Putting Bryan Garner's "Axed" Legal Terms Into Practice

KNOW ALL MEN BY THESE PRESENTS: WITNESSETH that herein I deem Bryan Garner's banned legal terms to be useful and/or effective pursuant to concerns for tradition, whereas such concerns and said utility of the terms lead to the conclusion that one shall use the same provided that one desires to obfuscate one's argument.

Is Government Release of Confidential Program Information "Propaganda" or "Damage Control?"

At The Intercept, Glenn Greenwald has an article where he addresses the NSA's release of classified information about its own programs. Greenwald notes this article in the LA Times, which begins:

In nearly nine years as head of the nation's largest intelligence agency, Gen. Keith Alexander presided over a vast expansion of digital spying, acquiring information in a volume his predecessors would have found unimaginable.

In Iraq, for example, the National Security Agency went from intercepting only about half of enemy signals and taking hours to process them to being able to collect, sort and make available every Iraqi email, text message and phone-location signal in real time, said John "Chris" Inglis, who recently retired as the NSA's top civilian.

The overhaul, which Alexander ordered shortly after taking leadership of the agency in August 2005, enabled U.S. ground commanders to find out when an insurgent leader had turned on his cellphone, where he was and whom he was calling.

Greenwald quotes this portion of the article, and highlights the second paragraph, noting that this seems to be the first anybody has heard of this program. Greenwald is, to put it lightly, critical:

[I]n this case, the NSA’s “most carefully guarded secrets” were spilled thanks to Chris Inglis and the paper’s own Ken Dilanian. But because the purpose was to serve the NSA’s interests and to propagandize the public, none of the people who pretend to object to leaks–when they shine light on the bad acts of the most powerful officials–will utter a peep of protest. That’s because, as always, secrecy designations and condemnations of leaks are about shielding those officials from scrutiny and embarrassment, not any legitimate considerations of national security or any of the other ostensible purposes.

I blogged previously about the struggle to control the narrative on government surveillance. There, I highlighted that the government is in a very difficult position -- Edward Snowden has taken an undetermined, massive amount of classified information, and the government does not know what will be leaked to the press and when these leaks will be disclosed. Critics of media coverage of this information accuse journalists like Greenwald of strategically releasing this information in misleading ways in order to draw attention to the story. But if the government tries to control the narrative by releasing information about its own programs, commentators like Greenwald point out that this seems to create tension with the government's claims that the secrecy of this information is necessary for these programs to be effective and to save lives.

In the case of the Iraq program discussed in the LA Times, I think that Greenwald's criticism may be a little misplaced. The program that Inglis mentioned in that article seems to have been related to US war efforts in the country -- efforts that have since ceased. So the government's disclosure of that program would not seem to undermine information-collecting activities or endanger any lives.

But Greenwald's critique here points out an additional obstacle to any attempt by the government to control the narrative regarding mass surveillance programs. Not only is the government in the dark over what information Snowden has and when the media will release this information, any attempt by the government to release the information under its own framework will appear to conflict with the government's claims that the secrecy of these programs is necessary to protect lives and maintain the effectiveness of the NSA's information-collecting tools. 

The government may respond that in certain cases, the benefits of releasing information about a classified program may outweigh the costs of that program becoming public knowledge. In some situations, the government may think that the information will be inevitably released by media outlets based on leaked information. In these scenarios, the government's own release of the information would only reveal information that would likely be revealed by the media in the near future. Additionally, in some situations (like, possibly,  the Iraq phone surveillance program), the government may no longer have any use for the program, and disclosing it would not remove any meaningful surveillance options from the government's toolbox. Under these circumstances, the government's release of information may be an effective damage control strategy, since the government can present the program in a manner that highlights its effectiveness, its limits, or other features that may make the program seem more palatable to the public.

Whatever the case may be, Greenwald's article highlights the difficulty for the government when it comes to controlling the narrative over its classified programs. Not only is the government in the dark over when the media will release this information, if the government chooses to release the information itself, it risks undermining its claims that classification is necessary for the programs to remain effective and save lives. And critics may fire right back by labeling the government's release as "propaganda."

"Obama to Call for End to N.S.A.’s Bulk Data Collection"

That is the title of an article in today's New York Times. It begins:

The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials. 

Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.

This move is relevant to courts' Fourth Amendment jurisprudence, since two federal courts have reached contradictory rulings on the constitutionality of this program. My post on the decision of the District Court for the District of Columbia ruling that the program is likely unconstitutional is here, and my post on the Southern District of New York's decision that held the program constitutional is here.

