Archive for the ‘Current Events’ Category
Cyberbullying and the Cheese-Eating Surrender Monkeys
posted by Derek Bambauer
(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)
Introduction
New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »
February 21, 2012 at 10:20 pm
Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0
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Certiorari Granted in Fisher v. University of Texas
posted by Gerard Magliocca
The Constitution permits racial preferences in higher education for 25 more years.
Justice O’Connor, writing for the Court in 2003.
25 years? We meant 10.
Justice Kennedy, writing for the Court in 2013?
February 21, 2012 at 3:45 pm
Posted in: Current Events
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Did Spitzer and Levitt Stoke the Financial Crisis?
posted by Lawrence Cunningham
Many are to blame for the financial crisis and plenty of reports and analyses have been written detailing assorted causes and assigning responsibility. Overlooked in accepted versions of events are two fateful decisions and their context: Eliot Spitzer’s overzealous drive to oust Hank Greenberg from heading AIG, and Arthur Levitt’s governance reforms implemented at AIG shortly thereafter.
The ouster of Greenberg and transformation of AIG are pivotal events because before the ouster and reforms, AIG wrote few of the credit default swaps that became the centerpiece of the crisis, but wrote increasingly risky and unhedged swaps thereafter. Many informed people consider it extremely unlikely or nearly impossible to imagine that, had AIG still been run by Greenberg under its traditional governance structures, the swap business at AIG could have gotten so out of hand.
In that telling, Spitzer’s aggressive tactics to have Greenberg ousted and Levitt’s ambitious reforms were at least indirect contributing causes of the crisis and its severity. The actions and ideas therefore deserve greater scrutiny than they have been given.
In Spitzer’s case, it’s important to highlight how he took many steps that were at least dubious as a matter of prosecutorial ethics; in Levitt’s case, the reforms were extreme departures from traditional corporate governance. Potential lessons include the importance of prosecutors not overstepping their bounds and the value of adhering to some traditions in the development of corporate governance. Read the rest of this post »
February 20, 2012 at 2:09 pm
Posted in: Corporate Law, Corruption, Courts, Criminal Law, Criminal Procedure, Culture, Current Events, Legal Ethics
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Ben Stein and the ABA’s Facepalm
posted by Derek Bambauer
The American Bar Association is kicking off its 2012 tech show with an address by… Ben Stein. Yes, who better to celebrate the march of technological progress and innovation than a leading defender of intelligent design? Who better to celebrate rigorous intellectual discourse than a man who misquotes Darwin and fakes speeches to college audiences?
This is a pretty embarrassing misstep. The ABA is irrelevant in the IP / tech world, and this facepalm is a nice microcosm of why. (Wait, what is the ABA relevant to? Now that’s a hard question.) We geeks don’t like it when you dis science. Thanks anyway, ABA – maybe you should stick to having your judicial recommendations ignored.
Hat tip: health law expert Margo Kaplan.
Update: I found the perfect keynote speaker for ABA’s 2013 TechShow: Marshall Hall!
Cross-posted at Info/Law.
February 20, 2012 at 11:27 am
Posted in: Blogging, Bright Ideas, Conferences, Culture, Current Events, Cyberlaw, Education, Humor, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Science Fiction, Technology
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The Memory Hole
posted by Derek Bambauer
On RocketLawyer’s Legally Easy podcast, I talk with Charley Moore and Eva Arevuo about the EU’s proposed “right to be forgotten” and privacy as censorship. I was inspired by Jeff Rosen and Jane Yakowitz‘s critiques of the approach, which actually appears to be a “right to lie effectively.” If you can disappear unflattering – and truthful – information, it lets you deceive others – in other words, you benefit and they are harmed. The EU’s approach is a blunderbuss where a scalpel is needed.
Cross-posted at Info/Law.
February 17, 2012 at 12:01 pm
Posted in: Anonymity, Architecture, Civil Rights, Consumer Protection Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Google and Search Engines, Innovation, Media Law, Political Economy, Politics, Privacy, Technology, Web 2.0
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Justice Breyer Robbed at Knifepoint
posted by Gerard Magliocca
The story is here.
February 13, 2012 at 7:27 pm
Posted in: Current Events
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Tempest in Tempe: First Amendment in the Desert
posted by Derek Bambauer
In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):
- It was a technical mistake;
- Change.org was spamming ASU; and
- ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”
#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.
For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.
