The Great Change: Turning Cathy into a Lawyer

http://news.com.com/2100-1022-998118.html

People and employers with references to "Sudan, Burma and five other countries" are having those references automatically removed by Monster.com, claiming such removal is required by Federal law.

"In a move the company claims is designed to comply with federal regulations, Monster.com on Thursday will delete most references to those countries from job postings and resumes. A note that Monster.com sent to affected users says: 'Your resume will be altered, removing all sanctioned countries from your resume.'"

Regardless of whose idea this was, exactly how is the world going to be a better place as a result of this policy?

Just to follow-up, Monster.com apparently backpedalled on the censoring of job postings containing references to blacklisted countries. However, I still think the whole thing is ridiculous. I don't think Monster was under any legal burden to do so, and if the Administration wants to assert that they have one, then Bush et. al. are seriously overextending the term "services" in the sanctions. Either people are free to live and work where they want, or they aren't free. I don't believe the Bush Administration has any right to interfere with that level of personal freedom, but then again, since when is freedom important to them?

I was reading this article about free speech on college campuses, and in the section about Berkeley they discussed hate speech. From the article:

At the University of California at Berkeley, the birthplace of the Free Speech Movement during the 1960s, administrators replaced the school's broad ban on "fighting words" a year ago with a more narrow policy that prohibits harassing speech toward a specific person. Generally, hate speech is allowed against a group, but not an individual, said university counsel Maria Shanle....

It reminded me of a conversation I recently had with a German friend of mine. I would consider him (from what I know) to be of what's generally referred to as "liberal" in terms of believing in personal freedoms, sane and rational socially-progressive policies, yet eschewing any sort of extremism, be it on the right or the left. In other words, our general attitudes toward public policy were similar.

We got to talking, though, and we realized that our respective cultural backgrounds affected our oppositional viewpoints on the subject of hate speech. My friend expressed appalled amazement that in the US hate mongers (the KKK, neo-nazis, etc.) could be legally allowed to spew their venom. "But these are lies!" he said. How could lies be protected speech?

For me, I see it less as an issue of permitting lies. In fact it has little to do with the contents of the speech at all. The problem with forbidding lies is deciding who gets to be the arbiter of what is a lie and what is the truth. Truth is often relative under the most innocent of circumstances, and history has shown that over-reaching governments frequently designate what is truth only to serve their own power-grabbing ends.

What my friend couldn't fathom was the legal tradition which understands that equation, which understands that there are bigger issues at stake than simply being exposed to lying. It's a belief that no idea is too dangerous to be expressed; that the true danger comes from putting someone in power over deciding which ideas can be expressed at all.

The first thing I saw today was that the Supreme Court got the CIPA decision wrong. CIPA [Children's Internet Protection Act] was a law Congress passed a few years ago in the panicked and irrationally fearful quest to protect children from pornography. The law requires that libraries receiving federal funds install filters on computers that children may use.

The Supreme Court decided that since filters were easily disabled on request that they didn't pose a 1st Amendment burden. But the court got it wrong by focusing on the burden placed on Internet READERS. The problem is that filters pose an unconstitutional prior restraint on the PUBLISHERS of information. Publishers such as me.

One of the first web pages I ever made was one called "Click Here for Pornography." (And there you go - I bet this post gets my blog banned from filters too.) It was a clear example of political speech -- I made what looked like a brick wall plastered with posters and signs advertising such things as "Girls Girls Girls" and "XXX," etc. Each graphic linked to some sort of public policy site, like the US House of Representatives. The purpose of this page always was to demonstrate the irony of trying to regulate this type of thing, that just because "bad" words were written it didn't always mean the content was actually "bad."

I am sure, though, that because I used "bad" words I am blocked from filters. Now, perhaps I might be able to appeal to each and every filter company and ask to have my site be reviewed and put on the acceptable list, but WHY SHOULD I HAVE TO?

What it boils down to is that the federal government is paying 3rd parties (with questionable filtering technologies) to censor me on the Internet. I may not have a site explicitly intended for children, but either children are connected to the Internet or they aren't. There's no "play area" on the Internet - the Internet's value and potential comes from how it connects *everything* together. If they wanted children to be connected only to things explictly deemed "good," they should have made the civic investment on connecting schools and libraries to a closed network, not the Internet. No, the Government made the explicit policy decision TO CONNECT CHILDREN TO THE INTERNET, and as a result, now the government is inserting itself as an arbiter of what can be published to it. That is censorship, and that is where the unconstitutional violation on freedom of speech is.

The fact that the government is essentially outsourcing the censorship decisions to the various demonstrably-fallable filtering companies doesn't release it from the culpability. Rather, it underscores the burden placed on the individual speakers on the Internet who now need to knock on the door of each and every filtering company in order to ensure that their freedom of speech is not trampled on. Logistically this is burdensome, and since the filtering companies have no legal requirement to accept such pleas, Internet publishers have effectively been muted from the marketplace of ideas.

They get free and unfettered access to the Internet.

We don't. [See CIPA decision]

Halloween in Boston was great this year. Fallen leaves were all crunchy on the street, yet the weather was fabulous: clear and warm.

I was invited to a party at the home of a fellow law student so I had an excuse to get dressed up. I had been hemming and hawing about what to be, with neither the bandwidth nor budget to build or buy any sort of elaborate costume. Then I saw this Tom Tomorrow cartoon and decided that dressing up as a Diebold touch screen voting system was the scariest thing I could possibly be.

Front reads: (on hat) DIEBOLD - TOUCH SCREEN VOTING - NO PAPER TRAIL - TECHNICAL GLITCHES

Back reads: (on hat) Cease and desist all criticism - NO SECURITY - THE FUTURE OF OUR DEMOCRACY... SCARED YET? - MANUFACTURERS ARDENT POLITICAL PARTISANS

It wasn't a particularly well-made costume, but then again, neither are the voting systems...

Edit 11/3: Pictures posted. And the story (about Diebold, not my Halloween costume) was picked up in the New York Times.

Edit 11/4: I'm famous! Tom Tomorrow linked to me from his site.

There's a concept in the law about the "reasonable man." It's used as a benchmark to compare the behavior in question at trial with the behavior a reasonable person would be reasonably expected to exhibit. It's often criticized as an elusive standard, because no person ever could attain such consistently normalized behavior. All people, even the most conventional, predictable, and rational, stray into their own eccentricities from time to time. To say nothing for the fact that reasonable behavior derives its inherent reasonableness from context. Lighting a match in a dark cave may be reasonable. Not so in a dynamite factory.

But still, the notion can be helpful when courts are trying to decide if a person acted in a way unique to himself, or in a manner that many people might reasonably behave. In torts this test is big, particularly in cases of negligence. Is it reasonable to presume that a person who knew there were vicious, hungry dogs in the yard would have double-checked that the gate was locked? Yes? Then why didn't you?

The U.S. Supreme Court just heard a case, Hiibel v. Sixth Judicial District Court, involving a man who was arrested in Nevada for refusing to give his name when asked by the police. In the case the State conceded that the police didn't have probable cause, a high level of suspicion, to justify arresting the man when they first came upon him and asked him his name. The standard here was "reasonable suspicion" that might have entitled the police to frisk him. The court is considering whether the police could also ask him his name, and if he could be compelled to answer under penalty of law.

What caught my eye in the New York Times report about the oral arguments was a comment made by Justice Scalia. On being asked to identify oneself, he said, "I would think any reasonable citizen would answer."

I don't think the State has any right to know who I am, where I am, or what I'm doing without a very good reason, a reason that would qualify as probable cause to believe I was guilty of a crime. Period. Scalia's comment on that subject also parallels the frequent unenlightened argument that doesn't understand why people refuse to testify "if they've got nothing to hide."

First of all, I can't see from reading the Constitution where the State gets the authority to be able to identify and locate its citizens at any time it demands. Even the most innocent person has the right to refuse to identify himself if he wishes, no matter how capriciously he decides to refuse the request, a right that clearly outweighs any capricious inquiries by the State.

Secondly, it's a fallacy to believe that criminal justice metes itself out perfectly. Innocent people can easily be railroaded into unjust convictions. Fifth amendment protections against self-incrimination give citizens a starting measure of protection to keep the criminal justice system from running roughshod over them erroneously. Nothing is too innocuous that, uttered at the behest of the State, couldn't precipitate a jurisprudence trainwreck. Even one's name. With the name the State gets a toehold in surveillance and scrutiny, which it may now feasibly pursue even without justification. Without the name the State is much more easily relegated to keeping its proverbial nose out of the private business of its citizens.

