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Thursday, January 30, 2014

Another Entry in my Bad Title Collection: Iowa Edition

Early in the existence of this blog, I wrote a general post on bad titles of articles in law journals. I mentioned there that Bryan Garner, the editor-in-chief of Black's Law Journal, has suggested that law journals should impose a 20-word cap on the titles of articles they publish.

I have been getting back into doing a lot of research, which inevitably leads to two things: (1) the need to seek out distractions (a need often met by writing blog posts), and (2) a great deal of footnote-reading. Both of these factors have combined and have compelled me to add to the collection of titles I consider worth mentioning in this blog.

Today's entry comes from the Iowa Law Review -- the flagship journal of the University of Iowa College of Law. The full citation for the article is 81 Iowa L. Rev. 883 (1996). Here is the title:

A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Technologies Make it Particularly Urgent for the Supreme Court to Abandon its Inside-Out Approach to Freedom of Speech, and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment
This title clocks in at 45 words -- more than double the amount Bryan Garner recommends as a maximum.

I had the privilege of attending the University of Iowa as an undergraduate, and I know a number of students at the law school now. They are smart people with good judgment, and I doubt that they would slate a similarly-titled article.

Also, the last time I checked, group libel cases (a member of a group of people suing somebody who disparages that group of people) are almost certain to fail (except in very narrow circumstances) largely due to First Amendment protection. I am curious to see what the author says about that point -- although the rest of the title generally seems to make sense.

Wednesday, January 29, 2014

Ninth Circuit Refuses to Rehear Pickup v. Brown

From Dale Carpenter at The Volokh Conspiracy:

In Pickup v. Brown, the Ninth Circuit Court of Appeals today decisively reaffirmed its decision from last August rejecting First Amendment and other constitutional challenges to California’ ban on so-called “gay conversion therapy” for minors. The practice, which is not endorsed by the country’s major mental health organizations, involves trying to change minors from gay to heterosexual and is often sought by parents for their teenagers. I wrote about the Ninth Circuit decision at the time, and won’t repeat the arguments here. The ruling today means that neither the original panel nor the entireen banc appeals court will reconsider that decision. The next stop for the therapists, if there is one, would be the Supreme Court.
I blogged here and here about this case after it was decided. I believe the case was decided correctly, though there was some broad language in the opinion.

Would the Supreme Court take up this case? I doubt it. Generally, this is a pretty safe position to take, since the Supreme Court accepts a very small percentage of petitions for certiorari. But as for this case in particular, while the issue involved in these cases raises some very interesting First Amendment questions, there are not many cases on this particular issue of sexual orientation conversion therapy. Pickup is the only existing circuit opinion on this type of law, and the only decision to the contrary is one of the district court opinions that Pickup overturned. Moreover, the law involved in this case is not common -- California and New Jersey are the only two states I know of that have laws banning sexual orientation conversion therapy for minors. Since there are only two states with this type of law, and since there is no split in authority on this issue, I doubt that the Supreme Court would review Pickup v. Brown. But then again, these types of outcomes are impossible to predict.

Lawsuit Against NASA Asks Court to Order 100 Photos of Unusual Mars Rock

NASA's Mars rover, Opportunity, recently spotted a strange rock that had not appeared in a previous photograph of the same area. Some observers opine that the rock looks like a "jelly donut."

Other observers have different opinions. Ars Technica reports:

While most NASA scientists chalked it up to a curiosity and nothing more, one California man has decided that this explanation was not enough. On Monday, Rhawn Joseph, a self-described “astrobiologist” filed a writ of mandamus against NASA. In his 11-page brief, he accused NASA of a “dereliction of duty,” and wants to compel the agency to take “100 high-resolution photographs” of the rock in question.
. . .
Joseph further argues that he “immediately recognized” the rock for what NASA officials apparently could not: a “mushroom-like fungus, a composite organism consisting of colonies of lichen and cyanobacteria, and which on Earth is known as Apothecium.”

A copy of Joseph's writ is available here. I recommend it highly. Here is a sample of some of its strongly worded language that also details some of Joseph's efforts before his filing:

[A]lthough the rover Opportunity is equipped with a "microscopic imager” no microscopic investigation was under taken and no microscopic pictures released. Any legitimate scientist would have taken hundreds of close-up and microscopic pictures from every angle. Inexplicably NASA and its rover team not only failed to take close up photos they refused even after John Callas, Steven Squyres, Charles Bolden and other NASA administrators at NASA headquarter [sic] were contacted by this Petitioner and supplied evidence that this was a biological organism which had germinated on that rock and grew into a larger organism after 12 Martian days had passed
Joseph has written more on the Mars rock. He has an article on the (peer reviewed?) website,, where he writes about his investigation of the rock (or fungus) photos. Here is the abstract:

An analysis of photos taken of the Martian surface by the NASA rover Opportunity, 12 Martian days apart and released to the public in January 2014, reveals evidence of biological activity. In photo Sol 3528, a small "bowl-shaped" growth appears on a Martian rock outcropping. When photos were taken of the same outcrop on Sol 3540 (12 Martian days later), the small bowl-shaped structure had become a fully grown bowl-shaped organism resembling Apothecia. What appears to be spore-producing "paraphyses" can be observed on the structure, as is apparent upon magnification and which is typical of Apothecia. Apothecia are composite organisms, a mixture of fungus and cyanobacteria. The lack of any debris field or disturbance of Martian soil or small stones in the immediate vicinity of the structure rules out meteor or a rock which was displaced from another location.
It will be fun to see how this lawsuit progresses. I look forward to reading additional motions and papers by Rhawn Joseph.

UK Court: Greek Yogurt Needs to be From Greece

The BBC reports:

Chobani, a US-based yoghurt manufacturer, cannot label its UK products Greek as they're made in the US, according to a UK court ruling. 
A three-person panel upheld a lower court's ruling that the "Greek yogurt" label misled customers. 
Chobani's yoghurt is strained a number of times to give it a thicker texture, which the firm has said is typical of a style found in Greece. has additional coverage of the case, including several quotes from the ruling itself.

I have not heard of any similar lawsuits in the United States, although Alison Keeley's post at American University's Intellectual property brief clued me in on this firm's attempt to possibly put together some sort of lawsuit based on the "Greek" label. There has been at least one lawsuit against Chobani after Keeley's post, but that suit seemed more focused on Chobani's claim to use all-natural ingredients and whether Chobani's labeling adequately reflected the yogurt's ingredients.

Would this type of lawsuit succeed in the United States? My understanding, at least based on what I know about the Lanham Act, is that plaintiffs would need to prove that using the term "Greek" in labeling yogurt would tend to mislead customers into thinking that the yogurt is actually from Greek, rather than simply being "Greek-style" yogurt. (See 15 U.S.C. 1125(a)(1)(A), and for a good primer on the Lanham Act, see here).

Whether the "Greek" label misleads customers into thinking the yogurt is actually from Greece would be a question of fact that plaintiffs would need to prove. Personally, I always take "Greek yogurt" to mean the Greek-style of strained yogurt rather than yogurt that is actually from Greece. But maybe plaintiffs could show that many consumers do indeed think that the yogurt is from Greece.

