Archive for the ‘Politics’ Category

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):

1. It was a technical mistake;
2. Change.org was spamming ASU; and
3. 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   Print This Post   No Comments

The Hardest Thing to Predict Is the Future

posted by Derek Bambauer

SOPA and PROTECT IP are dead… for now. (They’ll be back. COICA is like a wraith inhabiting PROTECT IP.) Until then, Michelle Schusterman has a terrific graphic about the movie industry’s predictions of doom with each new technological revolution. (Ditto the music industry: the player piano, radio, CDs, the MP3 player, etc., etc.) One reason for this is that it’s difficult to predict the effects of a new communications technology. People thought we’d use the telephone to listen to concerts from afar. But another reason is that content industries see advances not as an opportunity but as a threat – a threat that they deploy IP law to combat, or at least control. And in a policy space where lawmakers don’t demand actual data on threats before acting, trumped-up assertions of job loss and revenue loss can carry the day. This puts the lie to the theory that IP owners will move to exploit new communications media, if only they are protected against infringement. We didn’t get viable Internet-based music sales until iTunes in 2003, and Spotify is the first serious streaming app (the “celestial jukebox“). Think about prior efforts like Pressplay and MusicNow, and how terrible they were. Letting the content industry design delivery models is like letting Matt Millen draft your football team.

This is why piracy is a helpful pointer: it tells us what channels consumers want to use to access content. Sometimes this is just displacement of lawful consumption, as when college students with copious disposable income download songs via BitTorrent, but sometimes it indicates an unaddressed market niche (as with me and the baseball playoffs). To paraphrase Thomas Jefferson, I think a little bit of infringement now and again is a good thing. It is only when there is a viable threat in a new medium that existing players innovate – or cut deals with those who do. In that regard, even if SOPA and PROTECT IP are effective at reducing infringement, we might not want them.

Cross-posted at Info/Law.

  January 31, 2012 at 6:58 pm   Posted in: Architecture, Culture, Cyberlaw, DRM, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0   Print This Post   2 Comments

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   Print This Post   No Comments

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   Print This Post   No Comments

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   Print This Post   No Comments

The Fight For Internet Censorship

posted by Derek Bambauer

Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

  January 16, 2012 at 7:28 pm   Posted in: Architecture, Civil Procedure, Constitutional Law, Culture, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0   Print This Post   One Comment

The idealization/practice nexus

posted by Biella Coleman

Inspired by Orin Kerr’s question (“is your work focused on the internal narratives and ideologies that people use to describe/justify what they do, or is it focused externally on the actual conduct of what people do?”) below I will give a sense of how I walk the line between what we might call idealism and practice among the geeks and hackers I study.

One of the toughest parts about working with the type of technologists I focus on— intelligent, opinionated, online a lot of the time—is that many will unabashedly dissect my every word, statement, and media appearance. This attribute of my research, unsurprisingly, has been the source of considerable anxiety, only made worse in recent times with Anonymous as I have to make “authoritative” statements about them in the midst studying them, in other words, in the midst of having incomplete information.

All of this is to say I am deliberate and diplomatic when it comes to word choice, framing, and arguments. But most of the time examining practice in light of or up against idealism does not take the somewhat noxious form of “exposing” secrets, the implication being that people are so mystified and deluded that you, the outsider, are there to inform the world of what is really going on (there is a a long standing tradition in the humanities and social sciences, loosely inspired by Karl Marx and especially Pierre Bourdieu, taking this stance, not my favorite strain of analysis unless done really when needed and very well).