Thirdly, even guilty people have the Constitutional right against self-incrimination as well. In a judicial economy where confessions have become bargaining chips against extreme punishments, the accused need to be able to retain their testimonial currency as long as they can so as to preserve their right to due process. Furthermore, a seeming admission to a crime might not constitute an actual confession to the presumptive crime. "I crossed the street against the light," might seem to be an admission of jaywalking, but if the unstated fact was that it was "because a viscious dog was chasing me," it would preclude criminal liability. Though exoneration at trial might happen, without having said anything in the first place the accused would never have had to go through the ordeal. Though the preceding example deals with testimony, self-identification falls under the same analysis as divulging it can easily compromise similar self-interests as other comments that are constitutionally not required to be uttered.

So Scalia is mistaken. There are plenty of reasons why a reasonable person would not want to answer a question on their identity. Prudent, pragmatic reasons. And most importantly, because the Fifth Amendment says he doesn't have to.

Edit 06/21/04: This didn't go well at all... But it seems that Kennedy is the one most confused. He seems to think it's no big deal to give up your name to the police. This is untrue. But it also raises another issue: what if you are better known by an alias? What if you are just starting to use an alias? If the police ask you your name, WHICH name are you required to give?

Edit 1/21/05: I just stumbled upon this article on the subject.

Recently the New York Times ran an editorial criticizing Michael Eisner for not permitting Miramax, owned by Disney, to release Michael Moore's movie Fahrenheit 9/11. It suggested two reasons, each equally unpalatable:

• That the film, which criticizes Bush, might lead Bush brother and Florida governor to strip Disney of its tax breaks for its theme parks, or
• "That Disney caters to families of all political stripes and that many of them might be alienated by the film." The Times does go on to note, though, that, "[t]hose families, of course, would not have to watch the documentary."

Eisner wrote in a huffy letter to the editor in the May 10 edition of the Times objecting to the Times's objection. Just like the Times gets to decide what to print, he says, Disney gets to decide what kinds of content it wants to produce. The First Amendment doesn't require private entities to publish anything they don't want, he reminds us.

This is true, but this is not the point.

As media empires grow, with the sanctioning (permission) of the government, their duty to make available their pipes to a panopoly of discourse increases. It would otherwise be like allowing a company to buy the Panama Canal and then having it exert its "private right" to not let certain ships pass through. That private right to control access to its property may exist in other contexts, but the more a private entity comes to control a public avenue of exchange, its own private interests should give way accordingly. Especially to the extent that its control has been permitted or enabled by the government.

And particularly with regard to the first reason, which Eisner did not deny, suggesting that public governmental pressure weighed heavily in the decision not to distribute the movie, Eisner failed to address that critical point. Suddenly when the censorship occuring is not a capricious exercise of private discretion but rather an effect of the State leveraging its power to control expression, that most certainly is a violation of the First Amendment.

On Saturday I came through San Francisco International Airport on the way back from Thailand and Cambodia. I had a good trip but I was excited to be back in my home country.

That excitement quickly dissipated when faced with the inquisition going through passport control and customs. It wasn't the first time I'd had my bags searched by customs - in fact the last time I came though it happened as well, but then I was in such a good enough mood that I just shrugged it off - but this was now the second time in as many consecutive trips and it was much more invasive. The customs agent wanted to know all sorts of details that were none of his business, especially since he already got to open the suitcase.

"What do you do?"

Should I answer this? Do I have to? The Constitutional inquiry in my head deferred to expediency. I chose the path of least resistance (presumably) and answered the question.

"I'm a law student."

"What kind of law will you go into?"

"Civil liberties."

He paused a moment, but continued the scrutiny, typing various bits of information about my life into who knows what database. And I took it because I didn't see what choice I had. Perhaps had I raised some sort of search and seizure complaint he would have stopped. Of course, I might have had to spend all day in some room while it all got sorted out.

The irony was that on the way into passport control I saw a Department of Justice poster in English and Arabic saying that it wanted to know if there were any civil liberties violations. Yeah, right. If this is the inquisition that an American traveller gets, I can't imagine the indignities they put foreign travellers through.

I think what set them off was that I had been to Thailand, and on an admittedly short visit (though they didn't seem perturbed about the visit to Cambodia). It seemed like it didn't compute to them that someone might travel to a far off place like that for any purpose non-nefarious. I think in general they can't imagine any non-nefarious reason to travel. What kind of patriotic American would ever even want to leave this great country of ours? I think as a policy this government regards travelers, people who want to see the world to understand it better, with the scrutiny it regards a traitor. Why would you leave if you really loved America?

Of course it's because I love America that I leave it sometimes. America's interests are never promoted by isolating ourselves from the rest of the planet. Only by meeting other people, learning about them and having them learn about us, can we achieve the type of understanding that will allow for peace and security for all on this planet.

After I wrote the last post I got to thinking that maybe it was irresponsible of me to only call the news station and not a police department. I started to feel that way when I watched the 5:30 news and didn't catch a mention. My plan only worked if the news station really tried to get to the bottom of the story. But of course it had no obligation to do anything.

It turns out that the news station did pick up the story and contacted the relevant police departments. Oddly, apparently one of the police departments doesn't think there's a connection. I say its odd because except for a small discrepancy in the height descriptions I think the similarities are uncanny.

I found all this out today when I bumped into a news crew filming b-roll in my neighborhood. I introduced myself to the reporter and said I was the one who'd called their station. She appreciated it, and confirmed that they wouldn't have known about the possible connection without it. I talked with her for a bit and then she asked if she could put me on camera. I reluctantly agreed, mostly out of empathy for her doing her job. It's much better if she can get a soundbyte then to have to put it all together with b-roll and her voice-over. I just saw the bit they used on the newscast and I'm pleased to note I didn't look or sound completely asinine. I also appeared without a caption, which means I can retain some anonymity.

That anonymity, despite what the Supreme Court thinks, is important. I realized my reluctance to call the police to discuss the matter was rooted in the strong desire to not have them know who I was. (Eventually I did call the Alexandria police anyway because I decided that if this information could possibly be helpful I had no business withholding it.) The problem is that more and more I've come to distrust the abstract notion of police power.

I'm actually startled by the extent of my distrust. I think some of it stems from becoming increasingly aware of situations where police power has been used to railroad the innocent. I think society wants to believe the police are some sort of panacea and only capture bad guys, but all too often good guys get treated as bad guys and serious miscarriages of justice result. This fate can be somewhat avoided, I reason, if the police don't know who you are.

The other thing I've been reflecting on is the moral authority of the law. I hate using the word "moral" for anything because it's so abused as a provocative rhetorical device, but I mean here the reasonableness of the law. Is it fair and just, a balance between benefit and burden that reasonably achieves a reasonable goal? Or does it instead serve simply to lull the populace into a false sense of security while it silently erodes their liberties and divides society into a false dichotomy of good guys and bad?

More and more I fear the latter is happening. In a moment of heavy irony, on the Fourth of July I was queued up near the Mall, listening to Clay Aiken belting out how proud to be an American he was "where at least [he knows] he's free," while gazing up at the dome of the Capitol, and waiting to have my belongings searched before I, with all the other citizens, could peaceably assemble in a public place. On a day when we celebrate our freedom it baffled me how we can so carelessly allow it to be compromised with no protest.

Certainly some laws make sense. Maybe even some intrusions on unbridled liberty do as well. But I fear that more and more we are accepting laws that have less and less justification, less and less benefit in contrast to their incursions on our privacy, our anonymity, or our other civil liberties. It's not just these laws themselves I fear but this tendency to accept them so unquestioningly.

So I'm trying to fight back with my own form of civil disobedience, to assert myself in the face of governmental power. Some laws are good, certainly, especially the ones that deter damage to our neighbors (like violent assaults and theft). I don't have any intention or desire to violate those! But I think there's several more petty ones, or ones which though may have a potential purpose also don't have a tremendous consequence if violated. Some of these laws in fact simply provide authority figures with the ability to label more people as troublemakers than to actually protect society constructively.

These are the laws I've decided to resist. So towards this end a few days ago I consciously resolved to jaywalk at every reasonable opportunity, on principle. It's not about getting where I want to more quickly, it's about standing up to power and refusing to blindly accept it. True, I could envision a justification for jaywalking laws, and to be sure I won't do it if I'll put myself or others at risk. But in the other, more benign circumstances, when jaywalking would harm no one but the law's punitive power still persists, I'll violate it. It's about wanting to stop feeling like a sheep, to start being empowered in the face of authority. I wish more people would. I wish more people would recognize their power, to insist that police and governmental authority demonstrate its legitimacy and not simply blindly defer to it. And I wish that resistance would collectively be demonstrated against laws far more destructive than traffic scofflaws.

