One train may hide another

Readers interested in criminal procedure, or constitutional law, or law and sexuality, or just a good read with some fascinating historical details, might enjoy David Sklansky’s “One Train May Hide Another”: Katz, Stonewall, and the Secret Subtext of Criminal Procedure. Without rejecting the commonplace claim that the development of constitutional criminal procedure was a matter of racial justice, driven largely by the civil rights movement and efforts to end mistreatment of black defendants, Sklansky suggests that this area of law was also shaped by concerns about “the long, sordid history of the policing of sexuality”--and the policing of homosexuality in particular. Of particular interest, given Larry Craig’s arrest last year, is the discussion of spying in public toilet stalls. Apparently, this practice was a standard police tactic used to detect homosexual conduct and arrest those who engaged in it. Katz v. United States focuses on the public phone booth, but the “secret subtext” may have been a concern about privacy in the public toilet stall.

And, one train may hide another. For me, the appeal of this article is not just the substantive argument, but an introduction to Kenneth Koch’s poem from which Sklansky takes the title phrase. Koch was traveling in Kenya and saw a sign at a railroad crossing: “One train may hide another.” The line inspired him, and here's how his poem of that title begins:

In a poem, one line may hide another line,

As at a crossing, one train may hide another train.

That is, if you are waiting to cross

The tracks, wait to do it for one moment at

Least after the first train is gone. And so when you read

Wait until you have read the next line--

Then it is safe to go on reading.

In a family one sister may conceal another,

So, when you are courting, it's best to have them all in view

Otherwise in coming to find one you may love another.

The whole poem is here. And thanks to Melissa Murray, who recommended Sklansky’s article to me.

Posted by Alice Ristroph at 06:09 PM | Comments (1) | TrackBack

Do People Have a Reasonable Expectation of Privacy in Abandoned DNA?

A recent NY Times article discusses how the police are increasingly collecting DNA samples from suspects -- not with warrants or probable cause -- they are gathering it surreptitiously from the abandoned DNA that people leave behind:

The two Sacramento sheriff detectives tailed their suspect, Rolando Gallego, at a distance. They did not have a court order to compel him to give a DNA sample, but their assignment was to get one anyway — without his knowledge.

Recently, the sheriff’s cold case unit had extracted a DNA profile from blood on a towel found 15 years earlier at the scene of the murder of Mr. Gallego’s aunt. If his DNA matched, they believed they would finally be able to close the case.

On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed.

The practice, known among law enforcement officials as "surreptitious sampling," is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Mr. Gallego’s trial on murder charges, scheduled for next month, is the latest of several in which the defense argues that the police circumvented the Fourth Amendment protection against unreasonable search and seizure.

Critics argue that by covertly collecting DNA contained in the minute amounts of saliva, sweat and skin that everyone sheds in the course of daily life, police officers are exploiting an unforeseen loophole in the requirement to show “probable cause” that a suspect has committed a crime before conducting a search. . . .

"Police can take a DNA sample from anyone, anytime, for any reason without raising oversight by any court," said Elizabeth E. Joh, a law professor at University of California, Davis, who studies the intersection of genetics and privacy law. "I don’t think a lot of people understand that."

Under existing Fourth Amendment law, if you abandon something or expose it to others, then you no longer have a reasonable expectation of privacy. So if you leave trash on the curb for collection, the police can rifle through it without a warrant or probable cause. See California v. Greenwood, 486 U.S. 35 (1988).

DNA is sensitive information in many people's books, but it is also very hard to keep contained. We leave traces of DNA everywhere we go -- in hair and skin we shed, in saliva, etc. It is quite easy for law enforcement officials to obtain our DNA.

DNA is one illustration of where the current Fourth Amendment regime doesn't work very well with information privacy. It works well with papers and things -- we can hide papers away in our homes or in bags, and we can have protection in our homes. But information in today's Information Age often is hard to contain. It is hard to tuck away. The result is that our personal information is increasingly in places where the police no longer need warrants and probable cause.

Posted by Daniel J. Solove at 10:46 AM | Comments (7) | TrackBack

Defending Oneself

Tomorrow, the Supreme Court is scheduled to hear argument in a case, Indiana v. Edwards, involving a criminal defendant’s constitutional right of self-representation. I hope to talk about the specific issues raised in Edwards in a later post, but I first wanted to discuss my general (and evolving) views on the right of self-representation. Despite my initial resistance to the whole concept of self-representation, over the course of the last several years, as I have thought (and written) on the constitutional right of self-representation, I have come to believe that it is a fundamental right of criminal defendants without which our criminal justice system would lack legitimacy.

The Supreme Court first recognized a constitutional right of self-representation in 1975. Since that time, many people (including members of the Court) have expressed skepticism about whether it is a good idea to give criminal defendants the right to represent themselves. The two basic concerns expressed by academics, members of the judiciary, and the popular press are first that criminal defendants will only hurt themselves if they try to represent themselves, and second that those who choose to represent themselves very likely are mentally ill and are choosing to represent themselves because of that mental illness.

I must admit that when I was in practice as a public defender, I initially shared those sentiments. After all, how could a defendant (unless s/he was a trained lawyer) possibly do as good a job as I could do? That view, however, was somewhat mitigated when I was appointed as standby counsel (a judge is permitted but not required to appoint standby counsel to act as a legal advisor to pro se criminal defendants) for a non-lawyer defendant charged in federal court with attempting to defraud the World Trade Center fund. He went to trial representing himself and raised a coercion and duress defense. For those who remember back to criminal law, you know how rarely that defense works. Much to the surprise of everyone, he was acquitted. Yeah. Shocking. Twelve jurors voted to acquit him. Suffice it to say that I certainly could not have obtained a better result for him.

That experience prompted me, when I entered academia, to try to assemble some data on pro se defendants, to see if our initial instincts are really supported by the data. The short answer is that they are not. While the data are relatively thin (not that many felony defendants actually represent themselves), the bottom line is that the data out there certainly suggest that pro se felony defendants don't do that badly in terms of overall outcome (particularly in state courts). Moreover, only about twenty percent of federal pro se felony defendants exhibited sufficient signs of mental illness to trigger a screen to determine if they were competent to stand trial (usually a pretty low threshold standard).

While I don't think the data establish that it is a good idea for defendants to represent themselves, I certainly think the empirical evidence calls into question our gut-level instinct that it is necessarily a bad idea for criminal defendants to self-represent. If there is no particularly solid evidence that the right of self-representation hurts criminal defendants, that leaves the question whether the right is sufficiently valuable that the Court should continue to recognize it and protect it against erosion. I have come to believe that the answer to this question is a pretty overwhelming yes because the specter of a criminal defendant being forced to sit mute while an incompetent or conflicted agent of the state speaks for him sends chills down my spine.