Apple's Equivocal National Security Order Press Release

Via the BBC, I learned that Apple is now reporting national security requests it receives for account information and the number of accounts affected. In a press release, Apple says:

Apple has been working closely with the White House, the U.S. Attorney General, congressional leaders, and the Department of Justice to advocate for greater transparency with regard to the national security orders we receive. We believe strongly that our customers have the right to understand how their personal information is being handled, and we are pleased the government has developed new rules that allow us to more accurately report law enforcement orders and national security orders in the U.S.
That sounds pretty good. And this very same press release reveals this crucial information: noting that Apple has received between zero and 249 National Security Orders and that these orders have affected between zero and 249 accounts.

Thank goodness. I had been worried that under the government's secret surveillance programs, we wouldn't be able to find out the extent of privacy intrusions. It's good that companies like Apple have these concerns in mind.

(Thanks go to Max Bryk for directing me to the portion of the BBC article that mentioned Apple's statement)

Monday, January 27, 2014

Arrests for Money Laundering in Bitcoin Transactions

The BBC reports:

The operators of two exchanges for the virtual currency Bitcoin have been arrested in the US. 
The Department of Justice said Robert Faiella, known as BTCKing, and Charlie Shrem from have both been charged with money laundering. 
The authorities said the pair were engaged in a scheme to sell more than $1m (£603,000) in bitcoins to users of online drug marketplace the Silk Road. 
. . . 
Mr Shrem is accused of allowing Mr Faiella to use BitInstant to purchase large quantities of bitcoins to sell on to Silk Road users who wanted to anonymously buy drugs. 
The authorities said Mr Shrem was aware that the bitcoins were being used for such purchases, and therefore he was in violation of the Bank Secrecy Act. 
The Act requires financial institutions in the US to alert authorities to any suspicious activity that may suggest money laundering is taking place.
For some quick background: bitcoins are a virtual currency that can be purchased or generated through solving programming puzzles. The currency can be used to purchase goods or services from those who accept bitcoin payments. More background on bitcoins is available here.

Proponents of bitcoins tend to argue that the currency is favorable because it is free from the constraints of traditional currency. But this case shows that, in some cases, bitcoin exchanges may be subjected to laws that regulate the transfer of traditional currency. It will be interesting to see if more cases like this follow, and if this has an impact on the popular appeal and value of bitcoins.

Criminal Justice Reform and Alternatives to Harsh Punishment

Today's New York Times contains an editorial by Bill Keller entitled "America on Probation."  Keller notes that high incarceration rates have prompted reform efforts by states and policymakers across the political spectrum. His column begins:

In recent years Americans have begun to wise up to the idea that our overstuffed prisons are a shameful waste of lives and money. Lawmakers have recoiled from the high price of mass incarceration (the annual per-inmate cost of prison approaches the tuition at a good college) and some have recognized that our prisons feed a pathological cycle of poverty, community dysfunction, crime and hopelessness. As crime rates have dropped, the public has registered support for reforms that would have fewer nonviolent offenders languishing in prison. For three years in a row, the population of America’s prisons has inched down; 13 states closed prisons last year. Efforts to fix the perpetual misery machine that is our criminal justice system have won support not only from progressives and academics but from conservatives (both fiscal and evangelical), from enlightened law enforcement groups, from business and even from advocates for crime victims. 

This emerging consensus is good news, since our prisons are an international scandal, and we can only hope the new attitude doesn’t evaporate with the next Willie Horton-style rampage or spike in the crime rate. But it raises an important question: What is the alternative? How do we punish and deter criminals, protect the public and — the thing prisons do most abysmally — improve the chances that those caught up in the criminal justice system emerge with some hope of productive lives?
Keller goes on to describe various reforms that serve to fulfill the criminal justice system's goals of punishment, deterrence, and rehabilitation, summarizing efforts at sentencing reform, supervision of probationers and parolees, diversion programs, re-entry programs, and policing reforms. Keller succinctly describes each of these reforms and provides examples of their adoption. This column is an excellent starting point for those who are interested in learning more about strategies to combat mass incarceration.

And for those interested in exploring these issues more, I thought that this would be a good opportunity for me to mention several resources I have found particularly helpful and interesting when it comes to learning more about criminal justice reform.

Friday, January 24, 2014

Republicans Urge NSA Surveillance Reform, But What About General Law Enforcement Powers?

The Hill reports on a recent meeting Republican National Committee (RNC) and the resolutions the committee reached at this meeting:

The committee criticized the government’s bulk collection of records about all phone calls, which emerged as one of the most controversial programs revealed in leaks by former NSA contractor Edward Snowden. That NSA effort “is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution,” the RNC said in the resolution.

The RNC also called the NSA’s classified “PRISM” program, which mines data from the servers of major Internet companies, “the largest surveillance effort ever launched by a democratic government against its own citizens.”
The resolution called for Republican lawmakers to create a new panel “to investigate, report, and reveal to the public the extent of this domestic spying” and to develop recommendations to end “unconstitutional surveillance” and hold officials responsible for the snooping “accountable.”

The Hill notes that this is a notably libertarian move by Republicans, an evaluation with which I agree.

But I have my doubts on how far this libertarian streak goes. For instance, say the RNC confronted the issue of whether law enforcement officers are granted too much discretion under modern Fourth Amendment law. They might be asked to evaluate the expansion of the good faith exception to the exclusionary rule, or the ability to rely on race as a factor when deciding to conduct a traffic stop. These broad instances of the government's law enforcement abilities are likely to draw criticisms from libertarians as well as liberals.

Would the RNC call for reform expanding the exclusionary rule or for revised police practices to curtail their discretion in conducting stops and seizures? I doubt that it would, even though both of those legal doctrines involve the government's interest in law enforcement outweighing people's interests in remedying intrusions on their privacy -- a common theme in much of modern Fourth Amendment law.

Those who protest the NSA's surveillance program would do well to realize that it is only one part of a legal system that tends to grant more weight to the interest of law enforcement than personal privacy. Politicians, activists, and commentators who claim to seek reform must be aware of this context, and frame their concerns accordingly. While programs may be reformed or eliminated, failing to change the underlying system makes their reemergence inevitable.

New Canadian Regulations Threaten Importation and Sale of Irn Bru and Bovril

The BBC reports:

The owner of a British food shop in Canada says he has been ordered to stop selling Marmite, Ovaltine and Irn Bru because they contain illegal additives.
Other affected products include Lucozade, Penguin Bars and Bovril.
. . .

The Canadian Food Inspection Agency (CFIA) is reportedly cracking down on the sale of such goods and increasing its inspections of suppliers.

Irn Bru contains at least one additive - Ponceau 4R - which has been linked to hyperactivity and does not appear on the approved food list in Canada.

The other products are banned because they are "enriched with vitamins and mineral" while some canned foods and soup contained too much animal product.
Sounds like these are troubling times for those with British and Scottish culinary inclinations. But the CFIA is now conducting evaluations of the banned products to determine if they are safe.

While Irn Bru, rather than Bovril, seems to be the star of this story, I cannot post about a story like this without an honorary citation to Watteau v. Fenwick, 1 QB 346 (1892), where a pub manager, Humble (who was the agent of the pub's owner, Fenwick), bought Bovril and cigars even though he had not been given the authority to make these purchases. The seller thought that Humble owned the bar and did not realize that he was anybody's agent. In the absence of Humble's actual authority or apparent authority (as the seller did not realize that there was any principal involved), the court held that Fenwick was still liable for the purchases, concluding that in cases like this, the principal is liable for all acts which are within the authority usually confided to an agent of that character.