The truth is that we need laws, and we need police to be protectors. But all the good these institutions can do is lost when they wield their power over citizenry unchecked. For no good results when the innocent are punished and the actual miscreants face no consequences. Justice doesn't happen on its own. It results only with the constant vigilance of the people.

I'm still really angry/terrified about the state of civil liberties. Today hasn't helped. There was the announcement that the Patriot Act would continue to spy on citizens and their reading habits. And yet we were also put on notice that the terrorists are planning to strike again.

The first thing that came to my mind on hearing the latter was that the Republicans in charge must be really hoping something happens, something that terrifies the American public more than they already are and has them fearing any electoral change. The scariest thought - which I don't want to believe but I find disgustingly plausible nonetheless - is that if something happens, it might somehow be enabled by the powers that be as a means of consolidating political power. Meanwhile others have noticed that the timing of these announcements and vague warnings seem to be all about terrifying people so that they stop noticing the huge flaws in the Bush presidency rather than having anything to do with productive leadership. If the fear is that the terrorists will try to disrupt our elections, we can take steps now to ensure that they won't be disrupted. Including reminding people about how the process works, and how no attack can railroad the Constitutional mandate and the relevant powers manifest in the States. We hope we never have to face such a crisis, but if the threat is truly as imminent as Our Leaders want us to believe, then we should expect them to make sure we are actually prepared. Scared shitless is not a sufficient state of readiness. Confident that our Constitutional processes and principles can survive no matter what, which they can with the right preparation, is what the situation actually calls for. If only we could be.

The threat itself further points out the fallacy of the liberty-encroaching laws we've had to endure. We have all these new rules, all these new laws. And yet we are not any safer apparently. Our reading habits, our thoughts, our behaviors and the things most personal to us can be scrutinized and criminalized. And yet the terrorists are still out there, plotting away.

IF there was no other way to know what they were plotting, maybe then the sacrifices on liberty would be reasonable. But the authorities can't seem to manage processing what they know from more legitimate sources. Putting the entire populace under suspicion does not seem helpful in the slightest, and in fact it seems harmful, wasting resources now needed to parse all the newly available information about innocent citizens rather than chasing down the actual threats.

Meanwhile, today I learned that my favorite Washington museum, the Air and Space, now requires you to go through security to enter it. You used to be able to walk in and out of there whenever you wanted. Discovery and learning in a public institution could happen at will. Now it can't. Yet more invasive gauntlets need to be run first. Gauntlets which inhibit personal freedom yet provide no substantive increases in safety.

I remember when I used to be free. I miss it a lot.

Last Friday I went to the Museum of Natural History on the National Mall. That museum with dinosaur bones and nature dioramas. (And, oddly enough, a temporary exhibition on baseball.) And metal detectors with guards who opened your bags.

I renew my objections to these new "security" measures.

To begin with, there is the inconvenience factor. This was palpable on Friday when I was trying to meet my friend, and I couldn't very easily pop inside to look to see if he was already there because of the line to enter through security. I will grant that if inconvenience itself were the only objection it might not weigh heavily against the possible benefit.

But the inconvenience factor is only the tip of the iceberg. There's also the loss of civil liberties, the expenditure of resources on ineffective measures that create only the APPEARANCE of security, the resulting lack of resources available to provide any ACTUAL security, and the fact that the inconvenience of convening freely in a public place has a wider destructive effect on society than one individual may appear to absorb on his own.

When I went to the museum it was after work, to which I normally carry a backpack with my laptop, papers, and whatever else I feel like lugging around with me all day. To enter the museum I had to permit my bag to be searched.

Here I can hear people argue, "So? How is that a problem if you have nothing to hide?"

This argument is always fallacious. Personal liberty entitles you to hide whatever you want from the State that you want, however capriciously. If I've written an essay that I think later is really bad, and I'd be so mortified if anyone read it, though there would be no criminal repercussions should it fall into the hands of the State, I still would have reason to want no one to see it. Not my friends, not my neighbors, and certainly not my government.

And what about items that aren�t illicit but the prying eyes of the State's agents wouldn't be able to ascertain as such? Like, say, material that might be deemed obscene, or worse. If I wrote an essay on how much I dislike President Bush � or even an essay like this � if an agent of the State should see it, how could I be sure that I wouldn't get arrested as a terrorist? A treasonist? Someone who by not being "with us" must be against us? True my First Amendment right of free expression could provide a defense, but having to endure a trial to be exonerated on that point is a tremendous cost (and risk) that should not and would not have to be born if I actually had a Fourth Amendment right "to be secure in [my] person[], houses, papers, and effects, against unreasonable searches and seizures."

The Fourth Amendment goes on to describe a legitimate search as one which "upon probable cause ... particularly describ[es] the persons or things to be seized." The mere desire to enter a museum, a park, or any other public space cannot on its own be sufficient probable cause to justify a search. Nor can searching EVERYONE with such a desire be sufficiently particular. Plus, once the State gets to look at my belongings, it can now "see" whatever it wants. Including all the things that for whatever reason I wouldn't want it to see and might ordinarily have been able to prevent from being searched.

The loss of Fourth Amendment protection in order to enter these locales, which used to be freely available to be freely exploited by all citizens, having already been paid for by them, is a very high additional cost indeed and one which is expensive for society as a whole. If people need to subject themselves to State scrutiny to partake in public events, more and more people will have to forgo them. So, you might say, these would be the "bad guys" and we wouldn't want them around anyway. It's a matter for a separate discussion how society denotes its "good guys from bad guys," but it can be noted here that it's not the rare psychopath that gets weeded out by these searches but mere scofflaws and dissidents that will be caught up in this net. These are the people who perhaps have something naughty but innocuous in their possession � or perhaps they don't even � but who, even on the fringes of society still have something to contribute to it, to say nothing of a right to partake in it. Ridding ourselves of their participation deprives the fabric of our society of their color and further marginalizes them.

The convenience issue is even more relevant in this context. If it stops being efficient to attend public events or to enter public institutions, people won't. Or at least not as often. Even the most conforming people will be reluctant to endure the hassle. If we think it's valuable to have free public educational institutions and assemblage areas, we should ensure that people can take advantage of them. The investment won't pay off if, practically, people are unable to use them. Particularly for educational institutions, when the betterment and stability of society depends so heavily on having an informed populace, this outcome is particularly untenable.

Meanwhile, many people who find these types of security measures unobjectionable tend to justify them with two arguments, one being that "any little bit helps," and the other being that because public places are easy targets they justify these impositions.

First of all, every little bit DOESN'T help. Swatting mosquitoes when Godzilla is on the loose may keep people from succumbing from West Nile, but it's not going to keep them from getting crushed. It's counterproductive and wasteful to spend so many resources countering small hazards are not dealing with the larger ones. Plus, as I keep reiterating, the cure is worse than the disease. Worse, it's not even a real cure, it's just an illusion of safety that the security measures bring, not anything substantive. Like a traveler in the desert who drinks from a mirage only to ingest a mouthful of sand, so are we when we think that these types of measures do us any good at all.

Secondly, the "easy target" argument doesn't scale very well. BECAUSE people meet in aggregate they are a target. The only solution is to not have people meet in aggregate (which, given the inhibiting nature of these measures, may actually be the goal). Since (we by policy seem to presume) terrorists aren't interested in picking people off one by one, any crowd of people provides a presumptively tempting target.

There might be some argument that the National Mall on Independence Day might be a more poetic target than some other public events, but if so, merely keeping people from bringing in pointy objects did not make anyone any safer. As for museums, perhaps we fear that a terrorist might desecrate a museum exhibit and destroy a piece of our heritage, but though sad and devastating that would be in its own way, the mentality behind 9/11 is not likely to be satisfied with destroying a space capsule or dinosaur skeleton. But if we can make the choice to either risk having an artifact destroyed or our freedom, isn't it better for the former to absorb the damage?

Meanwhile these feeble attempts to make us "safe" seem to only be remotely effective against the run of the mill social outcasts, the "troublemakers." Had there not been any security on the Mall on the Fourth of July I think my greatest vulnerability might have been to stupid people with pointy objects or pistols. That risk might have been ameliorated somewhat � but only somewhat � with the security procedures.

But this raises another issue, which echoes the repeated concern for society's cohesiveness: that we just don't seem to trust each other. When we mingle with strangers, we fear they have it in for us. The security measures are really just a prophylactic attempt to mitigate that fear. All the obstacles and barriers are supposed to parse out the "bad" people, the people whose behavior we don't think we can trust, without us having to learn how we can. Instead we search for a guarantee that no one will hurt us, making ourselves vulnerable to leaders who really can't make that promise anyway.