If the law that will be proposed ends the widespread collection of telephonic metadata, it may very well render moot the existing challenges to the law. Those hoping for stronger Fourth Amendment protections against government surveillance may be disappointed as a result -- since existing Fourth Amendment law arguably permits the collection of phone-dialing information from telephone companies under Smith v. Maryland. Commentators, and the District Court for the District of Columbia, have argued that this is an outdated view of the Fourth Amendment, since broad surveillance programs may technically comport with Fourth Amendment precedent, but result in the collection of a great deal of personal information. If the challenged law is changed, and if the challenges to the law become moot, then the Fourth Amendment question will remain unanswered.

There are those who would likely argue that this is a good thing from a constitutional law perspective, since courts may be ill-suited to make Fourth Amendment decisions based on rapidly developing technology. The legislature may be better at drafting laws tailored to address wide-ranging surveillance programs without stretching the Fourth Amendment too far.

All of this depends on how far-ranging the White House's proposed change to the surveillance program will be, and whether this proposed change gains enough support to become law. I still have a few questions about what a "new kind of court order" means, when it comes to the government requesting calling records for specific individuals. There is some indication of what this is in another part of the article:

In recent days, attention in Congress has shifted to legislation developed by leaders of the House Intelligence Committee. That bill, according to people familiar with a draft proposal, would have the court issue an overarching order authorizing the program, but allow the N.S.A. to issue subpoenas for specific phone records without prior judicial approval.

The Obama administration proposal, by contrast, would retain a judicial role in determining whether the standard of suspicion was met for a particular phone number before the N.S.A. could obtain associated records.

It is still unclear what kind of role the judiciary will play in approving requests for phone number information, and what the standard of suspicion will be in evaluating these requests. But requiring judicial approval would almost certainly mark a significant reduction in information the government directly collects.

The specifics of this plan should be clearer on Friday, which is the deadline for the Justice Department to release their plan for the collection of metadata, and which is when the Foreign Intelligence Surveillance Court's most recent order authorizing the program will expire.

"MtGox Finds 200,000 Missing Bitcoins in Old Wallet"

That is the title of this BBC report:

The firm said it found the bitcoins - worth around $116m (£70m) - in an old digital wallet from 2011. 

That brings the total number of bitcoins the firm lost down to 650,000 from 850,000. 

MtGox, formerly the world's largest bitcoin exchange, filed for bankruptcy in February, after it said it lost thousands of bitcoins to hackers. 

"MtGox had certain old-format wallets which were used in the past and which, MtGox thought, no longer held any bitcoins," said Mt Gox chief executive Mark Karpeles in the filing. 

However, "on March 7, 2014, MtGox confirmed that an old-format wallet which was used prior to June 2011 held a balance of approximately 200,000 bitcoins," he said.

This is a bit of good news for MtGox's creditors, who previously were facing the prospect that almost all of MtGox's bitcoins had been stolen. But it casts even more doubt on how MtGox was running its business, since MtGox was apparently able to lose track of 200,000 bitcoins. This, on top of earlier revelations that MtGox continued to allow bitcoin trades when it knew that it did not have enough bitcoins to give back to their customers, makes MtGox a cautionary tale of just how much can go wrong in the world of bitcoin exchanges.

The ENFORCE the Law Act

That's the name of a bill proposed by Trey Gowdy (R - SC). The bill would give Congress and/or the Senate the ability to sue the President when the House or Senate passes a resolution determining that the President or an administrative agency has "established or implemented a formal or informal policy, practice, or procedure to refrain from enforcing, applying, following, or administering any provision of a Federal statute, rule, regulation, program, policy, or other law in violation of the requirement that the President take care that the laws be faithfully executed under Article II, section 3, clause 5, of the Constitution of the United States."

At PrawfsBlawg, Howard Wasserman takes note of this bill and concludes that while Congress may be able to give itself standing to sue, it would still seem that these questions would be non-justiciable political questions. From what little I know about the political question doctrine, I am inclined to agree.

Also, I have observed politicians like Gowdy making accusations that President Obama is abusing his power by adopting policies of nonenforcement for some time now, but this is the first legislative action on the subject that I have seen. Some may argue that this move was precipitated by Obama's statement that he would "use his pen and his phone" to act where he could, even if Congress refused to legislate. But an alternate theory is that the body of the bill has been around for a very long time, and the bill's proponents only recently settled on the title, "the Executive Needs to Faithfully Observe and Respect Congressional Enactments of the Law Act of 2014" (which can be abbreviated to "ENFORCE").