For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.
This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.
As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…
Cross-posted at Info/Law.
February 10, 2012 at 5:10 pm
Posted in: Architecture, Civil Rights, Constitutional Law, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Politics, Social Network Websites, Technology, Web 2.0
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Symposium Next Week on “A Legal Theory for Autonomous Artificial Agents”
posted by Frank Pasquale
On February 14-16, we will host an online symposium on A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence White. Given the great discussions at our previous symposiums for Tim Wu’s Master Switch and Jonathan Zittrain’s Future of the Internet, I’m sure this one will be a treat. Participants will include Ken Anderson, Ryan Calo, James Grimmelmann, Sonia Katyal, Ian Kerr, Andrea Matwyshyn, Deborah DeMott, Paul Ohm, Ugo Pagallo, Lawrence Solum, Ramesh Subramanian and Harry Surden. Chopra will be reading their posts and responding here, too. I discussed the book with Chopra and Grimmelmann in Brooklyn a few months ago, and I believe the audience found fascinating the many present and future scenarios raised in it. (If you’re interested in Google’s autonomous cars, drones, robots, or even the annoying little Microsoft paperclip guy, you’ll find something intriguing in the book.)
There is an introduction to the book below the fold. (Chapter 2 of the book was published in the Illinois Journal of Law, Technology and Policy, and can be found online at SSRN). We look forward to hosting the discussion!
February 8, 2012 at 10:43 am
Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents
Posted in: Contract Law & Beyond, Criminal Law, Current Events, Cyberlaw, Social Network Websites, Symposium (Autonomous Artificial Agents), Technology, Tort Law
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Same Sex Marriage in Hawaii
posted by Gerard Magliocca
In 1993, the Hawaii Supreme Court held that the state’s ban on same-sex marriage was unconstitutional. In 1996, Hawaii voters approved a constitutional amendment overruling this decision. In 2011, the state created civil unions for same-sex couples. I presume that what Hawaii did in its referendum was invalid under the Ninth Circuit panel’s decision yesterday, since it it indistinguishable from Proposition 8. And Hawaii is in the Ninth Circuit, and therefore covered by the panel opinion. Let the litigation begin.
February 8, 2012 at 8:17 am
Posted in: Constitutional Law, Current Events
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Same-Sex Marriage Opinion
posted by Gerard Magliocca
The Ninth Circuit’s decision invalidating Proposition 8, which overruled the California Supreme Court’s holding that the state could not prohibit same-sex marriage, is here. I am unpersuaded by the majority’s analysis.
My take is that the panel majority really wants to say that any ban on same-sex marriage is unconstitutional. But due to a concern that the Supreme Court will not agree, they came up with a narrower rationale. Because the CA Supreme Court read the State Constitution to say that same-sex couples could marry (and many did), it is unconstitutional to remove that right even if it might be constitutional not to grant the right in the first place.
This line of reasoning, if you take it seriously, is dangerous. First, it basically says that people have a vested right in a State Supreme Court’s interpretation of its constitution. Really? I wonder what the Ninth Circuit would have said if the California Supreme Court had simply reversed itself –is stare decisis now constitutionally mandated in some cases? Second, the only mechanism for people to express their disapproval for a state supreme court opinion that they dislike will be to recall, impeach, or not retain the judges, as was done in Iowa after that state’s same-sex marriage decision. I submit that we are better off with a system where some states use referenda to repeal unpopular decisions (even ones you like) than having all states eject judges when the voters don’t like one of their many decisions. Third, the Court’s analysis would render many state referenda constitutionally suspect (at least those that were done in response to a court decision). Finally, how would this analysis apply to the Federal Constitution? Are “We The People” prohibiting from amending the Constitution to overrule Citizens United because that would take away a First Amendment right from corporations that they are now happily exercising?
Of course, I don’t take the panel’s reasoning seriously. Neither will the en banc Court, I think. Whether they will bite the bullet and just say that a prohibition on same-sex marriage is invalid–pure and simple–is another question.
UPDATE: I hasten to add that President Obama still officially holds the view described by the Ninth Circuit as irrational.