Much of what I do is to unearth those dynamics which may not be natively theorized but are certainly in operation. Take for instance the following example at the nexus of law and politics: during fieldwork it was patently clear that many free software hackers were wholly uninterested in politics outside of software freedom and those aligned with open source explicitly disavowed even this narrowly defined political agenda. Many were also repelled by the law (as one developer put it, “writing an algorithm in legalese should be punished with death…. a horrible one, by preference”) and yet weeks into research it was obvious that many developers are nimble legal thinkers, which helps explain how they have built, in a relatively short time period, a robust alternative body of legal theory and laws. One reason for this facility is that the skills, mental dispositions, and forms of reasoning necessary to read and analyze a formal, rule-based system like the law parallel the operations necessary to code software. Both are logic-oriented, internally consistent textual practices that require great attention to detail. Small mistakes in both law and software—a missing comma in a contract or a missing semicolon in code—can jeopardize the integrity of the system and compromise the intention of the author of the text. Both lawyers and programmers develop mental habits for making, reading, and parsing what are primarily utilitarian texts and this makes a lot of free software hackers, who already must pay attention to the law in light of free software licenses, adept legal thinkers, although of course this does not necessarily mean they would make good lawyers.

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  January 15, 2012 at 11:52 am  Tags: Anonymous, Free Software, idealization, practice  Posted in: Philosophy of Social Science, Politics, Web 2.0   Print This Post   4 Comments

Updating Video Privacy or Gutting It?

posted by Danielle Citron

The video rental business is among a few sectors of the U.S. economy with strong federal limits on the collection and sharing of consumer data.   Under the Video Privacy Protection Act, which was passed in 1988, “video tape service providers” generally are not permitted to share a consumer’s video usage information without “the informed, written consent of the consumer given at the time the disclosure is sought.”  VPPA also prohibits companies from retaining personal information beyond the period prompting its initial collection.  Companies like Blockbuster ran afoul of VPPA by sharing its users’ rental information with social network contacts, without their consent, and by retaining personal information, including credit card numbers, of users who canceled their accounts.  In September, Facebook began making it easier for millions of U.S. customers to effortlessly share, via a new timeline, more of their online activities, such as the music they’re enjoying and the articles they’re reading.  Left off the timeline: the details of the movies they’re renting–due to VPPA’s requirement that consumers explicitly consent at the time of disclosure.  Thus began Netflix’s renewed lobbying efforts to amend VPPA, so that Facebook users could automatically share their Netflix rental activity without requiring their rental-by-rental consent.

Those efforts have begun to pay off.  The House recently passed a bill, H.R. 2471, which would amend VPPA to makes clear that “informed, written consent” may be obtained electronically using the Internet.  Such consent must be obtained distinctly and separate from any other legal or financial terms that are presented to consumers.  Representative Goodlatte stated in his remarks on the House floor that the bill maintains an opt-in consent requirement.  H.R. 2471 also addresses what it means that consent must be obtained from a consumer “at the time the disclosure is sought.”  If adopted, the bill would make clear that consumers may provide their consent to information-sharing in advance of a disclosure, so long as such consent may be withdrawn by the consumer.  So a Facebook user’s one-time grant of approval, opt-in style, would permit the automatic sharing of video-rental activity, that is until the user changed his or her mind and opted out.  On one view, the amendment is dismantling the high water mark for consumer privacy protection.  Marc Rotenberg, executive director of the Electronic Privacy Information Center, explained to the New York Times that Congress isn’t “trying to modernize the law,” it is “trying to gut the law.” At stake, he argued, is not the ostensible sharing of a person’s video viewing history, but rather the larger issue of meaningful consent.  On an another, the Center on Democracy and Technology’s Director on the Consumer Privacy Project Justin Brookman sees the amendment’s insistence on separate notice and consent for the opt-in sharing of video information as sufficiently protective of consumer privacy.  He argues that “if people want to tell all their friends every single thing they watch without the bother of clicking “Okay” each time, that should be their prerogative.”  As Brookman explains, although the VPPA amendment doesn’t compromise consumer privacy, CDT “would feel stronger about the bill if it offered some benefit to consumers who don’t plan to take advantage of automatic sharing, such as by clarifying that the law applies to online streaming of movies — something that wasn’t envisioned when the VPPA was passed in 1988. More broadly, there’s a lot more consumer interest in generally improving privacy protections to make sure they understand what data is being collected and used about them, and to give them stronger controls around that data.”  Chris Wolf, co-chair of the Future of Privacy and director of Hogan Lovells’ privacy practice, agrees that if consumers want to share their video choices with others in the way they now can share their music and reading preferences, they should be able to do so.

