, law school tuition is on a steady upward path. (see Figure 3)

It’s difficult to locate the cause of this steep rise in tuition. Though some have claimed that stringent accreditation requirements drive price, a 2009 GAO study showed that this assumption is incorrect. That report identified a few drivers of tuition based on interviews with law school officials, including a more hands-on approach to legal education that includes pricey clinical experiences and smaller class sizes.

Other changes to the legal education model may also drive tuition, including greater diversity of course offerings and increased academic support and career services for students, as well as higher faculty salaries, competition for higher rankings, and state disinvestment at public law schools. And of course, many of these changes are driven by increased competition among law schools, which in itself can be considered a driver of tuition.

Some other findings:

Law students have more debt on average than almost all other graduate students, excepting only medical students. And more law students borrow to pay for their education than all other graduate students. . . .

It’s difficult to get a complete picture of defaults at law schools, as the Department of Education collects and publishes default rates for institutions as a whole rather than by division or professional school. But since some law schools operate as standalone institutions, we can get some idea of how law grads fare. Of these standalone institutions, the average default rate is only 2.6 percent.


Do Computer “Unlawful Access” Laws Exempt Improperly Accessing a Spouse’s Account?

Short answer: No.  This case got considerable media attention and outrage when it was first reported.  A man accessed his wife’s email without her consent.  They were separated.  He was charged with violating the Michigan’s computer unlawful access law, MCL 752.795, which is similar to the federal Computer Fraud and Abuse Act (CFAA).  Now a court of appeals has rejected the spouse’s argument.  From the Detroit Free Press:

A Rochester Hills man charged with a 5-year felony for reading his wife’s e-mail pledged today to take the matter to the state’s highest court after a lower court refused to dismiss the charge.

In a written opinion released this morning, the Michigan Court of Appeals rule that Leon Walker should proceed to trial on charges that he gained unlawful access to his then-wife Clara Walker’s Gmail account in the summer of 2009.

His 2010 arrest prompted widespread outrage and a national debate about computer privacy in the marital home. But in today’s decision, the three-member appellate panel said Michigan’s computer hacking law has “no spousal exception,” and the law as written applies to Walker’s case. The judges also noted discussions in Michigan’s legislature to amend the law to exclude spouses.

“However, unless and until such legislation occurs, this court is left with the statute as written,” the court said.

The opinion is here.  From the opinion:

Second, there was evidence that defendant acted without authorization when he accessed his estranged wife’s Gmail account. Defendant’s wife testified that her Gmail account was a personal account and that she never shared her passwords for the account with defendant or granted him permission to access the account. Further, she allowed defendant to use her computer only when it needed a repair. Defendant admitted to the police that he accessed his wife’s Gmail account by guessing her password. These facts support a reasonable inference that defendant lacked authorization for his access of his wife’s Gmail account.

It seems to me that spouses should not be given special exemptions to hack into each other’s accounts.  Breaking into one’s private accounts is a violation no matter who does it.  Even spouses are entitled to have private accounts and things, and the law should protect them.


More Titles from Oxford University Press — 2011

OUPHere are even more new titles from Oxford University Press. If you’re interested in reviewing a book, please let me know and tell me a bit about your background. If I select you as a reviewer for the book, Oxford University Press will send you a free review copy.


Dan Hunter The Oxford Introductions to U.S. Law: Intellectual Property, 1st ed.


Matthew Adler Well-Being and Fair Distribution: Beyond Cost-Benefit Analysis


Adrian Vermeule The System of the Constitution


Professor Erin Ryan Federalism and the Tug of War Within


Stephen M. Bainbridge Corporate Governance after the Financial Crisis


Kathryn Christopher and Russell Christopher Criminal Law: Model Problems and Outstanding Answers, 1st ed.


Edward McCaffery The Oxford Introductions to U.S. Law: Income Tax Law, 1st ed.


Christina Bohannan and Herbert Hovenkamp Creation without Restraint: Promoting Liberty and Rivalry in Innovation


Edited by Paul H. Robinson, Stephen Garvey, and Kimberly Kessler Ferzan Criminal Law Conversations



Richard Hyland Gifts: A Study in Comparative Law


E. Norman Veasey and Christine T. Di Guglielmo Indispensable Counsel: The Chief Legal Officer in the New Reality



New Titles from Oxford University Press

OUPHere are some new titles from Oxford University Press.  If you’re interested in reviewing a book, please let me know and tell me a bit about your background.  If I select you as a reviewer for the book, Oxford University Press will send you a free review copy.


Stephanos Bibas The Machinery of Criminal Justice


William Patry How to Fix Copyright


Eric A. Posner and Adrian Vermeule The Executive Unbound: After the Madisonian Republic


Deborah L. Rhode The Beauty Bias: The Injustice of Appearance in Life and Law


Rainer Grote and Tilmann Roder Constitutionalism in Islamic Countries: Between Upheaval and Continuity


Jennifer Nedelsky Law’s Relations: A Relational Theory of Self, Autonomy, and Law


Professor Brad R. Roth Sovereign Equality and Moral Disagreement


Ruti G. Teitel Humanity’s Law


Fionnuala Ni Aolain, Dina Francesca Haynes, and Naomi Cahn On the Frontlines: Gender, War, and the Post-Conflict Process
Camilla E. Watson Federal Income Taxation: Model Problems and Outstanding Answers


Stephen Pevar The Rights of Indians and Tribes, 4th ed.