I have not traveled extensively, so I did not know what Bovril was until last year, when Stephen Bainbridge gave an extensive and opinionated description of the product when he taught Watteau in his Business Associations class. For any reader who is still unfamiliar with this product, Wikipedia seems to give a thorough and accurate account.

Administrative Note on This Blog's URL and Post Displays

My Twitter feed has been lighting up about Gmail being down, and it looks like Google's problems might extend to its Blogger platform (from which this blog operates). About half the time that I type either "" or "" in my browser, I get an error message. The rest of the time, I make it through to the blog.

But what is particularly strange is that while leads me to an up-to-date display of the blog, typing leads to an older display of my blog, beginning with my January 16 post about the Second Amendment and 3-D-printed firearms. I will keep checking to see if this issue ever resolves, and update this post if it does.


Soon after posting this, I found that the URLs and both led to an up-to-date display of my blog, so it looks like the problem may have been resolved.

Wednesday, January 22, 2014

The Importance of an Engaging Abstract

When writing an article for a law journal, authors should pay very close attention to the abstract. The abstract is the first thing that an articles editor will read when reviewing the article (and it often may be the only thing that the articles editor reads). It is therefore very important to convey the article's argument in a clear and concise manner, and it is crucial that the abstract is carefully proofread -- as typos in this important part of the paper indicate a notable level of carelessness to the reviewer.

But but the best abstracts go beyond the basic function of informing readers about the article by drawing the reader into the article itself. Writing an abstract that is both informative and an effective hook may be difficult, but when done correctly, will ensure that the article will be read by far more people.

Before providing an example of what I think is an exceptional abstract, I would like to give some background on how I came across it. UCLA Law offers a number of "perspectives" seminars, which meet about once a month over the course of the full year and are designed to introduce students to unconventional, or under-covered areas of the law, or legal practice. I am currently enrolled in a perspectives seminar entitled "History of the Common Law," which is taught by Samuel Bray and Jonathan Zasloff. Each session, we discuss several texts on common law institutions, and investigate the development of these institutions and why the common law took the path that it did, rather than go an alternative route.

For today's session, we are learning about common law felonies and the death penalty. Our assigned texts were Douglas Hay's essay, "Property, Authority, and the Criminal Law," (published in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England), John Langbein's responding essay, "Albion's Fatal Flaws," and Peter Linebaugh's response to Langbein, "(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein."

This last article by Linebaugh contains an example of an excellent abstract. It not only summarizes the article, but uses strong language and humor to draw the reader into the article itself:

In an anthology entitled Albion's Fatal Tree several social historians examined eighteenth-century English society through its laws and their application. In this article, Professor Linebaugh, one of the book's editors, responds to Professor Langbein's ferocious challenge to the Marxist interpretation of the century's criminal law provided by one of the essayists, Douglas Hay. Labeling Langbein's legal scholarship "ahistorical" elitism, Professor Linebaugh contrasts it with his colleagues' emphasis on customs and attitudes of ordinary people from the "bottom up." He proceeds to illustrate how Langbein's functionalist approach causes him to misconstrue Hay's point and misinterpret the evidence. Professor Linebaugh paints a world in which underpaid workers customarily took goods from their employers and corrupt trial jurors were drawn from propertied elite classes. He argues that Langbein's narrow vision prevents him from appreciating that because law was rooted in community custom, a more democratic jury may have sanctioned such appropriation. Finally, Professor Linebaugh rebuts Langbein's assertion that criminal law was no more central to society than was garbage collection by graphically illustrating eighteenth-century London's preoccupation with waste disposal. He ends by analogizing the century's criminal justice system to the flush toilet.
 If you are now interested in the article's citation, it is: 60 N.Y.U. L. Rev. 212 (1985)., Maker of "Candy Crush Saga," Seeks to Trademark "Candy"

Bloomberg Law reports: Ltd., the maker of “Candy Crush Saga,” the game played on Facebook Inc.’s social media pages and Apple Inc. products, wants to register “candy” as a trademark.

According to the database of the U.S. Patent and Trademark Office, the Malta-based company said it will use the mark with products including underpants, earmuffs, swimsuits, party planning, gambling services and amusement parks, as well as electronic-game services. The company said in its application that it began using the mark in commerce in February 2013.

The Los Angeles Times reports that this move has upset some people, including several game developers who have been informed that their games infringe on's prospective trademark. Ars Technica quotes Mark Methenitis, chair of the Video Game Committee at the American Bar Association, who says that a "small army" of people will likely contest the registration of's trademark.

Ars Technica elaborates that "candy" has already been used many times in the gaming context:
Indeed, a cursory search turns up roughly a thousand prior games that use the term "candy" in their title, as you'd expect for such a common word. That list includes PC shoot-em-up Bullet Candy, children's Game Boy Color title Tiny Toon Adventures: Dizzy's Candy Quest, and Candyz (a match-three puzzle game that bears more than a slight resemblance to Candy Crush). And that doesn't even get into board games like Candyland or gaming websites like All of these works and properties would seem to have just as much claim on a word like "candy" in a video game context, if not more.
It will be interesting to see how many parties challenge's application in the days to come. Given the common, previous use of the term in the game-title context and the large number of potential challengers, might end up having a tough time registering its trademark.

A Helpful Guide for Submitting Articles to Law Journals

Allen Rostron and Nancy Levit have an article on SSRN entitled, Information for Submitting Articles to Law Reviews and Journals. Here is the abstract:

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 203 law reviews. The document was fully updated in January 2014.
The article contains a great deal of helpful information and it is a convenient source for authors. The article seems to be written for legal academics, however, so there is no information on whether these journals accept student-submitted scholarship. For the most part, journals tend to list that on ExpressO, but I can speak from experience that there are a number of journals that do not explicitly exclude student submissions, but have policies not to accept student work that they will not reveal unless they receive a student submission.

But between Rostron and Levit's article, and Colin Miller's similar guide for online law review supplements, students, practitioners, and professors alike should get a pretty good idea of where they might submit their work, and how they need to shape that work to meet submission requirements.

Tuesday, January 21, 2014

Big Changes in the Blawgosphere

Howard Bashman notes that the Blog of Legal Times is moving to the National Law Journal and will now be behind a paywall. Until I obtain solid, post-law school employment, it is very unlikely that I will be visiting that blog any time soon. On a happier note, Bashman re-iterates in that same post that the Wall Street Journal Law Blog has dropped their paywall entirely.

Due to a recent computer reboot coupled with the failure of Google Chrome on my laptop, I have been rebuilding my own list of law blogs to look over each day. I thought that further computer troubles were to blame when I visited and was confronted with the Washington Post website, but soon learned that the Volokh Conspiracy and Washington Post have begun a joint venture where the Post will now host the Volokh Conspiracy. Eugene Volokh notes that the blog will be outside of the Post's limited paywall for the next six months, but after that period, and .edu users will be limited to ten free views per month. Volokh also addresses the issue of editorial control over the blog:

We will also retain full editorial control over what we write. And this full editorial control will be made easy by the facts that we have (1) day jobs, (2) continued ownership of our trademark and the domain, and (3) plenty of happy experience blogging on our own, should the need arise to return to that.

I have little doubt over the Conspirators' ability to maintain editorial control, but I will probably end up subscribing to the Washington Post. The six-month period of free access will end immediately before the bar exam which will be good news for my distraction-free studies, but bad news for my wallet.

