Why President Bush Might Not Want to Pardon His Administration: An International Angle

I have been dismissive of the idea that President Bush will pardon administration officials (and maybe himself, contrary to my post here) involved in the policy surrounding the mistreatment of detainees in the current conflict. I had filed this concern in the same place as the preposterous notion that President Bush would cancel the election in November, or the inauguration on January 20.

After listening to Professor Phillipe Sands on NPR's Fresh Air this afternoon, though, I am starting to think that the President might need to think more seriously about the pardons. Sands made a case for investigations, both by the Obama Administration and international authorities. I am not qualified to weigh in here with my opinion on the relative merits of Sands's argument, but listening to him, it did strike me that prosecutions--especially international ones--are more of a possibility than I had previously thought.

Somewhat counterintuitively, though, I think that the increased possibility of prosecution should make it less likely that President Bush will pardon Dick Cheney, David Addington, John Yoo, or himself. It seems to me that international human-rights activists will be in a much more punitive mood than the Obama administration will be. However, it would be much easier for Bush officials to stiff-arm international efforts if the possibility of some sort of domestic process--which could have more legitimacy and would avoid sovereignty concerns--remained open. But pardons would close that possibility. The international activists would be able to say that there is no alternative left for them but to proceed in international tribunals.

If President Bush does not expect any prosecutions at all, or expects them only domestically, then there is no issue. But if his pursuers will be both foreign and domestic, it would make sense for him to try to keep his home court advantage, so to speak.

Another permutation--impeachment of Bush Administration officials after they have left office--looms as well. If President Bush pardons people, or if the Obama Administration is disinclined to take up the case, I have argued (here) that Congress can still step in and take some action. Such action would, admittedly, be limited, but it would be much more than nothing, and it too could slow down international proceedings somewhat. (I'll post more on "late impeachment" in the next few days.)

Again, I'm not saying that President Bush should pardon anyone, or that anyone is guilty. I just think that pardons could weaken his position, in a way that I didn't realize a few hours ago.

Posted by Brian_Kalt at 01:17 PM | Comments (1) | TrackBack

Privacy Expectations: Being Seen vs. Being Recorded

An interesting case from the Wisconsin Court of Appeals embodies what I believe is a thoughtful and nuanced understanding of privacy. The case is Wisconsin v. Jahnke, 2007AP2130-CR (Dec. 30, 2008).

The case is a criminal prosecution of a man who secretly recorded his girlfriend in the nude, in violation of Wisconsin Statute § 942.09(2)(am). I've posted the text of the full statute below. The statute provides that it is a felony to record another person in the nude without that person's consent "in a circumstance in which [the person] has a reasonable expectation of privacy." The defendant contended that his girlfriend didn't have a reasonable expectation of privacy because (as the court characterizes his argument), "she knowingly and consensually exposed her nude body to him while he was secretly videotaping her." In other words, he argued that since she expected to be seen by him, she lost her expectation of privacy in her nude body.

The court wisely rejected the defendant's construction of the statute:

Under this construction, Jahnke’s girlfriend’s privacy interest in not being recorded in the nude is left unprotected any time she permits anyone, under any circumstance, to view her nude. If she disrobes in a medical facility and permits medical personnel to view her, such personnel could record her without violating subsection 1 and, of course, later share that recording without violating subsections 2 or 3. It is one thing to be viewed in the nude by a person at some point in time, but quite another to be recorded in the nude so that a recording exists that can be saved or distributed and viewed at a later time.

The dissent raises some interesting arguments involving statutory construction and some prior caselaw. In particular, the dissenting judge points to an earlier decision defining the term "reasonable expectation of privacy" under the statute, holding that it "requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances." State v. Nelson, 718 N.W.2d 168 (Wisc. App. 2006). The majority concluded that the Nelson definition was "incomplete" and that the "statute is plainly directed at reasonable expectations vis-à-vis not being recorded."

The majority opinion wisely avoids a trap that many courts get into -- understanding "privacy" narrowly as absolute secrecy or seclusion. Privacy involves a cluster of expectations involving the nature and extent to which their information is captured, used, and disseminated. It seems quite reasonable to assume that two lovers who see each other nude nevertheless expect privacy. They might be exposing their nude bodies to each other, but what they expect is that nobody else will see them. Since this is a criminal statute, it is important that courts avoid interpreting privacy too liberally, especially in areas where expectations of privacy are muddy. But it seems to me that under this circumstance--the nonconsensual recording of a person in the nude when she is exposing her body only to her boyfriend (rather than walking down a public street in the nude)--expectations are clear that the intended exposure is for the boyfriend's eyes only.

The opinion is here.

WISCONSIN STAT. § 942.09(2)(am) provides:

Whoever does any of the following is guilty of a Class I felony:

1. Captures a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the representation.

2. Makes a reproduction of a representation that the person knows or has reason to know was captured in violation of subd. 1. and that depicts the nudity depicted in the representation captured in violation of subd. 1., if the person depicted nude in the reproduction did not consent to the making of the reproduction.

3. Possesses, distributes, or exhibits a representation that was captured in violation of subd. 1. or a reproduction made in violation of subd. 2., if the person knows or has reason to know that the representation was captured in violation of subd. 1. or the reproduction was made in violation of subd. 2., and if the person who is depicted nude in the representation or reproduction did not consent to the possession, distribution, or exhibition.

Hat tip: How Appealing

Posted by Daniel Solove at 08:01 PM | Comments (2) | TrackBack

When No Dog Poop is an Island

I've twice heard co-blogger Dan Solove talk about the Korean "dog poop girl," a woman hounded by internet shamers when she refused to clean up after her dog on a Seoul subway. The first time I heard the story I just found it funny, but at a conference earlier this year the tone of the audience was different. I felt bad about laughing at some internet satires of the woman that Dan had put on powerpoint slides. Part of it may have been the theme of the conference (legal responses to cyberharassment), but perhaps a larger cultural turning point is in the works.

Surveillance has now advanced to the point that a city in Israel is starting "dog poop DNA banks," enabling enforcers to (potentially) identify the source of any offending rubbish:

[V]eterinarian Tika Bar-On . . . says she hopes to make DNA banking mandatory for all dog owners. At that point, instead of a practice of positive reinforcement, she imagines a system involving sidewalk poop patrols and penalties for nonscoopers. For Bar-On, this is about more than waste elimination: “We can use this DNA database for important things like genetic research on dog diseases,” she says. “We could also use DNA to identify strays and return them to their parents.” But until then, she’s focusing on feces because, as she says, “when you go to the park with your kids and they meet dog poop, it’s not very pleasant.”