Julian Ku and John Yoo Taming Globalization: International Law, the U.S. Constitution, and the New World Order


Michael J. Gerhardt The Power of Precedent


Tai-Heng Cheng When International Law Works: Realistic Idealism After 9/11 and the Global Recession



FTC v. Santa

Jeff Jarvis has this humorous piece about the FTC vs. Santa:

Federal Trade Commission Chairman Jon Leibowitz today announced a record fine against Santa Claus for violations of the Children’s Online Privacy Protection Act.

“Mr. Claus has flagrantly violated children’s privacy, collecting their consumer preferences for toys and also tracking their behavior so as to judge and maintain a data base of naughtiness and niceness,” Leibowitz said. “Worse, he has tied this data to personally identifiable information, including any child’s name, address, and age. He has solicited this information online, in some cases passing data to third parties so they may fulfill children’s wishes. According to unconfirmed reports, he has gone so far as to invade children’s homes in the dead of night. He has done this on a broad scale, unchallenged by government authorities for too long.”

I also heard that DHS has called for the arrest of Santa for flying over restricted airspace.  The FBI is seeking his records about those who are naughty.  The TSA is upset that he bypassed security screening.  Meanwhile, his reindeer are being charged with cyberbullying Rudolf.  And he’s in trouble with the NLRB for his restrictive social media policy forbidding his elves from blogging about their low pay and inability to unionize. . . .



Student Privacy in Peril

Over at the Huffington Post, I have a short piece about the growing problems with student data.  Here’s the opening:

In October, personal financial data — including social security numbers, loan repayment histories and bank-routing numbers – of thousands of college students was exposed on the Department of Education’s (ED) direct loan website. For seven minutes, anyone surfing the direct loan website could find personal information about students who had borrowed from the Department of Education.

In and of itself, this data security breach is quite alarming, but it is even more so considering the aggressive data gathering efforts ED is spearheading. For example, the ED’s changes to the Family Educational Rights and Privacy Act (FERPA) regulations will provide the government with greater powers to gather and use longitudinal data about students to track their performance over time.



Should Teachers Be Banned from Communicating with Students Online?

Increasingly, states and school districts are struggling over how to deal with teachers who communicate with students online via social network websites.  One foolish way to address the issue is via strict bans, such as a law passed in Missouri earlier this year that attempted to ban teachers from friending students on social network websites.  Such laws are likely violations of the First Amendment right to freedom of speech and association, and I blogged at the Huffington Post that the law was unconstitutional.  Soon thereafter, a court quickly struck down the law.

The NY Times now has an article out about the challenges in crafting social media policies for teacher-student interaction, noting that “stricter guidelines are meeting resistance from some teachers because of the increasing importance of technology as a teaching tool and of using social media to engage with students.”

There are a number of considerations that schools should think about when crafting a social media policy:

1. The policy should account for the fact that there are legitimate reasons for students and teachers to communicate online.  A teacher might be related to a student, and certainly a law or policy shouldn’t ban parents from friending their children.  Or a teacher might be a godparent to a child or a close family friend or related in some way.

2. One middle-ground approach is to require parental consent whenever a teacher wants to friend a minor student online.  This greater transparency will address the cases where teachers might have inappropriate communication with minors.

3. Clear guidelines about appropriate teacher expression should be set forth, so teachers know what things will be inappropriate to say.  Teachers need to learn about their legal obligations of confidentiality, as well as avoiding invasions of privacy, defamation, harassment, threats, and other problematic forms of speech.

4. When teachers use social network sites in the classroom — or otherwise use blogs and online posting as a teaching device — they should exercise great care, especially when requiring minors to express themselves publicly online.  I’ve seen some class blogs, where students are asked to post reactions to reading or write online journals.  Making students post their views and opinions to the public, especially at such a young age, strikes me as a problematic practice.  The Children’s Online Privacy Protection Act (COPPA) would protect minors under the age of 13, but teachers should be sensitive to minors 13 and older too.  No minor student should be required to post any personal information or class assignment on a publicly-accessible website without the student’s consent and the parent’s consent.  And all websites that involve student personal information have a privacy policy.

5. Education is key.  I’ve read about a lot of cases involving improper social media use by educators, and they often stem from a lack of awareness.  Teachers think they can say nearly anything and it will be protected by the First Amendment.  The First Amendment law actually gives schools a lot of leeway in disciplining educators for what they say, and educators can also be sued by those whom they write about.  Educators often think that if they post something anonymously, then it is okay or they can get away with it — but anonymity online is often a mirage, and comments can readily be traced back to the speaker.  And educators often set the privacy settings on social media sites incorrectly.  They don’t spend enough time learning the ins and outs of the privacy settings.  These are actually quite tricky — even rocket scientists have trouble figuring them out.