Sunday, January 19, 2014

A Fridge That Sends Spam

A fridge has been discovered sending out spam after a web attack managed to compromise smart gadgets.
The fridge was one of more than 100,000 devices used to take part in the spam campaign.

Uncovered by security firm Proofpoint the attack compromised computers, home routers, media PCs and smart TV sets.

The attack is believed to be one of the first to exploit the lax security on devices that are part of the "internet of things".
This news follows quite soon after my previous post where I mentioned Peter Bright's op-ed in Ars Technical where he warned that these types of security breaches would likely result from poor security in household appliances that are connected to the internet.

This fridge incident lends support to Bright's point, and indicates that developments in internet connectivity will bring concerns about computer security and privacy to many more areas of life beyond phone and computer use.

Saturday, January 18, 2014

Controlling the Narrative on Surveillance and Executive Power

At Politico, Jonathan Hafetz has a column entitled "Is Obama Failing Constitutional Law?" There, Hafetz discusses President Obama's recent speech where Obama proposed changes to the NSA's surveillance programs. Hafetz writes:

As an act of political positioning, the speech might help Obama in the public relations moment, but it’s unclear if the former constitutional law professor has actually promised enough to put his administration and the government on the right side of the Constitution.

Hafetz does not provide very much constitutional analysis of the NSA's surveillance programs and Obama's proposed changes beyond noting that some of the reforms may help bolster the administration's claims that the program is consistent with the Fourth Amendment, but that many questions still remain.

One point Hafetz makes that I find particularly interesting, however, appears near the end of his column. After noting Obama's history of addressing major concerns with notable speeches, Hafetz argues that Obama may not be able to take that same approach to the NSA surveillance issue. Hafetz writes:

Perhaps most strikingly, the administration is more powerless to shape the narrative on this issue than on other counterterrorism matters. More Snowden revelations are said to be imminent. The courts and lawmakers are being pressed to respond in their own way. Unlike, with say drones, the contours of the story will evolve beyond the president’s reach.
The specter of future Snowden revelations makes public relations a very difficult task for the President. But there may be ways for the government to deal with surveillance concerns before they come to light in an uncontrolled medium. About a week ago, Robert Chesney had a very interesting post on Lawfare where he discussed this strategy in the context of the government's revelation that it had stationed several military advisors in Somalia. Pointing out that the government released the information itself, which could have been fairly damaging if released in a different context, Chesney notes:

All of which makes me wonder whether the administration might be spending much time these days trying to determine which details of this kind might as well be revealed by it, on its own terms, rather than await the next unexpected headline. They certainly ought to be doing that, both because it is simply a smart move in the context of their ongoing public affairs problems flowing from Snowden, and because it is always worth giving serious attention to whether such details can in fact be brought into public light.
I agree with Chesney that it will be interesting to see if the government becomes more active in releasing information about potentially controversial programs. While the threat of further leaks may mean that the President lacks control over what information will be released, the President may retain some power over how that information is released.

Friday, January 17, 2014

Phrasing Law Exam Answers: Should Students Avoid Hypothetical Phrasing?

At Concurring Opinions, Dave Hoffman warns students to avoid framing their exam answers in certain ways. Specifically, he cautions students to avoid answers that begin with "[Party] A could argue that" or "A might argue that."

Hoffman writes:

Every time you see this phrase, highlight it in red ink. It’s almost certainly leading you down a dark path.

Why is this phrase pernicious? Because, very often, it signals that you are about to fail to actually evaluate the noted argument. Rather, you will simply list the possibility (in contracts, for example, “A could argue that the correspondence of May 1 was an offer”) and not tell the reader whether or not that claim is a plausible or winning one in court. Though sometimes professors truly want to see a kitchen sink answer listing every possible claim, most, instead, are testing judgment. Judgment requires one to actually evaluate legal claims, not to list them. The problem with “argue that” is that it leads you to think that you are actually saying something — implicitly, that the argument raised is plausible? — without articulating the predicate rationale and limiting conditions. I can’t tell you how many times I’ve sat with students in exam reviews, pointed out this phrase, only to have the student tell me that they knew that the argument was a good or bad one, but they failed to put that judgment on the page. ”Argue that” blinds you to your own failure to exercise your situation sense.
I think that Hoffman's criticism of these phrases is overstated. In almost every exam I have taken, issue-spotter prompts explicitly require students to identify and evaluate the arguments that parties can raise. Students that fail to evaluate questions have failed to fully appreciate the call of the question -- and this larger mistake is probably more to blame than phrasing arguments as arguments that parties "could" make.

Moreover, I don't think that phrasing arguments as something parties "could" argue inherently draws attention away from evaluating the argument. I phrase my answers this way all the time. For instance, an outline of a full answer I would give usually looks like:

Thursday, January 16, 2014

The Second Amendment Implications of Regulating 3-D Printed Firearms

Earlier, I posted about proposed California legislation that would require people to apply for serial numbers when making a firearm and affix this number in some way to the firearm. In that post, I concluded that the law would probably apply to 3-D printed firearms and I agreed with Josh Blackman's commentary that parts of the proposed statute seemed vague.

Towards the end of that post, I reiterated my view that the law will need to adapt to regulate 3-D printed firearms. 3-D printing technology is developing, with blueprints for home-printed firearms appearing on popular printing websites, and printed, metal firearms arriving on the scene. I noted that regulations on 3-D printed firearms could have Second Amendment implications, and in this post I seek to explore these implications.

While 3-D printing technology is still in a relatively early stage of development, I am not the first person to address the constitutionality of regulations on 3-D printed firearms. Peter Jensen-Haxel has written on the subject in the Golden Gate University Law Review. The full citation for his comment is: Peter Jensen-Haxel, 3D Printers, Obsolete Firearm Supply Controls, and the Right to Build Self-Defense Weapons Under Heller, 42 Golden Gate U. L. Rev. 447 (2012).

Jensen-Haxel correctly points out that the Supreme Court's decision in District of Columbia v. Heller established that individuals have a right to bear arms. While Heller struck down a firearm restriction because it prohibited the possession of usable handguns in the home, Jensen-Haxel is also probably correct to conclude that the ruling likely extends to the ability to procure a handgun. After all, if individuals are completely restricted purchasing or acquiring a handgun, they are effectively prohibited from possessing a handgun in the home. This seems to be the logic that was underlying the opinion of the Northern District of Illinois when it struck down Chicago's ban on acquiring firearms within city limits in Illinois Association of Firearm Retailers v. Chicago. If there is a Second Amendment right to acquire a firearm, restrictions on 3-D printers may implicate the Second Amendment, since 3-D printing is one way that people may acquire firearms.

But it is important to note that while the Second Amendment may indeed be implicated by restrictions on 3-D printing, it does not follow that these restrictions would violate the Second Amendment. Rights enumerated in the Constitution and its amendments are rarely recognized as conferring an absolute restriction on the government. As I have mentioned previously, courts have interpreted Heller as conferring some protection to the right to bear arms, but not unlimited protection. While the Supreme Court has not established a standard of review for Second Amendment cases, the lower courts typically uphold laws that restrict firearm possession if that laws pass intermediate scrutiny, meaning that the laws are substantially tailored to achieve important government interests.

Wednesday, January 15, 2014

A DNA Test That Can Distinguish Identical Twins: Permissible Under the Fourth Amendment?