My guess is that most Americans would resist the central planning implicit in this solution. But if the alternative to statism is vigilantism, it may start looking more attractive. Like trademark in the commercial realm, DNA here may be the best way to identify source in an orderly way.

Posted by Frank_Pasquale at 02:10 PM | Comments (2) | TrackBack

Just Turn Off Your Phone!

T’is the season and all of that, so I’ll begin by noting that last year my husband gave my mother a hands-free cell phone kit. I thought the gift was motivated by a concern about her tendency to talk on the phone when she’s making the 90 minute trip to and from our house, but maybe the gift was more nefarious than I realized. Last week’s Economist is reporting on a study that shows even hands-free phones can dangerously impair driving skills:

Melina Kunar of the University of Warwick, in England, and Todd Horowitz of the Harvard Medical School ran a series of experiments in which two groups of volunteers had to pay attention and respond to a series of moving tasks on a computer screen that were reckoned equivalent in difficulty to driving. One group was left undistracted while the other had to engage in a conversation about their hobbies and interests using a speakerphone . . . . Those who were making the equivalent of a hands-free call had an average reaction time 212 milliseconds slower than those who were not. That, they calculate, would add 5.7 metres (18 feet) to the braking distance of a car travelling at 100kph (62mph). The researchers also found that the group using the hands-free kit made 83% more errors in their tasks than those who were not talking.

To try to understand more about why this was, they tried two further tests. In one, members of a group were asked simply to repeat words spoken by the caller. In the other, they had to think of a word that began with the last letter of the word they had just heard. Those only repeating words performed the same as those with no distraction, but those with the more complicated task showed even worse reaction times—an average of 480 milliseconds extra delay. This, the researchers suggest, shows that when people have to consider the information they hear carefully, as they might when making decisions about a business deal, it can impair their driving ability significantly.

Different studies have suggested that two other driving past-times—chatting with passengers and listening to the radio—do not have the same negative effects on driving. Researchers speculate that talking on the phone competes for the brain’s resources in ways that these other activities do not.

All of this raises some interesting legal questions. As The Economist points out, rules prohibiting the use of hands-free cell phones would be extremely difficult to enforce, in part because an increasing number of vehicles come equipped with such devices. (I suppose that this complicating factor could be addressed by regulation, at least prospectively.)

But the truly vexing legal problem is the extent to which using a hands-free phone and driving have become socially acceptable. Even use of a hands-on cell phone while driving in a jurisdiction that prohibits such behavior may be what Professor Mark Edwards would label within the parameters of acceptable deviance.

To wit, I read the Economist piece about a week ago and have been waiting to find a spare moment to post about it. The other day I was driving and mentally sketching out what I wanted to write. In the middle of my machinations, I used my (hands-on) cell phone to call work and check my messages. I had no particular reason to think that I had a message and, in any event, no-one has ever left a truly urgent message on my work phone. The use of a hands-on phone may or may not have been legal in the state I was driving though; I had no idea and didn’t particularly care. And, no, the irony of the call was not lost on me.

The most important question going forward is how to make driving and using a cell phone feel more like getting behind the wheel after having a few drinks than like speeding on an open highway. We’ve managed to achieve similar change before, with drunk driving, smoking, and other negative behaviors. It’s not an impossible task, but it’s certainly not easy.

Posted by Sarah_Waldeck at 03:30 PM | Comments (2) | TrackBack

Fraud, Everywhere

Recent investor pressure to liquidate investments has exposed fraud of massive proportions. On Thursday, federal investigators arrested trader and hedge fund manager Bernard L. Madoff, a former chairman of the Nasdaq Stock Market, for allegedly defrauding investors of $50 billion. According to the accompanying civil complaint filed by the SEC in federal district court, Madoff ran Bernard Madoff Investment Securities (BMIS), a broker dealer and investment firm, where he also maintained a lucrative investment adviser business. Madoff apparently kept that business on a separate floor of the firm under "lock and key" from BMIS employees. There, Madoff managed money for hight net-worth individuals, hedge funds, and other institutions, a business whose steady returns had long provoked skepticism from traders. Early this month, investors sought $7 billion in redemptions from the business. Unable to pay these returns, Madoff allegedly confessed to two senior employees (his sons, according to the Wall Street Journal's sources) that his investment advisory business was a fraud. Madoff allegedly admitted: "it's all just one big lie," a "giant Ponzi scheme" that for years had paid returns to investors out of the principal received from other investors and had nothing left. Madoff apparently told those employees that the business had been insolvent for years and the fraud was worth billions.

This recalls 1987, the "Den of Thieves" period of insider trading, risky takeover stocks, and manipulations of the junk-bond market. As Time reported that year, maintaining integrity was a "difficult challenge in the deregulated, hurly-burly Wall Street of the 1980s, where traders have been tempted to use insider tips to maintain their competitive edge." Now, as then, fraud has blossomed in the face of loose regulatory controls and oversight as well as a lack of transparency in a complex financial market. One might suppose that our current task is to figure out how to strike the balance between tougher regulation and a productive and unencumbered market. But there are no doubt other important questions, and hopefully our insightful corporate/law and economics gurus Dave, Frank, Lawrence, and Nate will help us explore them.

Posted by Danielle_Citron at 09:44 AM | Comments (4) | TrackBack

Mr. Simpson's Nine Years

My colleague Orin Kerr, in response to my earlier post about O.J. Simpson's sentencing, asks if I agree with the perception that I attributed to “some blacks” that an exceptionally harsh sentence yesterday would have been an affront to the principle of the rule of law (because it actually would have been punishing Mr. Simpson for a different crime -one he was acquitted of, to the chagrin of many white people).

I think the judge’s nine year sentence is tough, but defensible. Nine years is prison is a hella long time, as most western industrialized nations understand a lot better than the U.S. does. The judge repeatedly stated that she was not punishing Mr. Simpson for any criminal act other than the one of which the jury convicted him. If the judge had sentenced Mr. Simpson to a significantly longer term, and not provided those assurances, the concerns my first post identified would have been justified.