There is more to say about our alienation from our neighbors and the harmful effects our fear and suspicion have on society as a whole. But for purposes here I want to close by refocusing on general principles, to emphasize how freedom is only attainable when it applies to everyone, even people you don't like (the "bad" people). People who don't look quite the same. People who have negative opinions. People just like you. As bad as it is to parse out dissidents, the worst thing about such an exercise is that there is no defense against having yourself parsed out as well. Maybe someone doesn't like the way you look. Or your opinions. Maintaining civil liberties for all doesn't just protect the freedom of the people on the fringes, it also protects your own.

Actually completed and posted on 7/18. But I'd been drafting it in my head all the previous week.

When I was away on my travels I was in parts of the world that, though perfectly fine while I was there, aren't particularly stable places. During that time the terror level in the US was raised to orange, which made me wonder if perhaps I was better off staying where I was.

But then it came out that the warnings were based on old information, and once again it felt like the American public was being used as a pawn in the politics of fear. For a brief moment I feared terrorism, but it quickly gave way to a more plausible and real fear of my government.

I got back to the United States and endured an arduous journey on the Super Shuttle while it dropped off a bunch of people at hotels near the Capitol before getting to my erstwhile home in DC. My ordinary culture shock from two weeks away suddenly multiplied at the sight of all the roadblocks and checkpoints. I thought things were bad before I left; when I came back they somehow managed to be worse.

I don't mean worse in terms of being vulnerable to hypothetical terrorist acts. I mean worse in terms keeping the people even further away from their government. The ability to freely access it, to "peaceably ... assemble, and to petition the government for a redress of grievances" (see the First Amendment) is fundamentally important to our notion of freedom. We need to start asking ourselves how many incursions onto it can be tolerated until there's no freedom left to protect.

Posted on 8/11/04 but really should have been on 8/10.

Law schools are abuzz with yesterday's appellate court decision finding the Solomon Amendment unconstitutional. This is the law that denies federal funding to schools who prevent the military from recruiting on-campus. Why would law schools want to refuse? Because of the bias of the military preventing gays from serving. Many law schools have policies not to provide recruiting privileges (access to qualified law students is quite an asset to many organizations � note the phalanx that regularly converges on Harvard, and the insanely high salaries and expensive lunches they use to ply these sought-after candidates to come work for them) to organizations that discriminate. But they have been hamstrung in their attempts to apply the same standard to the military because of the law's blackmail, requiring them to either give the military full access to its students or risk losing substantial government funding.

The majority found this policy to be a matter of compelled speech, impermissible under the First Amendment. While scholars may debate the legal analysis underlying the decision, if there is a legitimate criticism of it, it was not made by the dissenting judge Ruggero J. Aldisert, who wrote (via the NY Times):

"What disturbs me personally and as a judge is that the law schools seem to approach this question as an academic exercise, a question on a constitutional law examination or a moot court topic, with no thought of the effect of their action on the supply of military lawyers and military judges."

On the contrary � it is the military who is unconcerned about the supply, drumming out legions of qualified, willing personnel simply because they are gay. Standing up to this policy may be the only way to compel a more reasonable one, one that puts the nation's true interest � being defended by the best people we have � ahead of hatemongering.

Dan Gillmor noted on his blog about the MTA's attempt to ban photography from the subway system, ostensibly due to the ever-prevalent hysteria about terrorists. Should this rule be implemented it will just be one more incursion on civil liberties inflicted on ourselves since 9/11.

At some point when I'm not completely exhausted and can managed to construct a coherent, grammatical sentence I may comment further on why there are strong negative First Amendment implications by this prohibition, but for now see what others have noted.

But I will note having seen a similar atrocious policy enforced on a city-bound New Jersey Transit train. Some passengers had a camera and were snapping pictures like any tourists might. The conductor barked at them to put it away. I think he would have thrown them off the train if they hadn't.

This evening I spent at least an hour with a Lexis rep trying to find where it was written that cameras couldn't be used on trains. The only thing I could find was a single mention in the Bridgewater, NJ Courier News (July 16, 2004 Friday, A-SECTION; Pg. 1A) talking about how during the Republican Convention "[p]hotography on NJ Transit property will be prohibited without a permit."

What's alarming is not just the rule itself, but that there was absolutely no mention in the public record about implementing it (nor any record in any code or statute that it had been implemented at all.) Thus raising another problem. Not only are rights slowly being eroded through overzealous limitations, but they are being chipped away at secretly, taking away citizens' rights without giving them a chance to affect the decision-making.

(The horrors of trackback - a double-ping back to his site. Thanks to lousy MoveableType documentation and the strange architecture to the feature, I'm an Internet polluter. *sigh* I'd delete the duplicate, if only I could.)

According to today's NY Times, the Borgata Casino has ordered its waitstaff not to gain weight. As if that isn't a heinous policy enough, this line stood out for me:

"Borgata officials refused to allow cocktail servers to be interviewed Thursday..."

I think what's going on here is endemic to many employment situations. Your employer gets to own your body (see, eg, above), your health (see, eg, insurance), your privacy (see, eg, drug tests, Internet logs), your right to expression (see, eg, above). It's time to think long and hard about how much control over their employees' lives employers really should have. How much should we really expect employees to give up in order to be able to make a living? We have Constitutional protections against the government to take this kind of control over individual autonomy; it's time to bind private parties to them as well.

Mike Godwin may be joining me on the righteous indignation bench. He's frustrated that movie theaters are now prohibiting patrons from bringing in backpacks.

I've long been frustrated by the no-backback bans at many sporting events. Some have been relaxed since they were implemented in a post-9/11 flurry of paranoia. But others persist in their mandatory stupidity. I'm not sure which bothers me more: that I can't bring in my backpack, or that the policy is so useless. I'd be slightly annoyed, sure, if I couldn't bring in a backpack because it was actually dangerous. But it's maddening - and excessively depressing - to be forced to comply with small-mindedness.

I commiserated on his blog with the following recommendation:

What is it about backpacks - and only backpacks - that inspires such fear? I too carry backpacks everywhere, and I can't see what is achieved by their ban other than my inconvenience. Why should a backpack be so much more threatening than any other satchel? Is there something about having TWO straps, instead of just one or handles, that somehow uniquely presents some heightened danger?

Anyway, in the future you might try one of the Jedi mindtricks I've taken to using to circumvent pointless post-9/11 security measures like these: I carry a small mesh bag with me inside the backpack. Out of visual range, I take everything out of the backpack and put it in the mesh bag. Then I roll up the backpack and put it into the mesh bag too. I then am able to carry it all in with me - same stuff - unimpeded.

Because, you know, it's so much safer this way....

Doping. It's not just for athletes anymore...

Apparently there are stories of law students (and other students) who are taking drugs like Ritalin and Adderall to help them concentrate. For people with attention disorders these may be necessary medications. For people without these disorders the effect is to give them several consecutive hours of incredible focus. Imagine what you could do academically if you could study for hours and hours straight, absorbing everything without being distracted.

However, these are prescription medications. Taking them without a prescription is illegal. They also give an unfair advantage over students who, like them, also don't have attention disorders, yet don't themselves take them. Academic performance, particularly in law school, is often judged relative to one's peers. On a final exam, my grade will not reflect how much of the material I learned; it will reflect how much I learned relative to the other people in the class. So even if I do astoundingly well, if enough people in the class did even slightly more astoundingly, they will get better grades and I will be dropped down on the curve.

That there are grading curves at all is an issue warranting serious debate. But for purposes here, if it's just a crapshoot about how people end up spread on the curve, then the system is irritating but not rigged. Also, if some people are really able to perform better, however subtly, on an exam then perhaps the curve is even somewhat valid. The problem with the concentration drugs, however, is that equally talented people will not turn in equal performances because some will have acquired an extra advantage. Any value in using grades to measure legal acuity will be compromised since they will not be measuring equivalent things.

Now, maybe there are lots of things people can do to artificially improve their academic performance. Maybe exercise helps one's concentration. So might diet or even the timely consumption of caffeine. In theory these and other similar factors may skew the validity of the grades. But their effect is likely fairly minor. And their usage does not create an unfairness since anyone could choose to use them without facing any significant consequence. On the contrary, Adderall and its ilk are illegal to take without a prescription, potentially even dangerous as well, and so can't be construed to be as innocuous a variable. People who take these drugs without the medical need gain a serious advantage over those who choose not to, while putting an unfortunate pressure on other students to do something illegal and dangerous just to keep up with their peers. Given that grades can affect the kinds of jobs and opportunities students are afforded, the stakes can be extremely high. So for students who take an unfair advantage through the use of these drugs, their behavior is hardly victimless.

The question is what to do about it. Yesterday Andrew Perlman, my legal ethics professor last semester, posted on Legal Ethics Forum some musings on how law schools could and should deal with it. He contemplated whether there should be random drug testing, and, though noting the downsides to such a plan, decided that there was enough at stake to justify it.