A very interesting report from the BBC report begins:
It's well known that identical twins are not totally identical - they can, usually, be told apart, after all. But up to now it has been almost impossible to distinguish their DNA. It's claimed that a new test can do it quickly and affordably, however - and this could help police solve a number of crimes.
The story goes on to detail several criminal investigations that were thwarted by identical twin suspects. And it points out that the technology can be used in paternity tests. The details and stories in the article are fascinating and I recommend that you read the whole thing.

The article points out that this new test is different from current DNA testing which compares only a few parts of people's DNA -- parts that are typically called "junk" DNA because the parts of DNA that are examined and compared in DNA testing do not have any known association with observable, physical traits.

What are the Fourth Amendment implications of this kind of test?

"Junk" DNA testing was the subject of Maryland v. King, where the Supreme Court held that police could test the DNA of arrestees against a national database. Because the DNA testing did not reveal any traits of the individuals, the Court noted that the testing was limited to determining the identity of arrestees -- an important government interest. This government interest was weighed against the intrusion of DNA testing on a person's privacy, which the Court noted was rather low. DNA testing involved a minimally invasive swab, and the information collected in carrying out the test was limited to parts of the DNA sequence that did not reveal any traits about the suspect.

For more of my commentary on King, see my previous posts here and here.

The type of DNA testing discussed in the BBC's report is far more involved than the testing in King. The tests used to distinguish identical twins looked at the entire DNA sequence. This would likely give researchers access to information about the subject's physical traits, meaning that the test could have uses beyond simple identification. The search carried out in scanning the DNA would arguably be more intrusive than the search in King because of the broader amount of information the government would collect.

If this alternate method of analyzing DNA is used, however, it will probably be reserved for those cases where traditional DNA testing reaches an impasse -- such as cases involving identical twin suspects. Once an investigation has gone far enough for the necessity of this test to be realized, the evidence obtained by regular DNA tests will likely be enough for police to obtain a warrant to carry out the more intrusive test.

While testing the entire DNA strand is distinguishable from the tests the Supreme Court addressed in King, this kind of testing will probably only be used in situations where the police have a warrant to carry out the search -- or at least after an independent fact finder has confirmed that there is probable cause that the suspect has committed a crime. In these situations, a test of the entire DNA strand will probably be permissible under the Fourth Amendment.

Tuesday, January 14, 2014

Would California's Proposed Restriction on the Making and Assembly of Firearms Apply to 3-D Printers?

Josh Blackman blogs about a proposed California law that would restrict the making of firearms by requiring those making firearms to apply for a serial number, and engrave or affix that number on the firearm.

Here is the relevant text of the statute:

29180 (a) (1) Prior to making or assembling a firearm, a person making or assembling the firearm shall apply to the Department of Justice for a unique serial number or other mark of identification pursuant to Section 29181. 
(2) Within one day of making or assembling a firearm in accordance with paragraph (1), the unique serial number or other mark of identification provided by the department shall be engraved or permanently affixed to the firearm in accordance with regulations prescribed by the department pursuant to Section 29181 and in a manner that meets or exceeds the requirements imposed on licensed importers and licensed manufacturers of firearms pursuant to subsection (i) of Section 923 of Title 18 of the United States Code and regulations issued pursuant thereto.  
(3) After the serial number provided by the department is engraved or otherwise permanently affixed to the firearm, the person shall notify the department of that fact in a manner and within a time period specified by the department, and with sufficient information to identify the owner of the firearm and the unique serial number or mark of identification provided by the department.
California's law would probably apply to 3-D printed firearms. Currently, users can print out individual components on a 3-D printer, and then assemble these components into a working firearm. This process would probably qualify as "making or assembling" a firearm under 29180(a). While I do not think that the technology currently exists for a ready-to-use firearm to be printed all at once, there would probably be a strong argument that this process would qualify as "making" a firearm. Admittedly, the statute does not define "making" or "assembling," but I would be very surprised if these terms did not apply to the 3-D printing process -- at least in its current form.

Google's Purchase of Nest and the Rise of "Smart" Devices

The BBC and New York Times report that Google plans to purchase Nest Labs for $3.2 billion. The BBC describes Nest's primary product as "a thermostat capable of learning user behaviour and working out whether a building is occupied or not, using temperature, humidity, activity and light sensors."

The New York Times elaborates:
Rather than thermostats, Nest’s key technologies were described by [Chief Executive, Tony] Fadell in an interview last November as “communications, algorithms, sensors and user experience, running over a network to the cloud.” 
That is, Nest is interested in how people behave inside their houses; the thermostat was just the first step to understanding that. Its sensors gave information about interactions; after that, algorithms on everything from user preferences to battery power were deployed to give people a sense of control they had not had before. As Mr. Fadell put it at the time, “we’re focused on experience.”
When I heard about Google's plan to purchase Nest, I was reminded of Peter Bright's op-ed at Ars Technica a few days ago. That op-ed began:
If you believe what the likes of LG and Samsung have been promoting this week at CES, everything will soon be smart. We'll be able to send messages to our washing machines, run apps on our fridges, and have TVs as powerful as computers.
Bloomberg Businessweek covers some of the notable devices on display at the Consumer Electronics Show (CES) here. Technology companies seem to be moving in a direction where every device is a "smart" device that can connect to the internet. But Bright goes on to argue that these developments spell trouble for users' privacy.
The result is a whole lot of exposure to security problems. Even if we assume that these devices ship with no known flaws—a questionable assumption in and of itself if SOHO routers are anything to judge by—a few months or years down the line, that will no longer be the case. Flaws and insecurities will be uncovered, and the software components of these smart devices will need to be updated to address those problems. They'll need these updates for the lifetime of the device, too. Old software is routinely vulnerable to newly discovered flaws, so there's no point in any reasonable timeframe at which it's OK to stop updating the software.

. . .

Herein lies the problem, because if there's one thing that companies like Samsung have demonstrated in the past, it's a total unwillingness to provide a lifetime of software fixes and updates. Even smartphones, which are generally assumed to have a two-year lifecycle (with replacements driven by cheap or "free" contract-subsidized pricing), rarely receive updates for the full two years (Apple's iPhone being the one notable exception).
The trend towards "smart homes" at CES, and Google's purchase of Nest, indicates that internet connections will likely permeate people's lives beyond their computers, smartphones, and (in some cases) televisions. Nest's technology gathers information about building interiors and users' behaviors in an effort to provide more effective heating and cooling of buildings, among other services. While it is currently unclear how much, if any, of Nest's information will be shared with Google, it would not be surprising if this information ends up being shared. In the very least, Nest will likely take advantage of Google's cloud computing technology in bolstering its own products' capabilities.

Combining Nest's information-gathering technology with Google's cloud computing technology would mean that even more personal information will be uploaded to the internet (beyond the content users enter into browsers, emails, and other online services). As Bright points out, this information will probably be poorly-secured, and will therefore be an easy target for theft.

Beyond concerns about theft of personal information, the Google-Nest deal signals a trend that may have interesting Fourth Amendment implications. In Kyllo v. United Statesthe Supreme Court held that when police used a thermal imaging device on a house to spot heat radiating from marijuana grow-lights, this was a search under the Fourth Amendment. The technology the police used was not in general public use, and it revealed intimate details about the interior of the home. The Court held that when "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."