February 7, 2012 at 2:46 pm
Posted in: Constitutional Law, Current Events
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The Front Page, for Whom?
posted by Danielle Citron
Recently, Arianna Huffington, founder of the Huffington Post, announced the debut of its French version and new editor, Anne Sinclair, a journalist and former television anchor who many know as the wife of Dominique Strauss-Kahn. In discussing her role at Le HuffPo, she explained that her husband’s legal troubles and political career would not pose a conflict of interest for her work and that “All important news will be treated normally, as it would be treated elsewhere. Anything that should be on the front page will be on the front page.” What caught my interest wasn’t her assurance about her professionalism. Rather, it was her suggestion that a front page exists for online papers, at least one that is static. In our era of personalization, news sites not only personalize the ads that we see but also news deemed of interest to us — and hence what site visitors see as they open new sites. Lucky for us, guest blogger Joseph Turow can shed light on the varied implications of such personalization — on our culture, politics, privacy, and more.
January 30, 2012 at 11:05 am
Posted in: Culture, Current Events, Technology
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Vassar’s Mistaken Acceptance Letters
posted by Lawrence Cunningham
Six dozen applicants for admission to Vassar College were thrown a boomerang over the weekend, first receiving electronic letters of acceptance only to be followed an hour later by electronic messages of apology saying the first batch were erroneous. At least some of the disappointed hopefuls object that the college is in breach of contract. They say Vassar’s first letter was binding because the deal was described as binding early admissions decision. As a matter of law, this is not a winning argument; but as a matter of public and student relations, the college may wish to do more than send what appear to be mere mass form apologies.
Ordinarily, the school’s letter would not constitute the formation of a contract. Contracts for college matriculation are formed after students first file an application for admission, which has zero contractual significance. The first step in the process with contractual significance is the letter of admission schools send. This would be considered to be an offer of admission. It creates in the student the power to accept, by following stated procedures, such as submitting a deposit by a stated deadline and committing to matriculating.
But offers to form contracts may be revoked at any time until the offeree has accepted or, in limited circumstances when the offeror seeks action in return, begun the requested action in reliance. Accordingly, Vassar’s letters of acceptance had no legal effect unless and until the students accepted, which none of the recipients over the weekend had done. It does not matter that the context involved early admission decisions described as binding. The decisions are binding only once the offer has been made and accepted.
Even if the college’s letters were somehow seen to form a binding contract, another basic contract law doctrine comes into play: mistake. In most cases, excuse from contractual obligation on the basis of mistake is granted only when both parties are mistaken (mutual mistake) and then only when it is evident that some risk existed that the parties did not intend to exchange or allocate. Classic examples are mistakes about the attributes of an animal (such as whether a cow was a breeder or barren) or provenance of a coin or instrument (such as whether a dime was minted in 1916 at Denver or whether a violin was made by Stradivari or not). [I analyzed those in the pending case about a Madoff Ponzi scheme account.]
But there is also a class of cases allowing rescission of a contract based merely on unilateral mistake–mistake by one side only. Excuse based on unilateral mistake requires that the mistake be made honestly not with any whiff of bad faith; involve a clerical matter rather than a matter of judgment; be reported to the other side promptly upon discovery; and not prejudice the other side as a result of its reliance. The case favoring the excuse is strengthened when insisting on enforcement of the contract would result in a windfall to the other party.
All those elements are present in the Vassar case: college officials made an honest computer mistake to which it alerted students within an hour after they had done nothing in reliance. To enforce the letters as contracts would create a windfall–a spot at Vassar that the school’s admissions office had declined to award.
On the other hand, the school’s response to its error seems both glib and insensitive. It sounds as if the school is treating these students as the clinical subjects of the type that appear in the kind of legal analysis I just offered. The school should not forget the human dimension of its error. Perhaps it can could offer something more substantive to these students for its mistake. At minimum, the school should refund any application fee students paid, since the school botched the application process that those fees pay for.
January 29, 2012 at 9:17 am
Posted in: Contract Law & Beyond, Current Events
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The Destruction of AIG Continues
posted by Lawrence Cunningham
Accompanying pictures of 70 Pine Street, Lower Manhattan, were taken today, a busy Friday in downtown New York, with no one in sight but me and a security guard. Home for more than 30 years to AIG, the US-government owned company sold the iconic tower two years ago for a song: the buyer paid $150 million and then resold the building one year later for $200 million. The second buyer closed the office building and is turning it to condos.