We may never know for sure what theory of this bill's development is correct. But it is pretty safe to say that any interesting justiciability questions this bill raises will never be heard in the courts since the bill will almost certainly die in the Senate.

Larsen on Overreliance on Factual Amicus Briefs

Via the Legal Theory Blog, I learned of this interesting article by Alli Orr Larsen that is forthcoming in the Virginia Law Review. The title is, The Trouble with Amicus Facts. Here is the abstract:

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?) and to answer these questions the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the Court’s decision-making. 

The goal of this article is to chip away at that conventional wisdom. The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check. I challenge this process as potentially infecting the Supreme Court’s decisions with unreliable evidence, and I make suggestions for ways to reform it. It is time to rethink the expertise-providing role of the Supreme Court amicus and to refashion this old tool for the new purpose to which it is currently being used.

UCLA Moot Court Program Hosts Cybercrime Competition and Symposium: "Edward Snowden: Patriot or Traitor?"

One of the many hats that I wear at UCLA Law is that of being a problem developer for the UCLA Cybercrime Moot Court Competition. The competition took place this previous weekend, and twelve teams from nine schools competed. The University of Michigan came out on top, and UCLA was the runner-up. I had the opportunity to keep time for several rounds, and I thought that the competitors did an excellent job dealing with the problem (which consisted of a Computer Fraud and Abuse Act issue based closely on the upcoming United States v. Aurenheimer case, and an invented Fourth Amendment issue concerning police searches of unsecured wireless networks).

This year marked the first time that the UCLA Moot Court program hosted a symposium in conjunction with the tournament. The topic of the symposium was Edward Snowden: Patriot or Traitor? Five panelists debated this question. Stewart Baker of Steptoe & Johnson and Judge James Carr, a federal judge from the Northern District of Ohio (and former Chief Judge of the Foreign Intelligence Surveillance Court) argued Snowden was a traitor (although Baker made it immediately apparent that he was more comfortable with the claim that Snowden was a non-patriot, but not necessarily a traitor). Snowden's attorney, Jesslyn Radack, and Trevor Timm, the founder of the Freedom of the Press Foundation argued that Snowden was a patriot. And the Snowden family's attorney, Bruce Fein, argued that Snowden was neither a patriot nor a traitor.

A recording of the full debate is available here.

"Reverse" 413-414 Evidence and the Limits of Accusing Alternate Suspects

At EvidenceProf Blog, Colin Miller discusses the case, United States v. Thunder, (8th Cir. 2014 WL 944752), and some interesting questions the case raises. In Thunder, the defendant was convicted of sexual assault. At trial, the defendant had attempted to introduce evidence that another person, Speker, had committed the assault and sought to introduce evidence of Speker's prior conviction for sexual abuse.

The trial court did not permit evidence of the alternate suspect's prior conviction, noting that the evidence would be unduly prejudicial under Federal Rule of Evidence 403 and would likely cause confusion to the jury. The Eighth Circuit affirmed this ruling, noting that there was no evidence that the alternate suspect had been near the victim when she was attacked.

Miller asks the broader question about whether the Federal Rules of Evidence permit evidence of a third party's prior sexual assault or abuse convictions:

My second question relates to Federal Rule of Evidence 414(a) and Federal Rule of Evidence 413(a), which covers prior acts of sexual assault. These rules generally allow the prosecutor to present evidence of any prior sex crimes committed by a criminal defendant to prove any relevant purpose, subject only to a very lenient Rule 403 analysis. 

The Speker evidence didn't satisfy Rule 403, but what if it did? For instance, what if the defendant did have evidence that Speker was alone with the victim? Techinically, Federal Rule of Evidence 414(a) only allows for the admission of evidence against a defendant. And while courts do allow defendants to use Federal Rule of Evidence 404(b) to prove the motive, intent, etc. of an alternate suspect (reverse 404(b) evidence), a defendant generally cannot present evidence of the general criminal propensities of alternate suspects. So, for instance, a defendant would be precluded from presenting evidence of an alternate suspect's prior rape conviction to prove "once a rapist, always a rapist." 

But should a suspect be able to introduce "reverse" 413/414 evidence to prove just such a thing? Is that what fairness requires?

I agree with Miller that the text of the rules does not support the introduction of "reverse" 413-414 evidence. Not only do rules 413 and 414 refer only to admission of evidence against the defendant, but Rule 404's broader prohibition on the use of propensity evidence refers to generic "persons" and is not limited to preventing evidence of the defendant's prior crimes or bad acts.