Will the logic of Kyllo apply in a world of Nest thermostats and smart appliances? In this world, people will constantly be uploading details of their home life to the cloud so that their appliances and homes work at maximum effectiveness. In the near future, it may be much harder to label as "intimate" the myriad details of the home that are shared with Google and other technology companies.

Monday, January 13, 2014

Iowa State Bar Association Considers Doing Away With Bar Exam

The Des Moines Register reports:
Graduates of Iowa’s two law schools could begin practicing law in the state soon after graduation rather than waiting until they pass the bar exam, under a proposal before the Iowa Supreme Court. 
The proposal would apply only to law school graduates who stay in Iowa to work. Law school graduates would still have to pass an ethics exam and screening and background checks, according to the proposal. It also would require students to take an Iowa-specific law and procedure course.
Proponents of eliminating the bar exam argue that graduates are unable to practice immediately after graduation and accrue a great deal of debt before bar results are released:

Backers of the proposal from an Iowa State Bar Association committee say the change could lessen the massive debt that University of Iowa and Drake University law school graduates face. A 4½-half-month gap exists between graduation and when exam-takers learn their test results. Many graduates take out loans to cover that period, which can cost about $29,000, according to the proposal.

. . .

Less debt means more new lawyers could spread to Iowa’s smaller communities, where beginning salaries are lower but new blood is needed because of a population of aging and retiring lawyers, [Drake Law School Dean, Allan] Vestal said.
And proponents also note that current bar passage rates are high, indicating that the bar exam may not make much of a difference to the makeup of Iowa's law community.

While this proposal is certainly interesting, there are some side effects that the proponents' arguments (as expressed in this article) do not seem to be taking into account.

Teaching Assistant Unions Had Better Be Ready...

...because a threat to Teaching Assistants' relevance may be about to arrive on the scene. The title of this post at The Good Drone says it all:
Ridiculous: School uses drone surveillance to stop students from cheating in exams
If that doesn't sum it up enough, the post also links to this video:

While in Dutch, the video's point is clear: drones may be used to fly over students heads during exams to ensure that they are not cheating on tests.

Admittedly, using drones in small classrooms like the one in the video may seem silly. But in a larger lecture hall, administrations might think that drones are a helpful way to deter cheating by far-away students.

Some of the more obvious concerns about using drones in this way include the distraction to students that these flying machines may cause. Additionally, there is a risk that drones may crash, meaning that schools need to account for students' physical safety, and the integrity of exams that are interrupted by drone crashes.

While I have only supervised one major exam as a teaching assistant, I think another, less-obvious drawback for using drones during exams will be the drones' inability to answer questions. As I paced the auditorium where my class's exam took place, I did not observe any cheating, but my presence made many students realize that I could possibly clarify questions they had about the exam. Drones may be able to ensure honesty on exams, but as long as they cannot answer students' questions, I think that most teaching assistants in undergraduate courses will retain their employment.

But law school exams -- which do not have teaching assistants and where there tend to be far fewer questions about exams -- might be the ideal proving ground for this new technology.

UPDATE - January 15, 2014

I have learned that the video above was a hoax, meant to highlight some of the more ridiculous arguments in the debate over drone use. Despite this, I will not remove this post, since even though this video is a hoax, it may still end up giving drone enthusiasts ideas. Moreover, I think that my law school point is still particularly relevant, and nothing would amuse me more than using a drone to oversee an exam on criminal procedure.

Saturday, January 11, 2014

Tents as Homes for Second Amendment Purposes

At the Volokh Conspiracy, Eugene Volokh posts about Morris v. U.S. Army Corps of Engineers. In Morris, the Federal District Court of Idaho struck down an Army Corps of Engineers regulation that prohibited the possession of loaded firearms in recreation areas near dams operated by the Corps. The court held that the regulation violated the Second Amendment.

In discussing whether the regulation violates the Second Amendment, the court looked to District of Columbia v. Heller, where the Supreme Court held that the Second Amendment protects and individual right to bear arms:

[O]ne core right was described by the Supreme Court: The right of a law-abiding individual to possess a handgun in his home for self-defense. District of Columbia v. Heller, 554 U.S. 570 (2008). In addressing the need for self-defense in the home, the Supreme Court held that the home is “where the need for defense of self, family, and property is most acute.” Id. at 628.
The same analysis applies to a tent. While often temporary, a tent is more importantly a place – just like a home – where a person withdraws from public view, and seeks privacy and security for himself and perhaps also for his family and/or his property. Indeed, a typical home at the time the Second Amendment was passed was cramped and drafty with a dirt floor – more akin to a large tent than a modern home. Americans in 1791 – the year the Second Amendment was ratified – were probably more apt to see a tent as a home than we are today. Heller, 554 U.S. at 605 (holding that “public understanding” at time of ratification is “critical tool of constitutional interpretation”). Moreover, under Fourth Amendment analysis, “tents are protected . . . like a more permanent structure,” and are deemed to be “more like a house than a car.” U.S. v. Gooch, 6 F.3d 673 (9th Cir. 1993). The privacy concerns of the Fourth Amendment carry over well into the Second Amendment’s security concerns.
The regulation at issue would ban firearms and ammunition in a tent on the Corps’ sites. This ban poses a substantial burden on a core Second Amendment right and is therefore subject to strict scrutiny
I have written previously on determining the scope of Second Amendment rights in the context of firearms bans in student housing. In that comment, I recognized that the Supreme Court has not clarified what level of scrutiny should be applied to laws that restrict the right to bear arms. But the Court did seem to indicate that laws that prevent people from possessing handguns in the home would not be upheld under any level of scrutiny. By analogizing student housing to homes, courts may conclude that restrictions on firearms in student housing violate the Second Amendment without needing to determine what level of scrutiny should apply.

In Morris, the court seemed to take this sort of approach. By analogizing tents to homes, the court brings the Corps regulation closer to the "core" right protected by the Second Amendment, and concludes that the ban on firearm possession in tents is subject to strict scrutiny, which almost guarantees that the law will be found to violate the Second Amendment.

Finally, the court's use of the Fourth Amendment in analogizing tents to homes is particularly interesting. The court draws on precedent from Fourth Amendment cases to conclude that tents are more like homes than vehicles -- which receive less protection under both the Second and Fourth Amendments. Bringing in Fourth Amendment precedent indicates that Second Amendment inquiries may end up drawing on other areas of the law in order to determine the scope of the right to bear arms.

Friday, January 10, 2014

"World's First" Insured Bitcoin Vault

The BBC reports on the world's first insured "vault" for storing bitcoins:

A Bitcoin storage service that insures deposits of the digital currency against loss and theft has launched in London. 
Elliptic Vault uses "deep cold storage", where private encrypted keys to bitcoins are stored on offline servers and in a secure location. 
The facility's founders say they are the "first in the world" to offer insurance for Bitcoin owners.
Providing insurance for bitcoins is an important step in the currency's quest for legitimacy.  Unlike traditional currency, bitcoins cannot typically be insured, and the BBC reports that this has led to investors losing substantial amount of moneys through theft or through accidentally discarding storage devices containing bitcoins.  I have blogged previously about the dangers of bitcoin theft, and the implications these dangers have for bitcoin investment.