Rotenberg is spot on in his larger concern about meaningful consent.  I’ve long been a notice skeptic — people tend not to read privacy policies and don’t understand them if they do.  But that’s not to say that notice can’t be done right.  The VPPA isn’t all bad–it demands that sharing permission be given separately from other legal or financial terms.  Ryan Calo‘s important work on the flaws of notice regimes across various areas points to the potential for design to address those concerns.  If notice can be done right, then the notion of privacy as control may not be illusory.  And if CDT has its way in its important work supporting various proposed privacy  laws, consumers may in the future be able to better understand what companies collect about them and have greater controls over collection practices.  Yet what remains is a nagging feeling that notice and choice regimes can’t do it all, that some lines need to be drawn on the kinds of personal data that ought to be collected.  Perhaps the collection cat is already out of the bag, and so we need to remain focused on providing protections related to use and distribution.  I’m looking forward to getting my copy of the Brooking Institute’s volume on Constitution 3.0 co-edited by Jeff Rosen (who had a fabulous interview with NPR’s Terry Gross on the book): Orin Kerr has an interesting chapter on the promise of disclosure restrictions.  But nonetheless minimizing data collection is something that may be of crucial importance, especially in an era when we feel more and more comfortable gauging privacy protections on what people want.  So often, people’s rationality is indeed bounded when it comes to privacy.  They don’t truly understand the long-term implications of their consent — and it might be impossible even for the most sophisticated consumers.

  December 11, 2011 at 8:57 am   Posted in: Politics, Privacy, Privacy (Consumer Privacy)   Print This Post   No Comments

An Important Post on Egypt from Nagla Rizk

posted by Frank Pasquale

At a time of global economic crisis, the renewed centrality of two origin points of modern civilization (Greece and Egypt) is uncanny. Nagla Rizk, a professor and dean at the American University in Cairo, has courageously offered a nuanced and critical perspective on tomorrow’s elections there and the past 10 months of political turmoil. I was privileged to meet Prof. Rizk while at Yale’s Access to Knowledge Global Academy, and I highly recommend following her work and twitter feed. A few insights from her:

When we stormed the streets last January, we chanted “Aish, Horreya, Adala Egtema’eya” (“Bread, Freedom, Social Justice”). . . . Ten months down the road, yesterday we chanted in Tahrir, “Aish, Horreya, Adala Egtema’eya” (“Bread, Freedom, Social Justice”). Why? . . .

Rather than tackling the root of the problem or starting a dialogue with the protesters, [the post-Mubarak SCAF regime] chose to order them to go home. To add insult to injury, SCAF and its government portrayed them as the cause of instability, turning the rest of Egypt against them.

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  November 27, 2011 at 6:58 pm   Posted in: Constitutional Law, Corruption, Political Economy, Politics   Print This Post   No Comments

Our Fractured Age

posted by Michael Zimmer

The disconnect between what seem to the common interests and needs of most of us – now the 99% of us – and how we think about ourselves collectively has fascinated and troubled me for quite some time. Daniel T. Rodgers, Henry Charles Lea Professor of History at Princeton, has recently published a very interesting book entitled, “Age of Fracture,” that explores the intellectual basis for that disconnect. Looking at a broad set of social, economic, philosophical and political intellectual traditions, Rodgers explains how the intellectual underpinnings of our thought processes have shifted from the idea of collective identity to one of individualized freedom, but freedom from reality.  Reviewing the intellectual history of the late twentieth century until now, his analysis crosses the left-right divide to show how all of these different disciplines can by synthesized because they all vector in the same direction, this idealized sense of individual freedom.