But whether allowing evidence of prior crimes by alternate suspects is a good policy is a far more complicated question.

"The Gender Citation Gap" and Self-Citation

The Chronicle of Higher Education has this interesting article on citation patterns in academic publications. The central item of discussion is that men are cited more frequently than women. The article begins:

When Barbara F. Walter went to Princeton University last spring to tell political-science professors about her study revealing a new gender gap in academic publishing, she was surprised to see the reasons for the divide play out right in front of her. 

Her study documented that in scholarship on international relations, work by men is cited more often than work by women. Among the reasons: Female authors are only half as likely as male authors are to cite their own research. 

"The women in the room spoke first, saying there was something dirty and underhanded about citing your own work, that it seemed somehow wrong," recounts Ms. Walter, a professor of political science at the University of California at San Diego. "But then a male graduate student said he was shocked because it had never occurred to him that self-citation was a negative. The other men were all saying it was perfectly normal and asking, Why wouldn’t you want to promote your own work?"

Walter's study is available here. Citation rates are a crucial measure of success for academic writers, and the Chronicle article goes into great depth about different attitudes towards self-citation. One common theme was the tendency to self-cite when a book or article forms the basis of a new field of study. Scholars generally justify self-citation by pointing out that their work is a novel accomplishment that forms the foundation for new study. But this domain of material tends to be disproportionately white and male:

Terrell L. Strayhorn, an associate professor of higher education at Ohio State University, says that for women and scholars from ethnic minority groups, self-citation should be part of a strategy to get more attention for their work. As an editor of Spectrum: A Journal on Black Men and associate editor of The Journal of Higher Education, Mr. Strayhorn says he often reads manuscripts by minority women who fail to cite any of their own work. "I’ll get reviews back on the paper, and sometimes reviewers say, ‘You really need to cite this person’s work,’ and they are talking about the scholar who wrote the piece herself." 

Mr. Strayhorn says it will take self-citation for the work of women and minority scholars to gain acclaim. "We’re living in a time where a lot of papers in social sciences get published by citing the canon," he says. "But right now the canon is still predominantly white and male. One way to break that down is to make sure we’re citing more-recent scholars, and that means citing ourselves."

The Chronicle and the studies it discusses seem to focus primarily on peer-reviewed work, meaning that most law journals are left out of this analysis. I would not be particularly surprised to see similar trends in the world of legal scholarship. But footnotes and citations are so numerous in legal scholarship that I would be equally unsurprised to see less of a gap in self-citation, since the citation to one's own work would be only one of hundreds of other citations.

Finally, I would like to note that while I gratuitously cite my own posts in this blog, I have not yet cited anything I have written in the papers I have submitted for publication. Admittedly, my papers so far concern fairly distinct subject matters, but I probably could have cited this paper in this paper.

Bashman on the Increased Availability of Good Legal Writing

At the Legal Intelligencer, Howard Bashman has an article about the importance of good legal writing and how samples of good legal writing are more available in recent years. He writes:

So many young people today graduate high school without learning how to write well, then they graduate college and still haven't learned. Before long, they are graduating law school, having learned to think like a lawyer and, even worse, having perhaps learned to write like a lawyer. At the risk of providing too stark of a choice, writers of appellate briefs must opt either to write like a lawyer or to write in a manner that the reader is likely to find worth reading.

. . .

It is beyond the capacity of this column to teach someone to be a compelling appellate brief writer. But compelling appellate written advocacy typically reflects certain characteristics: clarity of thought and explanation; persuasiveness; and accessibility, producing an ease of understanding no matter how complex the subject matter.

Bashman goes on to list examples of judges who are particularly good writers, and also recommends the United States Solicitor General's website as an excellent source for finding high-quality briefs filed in cases before the Supreme Court. One commentator who has taken advantage of the increased availability of good legal writing is Ross Guberman, whose excellent book, Point Made, not only lists important rules for legal writing, but also provides countless examples of these rules in play from the country's top written advocates.

New Snowden Documents on NSA Use of Botnets

The Intercept reports:

Top-secret documents reveal that the National Security Agency is dramatically expanding its ability to covertly hack into computers on a mass scale by using automated systems that reduce the level of human oversight in the process. 

The classified files – provided previously by NSA whistleblower Edward Snowden – contain new details about groundbreaking surveillance technology the agency has developed to infect potentially millions of computers worldwide with malware “implants.” The clandestine initiative enables the NSA to break into targeted computers and to siphon out data from foreign Internet and phone networks. 

. . . 