The judge’s reasonably fair decision in this case strengthens the argument against strict sentencing guidelines, and in support of giving judges the discretion, and latitude, to actually decide individual cases. Here’s to letting judges be judges.

Posted by Paul_Butler at 08:31 AM | Comments (13) | TrackBack

O.J. Simpson Sentencing

O.J. Simpson gets sentenced today for the bone headed act of leading a group of men, at least one of whom had a gun, into a hotel room to steal some memorabilia that, at some point, had belonged to him. His sentencing exposure ranges from six years to life imprisonment. Here’s hoping the judge does not throw the book at him.

Simpson has been, for many African-Americans, a complicated symbol of the rule of law. Charged with a brutal crime of violence against a white woman and man, Simpson had a trial. Not so long ago in the United States of America, he might have been lynched, just on the accusation. Then, despite some evidence that he committed the crime, the jury acquitted him, largely because of an inept prosecution that relied too much on the testimony of a lying, racist police officer. Some of the jurors believed that Simpson was “probably” guilty, but correctly understood that “probably” does not reach the “beyond reasonable doubt” threshold required for a criminal conviction.

You know the rest. Black glee, white fury, racial divide yadda yadda yadda. There was a sense among many African Americans that we won something, not “won” in the euphoric-still-can-make-me-cry-when-I-think-about-it sense of the Obama “verdict” (which, for the record, most white voters also did not support), but won in an angrier, uglier, more visceral way. Not only didn’t O.J. get lynched for a notorious crime against a white woman, he actually got away with it, based on the law. “Rules are rules,” the expression goes. “All we want,” Martin Luther King said, “is what you put on paper.”

It was never about Simpson, thank God, because the one thing the races can agree on is that he is an idiot. He didn’t have the grace to retire to Florida and live the quiet life of a symbol-of-the- rule-of-law. He messed up, again. Still, in the realm of what criminals do, Simpson’s act was medium bad, not a minor offense, but far from a horrific one. If he is punished too much, it will feel to some African-Americans like the night riders, better late than never, came for him after all.

Posted by Paul_Butler at 09:21 AM | Comments (22) | TrackBack

The Booming Cybercrime Economy

As ars technica reports, the underground cybercrime economy is flourishing. A recent whitepaper released by security company Symantec documents the vast market involved in the sale and trading of stolen credit cards, bank account credentials, email accounts, software, and other data that can be exploited for profit. The report estimates that, for the period covering July 2007 to June 2008, the total value of advertised stolen goods added up to $276 million. The most advertised, requested, and expensive product was credit card information, probably because it is difficult for merchants to identify fraudulent transactions before an online sale is completed. Bank account data stood as the next most popular product, likely due to the fact that balances of accounts can be transferred online to untraceable locations within minutes. "Attack tools" are also prominent goods for sale--services that steal information through denial-of-service attacks, engage in spamming and phishing campaigns, and generate botnets. (Most of the stolen information is obtained and distributed through these services).

Protecting sensitive information from this underground market, however, is often difficult. Consumers and organizations can follow welll-known (but imperfect) strategies to protect themselves. They can use antivirus, firewall, and antiphishing software. Because computer users are themselves a large part of the problem, technology alone cannot reduce the theft of sensitive information. Individuals need to be educated about phishing, which lures people into giving up personal or corporate information. An estimated 3.6 million Americans fell victim to phishing last year, leading to losses of more than $3.2 billion. As computer scientist Lorrie Faith Cranor recently explained in Scientific American, the number of phishing victims can be reduced by constantly improving phishing detection software and updating computer users about new types of phishing attacks. At the end of the day, however, phishers and their criminal cohorts are constantly evolving their tactics to stay a step ahead of technologies that combat their efforts and improving their ability to evade law enforcement. Time, of course, will tell if this underground market grows even more robust in the months to come.

Posted by Danielle_Citron at 02:00 PM | Comments (0) | TrackBack

Simulated Disorder in the Netherlands

While the broken windows theory of crime control has much intuitive appeal, empirical support has always been a bit thin. Now researchers in the Netherlands have conducted a series of experiments which seem to confirm the core hypothesis that visible signs of low-level disorder increase the likelihood that people will violate behavioral norms. The experiments showed that disorder not only increased the possibility that individuals would engage in mildly anti-social behavior (like littering), but also more serious criminal behavior. As described by the Economist:

The most dramatic result . . . was the one that showed a doubling in the number of people who were prepared to steal in a condition of disorder. In this case an envelope with a €5 ($6) note inside (and the note clearly visible through the address window) was left sticking out of a post box. In a condition of order, 13% of those passing took the envelope (instead of leaving it or pushing it into the box). But if the post box was covered in graffiti, 27% did. Even if the post box had no graffiti on it, but the area around it was littered with paper, orange peel, cigarette butts and empty cans, 25% still took the envelope.

My own reaction to these experiments is mixed. On one hand, of course, it is satisfying to have empirical data that tends to confirm a hypothesis that has helped shape policing over the course of the last 25 years. But other empirical work tends to disprove the broken windows theory, most notably an analysis of crime data in New York City over a ten-year period, as well as results from the Moving to Opportunity experiment, in which individuals from areas with high levels of social disorder moved to more advantaged and orderly communities.

A quick survey of the blogosphere suggests that the headline for the Netherlands experiment is “Broken Windows Works!” or some similar variant. A survey of all the empirical evidence, however, suggests that the story is not nearly that tidy. Moreover, as I’ve previously written on this site, many unanswered questions remain, such as whether constraining disorder is the best use of limited police resources, or how the police choose their targets in a public order campaign, or whether addressing disorder can ever mean more than moving it to a less visible place.

Posted by Sarah_Waldeck at 01:55 PM | Comments (0) | TrackBack

An Important Resource for Combating Online Fraud: State Attorneys General

The Center for Democracy and Technology and the Center for American Progress have published a report entitled Online Consumers at Risk and the Role of State Attorneys General. According to the Report, the FTC received over 200,000 Internet-related fraud complaints this year, up from 16,000 in 2006 and 24,000 in 2005. And such numbers may be under-inclusive as consumers often do not know when they are victimized by malware.

