Friday, January 31, 2014
And now for the sports news: If you don't want to watch the Super Bowl after you've read the Sunday paper (either in print or online), or if you'd like to fill out your Super Bowl experience with superb sportsmanship from other species, you could try out two other events. You probably already know that one of your alternatives is the Animal Planet's Puppy Bowl, back for its tenth year and airing at 3 p.m. Eastern time (with numerous repeats afterward). Yes, the Puppy Bowl has puppies--lots of them--and kittens, and various other denizens of the animal kingdom, including bunnies, hamsters, and Meep the Bird, who provides tweets (get it?) on the game. But did you know that the Hallmark Channel is providing an alternative to the alternative programming? Yup, it's the Kitten Bowl, premiering on Sunday at noon Eastern time. You can find out about the players, training camp, and the Fantasy League at the show's website.
Tuesday, January 28, 2014
James Glanz, Jeff Larson and Andrew W. Lehren on the NSA's data-napping of information from so-called "leaky apps," such as the popular game "Angry Birds." The NYT, The Guardian and Pro Publica are sharing the story on how the NSA and the UK's Government Communications Headquarters have been quietly seizing information about individuals by monitoring their use of apps, Google maps, and other popular mobile add-ons. This information, like much about NSA's covert activity, comes from Edward Snowdon.
Monday, January 27, 2014
Ellen Marja Wesselingh, The Hague University; Leiden University Law School, has published Is a Router an Automated Work in the Sense of the Law or Not? Here is the abstract.
An unofficial translation of some interesting case law from The Netherlands. The Court of First Instance and the Court of Appeal ruled the suspect could not be judged for “hacking” because a (Wifi) router could not be counted as an automated work in the sense of the law.Download the paper from SSRN at the link.
Friday, January 24, 2014
Thursday, January 23, 2014
Paul Horwitz, University of Alabama School of Law, is publishing Institutional Actors in New York Times v. Sullivan in the Georgia Law Review (forthcoming). Here is the abstract.
This Article was written for a symposium held at the University of Georgia School of Law marking the fiftieth anniversary of New York Times v. Sullivan. It has two primary purposes.
First, it examines this landmark First Amendment decision through the lens of the institutional actors that were prominent in the case. Most academic treatments of Sullivan, and of the First Amendment generally, focus substantially on the state and/or public officials. This Article turns its focus elsewhere, to three other key institutions in the case: the press, social movements (in this case, the civil rights movement), and courts -- both the state courts and the Supreme Court itself. That institutional focus helps revive certain aspects of the case that are easily neglected over time; helps make clear why the Supreme Court was willing to act so aggressively in this case, both in constitutionalizing defamation law and in insisting on independent appellate review of the facts; and reminds us that the decision was not just about mistrust of government, but was also about preserving the vital role that non-state actors such as the New York Times or the civil rights movement play in monitoring and checking government and contributing to public discourse and social change.
Second, it offers some exploratory thoughts on why, as I think is true, New York Times v. Sullivan has lost some of its luster and canonical status in the intervening years. Sullivan is still obviously a hugely important case, and it has always been subject to criticism. Still, it was once highly and widely celebrated. Now, even among those who are not especially critical of the decision, it is more likely to be met with a shrug than with praise. It is not an object of ongoing political contestation like other landmark cases, such as Brown v. Board of Education; it is simply there. I suggest that Sullivan has undergone a sort of bifurcation that has diminished its canonical status. On the one hand, its broad pronouncements have largely been assimilated into First Amendment doctrine, so that citations to the case are almost more decorative than substantial. On the other, its specific pronouncements concerning defamation law have been submerged in the complex details of defamation law itself, which has returned to the preserve of specialists. To these factors, we can add two others: the direction of First Amendment law itself, with its profusion of fairly schematic anti-discrimination rules; and, relatedly, the general focus in First Amendment doctrine on the government as the central actor, and the relative lack of interest in the specific speakers, institutional or individual, that come before the courts.
Taken together, these factors have made New York Times v. Sullivan a case that continues to be cited for general principles, but that fails to capture the attention and imagination of either constitutional law experts or the public as it once did. A focus on the press, the civil rights movement, and the courts as institutional actors in Sullivan helps remind us of the high-stakes nature of the case at the time it was decided, and the past and present importance of certain institutional actors in our social structure.Download the article from SSRN at the link.
Jack M. Balkin, Yale University Law School, is publishing Old School/New School Speech Regulation in the Harvard Law Review (forthcoming). Here is the abstract.