I respectfully have to disagree. For one, I rarely think random drug testing is advisable. Even among professions where I think it might be warranted due to physical safety concerns (like bus drivers, etc.) I still think there should be some sort of probable cause to justify the privacy violation. The risk to me if my classmates are doping is not in the least bit comparable with that kind of situation.

True, cheating is a serious matter and I don't mean to excuse bad behavior. But even as cheating goes in law school the consequences of drug-taking are more limited than other forms of cheating. Stealing answers you don't have means that the school might be graduating an incompetent lawyer who doesn't know what he needs to know to do the job. Students taking Adderall, et al, on the other hand, DO know what they need to know, because they've been able to learn it so efficiently.

I also don't mean to minimize the injustice to other students by this advantage being taken by some. But mandatory drug testing by the school is no solution. First of all, I rarely see the imposition of infantilizing authority over an entire population as being a good idea. Remember, law students are adults and it's the height of paternalism for the educational institution to claim dominion over students' bodily privacy. Furthermore, such a testing scheme would be much like the injustice of kindergarten, when one brat made it so none of the kids got recess. Given that cracking down on cheating is supposed to be in the interests of the innocent students, punishing them with the privacy-violating tests hardly seems to solve the problem.

I certainly don't want to be victimized by cheating classmates, but I'd rather get nothing but C's on the curve because my classmates are all doping than be personally subject to drug testing, no question. Grades are important for a few years, but ultimately meaningless in the long run (and they may already be meaningless in the short run as well, since it's impossible to know what they really represent). Whereas a sound right to privacy is something much more worthwhile and precious to protect.

Orin Kerr posted an article from the Washington Post on the DC police going after jaywalkers and questioning whether DC is becoming too much of a nanny-state.

Some of the commenters debated the seriousness of jaywalking. I, on the other hand, commented why last year I jaywalked on purpose:

"When I was in DC last summer I started jaywalking BECAUSE DC had become a nanny-state. In fact, I wouldn't even call it that. I'd call it a police-state. For people who haven't visited in a while, they might not recognize it anymore, with its landscape of concrete barriers strewn about everywhere. Remember when you could go in and out of the Smithsonian museum whenever you wanted? You can't do THAT anymore. No, now you must queue endlessly to pass through the metal detectors and get your bags searched. The energy of the city had long since been disrupted by these public demonstrations of civic fear, and it was heartbreaking. To say nothing of personal liberty-destroying.

So yeah, I jaywalked, on purpose, as a form of civil disobedience in protest of what the city had become. It was the least I thought I could do."

Today I had a frustrating conversation with Wells Fargo. I went in to do some banking (account management with a banker, not a teller transaction) and they insisted on writing down my driver's license information in their system.

I objected, and ultimately they didn't, but it seemed to be only because ultimately no changes were made to my accounts. When I go back to make the changes they are going to insist on noting it down.

I at first expressed surprise: I just did some banking the other day at another branch, and though they checked my ID, they didn't note it down. So why suddenly this new policy?

I got the manager I spoke to to go on record saying it was a USA Patriot Act requirement. This I could almost believe. Not that being so makes it a good policy - the USA Patriot Act is certainly quite chilling - but I could absolve the bank for this stupidity if it was really mandated by the law.

But I don't think I believe that answer is correct. For one, the Patriot Act has been law for quite some time, yet I believe this is the first time in more than 10 years' worth of business with Wells Fargo that I've encountered this policy to insist on recording my driver's license information. For another, it's obviously not being uniformly enforced. And furthermore, I can do all the banking that I want without that information being on file. It's just that if what I need to do happens to involve a banker, they are going to seize the opportunity to write it down. But unless they are planning to give up as customers any who do not come in to promptly report their driver's licenses, this cannot be the mandate that he represented it to be.

It's also a bad idea in general: never mind the civil liberties implications of having your identification be so directly tied to your financial transactions, but it seems like a bad idea to give out such particular identification information to so many sources. The bank can swear up and down that it never gives away the information, and that its systems are secure, but it can't guarantee it. And in general, it seems that the more places you give your identification information to, the less valuable that information is as a verification measure. Its value as a verification device is dependent on their only being one driver's license out there, but if everyone and their brother, for whatever "good reason" they come up with, insists on recording it for their own purposes, the likelihood of forgeries increases. Today it's Wells Fargo; tomorrow it's another financial institution (I have relationships with several); and the day after that, who knows who else is going to want it.

So when he also said that them having this information on file was for my protection, I definitely didn't believe him on that count.

The problem: what to do? The reason I went to this branch was because the first branch was unwilling or unable to resolve my banking issue. This one would, but at the cost of my driver's license information. I really don't want to pay that price, but there's only so much time and energy I have left to try to come up with a work-around. How many branches am I going to need to visit before I find a branch that satisfies my banking needs, but not at this high price?

I went to city hall today, but before I could visit any offices I was commanded by the security guard to give her my name.

It is absolutely appalling that to access city services people need to identify themselves and have this information recorded. What possible positive purpose could such a procedure serve? The guard said it was to stop terrorism. I can't imagine how.

I can however imagine how policies like these further undermine our liberty. When everyone's business can be known and recorded by any power able to compel its disclosure, it provides the fuel for that power to be sustained and expanded as it can now use that information against those it would rule.

But it was just a name, some might say. What's the harm in that? Well it was more than a name. It was who I was, where I was, and what I was up to. An enormous volume of information is provided when identifying oneself. And even if you think that it's still too small a datapoint to result in any real harm, remember that this data was recorded, and if combined with other similar teeny, tiny datapoints, like a Seurat masterpiece suddenly you can paint a very vibrant picture of an individual's heretofor private life.

I can't see how it is anyone else's business, much less the government's, to be able to know so much about the lives of its citizens. I further can't understand how this kind of tyrannous policy was able to take root in what's supposedly one of the most liberal places in the world: Berkeley.

I've always loved baseball. I can't quite tell you why, and it seems quite odd that I would at all, since my interest has received such little encouragement from all quarters. My parents themselves are lukewarm about it, although they did sign me up for softball when I was 8. Not a naturally gifted athlete, I had to compensate with enthusiasm and a solid work ethic. This was met with only limited success, as I was not quite popular enough to avoid benchwarming, as certain coaches only played their daughters and their daughters' friends, of whom I was never one.

But I stuck with it because I really really really wanted to play. However, what I really wanted was to play was baseball, like the Yankee players I idolized did. For years I harbored the usual fantasy of wanting to grow up to be a major league ballplayer. As it is for most people, limited athleticism proved to be a barrier. But it was not the only barrier. Nor was it necessarily as limited as some might want to believe.

The most significant barrier to improving my baseball skills was that I didn't get to play baseball. I got to play softball. Now, I like softball. It does contain many of the same elements that baseball has: hitting a ball with a stick, throwing, catching. But it contains several differences, including the tempo of the game, the size of the ball, the throwing style. It's fun on its own, yes, but it's not baseball. But because I was a girl, that's all I got to play.

Initially it was because my parents were afraid I'd get hurt by the faster ball. Eventually, though, they relented and I got to play little league baseball instead of softball for the last two years I was eligible. (It was little league, not Little League, as my town ran its own system.) I wasn't great, but I liked it and worked hard in practices. Indeed, I was not the worst on any of my teams...

Next year was high school, and I wanted to go out for the team. And that's when I ran into a wall. Because I was not allowed to go out for the team. And it had nothing to do with my ability - the tryouts would determine that. It was because I was a girl. And because I was a girl, I was only allowed to go out for softball.

The law says, the school told me, that we have to let girls have the same opportunities that boys do. So if there's only one team, like football, we have to let girls play on it. But when we offer a girls' version and a boys' version, we don't have to let the girls play on the boys' team.

Fine, I said, if they are truly equivalent. But baseball and softball are not equivalent. For heaven's sake, they aren't even CALLED the same thing.

And then began a battle of semantics, as I explained to the head of the sports department for the high school that in this case, girls' softball and boys' baseball were separate and undeniably unequal opportunities. That there was too much difference between the two for girls to feel that they were getting an equal shake when they were essentially banished to their sex's allocated athletic endeavor. (To that the director got defensive. Are you saying there's something wrong with girls wanting to play softball? he demanded. No, I said, but there's something wrong when they don't get the CHOICE.)

And lo and behold, my argument won the day. They let me try out for baseball.

During that tryout period I put in everything I had. I learned skills I'd never before been taught. I ran faster, threw harder, and played smarter than I ever had before. I watched everyone play, and noted where my abilities fell in relation to others' playing. They fell in the middle. Right where the cut was made on who got to make the team.