The Report argues that state attorneys general need to devote more resources to combating online fraud as state consumer protection laws often offer greater protection to consumers than federal laws. To date, state action against online fraudsters has been limited—for example, in the past three years, state attorney generals have brought only 11 cases against spyware distributors, the same number as the Federal Trade Commission. The Report offers a number of strategies to assist a state attorney general's office, such as additional training of investigators and prosecutors on how to identify online fraud and abuse, enhanced computer forensic capabilities to trace and catch Internet fraudsters, and expanded partnerships with commercial and public-interest coalitions to fight online fraud. More aggressive action by a state attorney general's office would combat the notion that online fraud is an easy and cost-free way to make serious money.

Posted by Danielle_Citron at 06:05 PM | Comments (2) | TrackBack

Let the Punishment Fit the Harm

As a recent BBC documentary has suggested, the banking crisis involved incompetence, fraud, or some toxic mix of both. The criminal law is often concerned with the distinction between evil, mental illness, and stupidity, and perhaps those mens rea issues should inform investigations into entities like ratings agencies or investment banks. Yet given the degeneration of corporate ethics, scrutiny of these managers' states of mind might prove as fruitless as it would be endless. The main threat these people now pose is their ongoing undue influence on our political system--for their nonstop cultivation of Congress and the White House has turned out to be the wisest investment they ever made. And the lobbying continues, as intensively as ever.

Nobelist Joseph Stiglitz recognizes the extraordinary injustice of recent events:

Too many bankers and other lenders have been focused on trying to beat the system by getting around accounting and banking regulations (through what is called accounting and regulatory arbitrage). Indeed, with bonuses based on short-term profits, they had every incentive to gamble and connive. And now that there’s a bust, no one is being asked to pay back the hefty bonuses earned during the boom.* On the contrary, even as they are dismissed, those who helped send their firms and the American economy into a tailspin are rewarded with generous severance packages. They are enriched regardless of what happens to investors, homeowners, and others who lost so much. Unless we reform incentives, the financial sector will only try to circumvent whatever new regulations are put in place.

Having made so many others financially insecure, those who grabbed while the getting was good are relatively even better positioned to fund campaigns and the 527s now scurrying to stop a Democratic supermajority. One wonders, for instance, why the British plan to prop up their banking sector demanded a 12% rate of return for taxpayers and influence over the use of funds while the US plan only generally demands 5% and offers government little more than moral suasion over how the funds are allocated.

(And that moral suasion isn't working too well--Morgan Stanley appears to be set to give out even more bonuses, and it's by no means clear that a big proportion of the US bailout won't be squandered on massive executive compensation, dividends, and mergers.)

One hope here is that as fraud cases accumulate, some sort of settlement will be reached to help stop the pattern of socialized risk and privatized gain. Just as Fannie and Freddie were forbidden to lobby, Wall Streeters' ongoing efforts to skew the bailout in their favor should lead to scrutiny of their political spending. Given the crisis, outright bans on their political spending might be considered, First Amendment considerations notwithstanding--as Judge Posner never fails to remind us, the constitution is not a suicide pact. Corrective justice also suggests we spend less time waving the threat of prison at those investigated, and more on crafting settlements that recover for the public purse some portion of the billions of dollars of bonuses this fraudulent paper generated. If we fail to do that, Madeleine Bunting's indictment of the system will only ring more true:

Those who will pay the heaviest price for the foolhardiness of deregulated financial capitalism are among those who are least responsible, as Brazil's President Lula angrily pointed out last week. The shockwaves of the west's banking crisis will shipwreck more vulnerable countries. In developing countries, people don't have the resources - welfare provision, savings, insurance - to tide them over a crisis. Instead, they go hungry, homeless - and they die.

Those who made fortunes creating this mess deserve to pay for cleaning it up. And before such an idea is dismissed as hopelessly complex to implement, perhaps we should consider re-assigning the IRS agents now charged with scrutinizing, Inspector Javert style, some EITC recipients' hundreds of dollars of fraud, to the investigation of the real basis of Wall Street's hundreds of millions of dollars of wealth.

*After Stiglitz's piece went to press, NYAG Andrew Cuomo started investigating AIG, in an action that could be a model here.

Posted by Frank_Pasquale at 09:58 PM | Comments (8) | TrackBack

COINTELPRO in a Digital World

In a move reminiscent of the FBI's infiltration of political advocacy groups in the 1960s and early 1970s, the Maryland State Police engaged in covert surveillance of groups opposed to the Iraq war and capital punishment. According to a report recently released by former Maryland Attorney General Steven Sachs, Maryland troopers secretly attended meetings of anti-death penalty and anti-war activists in 2005 and 2006. At one meeting, a small group of activists met at a church to call a death-row inmate for whom they provided emotional support. This activity, and others like it, prompted the Maryland State Police to include group members in state and federal criminal intelligence databases. Unfortunately for the activists, the state database, known as Case Explorer, had a limited drop-down screen for entering names, all of which ensured that the users of the system would categorize individuals as terrorists.

News of the covert surveillance and the individuals' inclusion in these databases as terrorists came to light this summer when the Maryland State Police responded to a public records request pursued by the ACLU. Maryland Governor Martin O'Malley commissioned former AG Steven Sachs to investigate the matter. Sachs's report explains that the Maryland State Police commanders never bothered to ask if the groups posed a reasonable threat to public safety before commencing covert surveillance of them. On the contrary, the groups were determined not to violate the law. According to the New York Times, Maryland State Police are now tracking down 53 "innocent individuals to let them know they were entered as suspected terrorists" in the state and federal databases for their involvement in peaceful protest. In legislative hearings in Annapolis, Maryland this week, former Maryland State Police superintendent insisted that the program was a legitimate surveillance of "fringe people" who wanted to "disrupt the government."

To be sure, the surveillance itself raises serious concerns about chilling protected political expressive activity. But it also demonstrates the profound power of automated systems, whose design forces important decisions to be made about individuals. By requiring police to categorize individuals as some form of "terrorist," the systems' design effectuated an important decision about those individuals, one that could have serious impact on their reputation and lives if that information were released. The digitization of such designations has a lasting, generative power, far beyond the FBI files of the COINTELPRO era that could not be shared with the ease of today's networked computer systems.

Posted by Danielle_Citron at 03:00 PM | Comments (1) | TrackBack

Criminal Responsibility for Inflammatory Rhetoric?