Rodgers starts by describing the political rhetoric Presidents have used in their speeches. Presidential speechwriters rely on tropes that resonate because that rhetoric helps bolster Presidential leadership: The better the rhetoric connects to the prevailing mindsets of the people, the more effective the “bully pulpit.” Presidential rhetoric has interested me ever since I read Gary Wills’ Pulitzer Prize winning book, “Lincoln at Gettysburg: The Words That Remade America.” In essence, Wills analyzed President Lincoln’s use of rhetoric to show that it both reflected but helped reify a change in the concept of the nature of our country: Our  concept of American changed from, “The United States are . . .” to, “The United States is.” Rather than going back that far, Rodgers begins with the rhetoric of our Cold War era Presidents – for example, Kennedy’s “Ask not what this country can do for you; ask what you can do for this country” – calling us to gird our loins and stand united to advance our collective national interest in order to better confront the menace we faced by the menace of Communis and the Soviet Union. With the ending of the Cold War, President Reagan’s rhetoric moved away from that sense of collective identity and obligation toward an idealized, almost dream-like, sense of individual “freedom,” including freedom from the actual conditions of our lives as well as our from much sense of collective obligation. That predominant mindset allows us to escape hard choices and to assume a perfected life will be easy to achieve. It is not as if a Reagan’s rhetoric by itself caused the shift. Rather, presidential rhetoric both reflects but also amplifies the ideas that are already settling into our unexamined background mindset.

Having launched this project through the lens of presidential rhetoric, Rodgers then looks at developments across a wide swath of our intellectual life. He starts with economic theory and describes how the earlier macroeconomic Keynesian theory was supplanted – he quotes economist Robert Lucas, “The term ‘macroeconomics’ will simply disappear from use” — by microeconomic theory, the idealized world of individual rational actors motivated solely to maximize their profits. While he shows how disconnected this was from reality, Rodgers fits microeconomic theory within the broader conceptual view of the world of the individualized but unreal “freedom” reflected in President Reagan’s speeches. Rodger’s next chapter moves to politics and political theory. He traces the shift from Galbraith’s earlier view that the overwhelming  economic power of megacorporations gave them extraordinary political power to the microeconomic view that disconnects economic from political power by its focus on individual economic actors focused solely on their own economic agendas. In an interesting take, Rodgers shows how political theory moved toward rational choice analysis with its exclusive focus on the “power-seeking saturated world of politics” means that the problems of our powerless subordinated groups slip “out of the categories of analysis.” In a tour de force, he then describes how the divergent views of Gramsci, Genovese, Geertz and Foucault, nevertheless when taken together, conceptualize power as dispersed extremely broadly in “spheres of culture, ideas, everyday practices [and] science.” In sum, if microeconomic theory is all about individual economic gain disconnected from politics, political gain is all about special interest “rent seeking” divorce from collective needs and power is defined so broadly that it is so diffused as to exists everywhere, Rodgers asks whether power is in fact “nothing at all.” If power is nothing at all for us, that leaves most of us collectively powerless. Read the rest of this post »

  November 8, 2011 at 12:36 am   Posted in: Book Reviews, Civil Rights, Constitutional Law, Political Economy, Politics, Psychology and Behavior, Supreme Court, Uncategorized   Print This Post   4 Comments

Nondisclosure Agreements and Herman Cain

posted by Dave Hoffman

Let’s pretend for a moment that Herman Cain had a legitimate chance of becoming the Republican nominee for President.  Now imagine that he actually engaged in unlawful behavior toward at least one female employee of the National Restaurant Association.  That employee would like to talk about what happened, but she is worried that she’ll breach a 1998 severance and nondisclosure agreement if she talks to the press.

Now, let our imagination run wild. The accuser – angered by Cain’s denials of bad conduct- decides to throw caution to the wind and go public.  Her allegations are salacious & they portray Cain in the worst possible light.  Notwithstanding her claims, Herman Cain actually gets a bump in the polling and becomes the nominee.  During the general election campaign, other women come forward – sparked by the original accuser’s courage.  Nevertheless, given the dominance of deterministic macro-economic factors over political strategy and common sense, Cain wins a tight election to become the next President of the United States.  At that point, emboldened, he decides to sue the woman who released the information about him for breach of contract, on a theory that he was a third-party beneficiary of the nondisclosure agreement.  (Let’s pretend that this is a doctrinal possibility.)

Last year, in a discussion with Larry Cunningham and Dan Solove, I argued that it’s exceedingly unlikely that any state court in the Union would award damages for breach of a nondisclosure agreement under circumstances like these, where (i) the information to be protected relates to sexual misconduct; (ii) the information is of immense value to the public at large; and (iii) it’s basically impossible for the promisee to prove damages with any certainty.  I am still convinced this is true, and that the media too uncritically reports that parties are “bound” by NDAs that would have almost no effect if tested in Court.