I didn't make it. I don't know why - it was plausible that my abilities were below the cut-off, and it's just as plausible that the coach really didn't want to deal with having a girl on the team. I'll never know. Because by that point I was physically and emotionally exhausted. The physical part was from the tryouts, but the emotional part was from the battle, of first having to win the argument to even get the chance to try out for the rest. It was like the school stuck a spigot in me, and drained me of my energies, before finally letting me do what I wanted - and was entitled - to do. I look back and wonder what would have happened if I'd pressed the point, if I'd argued that I really was good enough for the team and it was just sexism that had kept me off. But I couldn't, because before the season had even started there was nothing left to give to it.

It isn't the school's fault, of course, that I'm not a Major League ballplayer. Genetics played a part... and so did youth sports, which will someday be the subject of another critical post. But the genetic facet that had absolutely no business playing any role in the sport I got to play was my two X chromosomes. And that goes not only for me, but for any other girl who wants to play whatever sport she wants to play. To be banished to something different or lesser because of them is absolutely wrong, whether it was me not getting to play baseball or another girl in the same town getting to play basketball with regulation-height nets*. She's won her battle, it seems, which is what inspired this post. But it is one (especially 15 years later!) she should not have had to fight.

* The Bergen Record requires registration and removes its stories after about a short time. The relevant excerpts:

An agreement that would allow coed teams was signed late Friday by the Ridgewood Biddy Basketball program, the state Division on Civil Rights and the parents of Caitlin Alvaro, 12, who was barred from playing with boys even though she was considered as good as many of them. ... In late October, Caitlin signed up for the fifth- and sixth-grade boys team mostly because they use a regulation hoop that is 10 feet high. The fifth- and sixth-grade Biddy girls teams shoot at an 8�-foot hoop, which Caitlin said would throw off her game, since she played with a regulation hoop in two other girls basketball leagues.

The board denied Caitlin's request, saying her participation would "undermine the program and would, over time if not immediately, have a negative effect on the quality of opportunity of play with the various leagues," according to papers filed with the state.

Her parents - Joseph Alvaro and Frances Edwards - filed a complaint with the state Division on Civil Rights. After a two-month investigation, the division found that Biddy prohibited Caitlin "simply because she is a female and not for any reason associated with ability or other non-discriminatory basis."

This part of the article really irks me, given that it was the school district that I'd had to fight:

... The civil rights division petitioned the Ridgewood school district in January to intervene, since the games were played in school gyms.

State officials said the school system did not agree to the settlement, and that part of the dispute will be heard by an administrative law judge. District officials would not comment Tuesday.

This CNN article talks about a new federal law requiring that all schools receiving federal money must make a point of educating their students on the US Constitution. I accept what the article asserts, that there is a lack of civic awareness that such a law might, perhaps even effectively, address.

On the other hand, I'm very concerned about the issue of compelled speech it seems to implicate. And I fear the indoctrination quality such mandates can so easily entail. "You WILL pledge your allegiance! USA uber alles!" Bad things happen when patriotism becomes mandated, and I'm not sure what keeps this law from being, or becoming, something like that.

Particularly since it doesn't just apply to primary and secondary schools, apparently. I got this email from BU's Dean of Students the other day:

"Constitution Day and Citizenship Day

Pursuant to a new law, Congress requires Boston University and all other educational institutions receiving Federal funding to hold an educational program pertaining to the United States Constitution on or about September 17 each year. You should consider one of the following informational resources pertaining to the Constitution: The Library of Congress� repositories for Constitutional documents and information may be accessed at: http://memory.loc.gov/ammem/bdsds/bdsdhome.html; and the National Archives also has a web site with a scan of the U.S. Constitution available online at: http://www.archives.gov/national_archives_experience/charters/constitution.html."

So while I can see this law as being well-intentioned, I nevertheless don't feel comfortable praising it as a great legislative accomplishment.

Edit 9/19: George Mason University, on Constitution Day, is holding a forum on whether Constitution Day is constitutional.

Over on Lawrence Lessig's blog he posted an entry in praise of the TSA staff. Several commenters took issue, because there's something very insidious about the protocol and the agency itself, particularly with "no-fly" lists and the demand to identify yourself before being permitted to travel. These are grave problems that require addressing.

But it is still possible to appreciate people, I think, and I posted a comment generally in support of Lessig's take. With the necessary caveats, however:

"I have concerns with the whole institution, but surprisingly few concerns about the individuals themselves. I�ve had a couple of negative moments travelling (FYI - I travel about 25-35k miles every year) but most were due to to the first line of hired guns (not TSA) hired by either the airports or airlines to check people�s travel documents before they get into the security lines, and whose sense of self-importance led them to feed me bullsh*t lines about how I couldn�t take my backpack through.

But for the TSAs, I think the sense of purpose has helped instill a greater level of pride in the individuals doing this than the previous private "security guards" that we used to have before (I once saw one leave her post to chase after Danny Glover...) And at the same time, I�ve seen them (the TSA people) be extremely reasonable, yet professional, despite some really dumb traveller behavior (eg, accidentally packing a pocket knife in carry-on luggage. Not that *I�ve* ever done that, mind you... um, yeah...)

But I fully grant you that I�ve been lucky. And I do still get stressed in anticipation of travelling, that on the next occasion my luck just might run out. So I feel ok about saying nice things about the professionalism I�ve seen, but at the same time it�s really hard to get too excited about a police force..."

Sadly, other people posted how their experiences had been just the opposite, encountering frustrating lacks of critical thinking skills, but I guess it's hard to get improvement unless you also appreciate when things are done right.

On the other hand, I have this sense that I'm conceding something important by allowing any sort of praise for any of the operation. There's something so defective about the whole thing, it's purpose and function and execution, and I certainly don't mean to give the civil liberty infringing aspects a free pass. I just wish to acknowledge the courtesy I've been treated with. I wonder if that's ok?

Apparently, despite an avalanche of negative feedback with respect to security and privacy concerns, the Bush administration has decided to insist that all US passports issued as of 2006 be implanted with RFID chips.

RFID chips are little radio transmitters that can be detected without the passport being placed in direct contact with a detecting device. Other people, including other nefarious people, can detect the transmissions. Your transmissions. From one of your most important citizenship documents.

Supposedly the passports will provide some mitigation to the dangers of being intercepted. But I am not comforted - I am inclined to think these measures will be insufficient, and that in general this is a path down which we should not be travelling. I'm all for making passports unforgeable, but that's not what this is about. This is about tracking people, and, like most such efforts, is so enthusiastic about being able to track people in new and exciting ways that it turns a blind eye to any of the problems such tracking happens to cause.

In the meantime, to avoid having a RFID-"enabled" passport, I think you can renew your current passport now, even if it hasn't expired. (I'd renewed last time when I still had a year left since it was a year I wasn't travelling abroad and didn't need it for a while. It's getting harder and harder for me to find an occasion when this is true...) Also, if you're running out of space in your passport, you can have pages added. The easiest way to do this, in my experience, is to go to a US consulate abroad and they can do it for you while you wait.

Interestingly, getting pages added is a remarkably straightforward and paper-based endeavor. They have a little booklet that they tape into the center, and then they use an engraver to emboss an official seal on it indicating that it is a valid extension to the passport of this particular number. No silicon chips, no power cords, just paper, tape, ink, and an engraver that pinches paper into a design.

Edit 10/27: In case you are saying to yourself, well, I don't travel abroad and don't need a passport, bear in mind your driver's license will have one of these things by 2008. Read more about it, and be very alarmed.

Over at Concurring Opinions they are discussing the recent federal court decision allowing the New York City police's searching of subway patterns. I think this is a frightening decision, and I agree with law prof Daniel Solove's explanations for why.

Meanwhile, law prof Jason Mazzone has argued it's a good decision, and today said it was consistent with the notion of "democratic searches and seizures."

"The basic idea is this: if a search or seizure is authorized by a majority of the community�the best evidence being that it occurs pursuant to a validly enacted law�and the members of that majority are themselves subject to the search or seizure, then the search or seizure is reasonable."

I disagree strenuously, and commented:

"I think this reasoning essentially destroys the 4th amendment entirely.

Take, for example, selling heroin. The majority of people think that selling heroin is wrong. The majority of people don't do it. But because they have democratically agreed, with their majority, that selling heroin is wrong,

(a) they now are subject to being searched for evidence pertaining to heroin dealing

(b) and they heroin dealers are subject to being searched as well.

Ah, then you say, but only the heroin dealers will get caught!

But

(a) Anyone subject to any search loses their privacy, regardless of whether or not they had anything to conceal (and what if instead of finding heroin, the police then found marijuana - has the majority decided that it is equally wrongful?), and

(b) The heroin dealers get caught with their heroin and go to jail.