Many thanks to Dave Hoffman for inviting me to guest blog, and please accept my apologies, folks, for being so slow with my first post. As one of my colleagues would say, I’ve had squirrel brain for the past week.

The MSM talking heads have been chattering a great deal this week about the McCain Campaign’s go-for-broke strategy of depicting Senator Obama as the BFF of terrorists and anti-American extremists. GOP rally goers have been receptive to these tactics, responding with cries of “terrorist!” and “treason!” and “kill him!” at this week’s McCain-Palin pep rallies.

The stated endgame seems on the up-and-up: Senator McCain says that he is skeptical of Obama’s ability to tell the truth and that Obama is not being forthright about his affiliations with slithy toves like William Ayers and Jeremiah Wright. Governor Palin says that she questions his judgment because of these relationships. A candidate’s propensity for truthfulness and judgment ought to be fair game in a political war.

But that’s not what has the media (and me) atwitter.

I’m more interested in the unstated goals of this strategy. In particular, I’m curious about the campaign’s desire to paint Obama not only as a tractor beam of evil, but also as the embodiment of evil. A couple of McCain’s surrogates have even invoked Obama’s middle name in what can only be an attempt to portray Obama as a terrorist himself. Sure, negative portrayals of the other party’s candidates are standard fare when it comes to election season hijinks, but this particular round of character assassination has a discordant sound to it – like the soundtrack for “There Will Be Blood.” The McCain camp seems to be peddling fear, hate, and outrage to an audience that appears highly susceptible to this message.

What if, after drinking the Kool-Aid of campaign rhetoric, a rabid supporter sought to perpetrate harm on another candidate? Should the fear-mongering candidate (or a campaign strategist or surrogate) bear any responsibility for the bad acts of a fanatical groupie?

Under the Model Penal Code, one can be liable as an accomplice for another’s bad acts if the prohibited result was her conscious object. This standard might be hard to satisfy in my imagined scenario, but some criminal statutes are broader and could allow liability to attach based on one’s knowledge that, to a practical certainty, one’s conduct will assist in bringing about the prohibited result. Because knowledge is a less culpable mental state than purpose, however, courts might require something in addition to the knowledge – something like a stake in the venture. Would an election victory suffice as a stake? On the other hand, if the accused knows that, as a result of her conduct, the prohibited result is practically certain to occur, the serious nature of the intended crime should, arguably, be enough. No extra something should be required.

Hopefully, no persons or other animals will be harmed in the making of the next President. But, by creating an atmosphere that fosters violent and dangerous sentiments, the McCain campaign has increased the risk of injury to its opponents. For this reason, might McCain and Palin have more than an ethical responsibility to address and defuse these attitudes? Could they have a legal duty to engage in some straight talk with their supporters – to dial back the inflammatory rhetoric and to denounce publically these sentiments?

Posted by Susan_Kuo at 04:30 PM | Comments (13) | TrackBack

Necessity and Emotion

A recent article in Newsweek reads like it was pulled straight from a Criminal Law lecture on the necessity doctrine:

Would you drive your boat faster to save the lives of five drowning people knowing that a person in your boat will fall off and drown? Would you fail to give a drug to a terminally ill patient knowing that he will die without it but his organs could be used to save three other patients? Would you suffocate your screaming baby if it would prevent enemy soldiers from finding and killing you both, along with the eight others hiding out with you?

Harvard psychologists are collecting answers to questions like these on the Moral Sense Test, which you can take on-line at moral.wjh.harvard.com. The answers are consistent with what one would expect from 1Ls:

[M]ost people say that it is acceptable to speed up the boat, but iffy to omit care to the patient. Although many people initially respond that it is unthinkable to suffocate the baby, they later often say that it is permissible in that situation.

Why these patterns? Cases 1 and 3 require actions, case 2 the omission of an action. All three cases result in a clear win in terms of lives saved: five, three and nine over one death. In cases 1 and 2, one person is made worse off, whereas in case 3, the baby dies no matter what choice is made. In case 1, the harm to the one arises as a side effect. The goal is to save five, not drop off and drown the one. In case 2, the goal is to end the life of the patient, as he is the means to saving three others.

The interesting part is what psychology is teaching us about why we tend to have similar reactions to the questions posed in the Moral Sense Test:

What is remarkable is that people with different backgrounds, including atheists and those of faith, respond in the same way. Moreover, when asked why they make their decisions, most people are clueless, but confident in their choices. . . . Surprisingly, our emotions do not appear to have much effect on our judgments about right and wrong in these moral dilemmas. A study of individuals with damage to an area of the brain that links decision-making and emotion found that when faced with a series of moral dilemmas, these patients generally made the same moral judgments as most people. This suggests that emotions are not necessary for such judgments.

The Newsweek article also discusses new studies of psychopaths that shed light on the role that emotion has on their actions. At least one conclusion is relevant for formulations of the insanity defense:

New, preliminary studies suggest that clinically diagnosed psychopaths do recognize right from wrong, as evidenced by their responses to moral dilemmas. What is different is their behavior. While all of us can become angry and have violent thoughts, our emotions typically restrain our violent tendencies. In contrast, psychopaths are free of such emotional restraints. They act violently even though they know it is wrong because they are without remorse, guilt or shame.

Posted by Sarah_Waldeck at 01:15 PM | Comments (5) | TrackBack

cyber crime newsletter

The National Center for Justice and the Rule of Law (at the University of Mississippi) jointly publishes with the National Association of Attorneys General a newsletter on cybercrime. Its FREE. The newsletters describe current developments, legislative action, corporate initiatives, and court cases, and contain informative articles. Its published six times a year and sent by email attachment. You can read the current and past issues at www.olemiss.edu/depts/ncjrl/CyberCrimeInitiative/cci_newsletter.html, which also gives you information on how to receive it. Here's what is in a typical issue:

HIGHLIGHTS FROM JULY - AUGUST 2008 CYBER CRIME NEWSLETTER

An introduction to Virtual Worlds and Second Life
Social networking sites immune under CDA
Expectation of privacy in computer on military base
Fourth Amendment and use of GPS devices
Does sending hyperlink to child pornography constitute distribution?
School discipline for derogatory blog v. First Amendment
Search incident to arrest - delayed search of cell phone
California, Missouri enact cyber harassment laws

The NCJRL website www.ncjrl.org also contains information regarding upcoming conferences and events, educational programs, and publications that examine important criminal law and procedure issues.

