Making Sense of Public Attitudes Toward NSA Surveillance

poll1a.jpgMSNBC journalist Bob Sullivan, in his blog Red Tape Chronicles, writes:

Ask Americans something like, “Should the government be allowed to read e-mails and listen to phone calls to fight terrorism?” and you’ll get a much different result than if you ask, “Should the government be allowed to read your e-mails and listen to your phone calls to fight terrorism.” . . . .

In 2002, The Pew Research Center for People and The Press asked just those questions — and by simply dropping the word “your,” the number of people willing to support such government snooping jumped by 50 percent. Only 22 percent were willing to let the government peek when it was personal, but 33 percent were willing when it sounded like only someone’s else privacy was at risk, said Scott Keeter, director of survey research for Pew.

Another issue, when it comes to framing questions in polls, is whether warrants are mentioned. Consider the question above: “Should the government be allowed to read e-mails and listen to phone calls to fight terrorism?” I’d even answer yes. The government should be allowed to conduct a wide range of searches . . . . with a search warrant, however. Indeed, under the Fourth Amendment, the government can read email and listen to phone calls with a search warrant. [The Electronic Communications Privacy Act requires a slightly more protective order than a warrant to engage in domestic wiretapping.]

So the question should be posed as: “Should the government be allowed to read e-mails and listen to phone calls without a search warrant or the appropriate court order required by law to fight terrorism?”

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NSA Surveillance Whistleblower Russell Tice Speaks

NSA2a.jpgIn an interesting interview at Reason Online, NSA surveillance whistleblower Russell Tice explains what prompted him to speak out about the program:

As a signals intelligence officer, kids who go right out of college and work for the NSA, this is drilled into you, especially when you’re young: You will not do this. This is number one of the NSA’s Ten Commandments: You will not spy on Americans. Even after you’ve had all those introductory briefings when you’re a new employee, for the rest of your career, at least twice a year they call you in for a briefing, and this is always covered. “You will not do this,” they shake their fingers at you. “If you do this you can be thrown in jail.” And all of a sudden you find out the people who’ve been shaking their fingers are doing what they’re telling you is against the law and coming out with some cockeyed nonsense excuses for why everything’s OK. It’s sort of like having your parents drill it into you not to smoke cigarettes or do drugs or whatever, and then after you’re a good little boy coming home from school at 15 and finding your parents out on the balcony doing all that.

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Just Do It: Sports v.s. Academics


So, another sportswriter has gotten under the skin of University of Oregon President Dave Frohnmayer. Awhile back, Sports Illustrated shined a national spotlight on the football program’s lavish digs.

Here is ESPN’s account of Phil Knight’s (read: NIKE’s) alleged influence on the track program and the university generally, prompting Frohnmayer to fire back.

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The Future of Law Libraries


Via Brian Leiter, I read this post on a controversy at Tulane’s Law Library. The Law Librarian Blog, after detailing recent staff and policy shifts, wonders whether the University administration is using Katrina as an excuse to do away with an independent academic law library:

So my question is do the actions at Tulane reasonably represent a sub rasa determination by relevant powers to subsume the law library into the operations of the University library, demoting it from an independent entity and transforming it into a subordinated department? The recent spate of firings looks to be designed to preshape the structure of the law library for insertion into the main library’s organization.

If this is true, I wonder whether Tulane would defend itself by arguing that in light of recent developments, there is less of a need for an independent law library than there used to be. Or, more provocatively, “Law Libraries. Huh. What are they good for?”

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The Confirmation Hearings: A Meaningless Ritual

alito2a.jpgThere is a lot of discussion about the lack of meaningful revelations in the Alito confirmation hearings. The Roberts confirmation hearings were also devoid of much meaningful substance as well.

Basically, the nominee must say that he’ll have an open mind, that he will decide cases according to the “rule of law,” that he has respect for precedent, and that he won’t be a “judicial activist.” The nominee must sit calmly while Senators bluster and wait out the storm.

We’re learning next to nothing of importance at these hearings. With the exception of Robert Bork and Clarence Thomas, do the confirmation hearings really reveal much of anything at all?

One possible reason for this state of affairs is that the lessons of the Robert Bork hearing are well-known. Everybody knows not to reveal too much, not to lay out their full hand on the table.

Another reason is that much vetting and discussion occurs before the hearing. With Alito, there were few surprises at the hearing. Most of the discussion occurred beforehand in the media and in the blogosphere. Miers, for example, had a hearing of sorts and was rejected before her official confirmation hearing had even begun.