In some cases the NSA has masqueraded as a fake Facebook server, using the social media site as a launching pad to infect a target’s computer and exfiltrate files from a hard drive. In others, it has sent out spam emails laced with the malware, which can be tailored to covertly record audio from a computer’s microphone and take snapshots with its webcam. The hacking systems have also enabled the NSA to launch cyberattacks by corrupting and disrupting file downloads or denying access to websites. 

The implants being deployed were once reserved for a few hundred hard-to-reach targets, whose communications could not be monitored through traditional wiretaps. But the documents analyzed by The Intercept show how the NSA has aggressively accelerated its hacking initiatives in the past decade by computerizing some processes previously handled by humans. The automated system – codenamed TURBINE – is designed to “allow the current implant network to scale to large size (millions of implants) by creating a system that does automated control implants by groups instead of individually.”

Wired also highlights that the NSA has been hijacking private botnets as part of its overall scheme. The NSA document describing that program is available here, but, as Wired admits, it is pretty short on the details and the purpose of the program. What the document does indicate is that the NSA has successfully taken over the command-and-control functions of several botnets and effectively controls 140,000 computers as a result of this approach.

I Have Some Concerns with Kaplan

It's that wonderful time of my life when I get to pay for a bar prep course. I'm going with Kaplan because they have an excellent deal for students who are interested in public interest work, and I am simply unable to afford BARBRI's outrageous cost. Following the link to Kaplan's website, I was confronted with this image:

While I am aware that Kaplan is not writing a brief or a law review article in presenting its website, I found its placement of the asterisk somewhat upsetting. After all, Rule 1.1(a) in the Bluebook states:

Citations to authorities that support (or contradict) a proposition made in the main text (as opposed to footnote text) are placed in footnotes. A footnote call number should appear at the end of a textual sentence if the cited authority supports (or contradicts) the entire sentence. In contrast, a call number should appear within the sentence next to the portion it supports if the cited authority supports (or contradicts) only that part of the sentence. The call number comes after any punctuation mark—such as a comma, semicolon, or period—with the exception of a dash or a colon. In addition to citation to authorities, a footnote may include textual sentences that are related to the main text to which the footnote is appended.

According to Rule 1.1(a), the asterisk should have appeared after the exclamation point rather than before it. Moreover, the footnote to which the asterisk led did not indicate when Kaplan had previously "beaten" BARBRI, nor did the footnote tell us what "beat" meant. The only footnote on the page simply stated:

*Test names and other trademarks are the property of the respective trademark holders. None of the trademark holders are affiliated with Kaplan or this website.

Sorry. I left the original formatting there. Here's another go:

*Test names and other trademarks are the property of the respective trademark holders. None of the trademark holders are affiliated with Kaplan or this website.

Oddly, since Kaplan's name appears in the same sentence that is footnoted, Kaplan seems to be indicating that it does not hold the trademark over the name "Kaplan." That seems to be a very strange thing for Kaplan to say. An alternate reading would be that Kaplan is trying to say that any trademark over BARBRI belongs to BARBRI and not Kaplan. So it would seem that putting the asterisk right after "BARBRI" would be a much more sensible placement for purposes of the trademark disclaimer. And this would be an excellent way for Kaplan to highlight the "surprising" part of Bluebook Rule 1.1(a), which states that the one exception to the rule that the call number for a footnote follow a punctuation mark is a dash.

Looking into the website a bit further indicates that the footnote actually indicates how Kaplan did indeed "beat" BARBRI, but to get to that footnote, one has to follow the link (containing the asterisk) to this page. This makes the overall website a little less upsetting, although it is odd to have one webpage containing an asterisk that refers to a footnote on a completely different webpage.

This post may seem a bit ornery, and it may be bad karma for me to criticize the company that will hopefully help me survive the bar exam. But when I logged into my "account" page (using a password-recovery tool activated by entering my email address, since I had not yet received a password), my account page greeted me with the heading, "Michael's Account," and then indicated that my name was "Michelle Smith," that I had an Iowa City zip code, and that my email address was something that began with the text: "dancergirl. This is extremely strange, since the email address I used to access the page in the first place was my own email address, which, last I checked, does not begin with the text, "dancergirl." Even more strangely, all of this incorrect information was accompanied by a correct listing of my phone number.

In light of this series of mishaps, I think that I am allowed to express some discontent with Kaplan's website. I can only hope that I won't need to Shepardize the materials that I eventually receive from them.

UPDATE

After calling Kaplan, I have sorted out my identity. There appeared to have been an error in my username, with the "50" on my written application for the course being translated into a "15" in their records. While my profile information is straightened out now, they are not sure how I ended up with Michelle's identity.