In the early twenty-first century the digital infrastructure of communication has also become a central instrument for speech regulation and surveillance. The same forces that have democratized and decentralized information production have also generated new techniques for surveillance and control of expression.
“Old-school” speech regulation has traditionally relied on criminal penalties, civil damages, and injunctions directed at individual speakers and publishers to control and discipline speech. These methods have hardly disappeared in the twenty-first century. But now they are joined by “new-school” techniques, which aim at digital networks and auxiliary services like search engines, payment systems, and advertisers. For example, states may engage in collateral censorship by threatening Internet intermediaries with liability to induce them to block, limit, or censor speech by other private parties.
Public/private cooperation and co-optation is often crucial to new-school techniques. Because the government often does not own the infrastructure of free expression, it must rely on private owners to assist in speech regulation and surveillance. Governments may use a combination of carrots and sticks, including offers of legal immunity in exchange for cooperation. States may also employ the “soft power” of government influence. Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats.
Finally, governments have also devised new forms of digital prior restraint. Many new-school techniques have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions. Prior restraints are especially important to the expansion of government surveillance practices in the expanding National Surveillance State. Gag orders directed at owners of private infrastructure are now ubiquitous in the United States; they have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible, and largely isolated from traditional first amendment protections.Download the article from SSRN at the link.
Wednesday, January 22, 2014
The tension at Yale University over a popular website that makes available student evaluations of courses seems to be subsiding after the university administration backed off its position: that of blocking the private website, which two Yale computer science majors maintain. The website, called Yale Blue Book + (YBB+), a reference to the University's own Yale Blue Book, which provides such course information to students, does so in a less "clunky" way, according to its developers. The website quickly became popular last semester. Yale, however, alleged that the students, Harry Yu and Peter Xu, were using Yale's information and trademarks without permission. It also claimed that outsiders could gain access to YBB+. It blocked access to the website early this year.
Defenders of the newer website claimed that Yale was violating the First Amendment, and they said so, in the media and on campus. The mainstream media and tech press covered the story (Washington Post, TechDirt)
On January 20, Yale "unblocked" the site, and the dean of Yale College noted that "[Q]uestions of who owns data are evolving before our very eyes."
More here from the New York Times.
Tuesday, January 21, 2014
Allen Rostron and Nancy Levit, both University of Missouri, Kansas City, School of Law, have published Information for Submitting Articles to Law Reviews & 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.
Download the paper from SSRN at the link.
Eric Goldman, Santa Clara University School of Law, has published Patients’ Online Reviews of Physicians in Medical Ethics (Fall 2013) at 6. Here is the abstract.
This short essay explores how doctors and other healthcare professionals have responded to patient reviews of their services and addresses how they should deal with patient reviews in the future.
Download the essay from SSRN at the link.
Reporting and reaction to the President's plans to rein in and reconfigure the NSA's program of intelligence gathering, here and here from the New York Times, here from the Christian Science Monitor, here from CNN, here from the Los Angeles Times, here from the Guardian, and here from the Washington Post (both of the latter discussing reaction from abroad).
On the 20th of January, Claude Moraes, who is heading the European Parliament's inquiry into the mass surveillance of EU citizens, released the following statement:
Today's speech from President Obama marks a substantial step forward in addressing the serious concerns from EU Member States in relation to NSA activities on mass surveillance and spying. Whilst he has now recognised that there is a need for additional privacy protection in the US for EU citizens, his comments may not have been enough to restore confidence following the confusion and concern over surveillance and spying allegations in relation to EU citizens, EU Member States, EU leaders and EU Institutions. It is clear the language was substantial but there will be a clear pause before EU citizens and other non-US targets of NSA alleged surveillance can feel that they have been assured of protection in law.
What we are seeking is firm, concrete assurance from the US that they will make the necessary reforms to guarantee European citizens an end to the blanket collection of personal data of innocent people. We are asking for a clear path to judicial redress rights for EU citizens and a firm commitment to finalising an EU-US umbrella agreement on data transfer for law enforcement purposes. We needed a clear message to reassure EU citizens, who have serious concerns relating to the use of metadata for potentially negative or illegal purposes, that they will have a right to judicial redress, which would deter such potential actions from the NSA.
The speech talked about the potential commercial consequences of the Edward Snowden disclosures on US companies many of whom are household names. For EU citizens the issue will be whether or not the President has done enough in the speech to restore the damage to the reputation of many major IT companies who suffered from allegations of collusion with NSA.
In order to rebuild trust, we need the US authorities to put an end to current discrimination whereby European citizens have lower levels of privacy rights than US citizens, including ensuring privacy protection in US courts. It would have been good to have a more reassuring message on these issues with more clarity on future reform.