But I didn't think that the American sense of jurisprudence allowed for that kind of quid pro quo - even criminals are entitled to privacy protections. The 4th Amendment does not read, 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated UNLESS THEY ARE DOING SOMETHING WRONG.'

The 'reasonable' language of the 4th Amendment applies to whether there is a reasonable suspicion of THAT person doing something wrong. Not that there is a reasonable suspicion that someone, somewhere is doing something wrong. Which seems to be what your rationale, and indeed that of the New York police, seems to be based upon."

(Yeah, I know the last sentence reads poorly, but that's how I posted it, darnit.)

Perhaps it's a bad plan to go up against a law prof with degrees from Harvard, Stanford, Yale... But if he's right, and I'm wrong, then there is a serious lack of freedom in the United States that needs to be addressed.

I'm obviously not a fan of anonymous bullying on someone's blog.

But I don't think I needed this special law to protect my interests. (I linked to Bruce Schneier's blog post on this, but there are many other civil libertarian bloggers who are similarly concerned.)

From an article on C|Net:

"Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity.

[...]

Buried deep in the new law is Sec. 113, an innocuously titled bit called 'Preventing Cyberstalking.' It rewrites existing telephone harassment law to prohibit anyone from using the Internet 'without disclosing his identity and with intent to annoy.'"

I wonder though whether it would be a crime if the bully didn't actually intend to disclose their identity, but inadvertantly left enough clues so that identification was possible. I wonder also if the law is clear about to WHOM there must be a disclosure of identity. There are several commenters here, for example, who are anonymous to the world but identifiable to me. I suppose the law is indended to cover people who are unidentifiable to the blog owner, but this law seems so poorly thought through that I would doubt the statutory language is that clear. I further wonder how "annoyingness" is calculated. Some commenters drive me crazy with their diffidence, but I wouldn't conflate that with abuse or harassment.

The update on Schneier's site referring to the BoingBoing comment indicates that this law may simply be a statutory articulation of a common law extension to telephonic harassment laws. But be that as it may, it's no less problematic. This is tricky stuff, electronic communications regulation, and it doesn't necessarily neatly parallel pre-existing communications media in such a way that those laws can blindly be extended to cover them. Thus enshrining evolving legal doctrine directly into statute by sneaking it into another bill without any sort of hearings and vetting is doubtlessly not a good idea.

(Oh yeah, and let's not forget that my bully buillied me in Germany on a blog hosted in the US and the whole host of issues THAT raises...)

Edit: There some more analysis in this post and comments at Concurring Opinions, but even though the law may not be exactly as the C|Net article represented it, I'm not sure that it's entirely clear what it actually is or whether and to what extent it's enforceable. This confusion further supports the larger point that legislating by stealth is a Bad Thing. Especially something as complicated as Internet communications.

Edit: Orin Kerr says this is much to do about nothing (and presumably that all my above questions are answerable). Apparently this is a law that's intended to bring the existing telecommunications law to VoIP. I STILL say that whether or not it is intended to or does, and whether or not it does so reasonably or properly, the big problem here is that this was done with no public exposure. It is a rather large question of whether we want to (or even can) regulate VoIP telephony like existing telephony. Too large to be able to legislate without actually answering it.

Edit 1/10: But Eugene Volokh disagrees and thinks it's troublesome. I repeat my already reiterated point: any law that Professors Volokh and Kerr can't agree upon the meaning of is not a good law...

The problem at the First Amendment Moot Court Competition this year dealt with newsman's privilege, or the ability of a journalist to refuse to divulge his source.

This was an interesting problem because it confronts whether there is a newsman's privilege at all, and if so, to what extent it might be limited.

Now, there is a newsman's privilege when there is a specific law saying that there is. Many states (I forget the count, but I think it's around 31) have some sort of shield law on the books that articulates whether and how a journalist can refuse to identify a source they promised anonymity to. The problem is that in the instances when there's no applicable law written in a statute it's up to the courts to decide whether a common law privilege can be inferred from the First Amendment. Our current state of confusion is that different courts have decided the answer to that question differently.

There is only one Supreme Court case directly on point: Branzburg v. Hayes, 408 U.S. 665 (1972). That case was actually three cases combined into one result, and all involved reporters being compelled to testify before a grand jury and reveal information they had promised their sources they wouldn't. The Court affirmed that they had to testify, and, moreover, seemed to also say that there was no newsman's privilege provided for by the First Amendment at all. Or at the very least, there was none available for a journalist called to testify before a grand jury.

However, there's some confusion as to whether that's what the Court really said. The confusion mostly stems from Justice Powell's concurrence, which, though it agreed with the holding that these particular journalists needed to testify, seemed to also limit the scope of the decision's holding. Courts have since grappled with whether his concurrence did in fact truly limit its scope, which would lead to a different result: rather than there never being a privilege for reporters before a grand jury, there could be a qualified privilege that sometimes could compel a journalist to testify (and therefore sometimes not).

There are two other questions left unsettled by this case as well. One, whether the Branzburg holding can be limited to its facts, and two, whether Federal Rule of Evidence 501 changes may have also limited its applicability. At the competition the 501 scenario was only minimally explored. But it could be relevant to a journalist looking to assert privilege, in that after the Court ruled in Branzburg, Congress codified testimonial privileges. But only somewhat: Rule 501 does not explicitly allow for a newsman's privilege, though at the same time it doesn't preclude it. The language is actually fairly confusing, unhelpfully lending even more confusion to an already confused issue. But to the extent that it opens a door for a privilege, it did so subsequent to the Branzburg ruling, and thus the Branzburg precedent needs to be reconsidered in light of it, as the Congressional law may have overridden its holding.

With regard to the whether Branzburg can be isolated to its facts, in all the cases covered by that decision the reporter had personally witnessed (at least potentially) criminal behavior and was then called to testify before a grand jury about what they had directly observed. Still, the policy interests in compelling any person - even a journalist - to testify about a crime they personally witnessed are much stronger than those in compelling a reporter to disclose what he may have learned about a crime after the fact during the course of his investigation, and only by virtue of that investigation. In fact, the policy interests in investigating and prosecuting crime are perhaps better served by NOT compelling disclosure in the latter situation, especially if it is only because of the promise of anonymity by reporter to the source that some crimes even come to light in the first place. The problem with a per se rule, that whenever a journalist is called before a grand jury he MUST testify, is that no source with information about a crime who wishes to remain anonymous will ever be able to speak to a reporter, since to allege a crime will likely result in an investigation, and the investigation will result in the automatic disclosure of his identity.

There is also the question of whether there might be a newsman's privilege in other types of judicial circumstances, like civil cases. In these situations lower courts have generally allowed for reporters to refuse to disclose their sources, essentially evaluating the question on a case-by-case basis. For instance, in some libel cases, when the journalist's refusal to testify would extinguish the libel claim, courts have sometimes compelled the journalist to testify. But in other cases, when the civil litigant would merely be aided in having access to the journalist's information but was otherwise not dependent on it, or when that dependency would still not outweigh the First Amendment interests in journalists being able to protect their sources, the journalist's disclosure was not compelled.

The problem with compelling journalists to disclose their sources is that doing so may undermine the First Amendment. The First Amendment guarantees a free press, which means that the press is free to publish what it will without hindrance by the government. But when the government takes action that affects the press's ability to gather the information it wants, it necessarily inhibits its ability to publish what it wants.

By not allowing journalists to maintain promises of anonymity to their sources it limits their access to information. There are many sources who will not give information to the press without the protection of anonymity. If that protection is unavailable, their secrets will remain with them. Thus the utility and value of having an independent press is lessened, as its universe of what it can report on is also lessened.

All that said, a remaining issue of contention is, assuming there is a newsman's privilege of some sort, who can claim it. The issue raises significant questions of "who is a journalist." The hazard of allowing it to be too broad is that it could inadvertently create a special class of people, who unlike normal people, are not subject to the typical duties to testify. On the other hand, the privilege could be narrowed by tying it to the activity. If the reporter has gained information through a typically journalistic activity - gathering information for the purpose of disseminating it to the public - then that could provide the courts with some guidance for whom to permit to assert it. Just as a professional newsperson would not be able to assert a testimonial privilege on a private matter unrelated to the scope of his work, instead tying his privilege only to the practice of his craft, the newsman's privilege could be limited to those who, at the time they acquired the information, were themselves practicing that craft - whether professionally or not.

I wanted to bring some attention to a controversy in New Jersey (Hasbrouck Heights). A librarian, Michele Reutty, is under fire by the town for what they say was obstructing the police. The problem? She refused to turn over patron records without a subpoena.