Also, several of my dear, sweet colleagues at UCLA Law have told me that my post contains incorrect facts. In particular, they assure me that my email address does, in fact, begin with the text, "dancergirl." I have done some investigation into these concerns, and I can confirm with certainty that my email address does not contain the phrase, "dancergirl."

"US Supreme Court Removes School 'Boobies' Bracelet Ban?"

This is the title of this BBC article on the case Easton Area School District v. B.H (although I added the question mark). It sounds like the Court just made a notable First Amendment ruling. But the first paragraph of the story reads:

The US Supreme Court has rejected an appeal which sought to ban students in Pennsylvania from wearing controversial breast cancer awareness bracelets. 

The Easton Area School District had prevented youths from wearing bracelets emblazoned with "I (heart) Boobies!", alleging the words were lewd. 

Two students legally challenged the ban in 2010, citing freedom of speech. 

The US court's decision leaves in place an earlier ruling by a federal appeals court overturning the ban.

So the Court did not actually strike down the ban, as the title suggests, it simply declined to hear an appeal, and left the decision striking down the ban in place. An interesting story, but certainly not as significant as the article's title suggests.

National Transportation Safety Board Invalidates Fine for Drone Use; FAA Appealing

Administrative law can be "dreary," or even "boring!" but the broad, technical principles that administrative law courses teach can end up being applied in some interesting contexts. Take, for example, this article by Ryan Calo at Forbes (h/t my administrative law professor, Gregory Ogden). There, Calo writes:

An administrative judge invalidated a fine yesterday against an individual who used a small drone for the commercial purpose of taking and selling photographs. The decision has been heralded, rightfully, as a blow to the Federal Aviation Administration’s ability to regulate private drone use in the United States.

The administrative hearing was heard by a judge with the National Transportation Safety Board (NTSB) and it overturned a fine by the Federal Aviation Administration (FAA) against Raphael Pirker. Pirker successfully challenged the fine by arguing that the FAA had not properly enacted a rule against the use of his "model aircraft," and that the FAA's statements on model aircraft were non-binding.

The FAA is appealing the NTSB's order, and it will be interesting to see how this case proceeds. The FAA is scheduled to release comprehensive regulations on the use of unmanned aircraft before the end of 2015, but it will be interesting to see if this case ends up speeding along that process.

UPDATE

You can read the full NTSB decision here.

Technological Advancement and the Fourth Amendment: Ferguson on Big Data and Reasonable Suspicion

Via Josh Blackman, I learned of a forthcoming article by Andrew Guthrie Ferguson. The title is, Big Data and Predictive Reasonable Suspicion. Here is the abstract:

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.

But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics can forecast who will be the likely troublemakers in a community? The rise of big data technology offers a challenge to the traditional paradigm of Fourth Amendment law. Now, with little effort, most unknown suspects can be “known,” as a web of information can identify and provide extensive personal data about a suspect independent of the officer’s observations. New data sources including law enforcement databases, third party information sources (phone records, rental records, GPS data, video surveillance data, etc.), and predictive analytics, combined with biometric or facial recognition software, means that information about that suspect can be known in a few data searches. At some point, the data (independent of the observation) may become sufficiently individualized and predictive to justify the seizure of a suspect. The question this article poses is can a Fourth Amendment stop be predicated on the aggregation of specific, individualized, but otherwise non-criminal factors? 

This article traces the consequences in the shift from a “small data” reasonable suspicion doctrine, focused on specific, observable actions of unknown suspects, to the “big data” reality of an interconnected information rich world of known suspects. With more targeted information, police officers on the streets will have a stronger predictive sense about the likelihood that they are observing criminal activity. This evolution, however, only hints at the promise of big data policing. The next phase will be using existing predictive analytics to target suspects without any actual observation of criminal activity, merely relying on the accumulation of various data points. Unknown suspects will become known, not because of who they are but because of the data they left behind. Using pattern matching techniques through networked databases, individuals will be targeted out of the vast flow of informational data. This new reality subverts reasonable suspicion from being a source of protection against unreasonable stops, to a means of justifying those same stops.

This article provides one example of how changing technology stands to fundamentally change the impact of various Fourth Amendment doctrinal rules. Another example is the third party doctrine, which holds that voluntary disclosure of information to third parties removes a reasonable expectation of privacy in that information. With the vast amount of information now being shared through telephone companies and internet providers, some critics (and even one district court) are now calling for a rethinking of this doctrine.