This line of thinking makes me doubt that fear of a breach of contract lawsuit is playing any role at all in the refusal of Cain’s accuser to come forward.  Rather, as her lawyer said today, she is afraid of the reputational damage that disclosure would bring, even if she’s entirely in the right.

  November 3, 2011 at 11:32 pm   Posted in: Contract Law & Beyond, Politics   Print This Post   10 Comments

The Moral Authority of Occupy Wall Street

posted by Frank Pasquale

The Occupy Wall Street protests continue to grow, and to gain support from public intellectuals. Joe Stiglitz, Anne Marie Slaughter, and Paul Krugman are the latest luminaries to praise the cause. The movement has also provoked derision. Let’s consider the latest Norquist/Limbaugh memes as the protest nears the one-month mark:

1) “They’re just spoiled hippies who can’t get a job.” A quick glance at the “We are the 99%” tumblr could easily dispel this notion. The economic suffering in this country is deep and broad. As one news story put it, “one in three Americans would be unable to make their mortgage or rent payment beyond one month if they lost their job.” Even if the most down-and-out people are too poor or busy to get to Wall Street (or the hundreds of other actions now taking place), many of them think of the OWS crowd as speaking for them.

There is so much needless suffering going on now, and so much wealth accumulating at the very top. It is hard to understand how critics dismiss the protesters so cavalierly. I used to find the Biblical passage about God hardening Pharaoh’s heart one of the more mysterious parts of the Book of Exodus; now I feel like I’m witnessing it firsthand.
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  October 8, 2011 at 11:13 am   Posted in: Corruption, Current Events, Financial Institutions, Law and Inequality, Political Economy, Politics, Sociology of Law   Print This Post   23 Comments

The Dictator’s Handbook

posted by Gerard Magliocca

I just finished a fantastic new book co-authored by my former professor, Bruce Bueno de Mesquita. The Dictator’s Handbook:  Why Bad Behavior is Almost Always Good Politics provides many counterintuitive arguments about why leaders in autocracies and democracies behave in the way that they do and how we can improve public policy at home and abroad.  It’s well worth your time.

  October 3, 2011 at 6:09 pm   Posted in: Politics   Print This Post   2 Comments

The Filibuster, Executive Power, and the President’s Power to Adjourn Congress

posted by Josh Chafetz

It is no secret that the use of the filibuster has grown substantially in recent years.  (I documented the growth at pp. 1008-11 of this article.)  In the new issue of CQ Weekly, Ben Weyl notes yet another expansion of the filibuster:  Senate Republicans are currently filibustering Richard Cordray’s nomination to head the Consumer Financial Protection Bureau (CFPB), not because they have any particular objection to him, but simply because they want changes in the underlying law (Dodd-Frank).  As Weyl’s article relates, Sen. Sherrod Brown noted at a Senate Banking Committee hearing that the Senate historian could not remember another instance of this occurring.

One major effect of the filibuster is to expand presidential power, as I argue at pp. 41-47 of my new article draft.  In the case of substantive legislation, this means that more gets done via regulation than legislation — consider the number of EPA regulations dealing with global warming (nicely documented by Jonathan Adler in this article (link is to a PDF)) — after the Senate filibustered the cap-and-trade bill that passed the House in 2009.  Likewise in the nominations arena: A President whose nominee had been voted down would find it politically nearly impossible to recess appoint that person.  Additionally, federal law forbids the government to pay the salary of someone who is serving in a position after the Senate has voted not to confirm her for that position.  But a President whose nominee has been filibustered presents a very different situation.  The President can argue that he is not disregarding the will of the Senate; rather, minority obstructionism has left the Senate unable to express its will.  This, for example, is what the President did in recess appointing Donald Berwick to head the Center for Medicare and Medicaid Services, and it is what he originally did in appointing Elizabeth Warren as a Special Assistant to the President and to the Secretary of the Treasury with the responsibility of setting up the CFPB, rather than nominating her to actually run the CFPB.  Indeed, when it was still thought that the President might nominate Warren to actually run the CFPB, Katrina vanden Heuvel, writing in the Post, urged the President to use a recess appointment, noting that “[p]urblind Republican obstruction liberates the president to do the right thing.”  A masthead editorial in the Times took almost exactly the same tack.