Leaving $50 million on the table is an embarrasment, though it may seem a small sum in the context of the $182 billion of funds government poured through AIG to salvage neighboring Wall Street banks such as Goldman Sachs. But over the past three years many crown-jewel AIG assets have been sold for total consideration of $50 billion. The terms of many show a good chance of leaving a proportionate $10 to $15 billion or more on the table, a serious cost by any reference. A quick run down on the sales follows, but first a few notes on this marvelous piece of the New York skyline that AIG, under government control, sold for a song.
Completed in 1932, this was the last of the great jazz-age, pre-War downtown towers. Designed by Clinton & Russell, Holton & George, the building soars 952 feet, making it the seventh tallest U.S. building when AIG bought it. The base is of dark granite and the rest of brick, in tones that lighten as the tower rises, so that it becomes white at the top, like a snowcapped mountain. At the upper floors, every third brick is rounded instead of squared, animating the structure. A granite model of the building flanks the entrance on Pine Street (photo shown upper left).
In its vast two-story marble lobby, a symphony of Art Deco butterflies and sunflowers rendered in colorful aluminum adorn the walls (example at right). 
The building’s original double-decker elevators were the first ever installed in New York City: the upper cabs served even-numbered floors while lower cabs opened onto odd-numbered floors (upper cabs shown left).
The building’s skyline drama is highlighted by massive floodlights from the 55th to the top floor and a 27-foot lantern above a roof deck observatory. To guide planes, on top of the building stood a 97-foot stainless steel beacon with neon lights on top.
AIG acquired the building from Citgo in 1976 after Citgo had just completed a $22 million overhaul and upgrading project. AIG paid $15 million for the place. That was a big New York real estate transaction given the City’s fiscal woes. Mayor Abraham Beame symbolized the significance by hosting the signing at a press conference in his office.
AIG renamed it the American International Building. The timing of AIG’s purchase, if not the event, marked the turning point for the City. Mayor Beame began to reinvigorate New York and his successor, Ed Koch, amplified the effort with the memorable national campaign: “I love New York.” The troubled New York of the 1970s turned into the prosperous New York of the 1980s that has thrived ever since. Real estate investments made in the New York of the 1970s returned enormous value and stand as symbols of American achievement.
Today, it is a different symbol, and perhaps it is fitting that it should be retired as a center of commerce in favor of residential use. Though the government, dutifully followed by media, announced that the billions it funneled through AIG were intended to “save” it, “rescue” it, or “bail it out,” it did nothing of the sort, but destroy AIG and save, rescue and bail out Goldman Sachs and other recipients of the billions. The destruction of AIG, at a significant cost to taxpayers, is symbolized by the clumsy sale of this building at a discount to market value. Among other such sales underscoring both the destruction of AIG and the potential cost to taxpayers of money left on the table:
12/08 Hartford Steam Boiler $742 million (less than a year’s worth of earnings)
2/09 Tokyo office building $1.2 billion (huge tax bill on asset buyers had bid $2 billion for in past decade)
4/09 21st Century $2 billion
6/09 TransAtlantic $1.14 billion (subject of heated takeover battle this past summer with escalating bid)
3/10 ALICO $15.5 billion to Met Life (what a deal for an iconic franchise of a business)
10/10 AIA $25 billion (the crown jewel of AIG and heart of the company’s origins and essence, though in a public offering the price was not terrible)
1/11 Nan Shan $2.16 billion (venerable Taiwan life insurer with powerful position)
That adds to nearly $50 billon of consideration received; the value of the assets transferred is almost certainly not double that but it likely is short at least in the double digit billions, alas.
The old Directory at 70 Pine, about to be banished to the dust bins of history. AIG, RIP.