One more example of a Fourth Amendment rule that may end up needing to be changed is the rule stated by the Court in Kyllo v. United States -- there the Court struck down the warrantless use of an infrared imaging device, holding that a Fourth Amendment search takes place when the police use a device that reveals information about the interior of the home, when that device is not in common use. Commentators question whether Kyllo remains good law in light of the growing availability of thermal imaging devices to the general public.

All of these examples are instances where Fourth Amendment rules no longer provide the level of privacy that they did at the time they were formulated. If that same level of privacy is to be protected, courts will either need to significantly revise Fourth Amendment doctrine, or legislatures will need to place limits on the government's use of new technology.

Class Action Lawsuit Against Mt. Gox Likely

News in the world of bitcoins has been dominated by the collapse of Mt. Gox, the world's largest bitcoin exchange. Investors' bitcoins that were stored with Mt. Gox were apparently stolen by hackers, resulting in the loss of $460 million. Wired has a thorough account of the hack, and the events leading up to the collapse.

Like many hacks on bitcoin exchanges, this story has drawn the attention of news outlets across the world, and has prompted some bitcoin critics to announce the death of the currency. Bitcoin enthusiasts are quick to respond that the currency is resilient and will survive this crisis. I am inclined to agree with this view, since bitcoins have survived previous hacks of exchanges, and attempts by governments to restrict the currency.

But Mt. Gox's collapse and bankruptcy is an event worth noting and continuing to follow, especially in light of the potential for lawsuits against the exchange. The Telegraph reports that hundreds of Mt. Gox customers are seeking to launch a class action lawsuit against the exchange. And the New York Times reports on the difficulty of embarking on such a lawsuit, given the immaterial and evasive nature of bitcoins as assets.

The collapse of Mt. Gox will almost certainly lead to litigation. It will be interesting to see how this litigation proceeds, and whether the plaintiffs have any success in recovering their assets.

A Familiar-Looking, Proposed Drone Restriction in Massachusetts

The Associated Press reports that a bill to limit the use of drones is scheduled for a hearing in the Massachusetts Senate Transportation Committee. Nashoba Publishing has more details on the bill here. The bill would restrict the use of drones by law enforcement to situations where officers obtain a warrant, or when there is an emergency. The bill would also ban the use of weaponized drones. Beyond the ban on weaponized drones, there appears to be no limit on the use of drones by non-government parties.

The full text of the bill is available here.

After looking over the bill, I notice that it is very similar to Rhode Island's proposed bill to limit the use of drones by law enforcement. I blogged about the Rhode Island legislation here.

The similarity between these two bills can probably be explained by looking to a supporter that both bills have in common: the ACLU. Here, the ACLU of Rhode Island announces that it is supporting H7170, the bill that I blogged about earlier. And here, the ACLU announces that it is supporting S1664, the Massachusetts bill that would limit law enforcement's use of drones. The ACLU is also supporting H1357 in Massachusetts, which seems to be the same as S1664.

Since the Massachusetts bill is extremely similar to the Rhode Island bill, I will not repeat my earlier evaluations of the Rhode Island bill, which you can read here. I will only add that the ACLU seems to be doing an effective job of trying to limit government use of drones, but private use of drones is something that state legislatures will need to address as drones become more available to private parties.

Massachusetts and Rhode Island focus on government drones, but legislatures in these states must not forget that private parties can violate privacy rights too.

Rhode Island's Proposed Drone Law

Boston.com reports on a recent bill proposed in Rhode Island's House of Representatives:

The bill from Democratic state Rep. Teresa Tanzi would require law enforcement agencies to hold public hearings before acquiring a drone aircraft. The agency would need the approval of local leaders, or, in the case of a state agency, the governor. 

Finally, the agency would have to consult with the state attorney general and get court approval before using the drone in specific investigations. Drones would also be prohibited from carrying weapons.

The full text of the bill is available here.

The bill focuses on law enforcement use of drones, and there are very few sections of the bill that seem to apply to private parties. One exception might be 12-5.3-2 (d) which broadly bans the use of weaponized drones.

The bill's restriction on law enforcement's use of drones is a bit restrictive, but seems pretty good overall. The bill would require officers to seek a warrant before using drones, although there are some exceptions to this requirement in emergency situations. The bill would also require prompt deletion of information collected on people who are not the subject of warrants, although I did not see any provision that would govern the retention or deletion of information on individuals who are the subjects of properly-obtained warrants.