Once the Court recognized a right to counsel in Gideon, the government had to appoint counsel for indigent defendants who could not afford counsel. Those lawyers are paid by the government for their representation of the defendant. This raises (at least) two concerns in the minds of many defendants: first, many of the lawyers are paid very little, so the quality of state-appointed counsel can be pretty abysmal; and second, the lawyer is being paid by the government, and the lawyer therefore may feel some allegiance to the same government that is prosecuting the defendant. There is a lot of evidence that there is validity to both of these concerns. Stories of ineptness by court-appointed lawyers fill the federal reporters, and there also are many stories of lawyers who attempt to curry favor with prosecutors and judges by ensuring that their clients plead guilty so that they can continue to be appointed in other cases. Here is the problem. If there is no right of self-representation, a criminal defendant who is represented by ineffective counsel (whether that ineffectiveness stems from inability or conflict) has to sit there, essentially mute, while an agent of the government purports to speak for him. If the lawyer has not properly investigated the case, he may have no idea what actually happened. Unless the defendant testifies, however, he is resigned to sitting there listening to the lawyer completely botch the case. (I recognize that in theory, a defendant could argue on appeal that he received ineffective assistance, but the likelihood that he would prevail on such a claim is, to put it mildly, pretty close to nil). Worse yet, the defendant may well decide that he has no choice but to plead guilty, if he doubts that his lawyer will argue strenuously for him at trial.

As the debates about trial procedures at Guantanamo and before military tribunals have progressed, one of the key rights of criminal defendants that has been discussed has been the right to be represented by independent counsel. Inherent within our own system, however, is the risk that defendants will be represented by counsel that are not independent from the government that is prosecuting those defendants. The notion that the government could force a defendant to accept representation by counsel that he believes to be acting in the interest of the government, and could force the defendant to let that counsel speak for him, strikes me as sufficiently Orwellian that I have become a big proponent of the right of self-representation.

Posted by Erica Hashimoto at 10:26 AM | Comments (7) | TrackBack

On the Colloquy: Jurisdiction and Climate Change

This week, the Northwestern University Law Review Colloquy published a response by Professor Scott Dodson regarding the Supreme Court's decision in Bowles v. Russell. He responded to critiques by Professor Elizabeth Chamblee Burch, Mr. E. King Poor, and Professor Perry Dane and defended his position that the Court disrupted prior precedent in Bowles. To see all of the pieces in the series, click here.

Last week, Professor Howard M. Wasserman responded to Professor Dodson's Article In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55 (2008). His Essay examines the connections between jurisdiction, merits, and procedure, when the connections come into play, and how to separate them out.

On February 11, Professor Robert L. Glicksman participated in the ongoing debate on climate change legislation. He discussed which federal agencies should be responsible for implementing climate change regulation, the proper measure of discretion that Congress should afford these various agencies, and whether the regulation should trump state and local initiatives. To see all pieces in the series, click here.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

Posted by Northwestern University Law Review at 09:57 AM | Comments (0) | TrackBack

Battlestar Galactica Interview

We are thrilled to offer readers of Concurring Opinions an interview with Ron Moore and David Eick, creators of the hit television show Battlestar Galactica. Daniel Solove, Deven Desai, and David Hoffman ask the questions. We would like to thank Professor John Ip for suggesting some of the torture questions. Our interview lasts a little over an hour, and we'll be providing it to you in several parts over the next few days.

Our goal was to explore some of the themes of the show in a deeper manner than many traditional interviews. Ron and David graciously agreed to give us an hour of their time, and we had a fascinating conversation with them.

Our interview is structured in three parts. Part I, available in two files (see the end of this post to download), focuses on the issues of legal systems and morality. It examines the lawyers and trials in the show. It also examines how torture is depicted, as well as how the humans must balance civil liberties and security.

Part II examines politics and commerce. It explores how the cylon attack affected the humans' political system, and it examines how commerce works in the fleet.

Part III examines issues related to cylons, such as the humans' treatment of cylons, how robots should be treated by the law, how the cylons govern themselves politically. Additionally, Part III will explore the religious issues involved in the show.

The new Battlestar Galactica, which premiered initially as a miniseries in 2003 on the SciFi Network, is only loosely based on the earlier show by the same name during 1978 and 1980. The new Battlestar Galactica is breathtaking science fiction, and it has widespread appeal beyond science fiction fans. Numerous critics have hailed it as one of the best shows on television. Time Magazine, for example, listed it as one of the top television shows and described it as "a ripping sci-fi allegory of the war on terror, complete with religious fundamentalists (here, genocidal robots called Cylons), sleeper cells, civil-liberties crackdowns and even a prisoner-torture scandal."

The show chronicles the struggle for survival of a small band of humans who escaped a devastating genocidal attack by intelligent robots called cylons. The humans created the cylons for use as slaves. The cylons rebelled and a war erupted between the humans and cylons. But a truce was reached, and the cylons disappeared. But forty years later, the cylons launched a massive surprise attack, destroying the human society (called the Twelve Colonies) with nuclear missiles. Only a small group of humans aboard spaceships survived.

The show depicts the humans’ difficult fight for survival and the tough choices they must make along the way. The cylons have developed technology to allow them to take human form, and some of the humans within the group of survivors are really cylons. More information about the show is here.

The show is heavily influenced by modern events, especially terrorism, war, and torture. In a time of emergency, how should we balance security and liberty? How do we deal with enemies who may be burrowed in among us? How does a society decimated in a war reconstitute its political, economic, and legal systems?

Battlestar Galactica was honored with a prestigious Peabody Award and twice as an official selection of the American Film Institute top television programs for 2005 and 2006.

Because the show explores so many interesting issues so deftly, it has attracted a large group of fans in the legal academy. We know of many law professors who count Battlestar Galactica as one of their favorite shows, and this is why we thought it would be fascinating to speak with the creators and writers of the show -- Ron Moore and David Eick.

Ron Moore is a co-creator, executive producer, and writer of Battlestar Galactica. Previously, Ron wrote or co-wrote 27 episodes of Star Trek: The Next Generation, including the two-hour series finale "All Good Things," for which he won a Hugo Award in 1994. That same year, Ron was honored with an Emmy Award nomination and was eventually promoted to producer. In 1994, Ron joined the writing staff of Star Trek: Deep Space Nine as supervising producer and was elevated to co-executive producer the following year. Ron spent five seasons on the series until the end of its successful run in 1999. In the fall of 2002, he was named show-runner and executive producer of HBO’s critically-acclaimed one-hour drama Carnivale. In 2006 Ron was nominated for an Emmy Award for Best Writing in a Dramatic Series for his work on Battlestar Galactica. Ron studied political science at Cornell University, and he lives in California with his wife and three children. He has a blog, which he started during the Writer's Guild Strike.