January 27, 2012 at 6:37 pm
Posted in: Current Events
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The E.U. Data Protection Directive and Robot Chicken
posted by Derek Bambauer
The European Commission released a draft of its revised Data Protection Directive this morning, and Jane Yakowitz has a trenchant critique up at Forbes.com. In addition to the sharp legal analysis, her article has both a Star Wars and Robot Chicken reference, which makes it basically the perfect information law piece…
January 25, 2012 at 4:32 pm
Posted in: Advertising, Architecture, Civil Rights, Consumer Protection Law, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Innovation, Politics, Privacy, Privacy (Consumer Privacy), Social Network Websites, Technology, Web 2.0
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Stanford Law Review Online: The 2011 Basketball Lockout
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by William B. Gould IV entitled The 2011 Basketball Lockout: The Union Lives to Fight Another Day—Just Barely. Gould, a former chairman of the National Labor Relations Board, provides a succinct postmortem on the 2011 lockout:
The backdrop for the 2011 negotiations was the economic weapon once regarded as a dirty word in the lexicon of American labor-management relations—the lockout. This economic weaponry, endorsed by the Supreme Court since 1965, became the flavor of the two prior decades; baseball flirted with it in 1990, basketball in 1995 and 1999. One of hockey’s lockouts even resulted in the cancellation of the entire 2004-05 season. The lockout again was utilized in 2011 by recently peaceable football as well as by basketball. The owners gravitated towards the lockout tactic because in the event of strike (protesting changes in conditions in employment, which proved ineffective), players who crossed the union picket line could play and still sue in antitrust simultaneously. The lockout put more pressure on the players to settle. . . . The union now was represented by David Boies, who had only a few months before represented the NFL and successfully deprived that union of its only effective antitrust remedy—i.e., an injunction against the lockout, which would have required the owners to open the camps in early summer. Thus the basketball union now would not pursue the injunction remedy, notwithstanding the persuasiveness of Judge Bye’s dissenting opinion in the football case. Of course, Boies would have met himself coming around the corner if he argued for it in basketball.
He concludes:
Nonetheless, even though the union was stripped of its most effective antitrust remedy, litigation seems to have moved the parties together. It most certainly called the NBA’s bluff, in that the league’s regressive or inferior option was quickly forgotten. True, the NBA obtained givebacks that are estimated to be worth more than $300 million. Not only did it win on revenue sharing with the players—the players will possess between 49% and 51% as opposed to 57%—but more stringent luxury tax penalties for violators also have been instituted. As National Basketball Players Association Executive Director Billy Hunter said, the latter element constitutes the “harshest element of the new system.” At the same time, guaranteed contracts were preserved, restricted free agents will benefit from the reduction of the so-called “match period” when teams may match competing offers from seven to three days, which may encourage bidding on these players. The cap remains soft in that the so-called incumbent “Bird” players (named for Celtics superstar Larry Bird) may exceed the cap and have more expansive increases and lengths of contracts than other players. A so-called “amnesty” for bad contracts was permitted, in that even though the contracts must be paid, a player on each club may be waived and his salary not counted towards his team’s cap. What appeared to be a rout of the players in November emerged as a reasonable face-saving compromise.
Read the full article, The 2011 Basketball Lockout: The Union Lives to Fight Another Day—Just Barely by William B. Gould IV, at the Stanford Law Review Online.
Note: Updated quotation.
January 25, 2012 at 1:34 pm
Tags: Antitrust, labor law, lockout, NBA, professional sports, strike, unions
Posted in: Antitrust, Current Events, Law Rev (Stanford), Supreme Court
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Cybersecurity Puzzles
posted by Derek Bambauer
Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:
Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.
Conundrum, 96 Minn. L. Rev. 584 (2011).
Cross-posted at Info/Law.
January 24, 2012 at 4:13 pm
Posted in: Anonymity, Architecture, Articles and Books, Current Events, Cyberlaw, Innovation, Intellectual Property, Law Rev (Minnesota), Military Law, Politics, Privacy (National Security), Technology, Web 2.0
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Why Scalia is Right in Jones: Magic Places and One-Way Ratchets
posted by Derek Bambauer
The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »
January 24, 2012 at 12:05 pm
Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology
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Censorship on the March
posted by Derek Bambauer
Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.
Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.
Cross-posted at Info/Law.
January 18, 2012 at 5:31 pm
Posted in: Advertising, Architecture, Civil Procedure, Constitutional Law, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0, Wiki
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SOPA and the Fight for Control of Online Content
posted by Frank Pasquale
I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:
SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.
For other Co-Op commentary, here’s Danielle Citron, Gerard Magliocca, and Derek Bambauer.
January 18, 2012 at 2:10 pm
Posted in: Criminal Law, Current Events, Cyberlaw, Intellectual Property, Technology
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Supporting the Stop Online Piracy Act Protest Day
posted by Danielle Citron
As my co-blogger Gerard notes, today is SOPA protest day. Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live. Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today. There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates. Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online. In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said. So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill. “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so. I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA. I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill. As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship. Cybersecurity is at issue too, and we need to pay attention. Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills. But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.
January 18, 2012 at 10:11 am
Posted in: Architecture, Civil Rights, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Law Talk, Media Law, Social Network Websites, Technology, Web 2.0
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