One notable part of this bill is 12-5.3-2 (b) which would require a public hearing before a government could obtain a drone. The governor would need to approve the acquisition of a drone for a state agency, while the town or city councils that oversee municipal authorities would need to approve those authorities' acquisition of drones. Different towns may have vastly different opinions on the use of drones, with some towns (like Iowa City) favoring even more stringent restrictions on police use of drone technology. Rhode Island's requirement that a municipalities approve local drone acquisition gives local governments a greater say when it comes to police use of drone technology.

No vote has yet been scheduled on this bill, and as far as I can tell, the bill remains in the House Committee on Judiciary.

The Inconsistent Enforcement of the Migratory Bird Treaty Act

At Energy an the Law, Charles Sartain has an interesting post on the mixed enforcement of the Migratory Bird Treaty Act. He notes that while CITIGO was fined over one million dollars for the death of ten birds in 2012, wind turbine operators now have permits allowing them to kill a certain number of eagles (a reform to the law that followed soon after a notable case where turbine operators were fined for the deaths of golden eagles). And while the deaths and injuries of birds at the hands of wind turbines and solar plants are met with studies, nobody in government has yet said anything about the potential thousands of bats that are killed each year by wind turbines.

Sartain concludes that there is no consistent policy behind current enforcement practices. It will be interesting to see if these practices change as the government's studies on solar and wind energy plants' environmental impacts proceed.

The CATO and P.J. O'Rourke Amicus Brief in Susan B. Anthony List v. Driehaus

Via the Legal Theory Blog, I learned about this excellent amicus brief written by Ilya Shapiro on behalf of the CATO Institute and P.J. O'Rourke for the case, Susan B. Anthony List v. Driehaus. The ScotusBlog page on the case is here.

The brief focuses on the second question before the Court which is:

[W]hether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

 Or, as the brief puts it:

Can a state government criminalize political statements that are less than 100% truthful?

Ohio's law bans knowing statements of falsehood (or statements made with reckless disregard for their possible falsehood) that are intended to influence the outcome of an election. The CATO brief argues that this law violates the First Amendment and that the Court should "terminate it with extreme prejudice." By banning false statements in political contests, Ohio limits political discourse, which the brief argues is a loss for society:

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we'd be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ Incorporated the Nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn't administered quickly enough to secular-humanist professors of Chicano studies.

There are a lot of other good lines in the brief, so I recommend that you read the whole thing.

Louisiana's Proposed Drone Regulations

SFGate reports:

Louisiana should have limits on the use of unmanned aircraft, so people can't spy on their neighbors and government can't snoop in people's backyards without cause, said a state senator proposing restrictions on drones.

. . .

[State Senator, Dan] Claitor's proposal would prohibit the use of a pilotless aircraft to conduct surveillance on a person or private property and to possess or distribute an image captured through such surveillance. That includes photos, sounds or other information recorded by a drone.

The measure includes 16 exceptions, including for the military, mapping purposes and maintenance of utility services. Law enforcement agencies could use drones if they have a search warrant, are documenting a crime scene, searching for a missing person or responding to a hazardous materials spill.

SB 330 is the main bill that includes the restrictions and exceptions. The full text of the bill is available here. A more limited bill has also been proposed that will prohibit drones from flying over water plants and other critical infrastructure. That other bill can be found here.

SB 330 is the more interesting bill of the two, and in general I think it is pretty good. While the bill's ban is pretty broad, this bill is notable for its numerous exceptions to the broad ban. While the bill prohibits the use of drone-collected images by the government in trials, the bill allows law enforcement officers to collect images with drones if they have a warrant. But even if the officers do not have a warrant, the police can collect images with drones if there is a hot pursuit situation, or if the police are surveying the scene of a recent accident. Moreover, people can collect information from drones that are hovering eight feet off the ground in public places and are using no image-enhancing devices.

Moreover, while SB 330's overall ban is broad, it is nevertheless qualified in a way that avoids over-restriction of typical drone activity. The bill prohibits the collection of an image of an individual or real property, but only if that image is collected "with the intent to conduct surveillance on the individual or property captured in the image." So even if somebody is flying a drone with a camera that happens to capture the images of individuals or property, there will be no violation of the statute if that person was not specifically intending to conduct surveillance on those individuals or that property. Admittedly, "surveillance" remains undefined, so the scope of the bill is still a bit indeterminate, but the specific intent component certainly seems to be a step in the right direction.

SB 330 may seem cumbersome at first. It is pretty lengthy due to its list of exceptions to its overall ban. But bans that are short and simple tend to either restrict too much drone activity, or too little. This bill strikes a pretty good balance between protecting people's privacy and allowing for the use of drones by private parties and law enforcement.