While insurance may alleviate some of the risks of bitcoin theft, some instability remains.  The threat of political non-recognition of the currency, and restrictions on its investment, can have substantial impacts on the value of bitcoins.  For example, I blogged a while back about some of China's restrictions on bitcoins and their plummet in value as a result of the closure of one of China's major bitcoin exchanges.

But bitcoin advocates are persistent.  Even though China's central bank refused to recognize bitcoins, following the shutdown of the major exchange, new exchanges sprang up to fill the void.  The Financial Times reports that Chinese exchanges have gained a "dominant share" of global transactions in the currency due to the exchanges' fast adaptation to changing legal landscapes.

It will be interesting to see if more insurers are willing to underwrite bitcoin investments.  If this catches on, then risks of theft and hacking may be less of a systematic concern for the currency.

Thursday, January 9, 2014

Limitations on Second Amendment Rights

At the Constitution Daily Blog of the National Constitution Center, Lyle Denniston writes about two opposing views on the Second Amendment.  The quotes exemplifying these views are:
"The fact is, all constitutional rights are regulated, always have been, and need to be.” 
“We are locked in a struggle with powerful forces in this country who will do anything to destroy the Second Amendment. The time for ceding some rational points is gone.” 
In the post, Denniston describes the state of Second Amendment law.  The Supreme Court in District of Columbia v. Heller held that the Second Amendment confers a right to bear arms on individuals that and that this right limits the Federal Government.  In McDonald v. City of Chicago, the Court said that this right constrains state governments as well as the federal government.

Denniston points out that many constitutional rights can be restricted or limited, even if they seem explicitly absolute.  For example, the First Amendment states that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." but laws that restrict speech have been upheld as constitutional.  Denniston then notes that the Supreme Court has not taken up any Second Amendment cases since McDonald, despite many petitions for the Court to clarify additional questions on the constitutionality of firearm regulations.

All of this looks fine.  But then Denniston reaches this conclusion:

However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes. 
Gun control will go on being an issue in politics and in government, at all levels, but the constitutional rules that could shape how for [sic] government may go remain unmade.
While the Supreme Court has not revisited the limits of Second Amendment rights, the Court in Heller indicated that "longstanding" regulations on firearms would not be threatened by the ruling.  State and federal courts at the trial and appellate level have upheld regulations on firearms that prohibit possession of firearms by felons (even under "strict scrutiny" review) and the purchasing of firearms by minors.

So while there may be no Supreme Court precedent defining the limits of the Second Amendment, it is not correct to say that the rules are "unmade," because they are being made in the lower courts.  And with many courts applying an "intermediate scrutiny" approach to the Second Amendment (requiring a substantial governmental interest to which the law is substantially related), it is fairly clear what standard typically applies in many Second Amendment cases (even if the wording of the standard allows for arguments either way).

Returning to the two quotes that Denniston is discussing, it would seem that the first quote is closest to the mark when it comes to the Second Amendment.  Almost all constitutional rights may be subjected to limitations (with the possible exception of the Thirteenth Amendment's prohibition on slavery).  The Second Amendment is no different, as the right to bear arms can be and has been limited by both state and federal laws.

Wednesday, January 8, 2014

Yahoo Caught Up in Bitcoin Botnet Incident

The BBC reports:

Yahoo confirmed that for a four-day period in January, malware was served in ads on its homepage. 
Experts estimate that as many as two million European users could have been hit. 
Security firm Light Cyber said the malware was intended to create a huge network of Bitcoin mining machines. 
. . . 
Bitcoin mining malware is designed to steal computing power to make it easier for criminals to accumulate the virtual currency with little effort on their part. 
"Generating bitcoins is basically guessing numbers," said Amichai Shulman, chief technology office of security firm Imperva. 
"The first one to guess the right number gets 25 bitcoins and if you have a large volume of computers guessing in a co-ordinated way then you have a more efficient way of making money," he added.
The BBC reports that using malware to take control of unsuspecting computers allows criminals to make a lot of money, and cites an expert who labels the tactic of using botnets to harvest bitcoins as a "new frontier" for criminal gangs.

Predicting the Content of Law School Exams

Writing outlines, reviewing notes, and doing practice exams are all useful ways to prepare for final exams in law school.  But nothing compares to reading the prompt on an exam and realizing you have read the case or news story on which the exam is based.  Knowing the fact pattern and the important issues of your exam beforehand will greatly reduce the surprise/panic of the exam environment, and enable you to spot the smaller facts and issues that the professor hides beneath the obvious points.

I am not being purely theoretical here -- at least one exam I took last year had a question based on a case I had read for another class.  My answer to that question was particularly thorough, and my confidence on the exam as a whole was greatly increased.  I also have a decent track record when it comes to attempting to predict the subjects of exams.  Last semester, I successfully predicted at least two of the issues involved in two different exams (and I would have correctly predicted the content of a third exam had anybody in that class asked me to speculate).  My predictions were based on the strategies that I discuss in this post.

Here, I provide some tactics students can use to predict the types of fact patterns that you will encounter on a law school exam.  Of course, these strategies will be most useful if the exam will be formatted as an issue-spotter exam based on a set of facts that the professor provides.  But taking these steps will help students understand a class's subject matter at a deeper level, and apply the law to new fact patterns, and this type of studying will likely help prepare students for any exam.

As an aside, students should consider taking these steps in any areas of law where they have a particular interest -- I have found that these steps are a good way to engage in an area of law, and to pinpoint important issues that have yet to be resolved, and cases that may end up having significant impacts.

Google's Apparent Case-By-Case Approach to Copyright Take-Down Requests

The Des Moines Register reports on a lawsuit that ARAG North America has filed against Google as a result of a blogger's use of a picture of one of ARAG's executives:

ARAG North America, which provides legal insurance, sued the Internet giant last month in a case legal experts say exhibits an increasingly common clash over bloggers who post images online without permission. 
The lawsuit concerns a head-and-shoulders photo of Ann Dieleman, a senior vice president and chief marketing officer with ARAG. The photo was published in 2009 on, a forum where users post photos of executives with satirical comments.
The register reports that the picture remains posted on the blog (I have confirmed this as well).  The blog itself is interesting, with its "voice" coming across as a strange combination of a snide Reddit commenter with the character "Rorschach" from Watchmen.  For example:

Suit matched to hair. Literal interpretation of the white collar worker. Great moustache. Glasses. Bad tie. Skin that was last exposed to sunlight on the Sunday afternoon prior to starting the job in April of 1991.
But the blog is not what makes this story interesting -- it is the dispute between ARAG and Google, which owns Blogger, the company that hosts the SexyExecs blog (as well as this blog).  The Register explains the progression of events that have led to the lawsuit:

The legal battle started in September 2012, when Trout sent Google a letter accusing the company of copyright infringement. Google declined to remove the photo without proof that ARAG held the copyright. 
Trout responded by saying ARAG owned the copyright of the photo and requesting Google to remove it. 
In an email, Google again declined. 
. . . 
Jeff Hermes, director of Harvard University’s Digital Media Law Project, said the lawsuit shows Google is willing to look at copyright infringement accusations on a case-by-case basis. 
“Google is apparently not rubber-stamping all of these as they come through,” he said. 
. . . 
Hermes said the company has little financial incentive to fight for one photo on one blog. But the company, he said, might see a competitive advantage in protecting their users’ right to post images online.
It is interesting to see Google asserting itself against claims of copyright violations on blogs in cases like this.  The article notes that Google received 25 million take-down requests in December 2013.  One might expect a website faced with so many take-down requests to automatically comply with most or all of them in an effort to avoid liability.  Indeed, expectations like these form the rationale for several important statutes, including section 230 of the Communications Decency Act.