David Eick is also a co-creator, executive producer, and writer of Battlestar Galactica. Prior to his involvement in Battlestar Galactica, David was Executive Vice President of USA Cable Entertainment (USACE), where he was the company’s point person to the creative community and oversaw all aspects of the division, which developed, financed and acquired product for initial exhibition on USA Network and SCI FI Channel. While there, the studio produced USA Network’s critically lauded drama series Touching Evil, as well as the hit series Monk. Prior to his network experience, David spent six years at Renaissance Pictures, where he held a variety of positions and produced the hugely successful syndicated series Hercules: The Legendary Journeys. David also co-developed and launched its successful spinoff, Xena: Warrior Princess. Additionally, David also produced many others shows. He recently developed The Bionic Woman for NBC. David graduated from the University of Redlands in California with a BA in political science. He resides in Los Angeles with his wife and three children.

For readers unfamiliar the show, you should catch up by watching the DVDs of the first few seasons. Currently, the show is about to start its fourth and final season on Friday, April 4th at 10PM Eastern.

Season 1 on DVD
Season 2.0 on DVD (episodes 1-10)
Season 2.5 on DVD (episodes 11-20)
Season 3 on DVD (not yet available, but coming soon)

Additionally, you can watch the movie Battlestar Galactica: Razor, a made-for-TV movie that premiered in fall 2007.

In this interview, we explore the legal, political, economic, and social ideas raised by the show. Our interview is structured as follows:

PART I-A: LEGAL SYSTEMS
Topics: The legal system, lawyers, trials, and tribunals.
Length: 11 minutes, 51 seconds
File Size: Approximately 11 MB

PART I-B: TORTURE, NECESSITY, AND MORALITY
Topics: Torture, necessity vs. moral principles, deference to the military
Length: 18 minutes, 1 second
File Size: Approximately 16.5 MB

PART II: POLITICS AND ECONOMY
Topics: Politics and commerce
Length: 13 minutes, 57 seconds
File Size: Approximately 13 MB

PART III: CYLONS
Topics: Cylons and humans, cylon rights, cylon society and governance, religion
Length: 16 minutes, 15 seconds
File Size: Approximately 15 MB

Read the Transcripts -- The interview has now been transcribed. You can read Part I here, and Parts II and III here.

Posted by Daniel J. Solove at 09:19 AM | Comments (33) | TrackBack

Book Review: Harold Schechter's The Devil's Gentleman

Harold Schechter, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century
Ballantine Books (October 2007)

Harold Schechter, an American literature professor at CUNY, has written a gripping account of the criminal trial and appeal of Roland Molineux, a case that grabbed headlines throughout the late 1890s. His book, The Devil's Gentleman: Privilege, Poison, and the Trial that Ushered in the Twentieth Century (2007) is a page-turner, and it reads almost like a novel.

Roland Molineux, the son of a revered Civil War general, was accused of an elaborate scheme of sending medicines and potions containing cyanide in order to kill two men. One was his friend whom Molineux wanted out of the picture because he was having an affair with the woman Molineux had his sights on marrying. The other was the director of an athletic club to which Molineux belonged and whom Molineux hated. The result was two murders, one of which involved an unintended victim. Oddly, anonymously sending potions or food laced with poison in the mail was an effective way to kill at that time. People apparently thought nothing of ingesting things that were sent to them anonymously. Poison was a popular murder instrument at the time, and people viewed poisoning as an especially sinister and "unmanly" way to kill. And one could readily be poisoned not through any nefarious scheme, but by the medicines at the time, some of which contained cyanide and arsenic. The cure was often more deadly than the disease.

The book focuses considerably on the role that the media played in the justice system. The media in the latter half of the Nineteenth Century was rabidly sensationalistic. The rise of "Yellow Journalism" was one of the factors that prompted Samuel Warren and Louis Brandeis to write their famous article, The Right to Privacy in 1890. Yellow Journalism emerged as Joseph Pulitzer and William Randolph Hearst transformed the newspaper business, from small circulations and weak profits (sometimes even losses), to a booming success. In two years, for example, Pulitzer increased the circulation of the New York World from under 12,000 a day to 150,000 a day:

The very look of the paper underwent a radical alternation. Headlines now stretched over several columns or were splashed across the entire top of the page. And there were cartoons, caricatures, lurid illustrations, and other voyeuristic visual aids. Not only were grisly murders reported in graphic detail; they were diagrammed so that readers could picture the horrors more clearly. (p. 98)

The newspapers conducted their own investigations into criminal cases, interviewing witnesses, tracing leads, shadowing the police. In one instance, a newspaper even funded an investigation. The police needed to go through 50,000 sales slips at a pharmacy, and "they would have had an impossible time of it, since orders were full of Latin medical terms and abbreviations. Only people with pharmaceutical training could accomplish the task." The pharmaceutical supply company "couldn't afford to loan [its clerks with the requisite training] out for an indefinite period of time." Enter the media:

At that point, however, the yellow papers, with their genius for self-promotion, insinuated themselves into the proceedings. The World--which never wearied of trumpeting its own invaluable contributions to the case--offered to reimburse Smith for his clerks' time. (p. 164)

When it came to the trial, the newspapers presented it more as a play than as a real event. One newspaper "presented a summary of the case in the form of a stage play, complete with a 'Cast of Characters'; a synopsis of the 'Great Double Poisoning Drama' divided into acts and scenes." (p. 173). A different paper had its theater critic covering the trial, which drew an attack from another newspaper as stepping over the line. "The trial is dramatic but it is not a dramatic spectacle," the editorial decried. "A murder trial should not be made to wear the aspect of a public diversion." (p. 289)

The Devil's Gentleman is riveting and engaging, and it and captures a vivid slice of life at the turn of the Twentieth Century. It contains an extensive and very interesting account of police investigations, trials, and appeals at the time. The book chronicles step-by-step how the police and press pieced together the case, as well as demonstrates the impact of various courtroom strategies and evidence (there were two trials, each involving considerably different strategies and admitted evidence).