The speech was clearly weighted towards the NSA's relationship with a concerned US audience. The sections which apply to non-US targets of mass surveillance and spying allegations received clear acknowledgements of their anxieties and concerns but will have to wait and continue to lobby for a substantive set of reforms to ensure long standing protections which balance privacy and security in relation to the NSA.
Thursday, January 16, 2014
The producers and writers of the CBS series How I Met Your Mother (HIMYM) are taking criticism from some members of the Asian-American community after the airing of the most recent episode, "Slapsgiving 3: Slappointment In Slamarra," on January 13, 2014. In it, several members of the regular cast appear in "yellowface" and "pay homage" to Kung Fu movies, playing up Asian stereotypes. Among disapproving viewer reactions is this one: "Yellowface? Orientalism? Fu Manchu? What?"...Not okay@cbs." Responded Carter Bays, one of the show's creators, "We're deeply sorry" that some viewers did not find the show funny because the cast and crew intended it to be "a silly and unabashedly immature homage to Kung Fu movies." More of the apologies here at MSNBC.
Julie Gayet, the actress named as the other party in Closer magazine's article about French President Francois Hollande's affair, is now suing the magazine. She is alleging invasion of privacy and asking 54,000 Euros (50,000 for the privacy invasion and 4,000 in legal costs). Mr. Hollande has not indicated whether he will file suit over the story. Is there fall-out from the Closer story? Possibly--France's Ministere de la Culture et la Communication decided not to accept her nomination to the panel that decides recipients of the prestigious Villa Medici fellowships. More here about Ms. Gayet's lawsuit from CNN.
Wednesday, January 15, 2014
The House Energy & Commerce Committee Communications & Technology Subcommittee is holding hearings on electronic communications and other matters as it discusses updating the Communications Act. More on its agenda here. CSPAN is carrying the hearings live.
From Louise Scott, at the Programme for Comparative Media Law and Policy, news of a Conference to be held on January 24
Programme for Comparative Media Law and Policy
The Centre for Socio-Legal Studies, University of Oxford
Friday 24 January 2014
9.30am – 6.00pm
Haldane Room, Wolfson College, Oxford
Citizen journalism has come to international prominence as it enables ordinary citizens to reach out to wide audiences with a speed and global reach which has never been seen before, giving voice to alternative stories and perspectives. The rise of such outlets has changed traditional patterns of production and consumption of news, the relationship between professional and non-professional media, the dynamics between the media sphere and communities/societies, and eventually challenges the deﬁnition, obligations and legal safeguards of journalists.
The conference aims to bring academics and practitioners from various backgrounds to discuss the social and legal implications of this phenomenon from different geographical and cultural perspectives, in order to address the complex interplay between new technologies, that span their effect at the global level, their impact in various social contexts, and the different legal responses at the national and regional level.
For more information please see the draft programme: http://pcmlp.socleg.ox.ac.uk/events/2014/challenges-citizen-journalism-technology-and-law.
All are welcome to attend, in order to reserve a place please contact firstname.lastname@example.org.
In a ruling issued today, January 14, the Appeals Court for the District of Columbia has ruled that the FCC's "net neutrality" regulations, issued in 2011, exceed the agency's grant of authority and thus has struck them down. Reporting here from the New York Times, here from MSN, here from CNN, here from Ars Technica. Some discussion and analysis from NPR here.
Tuesday, January 14, 2014
Not really a Super Bowl fan? There is alternative programming--the Puppy Bowl! Specifically Puppy Bowl X, provided by Animal Planet. Check out the line-up here. Revel in kitten cheerleaders! Referee retrospectives! A kitty half-time show! Puppy Bowl swag! Turn that Rah into a Rah-oar! (I'll stop now.)
Dan Subotnik, Touro College, Jacob D. Fuchsberg Law Center, has published The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System at 45 Akron Law Review 883 (2012). Here is the abstract.
This article takes a closer look at the Duke Rape Case by analyzing the book Institutional Failures, a collection of essays that testifies to the immense damage wrought by the failure of three systems of control: the University, by failing to protect its students from a mob demanding quick justice; the media, when it reflexively bought the narrative of pampered white students run amok; and the criminal justice system, when it failed to accord the defendants the basic protections offered by North Carolina rules of criminal procedure. The author aims to clarify the contribution this book makes to an understanding of the case. The author describes and analyzes the content of the nine essays that make up the book, refers to related works, and offers a concluding evaluation of the book's likely impact. Then, using the analysis of this book as a base, the author develops his own analysis of the roots and significance of the Duke Rape case; thus revealing lessons to be learned from the failure of these institutions.