Posted by Thomas_Clancy at 09:08 AM | Comments (0) | TrackBack

What Comes Around Goes Around

Today's New York Times reports that a 68-year-old broker stole over $600,000 from elderly clients and then lost most of his loot in an Internet fraud scheme. The broker received an email from someone claiming to represent his distant relative who had died and left him over eight million dollars. The broker took the bait and wired overseas more than $400,000, apparently believing that the money would aid in the release of the inheritance.

Despite the significant publicity devoted to exposing such scams, consumers continue to fall prey to email fraudsters in significant numbers. Reports suggest that 29% of Internet users have been deceived by spam emails. According to the Sydney Morning Herald, Australians lost $36 million dollars last year to fraudsters claiming affiliations with Nigeria. An intriguing new scam involves fraudsters who set up fake profiles on dating sites, stringing along targets for months before agreeing to meet and then asking for money to help pay for a plane ticket. Some, like the Nigerian High Commission, suggest that the deceived are as guilty as those who ask for money and thus should be subject to arrest as well. That sentiment may not convince many, but in the case of the New York broker who stole his clients' life savings, the email scam is truly just deserts.

Posted by Danielle_Citron at 09:21 PM | Comments (4) | TrackBack

Soothsayer Law

According to the WashPo, St. Johnsbury, Vermont has decided to make the plunge and legalize soothsaying. It turns out that a number of jurisdictions still have anti-fortunetelling statutes on the books. Contemporary Pennsylvania law, for example states:

A person is guilty of a misdemeanor of the third degree if he pretends for gain or lucre, to tell fortunes or predict future events, by cards, tokens, the inspection of the head or hands of any person, or by the age of anyone, or by consulting the movements of the heavenly bodies, or in any other manner, or for gain or lucre, pretends to effect any purpose by spells, charms, necromancy, or incantation, or advises the taking or administering of what are commonly called love powders or potions, or prepares the same to be taken or administered, or publishes by card, circular, sign, newspaper or other means that he can predict future events, or for gain or lucre, pretends to enable anyone to get or to recover stolen property, or to tell where lost property is, or to stop bad luck, or to give good luck, or to put bad luck on a person or animal, or to stop or injure the business or health of a person or shorten his life, or to give success in business, enterprise, speculation, and games of chance, or to win the affection of a person, or to make one person marry another, or to induce a person to make or alter a will, or to tell where money or other property is hidden, or to tell where to dig for treasure, or to make a person to dispose of property in favor of another. (18 Pa.C.S.A. § 7104 )

The law apparently dates back to an 1861 state statute. A quick Westlaw search reveals reported cases dealing with anti-fortunetelling statues in California, Illinois, Maryland, New York, Washington, and other states.

Witchcraft and cursing, of course, were crimes at common law on the straight-forward theory that they were a method of harming others that ought to be suppressed. One may dispute the metaphysics behind this crime, but as a normative matter it seems simple enough. One might even object to love potions as a kind of officious intermeddling. The suppression of fortunetelling -- along with other forms of beneficent magic like peering in stones to find lost treasure -- however, rests on a more subtle calculation, some of it less than pretty.

From the reported cases that I glanced through, it seems that in the early twentieth century these laws were used mainly against Gypsies or immigrants of Eastern or Southern European extraction, suggesting a definite ethic bias at work. In the nineteenth century, the concern was with home grown American conjuring. Folk magic, of course, was an important part of life among the rural poor in the 19th century. Village rodsman and glass peepers would hire themselves out to find water, lost objects, or buried treasure. To local elites, of course, this stuff was the vilest -- and most embarrassing -- superstition, which had to be suppressed. In some cases the argument was fraud, although often the customers of local magicians were not the one's pressing charges. The real impetus was the suppression of superstition.

There is also a religious element here. I found a 1927 Pennsylvania case holding that faith healing and trafficking in biblical predictions did not come under the statutory definition of "fortune telling." In the early 19th century, however, there was little -- if any -- distinction among the rural poor between "magic" and "religion," Indeed, the category of magic was in large part the creation of (Protestant) anthropologists in the late 19th century who wished to distinguish respectable "religion" from mere "superstition."

So is there a case to be made for the prohibition of fortune telling in the modern world? One can certainly imagine cases of fraud, but it is also not unreasonable to simply impose a rule of caveat emptor on those that purchase magical services and leave it at that. There are also, it seems to me, potential first amendment concerns. I am not free speech expert, but it seems to me that the suppression of fortune telling necessarily involves a content-based speech restriction. Of course, this is commercial speech, but in at least some cases it is bound to be truthful, and even predictions that turn out to be mistaken need not be fraudulent. It is difficult to cast a horoscope properly and sometimes astrologers make innocent mistakes. There is also the free exercise claim. If fortune telling can be characterized as religion, then it seems to me that there is a very strong free exercise argument here. This is not a neutral or generally applicable law. The Pennsylvania, statute, for instance is aimed directly at fortune telling itself.

Needless to say, I await the cert petition.

(Image source: Wikicommons)

Posted by oman at 05:42 PM | Comments (4) | TrackBack

Raising the Bar

My colleague David Feige has turned his book Indefensible into a new TV series on TNT called Raising the Bar. If you want TV drama about a public defender, this is a show for you. I really enjoyed a screening of the first episode. Here's the lowdown from the YouTube page:

[RTB is] new legal drama from Emmy® winning producer Steven Bochco. The gripping series stars Mark-Paul Gosselaar (NYPD Blue), Gloria Reuben (ER) and Jane Kaczmarek (Malcolm in the Middle) and follows the lives of young lawyers who work on opposite sides -- the public defender's office and the district attorney's office -- as well as those who sit in judgment on their cases. The series, which was created by Bochco and lawyer/writer David Feige, is set to premiere Monday, Sept. 1, at 10/9c

Here's an interview with Bochco. The show even allows viewers to "brush up on their legal lingo" via its website. One reviewer says that "if the potential displayed in the trailers is fulfilled . . . .Raising the Bar . . . may become this century’s equivalent of The Defenders," a classic 60s show the reviewer calls "[n]etwork television’s first (and greatest) legal drama." Here's a bit on The Defenders:

Reginald Rose’s The Defenders co-starred E.G. Marshall and Robert Reed as a father-and-son legal team, the Prestons. . . .[They] specialized in impossible cases, and their clients were usually people society deemed dispensable (at best) or utterly worthless. The show aired on CBS from 1961-1965, and tackled such topics as abortion, civil rights, capital punishment, black listing, political corruption, union busting and assisted suicide. The Defenders was far ahead of its time. The father/son duo frequently lost cases, even those where they actually presented the superior legal argument. Secondly, there was never any attempt to portray life as rosy or upbeat.