And along the way, the book contains some interesting tidbits of information. For example, Theodore Dreiser mulled over writing a novel based on the case, but abandoned the project. He found another crime which formed the basis of An American Tragedy. And the book notes that in the 1890s, "dealers in mail-order patent medicine brought in extra income by saving the correspondence they received from customers, then selling these letters to other mail-order firms." (p. 269). Selling people's personal information, it seems, was a popular pastime then, as it is now.

Posted by Daniel J. Solove at 02:13 AM | Comments (2) | TrackBack

Probation for Murder: Justice Served or Excessive Prosecutorial Discretion?

A few days ago, I blogged about a series of articles in the Dallas Morning News about the many instances where murderers received probation in Texas. Over at Grits For Breakfast, Scott Henson has a provocative argument that probation isn't always inappropriate for murder:

As I wrote in a "first impression" about the series, it's possible to:

identify several recurring situations where murderers frequently received probation: a) Prosecutors had weak or circumstantial cases and the defendant may not have done it, b) the defendant was guilty via the "law of parties" but didn't actually kill anyone themselves, c) the defendant was elderly, sick or incapacitated to the point where they were no longer a threat, and d) the victim was a worse person than the murderer and basically "needed killin'," so juries sympathized and gave the defendant another chance.

While Dallas News columnist Gromer Jeffers identifies what's wrong with reason A for granting probation in murder cases, who thinks reasons B, C, or D are not sometimes justified? Following Bennett's lead, let's think more closely about category D, in particular, the ones whose victims "needed killin'." Consider the case of Synnissa Gabriel who murdered Hosia Abdallah, her estranged boyfriend:

She told police in 2005 that Mr. Abdallah had stalked her and vandalized her home, in violation of a protective order. Then she tracked him down and shot him several times.

Heath Hyde, who prosecuted the case, said he offered a deal because the victim had a long history of violence against women. That made it unlikely jurors would sentence his killer to prison, he said. Defense attorney Nancy Ohan described her client as "the classic case of the battered woman ... there was a definite mental break."

So a battered woman who continued to be stalked and harassed in violation of a protective order finally took matters into her own hands and gunned down her assailant. Why'd she get probation? Because prosecutors believed jurors would conclude the victim "needed killin'" - in other words, that justice had been served by the defendants' actions. It may not be true under the law, but in the gray-area balancing act jurors do in their own minds while making life or death decisions, it's true in point of fact.

In some other cases, defendants had possibly viable self-defense claims or otherwise could credibly portray themselves to a jury as protecting themselves. Not all the cases find a sympathetic killer and a much-scarier victim, but when they do, is it wrong for a jury to sympathize with the defendant?

Isn't that what juries are about, letting members of the public come to their own conclusions about what constitutes justice?

Is this just the jury system at work? Or is it evidence that prosecutors have too much discretion? Even accepting Scott's argument that juries are about letting the public come to its own conclusions about justice, the Synnissa Gabriel case didn't involve the public making the decision -- instead, the prosecutor decided. I'm not opining on the merits of Gabriel's case, but I will note that I am sympathetic to the battered woman's syndrome defense. That said, however, the immense power of the prosecutor in this case -- to offer a plea for probation for what would ordinarily be a first degree murder -- takes the matter out of the hands of juries and the courts, as well as sidesteps the criminal statutes that the state has passed through its elected officials. Plea bargaining is a necessary evil in the criminal justice system -- without it the system would probably collapse -- but it has gotten out of hand, giving prosecutors such an immense power and making the criminal justice system not one about statutes, or about courts, or about juries -- it's about prosecutors and their astounding discretion.

In the end, regardless of whether justice may have been served in Gabriel's case with probation, it is the process that makes me very uneasy.

Photo credit: Falaschini

Posted by Daniel J. Solove at 01:23 PM | Comments (2) | TrackBack

The ACLU's "Declaration of First Amendment Rights and Grievances"

Last week, at a symposium held at American University, the ACLU unveiled a new report, entitled "Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances." I'm proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States government:

• Ignores its representative mandate by governing in the shadows.
• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.
• Secretly uses private parties to spy and seeks immunity to cover their illegalities.
• Silences dissent.
• Prevents citizens from petitioning their elected offi cials.
• Profiles individuals and denies freedom of movement based on association.
• Falsifies information to deny liberty.
• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.
• Prevents soldiers from communicating with their families and prosecutes their lawful speech.
• Silences whistle blowers.
• Censors the press, broadcast media, and Internet based on content.
• Prosecutes the press for revealing illegal programs.
• Obstructs oversight by elected officials.
• To preserve secrecy, places secret holds on bipartisan open government legislation.
• Funds religious programs.
• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to "[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying" and "[s]ecretly use private parties to spy" are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it's essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.

Posted by Neil Richards at 12:01 PM | Comments (2) | TrackBack

The Dangers of Police Discretion

The dangers of police discretion are vividly illustrated in this video, where a cop pulls over a person and threatens to concoct charges against him. Most police are honest, but the bad apples can really do a lot of harm because they wield tremendous power and are often unmonitored.

Part II of the video is here, although most of the encounter is contained in Part I above.

Here's a CNN video of an interview with the person pulled over, and it includes snippets of the video plus subtitles.

The police exercise a significant amount of discretion, from vehicle stops to stop-and-frisks to the interrogation of suspects. This video demonstrates that taping police encounters with citizens can be quite beneficial. I believe more such encounters should be recorded. For example, police interrogation should be recorded, as this will serve as a helpful means for assessing whether or not questioning was too coercive.

Posted by Daniel J. Solove at 12:47 PM | Comments (6) | TrackBack

Federal Judge Strikes Down Patriot Act NSL Provision

Earlier today, a federal judge struck down a part of the Patriot Act allowing the service of National Security Letters without judicial oversight. An AP report on the decision can be found here. NSLs, as Dan has blogged about here and here, are a statutory authorization to the FBI that allow it to secretly obtain records about people from businesses and instututions with which they have a relationship. NSLs don't require judicial oversight and some requirement of individualized suspicion or probably cause, but merely some "relevance" to an ongoing national security investigation. This relevance determination is made internally by the FBI and does not have to be put before a neutral judge or other official.