But here, Google, seems to be taking a case-by-case approach, rather than automatically complying with ARAG's take-down request.  And Google is doing this for a blog that has been inactive since 2011.  This case makes me wonder how often Google actively resists take-down requests, rather than automatically removing content.

Tuesday, January 7, 2014

Gangs' Use of Social Media and Privacy Expectations

Jamie Bartlett at the Telegraph writes about the increasing use of social media by gangs and gang members, and how police investigators are increasingly using information from social media websites to investigate and prosecute gang members.  Bartlett comments on whether the information that authorities are able to access is private information:

Of course, it’s all open and public – otherwise rivals wouldn’t see it and you’d get no kudos. Criminals want to boast and show off as much as, probably more than, the rest of us. But they aren’t the only ones watching. At Scotland Yard, YouTube has become an incredibly valuable resource to allow specialists to piece together gang networks, monitor activity, and collect incriminating evidence. Evidence from social media led to the downfall of all our narcissistic crooks showcased above. As far back as 2009, Strathclyde Police launched Operation Access, which used social networking sites such as Facebook to uncover criminal activity by identifying weapons carriers.
The article goes on to discuss the legal implications of police officers' monitoring of social media websites.  While Bartlett is writing from a British perspective, the concerns about balancing privacy concerns against law enforcement interests is a familiar tension in American law as well.

In the social media / gang context that Bartlett discusses, I think that privacy concerns carry less weight than they do in other instances of government surveillance over internet activity.  For instance, police monitoring of one's emails to and from other people seems to be a greater intrusion on privacy expectations than police monitoring of what one broadcasts on social media to one's "friends" or to the entire world.  I would see no problem with police obtaining evidence from movies posted to YouTube, since these movies could be viewed by anybody in the world.

Gangs in particular raise additional concerns in the social media context because social media may be used as a tool for recruitment and inter-gang provocation -- not simply for the communication and expression that would be typical of a normal social media account.  While there are many legal issues of police surveillance of social media that need to be explored in the meantime, it would be interesting to see if courts would conclude that police could monitor gang members, gang websites, or gang social media accounts with fewer restrictions than if they wanted to monitor a non-gang individual or business.  Because social media may enhance the criminality of gang communications rather than simply accommodating communications, courts may give greater weight to law enforcement interests when contemplating the constitutionality of police monitoring of these communications.

Friday, January 3, 2014

Granick on the Need for the Fourth Amendment to Evolve

Jennifer Granick has this provocative post at Just Security.  She discusses several of the most recent cases testing the constitutionality of the NSA's surveillance programs, and other surveillance tactics the government uses (including cases I discuss here, here, and here) and concludes:

This year’s NSA revelations show that—to a far greater extent than was publicly known—we are living in that mass surveillance world. A consensus seems to be emerging that the Fourth Amendment must evolve along with technology and government surveillance capabilities, and that it is the job of the lower courts to investigate and to rule accordingly. Indeed, if lower courts slavishly follow the closest analogous Supreme Court case on hand, rather than seriously consider whether facts, policies and practices on the ground have changed, higher courts will not benefit from the best fact-finding and the best legal reasoning incubated in the lower federal courts.
Granick is certainly correct to conclude that this year will be an interesting one for the Fourth Amendment.  It will be interesting to see how far courts will be willing to go given some of the tough precedents that stand in the way of the Fourth Amendment's evolution, and whether the Supreme Court will ever weigh in on any of these issues.

Border Searches of Laptops

The BBC reports on how US authorities can search travelers' laptops at the country's border:

A federal judge in New York has ruled authorities can seize travellers' laptops at the border without citing a legal reason, suspecting the traveller of a crime, or explaining themselves in any way. What happens if they take yours? 
. . .

If the US authorities choose, they can seize your computer at the border and search it for evidence of criminal activity, foreign intelligence links, or terrorist ties.

Political activists, academics and journalists say they are worried about having their laptops seized when they cross the border. Many of them have responded to the threat by attending workshops run by privacy experts to learn about protecting their data while travelling.
. . .

If the authorities take your laptop, expect they will copy everything on its hard drive. Afterwards they may send the copy to the US Army's criminal-investigative division in Fort Belvoir, Maryland. 
I do not have much to say on this story that does not echo what one of my classmates has already pointed out.  That classmate is Sid Nadkarni, and he thoroughly analyzes border searches of electronic devices in a comment in the most recent issue of the UCLA Law Review.  The comment's citation is: Sid Nadkarni, “Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices, 61 UCLA L. Rev. 148 (2013).  Here is the abstract:

The Fourth Amendment’s border search doctrine has historically given the U.S. government the right to search, without individualized suspicion, the belongings of any individual crossing the U.S. border. Courts have traditionally justified this power by citing the government’s paramount interest in preventing the smuggling of dutiable goods and contraband such as illegal drugs. In the twenty-first century, the government has controversially used this power to search and detain travelers’ portable electronic devices, such as laptop computers, without suspicion to inspect for the transport of prohibited materials like child pornography, terrorist communications, and pirated software. 
In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal circuit court to rule that a particular border search of an electronic device had to be preceded by a finding of reasonable suspicion that the individual had committed a crime. Nonetheless, divergent rulings from the Fourth Circuit and a Massachusetts federal district court leave the future of digital border searches shrouded in legal uncertainty. Furthermore, the Department of Homeland Security’s recent reaffirmation of its view that no suspicion at all is required for such searches puts the government on a legal collision course with the Ninth Circuit and any other jurisdiction that adopts a similar position. 
This Comment argues that digital border searches merit greater scrutiny than conventional border searches because they are more likely to harm individuals’ Fourth Amendment interests. The executive and legislative branches have been unwilling and unable, respectively, to cabin the government’s power to search people’s electronic devices without suspicion. Consequently, this Comment proposes that courts add guidance, consistency, and greater Fourth Amendment protection to the laws governing suspicionless digital searches at the border by adopting a special needs–style balancing test that weighs the government’s interests against the individual’s and provides that the most intrusive searches are impermissible without reasonable suspicion.
It would look like the New York court's decision that the BBC discusses would be a further divergence from the Ninth Circuit's approach.  It is good to see more media attention on this issue, and future decisions will hopefully clarify the rules surrounding digital border searches.


The decision that the BBC discusses is Abidor v. Napolitano and the text of the decision is available here.  While the court dismisses the plaintiff's claim for lack of standing, the court also rules on the Fourth Amendment issues to avoid an "unnecessary remand" in the event of an appeal.  As far as standing is concerned, the opinion includes the notable phrase: "Plaintiffs must be drinking the Kool-Aid if they think that a reasonable suspicion threshold of this kind will enable them to “guarantee” confidentiality to their sources".  Eugene Volokh notes that this appears to be the first use of this phrase in a federal opinion.

Thursday, January 2, 2014

Brandeisky on Summaries of Major Surveillance Lawsuits

Kara Brandeisky at ProPublica posts this very helpful table that summarizes major privacy lawsuits that have arisen from revelations about the NSA's surveillance programs.  The table lists the parties involved, jurisdictions, and outcomes of the lawsuits, among other information about each case. Moreover, the information can be organized by any of these variables.