That noir sensibility pervades Feige's Indefensible. I'm looking forward to the show.

Posted by Frank_Pasquale at 10:30 AM | Comments (3) | TrackBack

Are You Disposed Toward Corruption?

A reader passes along an interesting white collar crime story. In the latest development of an (apparently) long-running federal investigation,

Scott Salyer, president and chief executive officer of SK Foods, Monterey, Calif., a food processor and the parent company of Salyer American Fresh Foods Inc., is accused of allegedly encouraging New Jersey-based broker Randall Rahal to offer bribes to its customers’ buyers over a four-year period.

Federal Bureau of Investigation special agent Paul Artley filed an affidavit Aug. 14 in U.S. District Court in Sacramento, Calif., supporting the government’s April 16 seizure of nearly $600,000 held in the name of Rahal’s company, Intramark USA Inc., from two of his accounts in the Vineland, N.J. branch of Sun National Bank. The document alleges he used the accounts to bribe buyers from a number of food companies.

I tracked down that affidavit. A highlight, from my perspective, comes in paragraph 23:

"Witness #1 stated RAHAL told Witness #1 and others that he identifies the customers that he can get to take bribes by dropping a $100 bill and picking it up and saying, 'You must have dropped this, is it yours?; If the individual says 'yes,' RAHAL knows that they are open to a 'business offer.' Witness #1 understood 'business offer' to mean bribe."

There are other juicy bits, as this storynotes, including this one:

In one phone conversation between Salyer and Rahal, the broker tells the SK chief a buyer is "gonna need a retirement program. So, it's a perfect fit for me."

Salyer asks, "How fast are you going to reel in that fish?"

Rahal, referring to a dinner meeting he has set up with the buyer, says, "Probably by the time the coffee comes."

An enthusiastic Salyer replies, "I want that sucker on speed reel."

Apart from the local color, the story is interesting because it goes to the heart of the situationalist v. dispositionalist explanation of criminality so often discussed over at The Situationalist. Were the folks who accepted Rahal's bribes disposed toward corruption, or did his temptation make them act in ways they never otherwise would have? It's a question that bears on our attributional assumptions and the ways we punish. For what it's worth, I suspect that Rahal's test is one that many, many of us would fail.

(Image Source: Wikicommons)

Posted by hoffman at 06:11 PM | Comments (1) | TrackBack

The Steady Decline of Security via Obscurity

Two recent stories illustrate the web's disruptive potential. Farhad Manjoo of Slate covers the recent uptick in lockpicking fan sites, and Jeffrey R. Young of the Chron describes a new test clearinghouse. Both raise tough questions about what happens when "security via obscurity" starts breaking down.

In the case of the lockpickers (or "locksporters." as they might like to be called), Manjoo points out some interesting parallels to "computer-security debates:"

An entrenched community that's used to working in secret suddenly sees its entire business upended by the secrecy-busting ways of the Internet. It's a fate suffered by voting machine firms, software companies, and ATM manufacturers. Now it's happening to locksmiths and lockmakers, too. . . .

Recreational lock pickers meet regularly in community centers around the country, challenging each other to break new locks as casually as others nearby work to break the Queen's Gambit. On Web culture blogs, fans of locksport enjoy a place besides cryptography enthusiasts and DRM hackers as practitioners of a morally defensible, geeky dark art.

The upside of the new locksporting craze is that security flaws in locks are more quickly detected. The predictable downside is the more rapid obsolescence of many locks, and one more worry for home, car, and bikeowners--has my lock been picked publicly on YouTube?

The owner of the test clearinghouse claims that his site is mainly designed to level the playing field in test prep:

Demir A. Oral, a Web designer living in San Diego, said he started his online test collection, PostYourTest.com, because he felt that such materials were already available to some students but not others. "I know that fraternities and a lot of organizations have test banks, and I just didn't think that was fair that some students got access to these things and some didn't," he said. . . .

Are students authorized to publish exams created by their professors? That depends, said Peter A. Jaszi, a law professor at American University. "It's very situational — the analysis is going to be different from test to test," he said. For instance, at some colleges, it is not clear whether professors hold the copyright to their course materials or whether their employers do. He said that in his own courses he assumes that students do have the right to share exams he hands back — and so he constantly changes his questions.

I've thought a bit about copyrighting test questions, and criticized ETS's doomed attempts to maintain "security via obscurity" for its LSAT, SAT, and other tests. My sense is that all this does is increase the advantage of those who pay for test prep, which is often offered by companies who can send "spies" in to memorize all the questions at a given administration. As I argued a few years ago,

Given the futility of “leveling down” by banning or crippling test prep programs, why not go the opposite direction, by putting both their materials–and all previous test questions–into the public domain? This “leveling up via laissez-faire” promises to add some fairness to a competitive process too often skewed by wealth and connections. This may seem like an extreme step, but the high stakes of test results may mandate nothing less than universal access and disclosure.

This proposal, like the locksports and test bank websites, will be controversial; there are some instances where security via obscurity can work. But where it's repeatedly failed, other solutions have to be tried. And if that makes you feel sick. . . .well, you can always get a fake doctor's note for work [warning--link is annoyingly loud!].

Posted by Frank_Pasquale at 12:10 PM | Comments (4) | TrackBack

Against Criminalization of Sexual Behavior

The first salvo against criminalization has been fired at the XVII International AIDS Conference in Mexico City. In this week's issue of JAMA, Edwin Cameron and I have called for the international community to take a clear stand against criminalization. Cameron, an openly gay and openly HIV+ South African judge, has been called by no less than Nelson Mandela "one of South Africa's new heroies." We argue that criminal law cannot draw reasonable, enforceable lines between criminal and non-criminal behavior, nor protect individuals or society from HIV transmission. In the protection of women, it is a poor substitute for policies that go to the roots of subordination and gender-based violence. The use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so.