The opinion is complicated (and long at 106 pages), but I think any assertion that NSLs need to be regulated by a neutral decisionmaker is a step in the right direction. NSLs, as the district court recognizes, threaten First Amendment values. As I've argued in a recent article, NSLs threaten a variety of important interests, but most especially threaten the intellectual privacy of ordinary people. NSLs can be used to request a wide variety of information, including historical and transactional information relating to telephone calls and e-mails. As intellectual activity becomes increasingly mediated by the use of computers and the Internet (i.e., what you are doing right now in reading this post), the records created from such activity remain secreted by ISPs, websites like this one, and on our hard drives. The creation of these records provide a potential gold mine to government and others who are interested in learning about the ways in which we engage with and develop our thoughts and ideas. Both popular literature and legal theory have long documented the chilling effect on expression that results from the surveillance of our intellectual activities (including reading, thinking, and speaking). NSLs are one of the main tools by which government can obtain information about our intellectual activities, and thus the interposition of some meaningful legal constraint upon the power of the government to do this is essential. This is not to minimize the government interest in deterring and preventing threats to our national security, but merely to note that when the government engages in intellectual surveillance, there is an equally important interest on the other side -- our freedom of thought and our ability to generate new and potentially controversial ideas.

This important case is certain to be appealed by the government, and it will be interesting to see what happens.

Posted by Neil Richards at 03:38 PM | Comments (10) | TrackBack

Jeffersonian Privilege

The D.C. Circuit ruled this morning on Rep. William Jefferson's motion to get back the material seized when the FBI searched his congressional office in the Rayburn House Office Building. As is so often the case, the early AP story on the decision sort of missed the boat. It was headlined "Court: FBI Violated Constitution in Raid." But the actual holding is quite limited. Jefferson gets back originals and copies of all legislative materials, but not anything non-privileged. The court also deferred any decisions about usability of any of that non-privileged material at Jefferson's upcoming bribery trial; the district court will make that determination in the first instance.

So, the impact for the future seems to be that the Executive can search congressional offices with a warrant, and can do so without tipping off a legislator in advance (potentially allowing destruction of evidence). The only difference is that the Member of Congress has to be there during the search and is permitted to assert his privilege under the Speech and Debate Clause "before the Executive scour[s] his records." (Slip op. at 15.) I'll be keen to hear what the real experts on separation of powers think of this opinion.

It is also interesting to contemplate how this apparently narrow practical scope of the legislative branch privilege contrasts with the assertion of executive privilege over the U.S. Attorney firings and related matters.

Some of those congressional investigations also involve alleged lawbreaking (though nobody at the White House is accused of storing tin foil wrappers full of $90,000 in bribes in their freezers as far as we know). The reasons for both privileges are quite similar, too. Here is the court's discussion of the basis for congressional privilege:

Exchanges between a Member of Congress and the Member’s staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause’s purpose of protecting against disruption of the legislative process.

Now here is the letter to Congress from White House Counsel Fred Fielding asserting executive privilege:

[F]or the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch. Presidents would not be able to fulfill their responsibilities if their advisors––on fear of being commanded to Capitol Hill to testify or having their documents produced to Congress––were reluctant to communicate openly and honestly in the course of rendering advice and reaching decisions.

The real difference, I suppose, is that Congress can't get a search warrant or send cops into the White House. Should the two privileges be more parallel? I leave that to the experts.

Posted by William McGeveran at 12:29 PM | Comments (1) | TrackBack

Consent Decrees and Unintended Consequences

Robert Parry of the LA Daily News has written a curious column about the relationship between legal rules and police behavior.

As Parry explains:

In the late 1990s, rogue Rampart Division CRASH officers provided the Los Angeles Police Department's legion of critics with ammunition . . . to place their vaunted enemy under the oversight of a federal court . . . All complaints against officers are now thoroughly investigated and subject to triple audits — by the LAPD Audit Bureau, the inspector general and the consent decree monitor . . . Serious uses of force are double-investigated — one administrative investigation and one criminal one . . . In short, after six years, if the LAPD was at all brutal and corrupt, shootings should be down, use of force down, complaints down, sustained complaints up and more officers prosecuted.

But, Parry asserts, shootings have increased 15%, complaints have increased, but guilty findings have decreased. Indeed, the "only statistic that appears to have tracked as the activists indicated is use of force. On a per-100-arrests basis, serious use of force is down about 20 percent."

Parry asserts that these complicated data can be boiled down to a simple cause: "Cops are fleeing in record numbers [because of the increased supervision] . . . As a result, inexperienced cops with unseasoned supervision are using more deadly force and getting more complaints, but the force is deemed acceptable and the complaints are increasingly bogus."

To my reading, this claim is bogus.

Attrition problems at the LAPD are old – they certainly predate the consent decree, starting as early in the mid-1980s. The problem’s severity has engendered a number of explanations, and solutions, varying from: excessive financial disclosure requirements, bad press due to the Rodney King riots, insufficient funds, a convoluted application process, bad equipment and physical plant, and even affirmative action policies. Shucks, the only explanation not offered is that LA’s famously sunny climate makes officers too happy to effectively walk the beat.

Even were attrition to be exacerbated by the consent decree, Parry still hasn’t come close to making his claim stick.

Assume that Parry’s data are accurate (which is a leap, I think, given the notorious unreliability of crime statistics generally). The problem is that Parry gives no sense of the underlying baseline or demographic trends which the reader would need to know what effect, if any, the consent decree is having on police conduct. Shootings are up, but compared to what baseline and what trend? Serious use of force is "down about 20 percent": how does that compare to other similarly situated departments? Descritive statistics like these simply can't be used to make the causal inferences that Parry leaps to.

With respect to the relationship between complaints filed, complaints sustained, and deterrence of brutality, the relationship is even more complex. I imagine that the point of the consent decree would not be to increase prosecutions of officers and resulting conviction rates, but rather to decrease officer brutality and corruption: a really successful deterrence system acts rarely, and either scares potential offenders into line or removes them from the force entirely.

Despite these issues, Mickey Kaus hypes this piece as Limits of Judicial Government, Part XVIII, with an exceedingly mild qualifier. Typical.

Posted by Dave Hoffman at 05:18 PM | Comments (1) | TrackBack

ACLU v. NSA

In ACLU v. NSA, --F.3d -- (6th Cir. 2007), a panel from the 6th Circuit held that the ACLU and other plaintiffs lacked standing to challenge the Bush Administration's warrantless wiretapping program conducted by the National Security Agency (NSA). NYT coverage is here. According to the sketchy details known about the program, the court noted, "it has been publicly acknowledged that the TSP [the Terrorist Surveillance Program, as it has now been named by the Administration] includes the interception (i.e., wiretapping), without warrants, of telephone and email communications, where one party to the communication is located outside the United States and the NSA has 'a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

The plaintiffs are "journalists, academics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP." The plaintiffs claimed that the NSA wiretapping violated, among other things, the First Amendment, Fourth Amendment, and the Foreign Intelligence Surveillance Act (FISA).