Ah, but some will say, the House of Representatives can prevent the President from making recess appointments.  Here’s how:  Article I, sec. 5, cl. 4 of the Constitution provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”  Since the consensus (including among executive branch lawyers) is that, at the very least, a recess must be longer than three days to allow the President to make a recess appointment, the House can prevent recess appointments simply by refusing to agree to any Senate request to adjourn.

Not so fast.  Article II, sec. 3 provides that “in Case of Disagreement between them [the houses of Congress], with Respect to the Time of Adjournment, he [the President] may adjourn them to such Time as he shall think proper.”  So, in other words, if the House and Senate can’t agree on adjournment, the President can adjourn them both. (The limit on complete executive abuse of power here is the requirement in both Article I and in the 20th Amendment that Congress must assemble at least once per year, so the President cannot adjourn them for longer than that.)  Creating a disagreement between the houses would be easy for the Senate majority — a motion to adjourn is privileged and non-debatable, which means that it cannot be filibustered and must be voted upon immediately.  So, the Senate majority, by bare majority, could vote to adjourn for more than three days.  The House could either (a) concur, which would allow the President to make a recess appointment, or (b) refuse to concur, in which case the President could adjourn the houses for more than three days, and then make a recess appointment.

Now, no President has ever exercised his power to adjourn the houses, largely because there has never really been cause to do so.  But if the Senate minority continues to be indiscriminately obstructionist, pressure will continue to grow for recess appointments, and the President will have a strong rhetorical case that 40 Senators should not be able to prevent important posts from being filled.  If the House then chooses to obstruct the Senate’s ability to recess, it does not seem a stretch that the President, in consultation with the Senate majority leadership, would begin exploring the route described above.

Once again, the filibuster pushes the President to expand executive power.  Growing use of the filibuster encourages growing use of recess appointments.  A different but related form of obstructionism — the House refusing to let the Senate adjourn — could lead to the President’s unprecedented exercise of his power to adjourn.  And the houses of Congress continue to shoot themselves in the foot by making injudicious use of their constitutional powers.

(A final note: I do not have any objection per se to the Senate’s use of the appointments power as a tool to get what it wants in other substantive areas.  Indeed, I would applaud this more vigorous use of its constitutional power, just as I applaud the House for making vigorous use of its power of the purse in inter-branch conflicts.  But a Senate up-or-down vote is categorically different from a filibuster.  Senate rejection of a nominee would not “liberate” (to use vanden Heuvel’s word) the President to act unilaterally.)

  September 15, 2011 at 9:27 am   Posted in: Constitutional Law, Politics   Print This Post   4 Comments

Two Crises, One Response

posted by Frank Pasquale

The US faced two great crises during the first decade of the 21st century: the attacks of September, 2001, and the meltdown of its financial system in September, 2008. In the case of 9/11, the country reluctantly concluded that it had made a category mistake about the threat posed by terrorism. The US had relied on cooperation among the Federal Aviation Administration, local law enforcement, and airlines to prevent hijacking. Assuming that, at most, a hijacked or bombed airplane would kill the passengers aboard the plane, government officials believed that national, local, and private authorities had adequate incentives to invest in an optimal level of deterrence. Until the attack occurred, no high official had deeply considered and acted on the possibility that an airplane itself could be weaponized, leading to the deaths of thousands of civilians.

