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Scientists Say The Sun Rises in the East

This story (via Andrew Sullivan) on Iran President Mahmoud Ahmadinejad’s view of Israel and the holocaust, contains the following paragraphs:

“Some European countries insist on saying that Hitler killed millions of innocent Jews in furnaces and they insist on it to the extent that if anyone proves something contrary to that they condemn that person and throw them in jail,” [a news organization] quoted Ahmadinejad as saying.

“Although we don’t accept this claim, if we suppose it is true, our question for the Europeans is: is the killing of innocent Jewish people by Hitler the reason for their support to the occupiers of Jerusalem?” he said.

“If the Europeans are honest they should give some of their provinces in Europe — like in Germany, Austria or other countries — to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it.”

Historians say six million Jews were killed in the Nazi Holocaust.

Those crazy historians and the things they “say.”

It isn’t as though Reuters doesn’t believe that it can state things as facts. Other examples of facts, shorn of attribution, from the article include:

Ahmadinejad’s earlier “call in October for Israel to be ‘wiped off the map’” “sparked widespread international condemnation.”


“Close allies when Iran was ruled by the U.S.-backed Shah, Iran and Israel have become implacable foes since Iran’s 1979 Islamic revolution.”

Jews trace their roots in Israel back to Biblical times.

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Jennifer Aniston’s Cease and Desist Letter

confidential2.jpgEric Goldman has a very interesting post about the cease and desist (C&D) letter that Jennifer Aniston’s attorneys sent to the paparazzi who took her photograph. The letter is posted on The Smoking Gun website. The letter states several times that it is to remain confidential, and it has this language:

This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of the Copyright Act, and You are not authorized to publish this letter in whole or in part absent our express written authorization.

Goldman observes:

How can a lawyer claim that a cease-and-desist letter is a confidential communication? In general, sending the letter to a third party without any confidentiality assurances should blow any legal confidentiality protections. . . . . I don’t see how the confidentiality demands/instructions are anything more than hyperbolic and low-efficacy scare tactics.

The copyright issue is more complex. The letter should qualify as an original work of authorship, and posting the letter online should violate at least 2 of the 106 rights (reproduction and distribution).

But is there some legal defense that nevertheless permits the reposting of C&D letters? The most obvious one is fair use, but fair use analyses are always tricky. . . .

Senders of C&D letters should be accountable for their actions. They seek legal redress and the letters themselves are legally significant (i.e., they could create the basis for willfulness determinations; they may be the basis for the recipient seeking a declaratory judgment). To fully understand what is taking place in the field, information about these C&Ds has to enter the public discourse. And simply reporting the receipt of a C&D isn’t enough–to understand the letter and its potential impacts, external observers have to read the precise words used.

Therefore, I would strongly favor a statute that exculpates C&D letter recipients from republishing the letter. Because such a statute is unlikely, I am hoping the courts will create a defacto per se fair use exclusion for republishing C&D letters. Meanwhile, kudos to the Smoking Gun for not letting the repeated exhortations keep the letter off the Internet.

I wholeheartedly agree. There’s more at Eric’s post, which also discusses how Google goes about publicizing the C&D letters it receives.

Related Posts:

1. Solove, Jennifer Aniston Nude Photos and the Anti-Paparazzi Act

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30,000 Innocent Travelers Flagged on Airline Screening Lists

airlinescreening1.jpgFrom ZDNET:

About 30,000 airline passengers have discovered since last November that their names were mistakenly matched with those appearing on federal watch lists, a transportation security official said Tuesday.

Jim Kennedy, director of the Transportation Security Administration’s redress office, revealed the errors at a quarterly meeting convened here by the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee.

The 30,000 are on the “selectee” list, which means they aren’t barred from flying; instead, they are continually singled out for additional screening. If you’re one of the unlucky 30,000, what do you do? Can you rectify the situation? Sort of — and only after a lot of effort:

Kennedy said that travelers have had to ask the TSA to clear their identities from watch lists by submitting a “Passenger Identity Verification Form” and three notarized copies of identification documents. On average, he said, it takes officials 45 to 60 days to evaluate the request and make any necessary changes. . . .