According to Judge Batchelder's opinion, the plaintiffs could not establish standing because they could not directly prove that they were subject to surveillance. One of the problems with the court's reasoning is that there is little way for the plaintiffs to find out more specific information about whether particular plaintiffs' phone calls have been wiretapped. As a result, the government can violate the plaintiffs' First and Fourth Amendment rights with impunity if they cannot ever learn enough to gain standing to challenge the surveillance.

In a recent article, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007), I examined the nature of the injury to First Amendment activities from government surveillance. I wrote:

Determining the existence of a chilling effect is complicated by the difficulty of defining and identifying deterrence. It is hard to measure the deterrence caused by a chilling effect because it is impossible to determine with certainty what people would have said or done in the absence of the government activity. Often, the primary evidence will be a person’s own assertions that she was chilled, but merely accepting such assertions at face value would allow anyone claiming a chilling effect to establish one. At the same time, demanding empirical evidence of deterrence is impractical because it will often be impossible to produce.

In other words, the chilling effect doctrine is a mess. By requiring too much specific proof of deterrence, courts can effectively make it impossible for any plaintiff to establish a chilling effect. In my article, I attempted to use First Amendment doctrines to help illuminate a more meaningful approach toward analyzing the existence of a chilling effect:

In many instances, the government engages in broad information gathering that is not directly tied to a concrete penalty or consequence, but which still may chill speech. For example, people might fear that if the government learns about their speech or associations, they will wind up on a terrorist watch list. However, they might never know if they are in fact on a watch list, and the consequences of being placed on such a list might be unclear. Being placed on a watch list might result in extra airline screening, or it might have no impact on the individual at all. Or the information could go into a government database for some unknown future use when the time is ripe.

These uses are speculative, and they present a difficult case for chilling effect analysis. Courts might conclude that people should wait to see how the information is used; if the government uses their information against them, defendants would then be able to allege a cognizable chilling effect. However, this ignores the central premise of the chilling effect doctrine—that many will not be willing to accept the risk and will instead simply change their behavior. Therefore, even if the information is never used at trial, uncertainty about the government’s intentions may still deter First Amendment activities. The government might argue that it must keep secret the uses of the information it gathers, but this only exacerbates the problem—lack of transparency makes it especially difficult for individuals to allege a sufficiently concrete chilling effect. By collecting data and obscuring its potential uses, the government can effectively limit people’s ability to assert their First Amendment rights by making it impossible for them to establish a sufficient chill.

The First Amendment concept of overbreadth might provide a solution to the problems presented by situations involving such large-scale information gathering programs. According to the Supreme Court, “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Overbreadth doctrine relaxes the normal standing rules to allow people to bring suit without having to show that the law is unconstitutional as applied to them. To challenge a statute as overbroad, an individual need only show that some application of the law is unconstitutional and might chill the speech of parties not before the court. For a statute “to be facially challenged on overbreadth grounds” there “must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” . . . .

We can adapt overbreadth doctrine to address the problem of proving a chilling effect when the government engages in large-scale information gathering initiatives. In this context, litigants could challenge an information gathering program as overbroad, regardless of whether they could prove that they personally suffered a concrete chilling effect. Instead, courts would determine whether the government program sweeps so broadly that it captures a substantial amount of First Amendment activity. A program that sweeps in a great deal of First Amendment activity will be deemed unconstitutionally overbroad if not narrowly tailored to a substantial government interest. Allowing such challenges will have the secondary benefit of bringing greater transparency to information gathering programs, as the government will be forced to justify its activities and the breadth of their scope.

Judge Batchelder relied extensively on Laird v. Tatum, 408 U.S. 1 (1972), a Supreme Court case involving government surveillance of public demonstrations. The Court concluded that the plaintiffs failed to establish a cognizable First Amendment injury because “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.”

As I wrote in my article:

Laird was not especially clear about when government surveillance (and information gathering practices more generally) will cause a cognizable First Amendment injury. Indeed, one view of Laird interprets it as a very narrow, fact-specific holding based on the plaintiffs’ highly tenuous First Amendment injury. The Court concluded that the plaintiffs merely articulated “speculative apprehensiveness that the Army may at some future date misuse the information in some way that would cause direct harm to respondents.” In other words, Laird might be read to state only that naked allegations of “speculative apprehensiveness” are insufficient to establish a cognizable chilling effect.

The wiretapping involved in the NSA surveillance program differs substantially from the surveillance in Laird. The Laird surveillance involved activities in public places. In contrast, the surveillance in the NSA program involved wiretapping private conversations, a substantially more invasive form of surveillance. Indeed, wiretapping has long been recognized as one of the most intrusive and problematic forms of government surveillance. In Laird, the Court relied on the fact that "[t]here is no evidence of illegal or unlawful surveillance activities." That's not the case with the NSA program, which involved illegal warrantless wiretapping. Laird is thus readily distinguishable.

Moreover, Judge Batchelder also concluded that it was unclear whether the potential chilling effect of the surveillance on the plaintiff's freedom of speech "can fairly be traced to the absence of a warrant, or if the chill would still exist without regard to the presence or absence of a warrant." She continued:

The insufficiency of this step leads to a breakdown in the causal pathway [between the surveillance and the chilling effect injury]. . . . A wiretap is always 'secret' -- that is its very purpose -- and because of this secrecy, neither the plaintiffs nor their oversees contacts would know, with our without a warrant, whether their communications were being tapped. Therefore, the NSA's secret possession of a warrant would have no more effect on the subjective willingness or unwillingness of these parties to "freely engage in conversations and correspond via email."

One of the difficulties with this line of reasoning is that it runs contrary to the very rationale behind warrants. Judge Batchelder seems to be suggesting that obtaining a warrant has no impact on whether people are chilled in their expression. But according to the rationale behind the warrant requirement, it is the process of the government having to justify its searches before the judiciary that gives us the assurance that we can exercise our freedoms without the fear of improper government surveillance. Under our system of regulation of government searches, we cannot expect complete immunity from being subjected to a government search; but we can expect that we will not be searched contrary to established constitutional and legal procedures. If the court is right and warrants have no effect, then there would be no injury to a person if the government searched without a warrant so long as the person wasn't aware of the specific search. But the very point of procedural regulation of government searches is to give people the assurance that they will not be searched without oversight and justification. It is the destruction of this assurance that constitutes the injury. There is a big difference between a system of highly regulated surveillance subject to oversight and limitation and a system of unregulated surveillance without oversight or limit beyond the whims of the executive branch. One might be significantly more chilled in speaking under the latter regime than under the former.

Another issue in the case involved whether the plaintiffs had a claim under FISA. I will address this part of the court's decision in another post.