So perhaps we should stop looking to the hearings for much meaningful substance. Any real substance comes in the media and blogospheric discussions beforehand. The hearings are little more than an empty ritual.


Baseball Statistics as Intellectual Property?

baseball1a.jpgFrom the AP:

A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers’ batting averages and home run counts are historical facts that can be used freely or property that can be sold.

In a lawsuit that could affect the pastime of an estimated 16 million people, CBC Distribution and Marketing wants the judge to stop Major League Baseball from requiring a license to use the statistics.

The company says baseball statistics become historical facts as soon as the game is over, so it shouldn’t have to pay for the right to use them. . . .

Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to “commercially exploit the identities and statistical profiles” of big league players.

The LA Times has a more detailed article. The complaint is here.


Introducing Guest Blogger Dan Filler

dan-filler2.bmpWe’re delighted that Dan Filler will be guest blogging here over the next few weeks.

Dan is a Professor of Law at the University of Alabama, where he teaches courses in criminal law and directs a capital defense clinic. He received his A.B. from Brown University and his J.D. from NYU. Before entering teaching he clerked for Judge J. Dickson Phillips on the Fourth Circuit, practiced with Debevoise & Plimpton, and served as a public defender with the Defender Association of Philadelphia and the Bronx Defenders. His newest article, The New Rehabilitation, is forthcoming in 91 Iowa L. Rev. __ (2006). His other publications include Silence and the Racial Dimension of Megan’s Law, 89 Iowa L. Rev. 1535 (2004), Terrorism, Panic and Pedophilia, 10 Virginia Journal of Social Policy & the Law 345 (2003), From Law to Content in the New Media Marketplace, 90 Cal. L. Rev. 1739 (2002), and Making the Case for Megan’s Law: A Study in Legislative Rhetoric, 76 Indiana L.J. 315 (2001).

We greatly look forward to Dan’s visit.


Welcome to the Blogosphere: LawCulture


An interesting new blog called LawCulture has just been born. According to the blog’s first post:

We are launching a new group blog, with a focus on law, culture, politics and life inside and outside of the legal academy. We’re just gearing up, so you might not hear too much from us over the next week or two, but we’re all excited to be dipping our toes blogosphere.

Bloggers include David Barron (law, Harvard), Jennifer Mnoonkin (law, UCLA), Jessica Silbey (law, Suffolk), Kim Scheppele (public and international affairs, Princeton); Peter Brooks (law, Virginia); and Rosa Brooks (law, Virginia).

Welcome to the blogosphere!


“You’re only as accurate as your database.”

Over at LawCulture, Jennifer Mnookin relates an interesting instance of being misquoted due to database error. In today’s blog-fed world, this is a serious concern.

At my other blog, Times and Seasons — which is over two years old — we’ve migrated from one software platform to another, not once but twice. Somewhere in the process of the second migration, a few of the old entries had their author designations jumbled. I thought that I had fixed them all, but it turns out that some errors still existed; a few weeks back, I got this e-mail from a sharp-eyed reader:

“I was reading an old post that is attributed to Russell Arben Fox, but all the commenters are addressing you as the author. I’m wondering if there is a data error that has crept into the database.”

I went back and fixed the authorship on that particular post — I wouldn’t want to knowingly saddle Russell with the burden of being tied to my own barely-coherent thoughts, particularly on hot-button topics like why I dislike Dale. That post is now correctly attributed; I haven’t done more, though, although it’s quite possible (probable, even) that other misattributed posts still exist.

Why haven’t I done more? Because I’m not really a computer person (though I pretend to be one); because checking all of the posts would be a lot of work; because real life intervenes, and blogging doesn’t put food on the table.

I still have the old Moveable Type database, though. I tell myself that one of these days — when I have a moment between revising my article (revisions due Tuesday!) and prepping my classes and preparing the budget for my conference and making nice with a friend who I inadvertently offended and playing with my kids and occassionally even catching a movie — I’m going to go back to the old database, compare authorship, and fix any misattributed posts. But right now, that particular project is so far off the front burner, it’s not even in the kitchen.

I can sympathize with Mnookin’s plight — she’s quite correct that one is only as accurate as one’s database. But as the administrator of an almost-certainly imperfect database myself, I can also understand how such errors creep in, and sometimes stay in.