Download the article from SSRN at the link.
DirecTV and The Weather Channel have come to a parting of the ways, at least temporarily, and TWC is no longer available on the network, because the two entities could not come to an agreement over fees for carrying TWC. DirecTV noted that Weather Nation, a channel which also gives weather information, is available to DirecTV subscribers. More here from The Hollywood Reporter.
Monday, January 13, 2014
Alastair Mullis, University of Leeds, School of Law, and Andrew Scott, London Business School, Department of Economics, have published Tilting at Windmills: The Defamation Act 2013 at 77 The Modern Law Review 87 (2014). Here is the abstract.
In April 2013, the Defamation Act was passed, the culmination of a four‐year political campaign. The legislation is intended to ameliorate the ‘chilling effect’ of libel law on scientists, online commentators, NGOs, and others. This paper considers the main changes wrought: reform of the main common law defences, changes relevant to scientific discourse and online speech, and revisions that will impact on process. It identifies areas where there will be problems of interpretation for courts, and suggests that the Act will fail to provide clarity for publishers keen to assess the legality of their actions. The paper also contends that more attention should have been paid to remedies (in particular, the desirability of discursive remedies such as the right of reply). The question is posed whether the Act addresses the core problem with libel law: the juridification and over‐complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings.
The full text is not available from SSRN.
Marc Jonathan Blitz, Oklahoma City University School of Law, has published The Fourth Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space at 63 AM. U.L. REV. 21 (2013). Here is the abstract.
Public video surveillance is changing the way police fight crime and terrorism. This was especially clear in the aftermath of the Boston Marathon bombing when law enforcement found images of the two suspects by analyzing surveillance images gathered by numerous public and private cameras. Such after-the-fact video surveillance was equally crucial to identifying the culprits behind the 2005 London subway bombing. But the rise of camera surveillance, as well as the emergence of drone-based video monitoring and GPS-tracking methods, not only provides an important boon for law enforcement, but also raises a challenge for constitutional law: As police gain the ability to technologically monitor individuals' public movements and activities, does the Fourth Amendment’s protection against "unreasonable searches" place any hurdles in their way?
In the 2012 case, United States v. Jones, five justices, in two separate concurrences, signaled that it does — at least when the monitoring becomes too intense or prolonged. Their suggestion, however, raises two significant problems. First, it provides no principled basis for marking the point at which public surveillance morphs from a means by which police monitor public space into a Fourth Amendment "search." Under the "mosaic theory" embraced by the D.C. Circuit, such surveillance becomes a search only when it captures enough data points from an individual’s public life to construct a detailed picture (or "mosaic") of her movements and associations. But how detailed may such a picture be before it is too detailed? Do police engage in a search simply by watching someone continuously, even if they do so without drones, GPS units, or other advanced technology? Second, the concurring opinions do not explain why the Fourth Amendment, if it does cover public surveillance of this kind, does not also cover the information-collecting police do when they simply watch a pedestrian or a driver. As Justice Scalia wrote in Jones, "Th[e] Court has to date not deviated from the understanding that mere visual observation does not constitute a search." But if police collect the same information from watching a driver as they do from tracking him with GPS technology, why would their watching not also be a search?
This Article proposes a solution to each of these challenges by offering a two-part definition of a Fourth Amendment "search" in a public space. Police engage in a search when they (1) not only observe, but also record, images or sounds of people or events outside police presence; or (2) magnify details on a person or documents or other items the person is carrying and thereby reveal information that would not otherwise be apparent without a pat-down or a stop and search of a person’s papers or effects.
This technology-based or design-based definition of what constitutes a "search" avoids the problems that arise when the Fourth Amendment analysis regarding what constitutes a "search" is based on an investigation’s duration or intensity. Under the technology-based or designed-based definition, police engage in a search as soon as they begin recording remote events or magnifying otherwise invisible details, whether they have done so for two minutes or two weeks. Additionally, under this approach, Fourth Amendment constraints only apply to surveillance that goes beyond unadorned visual surveillance. This test is more workable and more in accord with Fourth Amendment logic. Recording is a search because, more than any other element of public surveillance, it allows police to engage in dragnet-style investigation of all activities in a public space. By transforming ephemeral occurrences into permanent records, recording allows government officials to search public lives frame by frame, much like they might search documents file by file. Certain types of magnification could also constitute a search because, just as a telescope focused on a home may be functionally equivalent to a home entry and search, certain types of magnification may be functionally equivalent to a physical search of persons, papers, or effects.
Download the article from SSRN at the link.