The paper is available on the JAMA website, but not for free. A longer version, written with human rights lawyer Michaela Clayton, is availalable on SSRN.

Posted by Scott_Burris at 09:31 PM | Comments (0) | TrackBack

Criminalizing Risky Sexual Behavior: Some More Evidence

The cornerstone of the argument against treating unprotected sex as a crime is that the frame is simply inapposite. Yes, it’s logical; one can easily fit sexual behavior with an HIV risk into the same syllogisms as brawling with a knife, but as I’m sure old OWH would say at just this point, the sex life of law has not been logic but experience. At the same time, the argument that criminal law just doesn’t fit is hard to frame, or prove, empirically. In this post, I thought I would briefly summarize the empirical evidence on two narrower points: that criminalization of risky sexual behavior does not protect public health, and may hurt it.

On the first point, there is one study (by this blogger and colleagues) that attempts to directly test the impact of criminal law on the attitudes and sexual behavior of people at risk of HIV in the US. From the abstract:

In this empirical study, 490 people at elevated risk of HIV were interviewed, 248 in Chicago and 242 in New York City. … Indicators of the law were 1) residence in the state, and 2) belief that it is a crime for a person with HIV to have sex with another person without disclosing his or her serostatus. Using stepwise logistic regression, we examined independent predictors of unprotected sex, adjusting for factors including age, race/ethnicity, disclosure, biological sex at birth, sexual orientation and number of partners.
People who lived in a state with a criminal law explicitly regulating sexual behavior of the HIV-infected were little different in their self-reported sexual behavior from people in a state without such a law. People who believed the law required the infected to practice safer sex or disclose their status reported being just as risky in their sexual behavior as those who did not. Our data do not support the proposition that passing a law prohibiting unsafe sex or requiring disclosure of infection influences people’s normative beliefs about risky sex. Most people in our study believed that it was wrong to expose others to the virus and right to disclose infection to their sexual partners. These convictions were not influenced by the respondents’ beliefs about the law or whether they lived in a state with such a law or not. Because law was not significantly influencing sexual behavior, our results also undermine the claim that such laws drive people with and or at risk of HIV away from health services and interventions.
We failed to refute the null hypothesis that criminal law has no influence on sexual risk behavior. Criminal law is not a clearly useful intervention for promoting disclosure by HIV+ people to their sex partners…

Studies have compiled prosecution data for the US and Europe. These studies are useful in assessing the possibility that criminalization could reduce HIV infection by incapacitation. The answer is no. While there have been hundreds or even thousands of prosecutions reported around the world, the number is far too small in relation to the number of HIV cases to plausibly effect population rates of transmission.

The logical arguments for the second point – that criminalization is bad for public health -- are hard to fault: criminal laws create a good reason not to know one’s status if one wishes to continue having unsafe sex; they may lull uninfected people into assuming that a positive partner will disclose or insist upon condom use; they create a hostile environment that makes people afraid to be identified as HIV-positive; they promote stigma by portraying people with HIV as an evil Other. The evidence that criminalization does harm has been slow to develop, but recently some useful studies have been conducted in the UK. Both come from a team in the UK that seems to be the only research group in the world interested in this significant and enduring policy question. One, which finds that criminal prosecutions may create a false sense of security that HIV positive partners will disclose, was mentioned in an earlier post. This is from an earlier study, Dodds C, Keogh P. Criminal prosecutions for HIV transmission: people living with HIV respond. Int J STD AIDS. 2006;17:315-318.

This paper presents an analysis of responses to the first criminal convictions for HIV transmission in England and Wales within a sample of people living with HIV. … The responses were collected during 20 focused group discussions with a community and web-recruited sample of heterosexual African men and women, and gay and bisexual men (n = 125) living with diagnosed HIV in London, Manchester and Brighton. The vast majority (90%) of comments made were critical of the implementation and impact of criminalization. In particular, respondents expressed concern about the way in which criminal convictions conflict with messages about shared responsibility for 'safer sex', and the extent to which such cases will exacerbate existing stigma and discrimination related to HIV. Most felt that the successes achieved by human rights approaches to HIV prevention, treatment, and care were placed under threat by the growing culture of blame encouraged by criminal prosecutions.

Stay tuned here for up-to-the-minute (well, semi-daily) coverage of criminalization at the Mexico City AIDS conference.

Posted by Scott_Burris at 05:20 PM | Comments (1) | TrackBack

Talking to the Police

Officer Officer George Bruch of the Virginia Beach Police Department gives this very engaging lecture to law students about how police officers interview suspects. He has interrogated over 1000 suspects, and he discusses how easy it is to get a confession. The techniques he uses are quite clever. The basic message is that it rarely, if ever, helps a defendant to talk to the police.

Please note that Parts I, II, and IIII below are labeled parts 4, 5, and 6 on YouTube, as Officer Bruch was part of a panel.

Part I

Part II

Part III is below the fold.

Part III

Hat tip: BoingBoing

Posted by Daniel Solove at 06:43 PM | Comments (1) | TrackBack

Criminalization Evidence

Catherine Dodds, who has been doing research on the psychosocial impact of HIV prosecutions in the UK on people with and at risk of infection, sent these comments:

We are finding that some men with a positive diagnosis are less likely to disclose their HIV status (socially or sexually) for fear that they will be made vulnerable to a real or false accusation of transmission (this is from ongoing research with homosexually active men who have unprotected intercourse).

Men who are negative or untested for HIV are likely to prop up their expectations of HIV status disclosure from sexual partners with criminalisation discourses (this is from the Gay Men's Sex Survey data from 2006 - being written up now as a report, and also published recently -- Dodds et al. Homosexually active men's views on criminal prosecutions for HIV transmission are related to HIV prevention need. AIDS Care: Psychological and Socio-medical Aspects of AIDS/HIV, Volume 20, Issue 5, 2008, Pages 509- 514 .

These two outcomes are at odds with each other and with public health goals.

Posted by Scott_Burris at 09:08 AM | Comments (0) | TrackBack

More Comments on HIV Criminalization

The video posted by Kaimi is pretty funny, but it makes the point negatively as well as positively. The negotiation is extensive, involving everything from sexual positions to meeting the parents, but there is still no mention of STDs or protection.

Matthew Weait, who has written brilliantly on the subject, ma