After the attack, a new Department of Homeland Security took the lead in protecting the American people from internal threats, while existing intelligence agencies refocused their operations to better monitor internal threats to domestic order. The government massively upgraded its surveillance capabilities in the search for terrorists. DHS collaborated with local law enforcement officials and private critical infrastructure providers. Federal agencies, including the Department of Homeland Security, gather information in conjunction with state and local law enforcement officials in what Congress has deemed the “Information Sharing Environment” (ISE), held together by information “fusion centers” and other hubs. My co-blogger Danielle Citron and I wrote about some of the consequences in an article that recently appeared in the Hastings Law Journal:

In a speech at the Washington National Cathedral three days after 9/11, then-President George W. Bush proclaimed that America’s “responsibility to history is already clear[:] . . . [to] rid the world of evil.” For the next seven years, the Bush administration tried many innovations to keep that promise, ranging from preemptive war in Iraq to . . . changes in law enforcement and domestic intelligence . . . Fusion centers are a lasting legacy of the Administration’s aspiration to “eradicate evil,” a great leap forward in both technical capacity and institutional coordination. Their goal is to eliminate both the cancer of terror and lesser diseases of the body politic.

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  September 12, 2011 at 2:59 pm   Posted in: Current Events, Cyberlaw, Philosophy of Social Science, Politics, Privacy, Privacy (Law Enforcement), Privacy (National Security), Sociology of Law   Print This Post   9 Comments

Congress’s Constitution

posted by Josh Chafetz

Congress reconvenes today after its August recess and (after slamming the door in Black Rod’s President Obama’s face), it has a fair amount on its plate.  And as we’re likely to continue to see significant clashes between the House of Representatives and the White House, I thought this might be a good time to say a little bit about a forthcoming article of mine, Congress’s Constitution, 160 U. Pa. L. Rev. (forthcoming Feb. 2012).  The piece, in essence, argues that Congress has a lot more tools at its disposal in inter-branch conflicts than we are accustomed to thinking.  When thinking about congressional power, we tend to focus on legislation.  But passing legislation always requires bicameralism (which is quite a high inertial barrier on its own) and almost always requires presidential concurrence (which makes it a difficult mechanism to use in checking the executive).

My article, instead, focuses on powers available to individual houses and individual members of Congress.  Borrowing terminology from the international relations literature (and from Joseph Nye, in particular), I divide these powers into “hard” and “soft” varieties.  Hard powers include things like the power of the purse and the contempt power; soft powers include the Speech or Debate Clause privilege, the power of each house to discipline its own members, and the power of each house to determine its own cameral rules.  Ultimately, the distribution of power in the federal government at any given time will be determined more by constitutional politics and the gaining of public trust than it will by application of hard-and-fast, law-like rules, making congressional soft power hugely important.  The soft powers are those that enable the houses of Congress to compete for the public trust and to contest the positions staked out by the other branches in especially vigorous ways.

These powers themselves are not novel.  Historically, each of them has been used in ways that enhance congressional power and in ways that diminish it.  Examples discussed in the article range from the 1689 Mutiny Act to the 2001 Patriot Act, from the Pentagon Papers to WikiLeaks, and from the contempt of Congress citation against Harriet Miers to the threatened use of the filibuster to sink Elizabeth Warren and Donald Berwick.

I’m especially interested to get reactions to the piece for a number of reasons.  Most immediately, I still have time to make edits before it is published.  Somewhat more distantly, I’m hoping to expand the piece into a book.  And finally, I think some of the issues the piece discusses are good ways to test our intuitions about the constitutional separation of powers as opposed to our intuitions about how particular Congresses use their power or to what extent particular Presidents ought to be checked.  That is to say, do people really want more checks on the imperial presidency — in which case, for example, they should offer at least one cheer for the way that the current House leadership acted in the run-up to the near governmment shutdown this April (discussed at pp. 16-17 of the draft) — or did they simply want more checks on the Bush Administration?

In any event, I hope you enjoy the piece, and I’m curious to hear what you all think.

  September 6, 2011 at 9:17 am   Posted in: Constitutional Law, Politics   Print This Post   4 Comments

Hot Summer Flashes, Black Urban Mobs

posted by Olivier Sylvain

  September 5, 2011 at 11:52 pm   Posted in: Constitutional Law, Culture, Current Events, First Amendment, Media Law, Philosophy of Social Science, Politics, Race, Social Network Websites, Sociology of Law, Technology, Web 2.0   Print This Post   8 Comments

Revolt of the Elites

posted by Frank Pasquale

Bernard Harcourt has analyzed new forms of radicalism adopted by the most and least privileged. Umair Haque at the Harvard Business Review has also identified dispositions shared by street looters and certain elites. As the chief political commentator at London’s Daily Telegraph has observed, “The moral decay of our society is as bad at the top as the bottom.” Yet there are very different consequences for each group’s transgressions.