Sounds like fun . . . and getting notarized copies isn’t cheap either. But you’re cleared then, right? Not so fast:

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The Consumerist

consumerist.jpg

Readers interested in my post a few days ago about the Internet shaming of corporations, Seeking Justice Against Bad Business — Blogosphere Style, might find The Consumerist to be of interest. This website is a fusion between consumer reports and a tabloid. Its welcome message reads:

Welcome, internet, to The Consumerist, the latest title from Gawker Media. The Consumerist loves to shop, and is reconciled to utilities, but hates paying for shoddy products, inhumane customer support, and half-assed service.

Each week The Consumerist will guide you through the delinquencies of retail and service organizations. The Consumerist will highlight the persistent, shameless boners of modern consumerism — and the latest hot deals, discounts, and freebies around.

gawker-media.jpgJoin us. You’ll tell us when you’ve been royally screwed by yet another company, and we’ll channel your rage. Together we will storm the revolving doors of faceless corporations to call them naughty words for genitals, and they will begin to fear us.

The Consumerist. Capitalism is broken. We’ll help you fix it.

Gawker Media owns several blogs, including Gawker, Wonkette, and Defamer.

Hat tip: BoingBoing

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Jennifer Aniston Nude Photos and the Anti-Paparazzi Act

jennifer-aniston1a.jpgpaparazzi1a.jpgJennifer Aniston is suing a paparazzi who took nude photos of her. In a complaint filed in Los Angeles Superior Court, Aniston claims that Peter Brandt took topless photographs of her from a significant distance from her home. He used a high-powered telephoto lens to photograph her at her home. Aniston’s lawyers claim the photos were taken from over a mile away, but Brandt claims that this would be “impossible . . . unless you have something from NASA.”

Jack Chin at CrimProf expresses disbelief at the case:

Nude Photos of Jennifer Aniston can’t possibly be “illegal” if taken from a lawful vantagepoint with commercially available and commonly used equipment, can they? At least, they cannot violate a “reasonable expectation of privacy,” right? But lawyers who filed a lawsuit described on The Smoking Gun say otherwise.

This case is an example of the application of California’s Anti-Paparazzi Act. In a previous post about the Act, I observed:

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Law Review Citations and Law School Rankings

columbia_law_review.jpgThere’s no shortage of writing on law reviews or law school rankings, to say the least. So why not combine the two?

Questions about law review ranking abound. How does one compare offers from journals at relatively equal schools? Is it better to publish with a journal that is more frequently cited or with one at a higher ranked law school? Is it better to publish with a main law journal at a top 40ish law school or the secondary at a top 10 law school? Questions about law school rankings abound as well, particularly for schools outside of the top 30 or so. (Or so it seems to me.)

I’m partial to citation studies as a way of judging quality. I know that citations have lots of problems as a way of ranking journals (or individual authors). However, I like the objectivity citation studies provide. And so I’m partial to the Washington and Lee Law Library’s website, which provides comprehensive data on citations to hundreds of law journals by other journals and by courts. I’ve found it useful in trying to draw some comparisons between journals. Other people often draw comparisons between journals by looking to the US News ranking of the journal’s school.

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Searching the State

As a temporary diversion from discussions of state searches, you might want to search the state a bit — the State of the Union that is. Jonathan Corum has put together this pretty tool (explanation here) that allows you to pull up George Bush’s state of the union addresses and compare the number of instances where particular words are used. If you check a box, you can see the sentences in which the words appear. Here are some for starters:

George Bush on “terror” versus “taxes”

Bush on “evil” versus “freedom”

Washington, Lincoln, Reagan, and Clinton on “nation” v “state”

Perhaps readers can pull out some more interesting/humorous comparisons. Credit due to my RSS feed from the excellent information aesthetics blog.

p.s. Dan would probably be interested in this one from IA — a online GPS diary tracking the artist’s movements on various days.

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Subways, Searches, and Slippery Slopes

police-search.jpgThe gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself.

I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims. So I’ll attempt to clear up any confusion as to my positions and try to defend my turf.

1. I’m not a privacy absolutist. If I were, I wouldn’t even be speaking about whether the subway searches were effective or not, as it would be irrelevant.