Posted by Daniel J. Solove at 06:34 PM | Comments (3) | TrackBack

The Fourth Amendment, Email Headers, and IP Addresses

Is there a reasonable expectation of privacy in email headers and IP addresses under the Fourth Amendment? No, sayeth the 9th Circuit in US v. Forrester:

The Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), that the use of a pen register (a device that records numbers dialed from a phone line) does not constitute a search for Fourth Amendment purposes. According to the Court, people do not have a subjective expectation of privacy in numbers that they dial because they “realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed .” . . . . Therefore the use of a pen register is not a Fourth Amendment search. Importantly, the Court distinguished pen registers from more intrusive surveillance techniques on the ground that “pen registers do not acquire the contents of communications” but rather obtain only the addressing information associated with phone calls. . . .

Neither this nor any other circuit has spoken to the constitutionality of computer surveillance techniques that reveal the to/from addresses of e-mail messages, the IP addresses of websites visited and the total amount of data transmitted to or from an account. We conclude that these surveillance techniques are constitutionally indistinguishable from the use of a pen register that the Court approved in Smith. First, e-mail and Internet users, like the telephone users in Smith, rely on third-party equipment in order to engage in communication. Smith based its holding that telephone users have no expectation of privacy in the numbers they dial on the users' imputed knowledge that their calls are completed through telephone company switching equipment. Analogously, e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that these messages are sent and these IP addresses are accessed through the equipment of their Internet service provider and other third parties. Communication by both Internet and telephone requires people to “voluntarily turn[ ] over [information] to third parties.”

Second, e-mail to/from addresses and IP addresses constitute addressing information and reveal no more about the underlying contents of communication than do phone numbers. When the government learns the phone numbers a person has dialed, it may be able to determine the persons or entities to which the numbers correspond, but it does not know what was said in the actual conversations. Similarly, when the government obtains the to/from addresses of a person's e-mails or the IP addresses of websites visited, it does not find out the contents of the messages or the particular pages on the websites the person viewed. At best, the government may make educated guesses about what was said in the messages or viewed on the websites based on its knowledge of the e-mail to/from addresses and IP addresses-but this is no different from speculation about the contents of a phone conversation on the basis of the identity of the person or entity that was dialed. The distinction between mere addressing and more content-rich information drawn by the Court in Smith and Katz is thus preserved, because the computer surveillance techniques at issue here enable only the discovery of addressing information.

I've written extensively about the problematic application of Smith v. Maryland to email headers and especially IP addresses. I believe that Smith was wrongly decided, but the 9th Circuit was nevertheless bound to follow it. Accordingly, its holding that there is no reasonable expectation of privacy in email headers seems to fall within the holding of Smith. However, IP addresses present a different case. The holding in the Smith case turned on two rationales: (1) exposure of information to third parties (phone companies) eliminated one's expectation of privacy; (2) the information was not sensitive since it didn't involve the content of the communications. This second rationale is important, since it is an attempt to keep Smith logically consistent with Katz v. United States, 389 U.S. 347 (1967), where the Supreme Court held that a reasonable expectation of privacy exists in the contents of phone conversations. However, the contents of phone conversations, similar to the phone numbers dialed (pen register), are also accessible to the phone company. Thus, the first rationale (third party doctrine) would be inconsistent with Katz without the aid of the second rationale.

Orin Kerr has usefully analogized the distinction between the non-content / content information to that between an envelope and the contents of a letter. The envelope contains addressing information that is exposed to others; the contents of the letter are concealed. Envelope information falls outside Fourth Amendment protection, but content information is fully protected by the Fourth Amendment.

The envelope/content distinction works fairly well with email -- the headers (which contain the to/from line) are the digital equivalent of envelopes; the text of the email itself is the content. But with IP addresses, the distinction doesn't work. In Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004), I wrote:

When applied to IP addresses and URLs, the envelope/content distinction becomes even more fuzzy. An IP address is a unique number that is assigned to each computer connected to the Internet. Each website, therefore, has an IP address. On the surface, a list of IP addresses is simply a list of numbers; but it is actually much more. With a complete listing of IP addresses, the government can learn quite a lot about a person because it can trace how that person surfs the Internet. The government can learn the names of stores at which a person shops, the political organizations a person finds interesting, a person’s sexual fetishes and fantasies, her health concerns, and so on.

[Therefore,] the content/envelope distinction is not always clear. In many circumstances, to adapt Marshall McLuhan, the “envelope” is the “content.” Envelope information can reveal a lot about a person’s private activities, sometimes as much (and even more) than can content information.

Over at the VC, Orin Kerr points to an interesting ambiguity in the court's decision. According to the court, the government used "a pen register analogue on [the defendant]’s computer." Orin writes:

Consider two possibilities. The first possibility is that the government served the order on the ISP, and that the information was collected at the ISP. If so, the analogy to Smith v. Maryland is really clear, and the result in Forrester is clearly correct. The second possibility is that the Court meant what it said literally: the government installed a pen register analogue "on [the defendant's] computer," which seems to suggest some kind of surveillance device actually inside the person's machine. If that's right, I tend to think this is a different case. At that point the facts become a lot more like United States v. Karo, the locating device case, where the use of a surveillance device inside the home was held to be a search.

In Dahlia v. US, 441 U.S. 238 (1979), the U.S. Supreme Court concluded that a wiretap order was sufficient to justify a covert entry to install electronic bugging devices into a person's home. However, the wiretap order involved in Dahlia was under the Wiretap Act and required even stronger standards than typical Fourth Amendment warrants. The pen register order in Forrester involved a much lower standard, one far below the requirements of a Fourth Amendment search warrant.

Nothing in the court's opinion suggests that the law enforcement officials actually entered into the defendant's house. But isn't installing the the "pen register analogue" into the defendant's computer via electronic means (perhaps as a virus, etc.) the digital equivalent of a trespass into the home?

I also wonder whether the Forrester case is consistent with the Supreme Court's holding in Kyllo v. US, 533 U.S. 27 (2001). In Kyllo, the Court held that the use of a thermal sensor to detect heat patterns inside a home constituted a Fourth Amendment violation despite the fact that it measured heat emanations coming from the home and was positioned outside the home. The Court held that although there was no physical trespass, the Fourth Amendment was violated:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant. . . .

Moreover, the Court in Kyllo noted that it didn't matter how sensitive and private the information involved was:

The Government also contends that the thermal imaging was constitutional because it did not “detect private activities occurring in private areas.” . . . The Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained.