The more disruptive the disenfranchised become, the more they provoke harsh responses from authorities, thus worsening their already marginal position. By contrast, finance and government elites have positioned themselves to gain from whatever risks they shift onto society at large, via bailouts, emergency powers, and the revolving door. As Ross Douthat observed, “The economic crisis is producing consolidation rather than revolution, the entrenchment of authority rather than its diffusion, and the concentration of power in the hands of the same elite that presided over the disasters in the first place.”
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  September 4, 2011 at 10:04 am   Posted in: Financial Institutions, First Amendment, Law and Inequality, Politics, Privacy, Privacy (Law Enforcement), Privacy (National Security)   Print This Post   46 Comments

The State Opening of Congress?

posted by Josh Chafetz

At the beginning of each new session of the Westminster Parliament, there is an event known as the State Opening of Parliament. Her Majesty proceeds from Buckingham Palace to Westminster, changes into her imperial regalia, and ascends the throne in the House of Lords. At this point, the Gentleman Usher of the Black Rod (the House of Lords’s equivalent to the House of Commons’s sergeant-at-arms) is sent to summon the Commons to attend upon Her Majesty and to hear the Queen’s Speech (which is, of course, written in its entirety by the Cabinet). When Black Rod arrives at the Commons’s chamber, the door is slammed in his face. He then knocks three times with his staff of office, at which point the door is opened and the Commons follow Black Rod to the Lords to hear the speech. You can see video of the whole thing here. The point, of course, is to symbolize the Commons’s independence from both Crown and Lords.

For some reason, recent events in the United States have put me in mind of this practice .

  September 1, 2011 at 10:44 am   Posted in: Constitutional Law, Politics   Print This Post   One Comment

Shared Sacrifice of Whom?

posted by Frank Pasquale

As Drew Westen observes today, “400 people control more of the wealth than 150 million of their fellow Americans,” and “the average middle-class family has seen its income stagnate over the last 30 years while the richest 1 percent has seen its income rise astronomically.” These extremes cry out for a theodicy, justifying mammon’s ways to man. As wealth gets more concentrated, here is one of the millions of “faces of austerity” whom policymakers must answer to:

Cynde Soto dreads the arrival of yet another benefit notice. Her cash assistance has been cut four times in two years. State medical coverage is getting more expensive and no longer includes dental care or podiatry. And the in-home help she needs to take care of basics has been cut by about 20 minutes a day.

“That doesn’t sound like a lot to people but … I’m a quadriplegic,” said the 54-year-old Long Beach resident. “I can’t even scratch my own nose.”

When TV talking heads prate about “shared sacrifice,” they might want to pause to consider stories like Soto’s. They should also reveal where a particular multimillionaire will invest gains from, say, the continuation of the Bush tax cuts, or the zeroed out estate tax of 2010. How much gold does the rotting teeth of the poor buy? Are volunteer dentists effectively subsidizing summer houses? Executive protection dogs? Private jets to summer camp?

These trade-offs become more compelling as data renders the narrative of “trickle down job creation” implausible. The most recent “recovery” saw 88% of gains go to corporate profits, and about 1% go to wages. Workers are caught in a downward spiral: unemployment reduces their bargaining power, which in turn lets bosses pile more duties onto fewer people, who effectively increase unemployment more by doing the work or 1.5 or 2 or 3 workers for the price of 1. Many women face the brunt of the transition: “When companies decide to lay off secretaries and assistants while making employees pick up the slack, women take the hit.” Every margin has to be worked to keep CEOs’ pay averaging hundreds of times that of their typical workers.
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  August 7, 2011 at 7:23 pm   Posted in: Economic Analysis of Law, Politics, Uncategorized   Print This Post   42 Comments

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