2. I am not arguing that we’re on a slippery slope toward totalitarianism. I am arguing that the “show of force” that Jason extols is something that totalitarian societies do, and it has effects on shaping people’s attitudes and their sense of freedom. It has “expressive” content. My argument is not that we’re going to quickly slide down the slope to Big Brother. Rather, my argument is that the searches and other displays of force Jason speaks about are similar tactics to those used in totalitarian societies. They won’t necessarily make us into such a society, but they do introduce different elements into our own society that will have some effect. Allowing police to search people as they travel about the city, without any suspicion of wrongdoing, is a significant change in the tone and tenor of life in NYC. Although this will not lead to the government’s installing telescreens into people’s homes anytime soon, the subway search policy isn’t a trivial initiative. Nor are the other displays of force Jason speaks about. They affect the very atmosphere in which we live.

3. I did not invoke Korematsu to suggest that we’re on a slippery slope to internment. I invoked it to suggest that it involves the same arguments and logic of deference. The point is that the government officials were wrong with regard to the Japanese Internment, and perhaps this should serve as a lesson to courts that government officials do not always know better. It also demonstrates the lengths to which the government can go when security is threatened. I raise Korematsu not as a slippery slope problem but as a cautionary tale that in the face of security threats, the government (and the population at large) can make rash and unwise decisions. This is a reason why courts shouldn’t defer but should keep a very critical eye on the policies adopted by the government in times of crisis.

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Are Subway Searches Really the Top of the Slippery Slope to Korematsu?

slippery_slope.gif

Dan’s “Rational Security” post and Jason’s provoking democratic searches response seem to me to have occupied part of the field of what I wanted to say here, which is that random suspicionless searches can be left to democratic controls without imperiling the entire constitutional order.

A bigger issue for Dan and privacy absolutists: not all anti-terror policies lead to Korematsu! Although I’m significantly more sympathetic to slippery slope arguments than I used to be, thanks to Volokh, I think Dan’s argument here is off-target. The differences between the internment cases, involving racially suspect classifications, and the searches here are evident. Most significantly, in a factual finding that commentators on this site appear to be ignoring, these really are random searches; the police aren’t permitted discretion to search any particular suspect class. Dan argues nonetheless that checking bags of subway entrants is a first step toward totalitarianism. I’d like to hear more about the mechanisms of this particular slippery slope. But until I do, my intuition is that a policy that burdens equally all residents is significantly less troubling than one that does not.

Dan also, I think, ignores my point that the court really didn’t defer to the government here, at least as deference is normally understood. Sure, the court is tougher on plaintiff’s witnesses, but that is because they didn’t have the relevant expertise. What is the court to do if the plaintiff doesn’t show up with the right folks, hire an independent security consultant? That isn’t how our system works.

I take Dan’s big point to be that this is an unwise policy. It (according to him) misallocates scarce dollars on a policy that will not have significant deterrent effects. I disagree that simply because the chance of search are low and terrorists might be able to evade the cordon we can conclude that there is no or low deterrence. But putting that aside, there is a space between what the Fourth Amendment permits and what smart police policy ought to be. (Thanks to my colleague Craig Green for reminding me of this). To conflate the two, i.e., to require the police to justify anti-terror searches as the least intrusive method necessary, or the most effective strategy policy possible, would simply be to substitute the anti-terror judgments of one group of elites (judges and scholars) for another (elected officials and police authorities). What is the normative argument for that result?

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Democratic Searches and Seizures

hands_up.jpegThe Fourth Amendment protects us from unreasonable searches and seizures. In the subway case upholding random searches of bags, Dan criticizes the court for giving too much deference to the police department.

I disagree.

The subway searches are a good example of what I call democratic searches and seizures. The basic idea is this: if a search or seizure is authorized by a majority of the community—the best evidence being that it occurs pursuant to a validly enacted law—and the members of that majority are themselves subject to the search or seizure, then the search or seizure is reasonable.

Under this standard, the search or seizure is democratic in two senses: a democratic majority approves it and a democratic majority is subject to its effects.

If both of these conditions are met, courts should not invalidate the search as unreasonable under the Fourth Amendment.

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