Why wouldn't the pen register analogue used in Forrester be a device to explore the defendant's conduct inside his home? Of course, to apply Kyllo here would also raise doubts about Smith v. Maryland, where the pen register device also captured activities within the home. These difficulties in the Court's opinions are but further evidence that Smith v. Maryland was wrongly decided. It is inconsistent with so much of Fourth Amendment doctrine, and it leads to tortured attempts to make meaningless distinctions to keep the entire inconsistent doctrinal mess from falling apart.

Posted by Daniel J. Solove at 11:35 AM | Comments (10) | TrackBack

Data Mining and the Security-Liberty Debate

I've written a short essay (about 20 pages), entitled Data Mining and the Security-Liberty Debate, for an upcoming symposium on surveillance for the U. Chicago Law Review. The symposium website is here. The symposium looks to be a terrific event. The event will be held on June 15-16, 2007 (registration information is available at the symposium website). Besides myself, participants include Julie Cohen, Ronald Lee, Ira Rubenstein, Ken Bamberger, Deirdre Mulligan, Timothy Muris, Lior Strahilevitz, Anita Allen, Thomas Brown , Richard A. Epstein , Orin Kerr, Patricia Bellia, Richard A. Posner, Paul Schwartz, and Chris Slogobin.

My paper can be downloaded at the symposium website or at this SSRN link. In the essay, I take on some common arguments about data mining and the debate between security and liberty.

In particular, I critique arguments by Richard Posner, William Stuntz, and a provocative new book by Eric Posner and Adrian Vermeule called Terror in the Balance: Security, Liberty, and the Courts. Posner and Vermeule argue tthat in times of crisis, courts and legislatures should defer to the executive on issues of national security. I spend a considerable part of my essay critiquing their argument.

The essay's abstract:

In this essay, written for a symposium on surveillance for the University of Chicago Law Review, I examine some common difficulties in the way that liberty is balanced against security in the context of data mining. Countless discussions about the trade-offs between security and liberty begin by taking a security proposal and then weighing it against what it would cost our civil liberties. Often, the liberty interests are cast as individual rights and balanced against the security interests, which are cast in terms of the safety of society as a whole. Courts and commentators defer to the government's assertions about the effectiveness of the security interest. In the context of data mining, the liberty interest is limited by narrow understandings of privacy that neglect to account for many privacy problems. As a result, the balancing concludes with a victory in favor of the security interest. But as I argue, important dimensions of data mining's security benefits require more scrutiny, and the privacy concerns are significantly greater than currently acknowledged. These problems have undermined the balancing process and skewed the results toward the security side of the scale.

Posted by Daniel J. Solove at 09:47 AM | Comments (0) | TrackBack

The Right to Delete's Infrastructure

Should every keystroke you ever enter into your computer be preserved for inspection forever? Worry over that possibility has led to some very interesting scholarship, including Paul Ohm on the right to delete. Ohm has suggested that a right to delete is akin to the property right to destroy what one owns, for "when an owner loses control of a copy of her data, she loses the ability to dispose of or alter that data." By contrast, Ohm notes Orin Kerr 's "worries that during the time after [data is captured] and before it is analyzed, the Fourth Amendment may not apply since the owner of the original drive has not been deprived of a possessory interest."

I don't know enough about the relevant Fourth Amendment law to comment on that dispute, but I do find Google's recent commitment to deleting personally identifiable data from search history records (after about 2 years) to be an interesting development. Jack Balkin has noted various "infrastructural requirements" for the enjoyment of certain rights. He states:

[A]n infrastructure of free expression. . . . includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools.

The right to delete appears to require commitment by search engines and other massive databases to allow some "cataloguee" discretion over what to retain and what to delete from records. The big question is whether the market will ultimately reward or punish search engines that put that infrastructure in place. As Elizabeth van Couvering has noted, current trends do not bode well for the development of public-minded search engines:

Resources in search engine development are overwhelmingly allocated on the basis of market factors or scientific/technological concerns. Fairness and representativeness, core elements of the journalists' definition of quality media content, are not key determiners of search engine quality in the minds of search engine producers.

As with digital music, we may need Europe to lead the way. But perhaps there is one powerful constituency fully behind the right to delete:

From 2001 to 2004, the RNC's highly unusual "document retention" policy was to intentionally destroy all e-mails that were more than 30 days old. In the summer of 2004, due to "unspecified legal inquiries," the RNC changed its policy by allowing -- but not mandating -- the indefinite retention of e-mails sent and received by White House staffers on their RNC accounts.

Perhaps eventually technology to preserve data will become more transparent.

Posted by Frank Pasquale at 03:40 PM | Comments (0) | TrackBack

Five Years On... How Significant is Padilla?

May 8 already has several claims to fame throughout history, including, perhaps most significantly, V-E Day -- May 8, 1945, on which German forces unconditionally surrendered, ending World War II in Europe.

Today is also a slightly more dubious anniversary. Five years ago today, May 8, 2002, Jose Padilla was arrested at Chicago's O'Hare Airport on a material witness warrant issued by the U.S. District Court for the Southern District of New York. In June 2002, Padilla was transferred to military custody, where he was detained as an "enemy combatant" until January 2006, at which time he was transferred to civilian authorities here in Miami pending trial on criminal charges.

Five years after his initial arrest, Padilla's criminal trial appears finally destined to actually take place, with jury selection concluding today and opening arguments scheduled to begin next Monday, May 14. The beginning of Padilla's criminal trial and the coincident anniversary leave me to wonder just how significant this trial actually will be, the ultimate result notwithstanding. I'm not nearly the criminal law or procedure expert that many of our readers are, and so won't deign to speak with any authority as to the merits or the likely result here. Rather, there are two points that I think bear mentioning, even if together they may be somewhat irreconcilable.

1. It's remarkable, in its own right, that the trial is actually happening--that Padilla got what, in effect, he had sought from the get-go, i.e., a meaningful day in court.

2. It's a troubling reflection upon the law "after 9/11" that it's taken five years to get to this point, without any final and determinative resolution of the merits of Padilla's military detention, and with the almost summary rejection of the argument that such a delay violates Padilla's right to a speedy trial. If Padilla is ultimately convicted, one could see this case as setting a dangerous precedent for the future, where the government can hold terrorism suspects in military custody up until the point that a court is set to rule on the merits of such detention, and then moot such a decision by indicting the individual in a civilian criminal court. [It is this reality against which Justice Kennedy was arguably inveighing in his opinion respecting the denial of certiorari in Padilla last January.]

Ultimately, I'm not sure these points are in as much tension as they might seem to be. The system is working the way it's supposed to; it just took the better part of five years to get there, and much will turn o