There is a brief article about this here, and some other articles here, here, and here (unfortunately they require registration to view them).

The town is upset because the crime that police were investigating was a sex crime on a child. The child reported that the culprit was carrying a book, so police asked the library for the patron records of who had checked out the book she remembered him carrying. The librarian said, fine, but you'll need a subpoena before I can turn them over to you. They got one, though things got a little more complicated because the child's recollection wasn't perfectly accurate and the police ended up needing to do a broader search of patron records to find a book that matched. But rather than let them fish through all patrons' records, the librarian said they needed a subpoena entitling them to do the search.

Although there are some technical distinctions, this is the same debate that comes up when police try to make warrantless searches. The people who focus on the accused crime complain that by making the police get warrants they are inhibited from getting the bad guy. But there are two important things to remember:

One, that the police are NOT inhibited from getting the bad guy. Warrants and subpoenas are readily available to them, and in the rare instance when, due to exigency, the process of obtaining one would make the investigation impossible they are excused from the requirement. But that is the exception, not the rule, and most investigations, including this one, would not be stymied by following the proper procedure.

Secondly, that the process exists for a reason, and it's as much for the benefit of the innocent as the guilty. Without it police could enter your home whenever it wanted, empty your pockets whenever it wanted, and know everything you read whenever it wanted. Even for people "who have nothing to hide," there is a fundamental loss of freedom when you know that the police can watch what you are doing at any time, for any reason - or even no reason at all. The warrant and subpoena requirements simply make sure that they do have a reason, and that it's a good one, before they start snooping around people's private affairs.

In one of the articles a commenter suggests that because library records are held by a third party (the library) they are not entitled to the same protections against unwarranted police investigations as those affairs and effects that may be personally possessed. But this distinction is without merit. The Fourth Amendment is clear in protecting people's "papers" and "effects" but makes no mention of such protection being contingent on whether or not they themselves are in possession of it.

Furthermore, the Fourth Amendment has been found to apply where there is an expectation of privacy that society is prepared to recognize. Libraries should be just such a place. People interact with their books silently, privately checking them in and out. The librarians are there only as necessary tools to facilitate people's access to material - not to be the watchful eye of the state. Just as it would seem to be a gross violation of people's privacy for librarians to announce over a loudspeaker who checked out what, or even silently post that information on a screen or publish it in a newspaper, it is a violation of privacy for them to hand over this information to the police without the safeguard of a magistrate first determining whether the police had any justification for having it.

In fact, had the librarian done so in this case without those safeguards, her behavior would be subject to scrutiny and discipline. Bizarrely, however, because she did comply with relevant laws by not doing so, she is being subject to scrutiny and discipline. Her behavior was completely "by the book," consistent not only with Constitutional tenets but also New Jersey state law and library guidelines, all of which the police were aware of. The town seems to want to punish her for not breaking the law, which is a very unusual way to reward appropriate behavior.

But the real problem is that the appropriateness of her behavior is not being recognized. The zeal to prosecute wrongdoers is blinding too many people too the very important liberties at stake, too important to so easily be compromised for a case here, a case there… For these liberties to have any meaning, they need to be protected for any case anywhere. If they are, the police will still be able to get the bad guys. In fact it may be the only way to ensure that they get the bad guys. As Ruetty herself pointed out, "[B]ecause I followed the law, at the end of the day, the policemen's case is going to hold strong" because it won't be based on illegally acquired evidence. It's a win-win all around: the bad guys get caught, and the good guys can rest assured that no one they don't want to is going to know what they read.

At the blogging colloquium Eugene Volokh gave a presentation on the free speech protections that might be available for blogging, with the important (and, in my opinion, eminently reasonable) suggestion that free speech protections are not medium-specific. In other words, if they'd be available to you if you'd put your thoughts on paper, they would be available if you'd put them on a blog.

Where I commented was on his analysis of how the newsman's privilege might apply to blogs. Many seem to think this is a big thorny question since there are so many bloggers and thus so many people who may claim to be journalists. Personally I think if blogging gives us more journalists that's a good thing, but the fear is that because the newsman's privilege can keep information from being made available to certain judicial proceedings, if there are too many journalists because of blogging, too much information could be kept from the courts.

I don't share this fear. I think the overall policy balance that has been struck in the past - that it's better to allow the privilege to keep some information from the courts because, were it not for the privilege, often none of the information would have come to light at all - can scale to accommodate blogging. In other words, while more information might be kept from the courts, because of blogging more information will reach the courts in the first place. The relative percentage of information kept from the courts should be about the same as it was under the traditional media model.

Thus the inquiry for whether and when there should be a valid privilege available for bloggers should be the same as it has been for traditional media. Which is consistent with Volokh's overall thesis. Where I differed from Volokh was in suggesting that instead of evaluating whether the reach of a particular blogger justified his entitlement to the privilege, the analysis should instead hinge on the blogger's functional intent. In other words, as long as the blogger was engaging in a traditional newsgathering activity - gathering information for the purpose of disseminating it more widely - he shouldn't be penalized for having a smaller readership by depriving him of the privilege. Important free speech rights should not be allocated based on popularity. A lonely pamphleteer or a lonely blogger may just be crying into the wind with their information, but if their intention was to have their information be heard, that is what should earn them the privilege. Furthermore, due to the nature of the Internet and its habit of never forgetting anything published on it, the lonely blogger's post is likely to have a greater and more lasting effect than the lonely pamphleteer, whose First Amendment rights are more traditionally recognized but whose pages will wrinkle and rot over time. The true effect of a blog post may not become apparent for days, weeks, or even years after it is first posted. So if we were to assign journalist's privilege based on readership, at the very least there would be a significant problem of metrics - at what point should we count the readers?

Ultimately it's the effect of the blogging that is most pivotal. Did it bring something important to light that otherwise would have gone undiscovered? Was privilege necessary in order to do it? To the extent that the answer to these questions is yes, the same reasons for allowing the privilege in the traditional media context should apply in the blogging context. Where things get messy, however, is in navigating the different types of privileges that might apply. Would it be an absolute privilege, or a qualified one? Would it be state or federal in origin? Volokh's analysis mostly hung on these questions, as he parsed the relative state statutes to see what type of privilege they might allow. The problem is that if a blogger does not know whether or not he has a privilege at the time he does his reporting, it is hard to make the argument that he should be allowed to assert it later because he can't make the "but for" argument - that "but for" the privilege he wouldn't have discovered the information, since as far as he knew he didn't have it. It would be contrary to the policy of offering any sort of newsman's privilege if it could be retroactively asserted since its existence had offered no utility to the gathering of the information in the first place.

But the fact of the matter is that even for traditional media the newsman's privilege has been a very murky area of law. Yet it appears that journalists have largely been resolving that ambiguity in favor of the belief they do, in fact, nearly always have the privilege. Ultimately that belief should carry weight, because even if in fact the privilege hadn't clearly been available, if relying on the plausible belief that they would have had its protection had been essential to their newsgathering, then the important policy values behind the privilege would be vindicated. For bloggers, then, the same should also be true, and this is another reason why gauging their intention is so important. Just like with a traditional reporter, if the blogger intended to investigate and reveal the results widely, and if believing they had the newsman's privilege was necessary to do so, then the results of their investigation should similarly be protected by it.

Written 5/2. Edited and posted 7/9. Edited again 2/8/07

Photography bans are showing up more and more these days. Sometimes they show up on public transportation systems, as a bizarre and pointless reaction to terrorism fears. I remember once seeing a conductor on a NJ Transit Main/Bergen line train essentially threaten to throw some hapless tourists off a train unless they put their camera away. I cannot even begin to fathom what anyone thought would be accomplished by preventing people from taking pictures of each other while riding on a train. Nor am I sure what the conductor's authority was on his threat. I once did an extensive search on LexisNexis - even consulting with one of the advisory attorneys to make sure I wasn't missing it - to find the law the conductor was enforcing, but interestingly there was no record of one. From what I gather the ban had apparently been a temporary policy invoked by NJ Transit, most likely adopted with no public input, that fortunately went away shortly thereafter. But I understand that other systems unfortunately may still have their bans on the books.

All of these such laws, be they related to transit systems or other public spaces, invoke significant free speech concerns. It is a distinction without a difference that people can observe something and convey what they saw in words, yet they cannot also observe something and convey it in pictures. Some people best communicate, and some subjects are best communicated, in that particular non-verbal medium, so any rule that prevents people from freely communicating what they will constitutes a tremendous imposition on their freedom of expression.

It's also a generally bad idea because an active citizenry able to observe and relate the world around them provides an important check on abuses that the citizenry might observe, be they from public or private sources. It poses a check on malfeasant behavior if there can be proof of misdeeds that the victims can then use to pursue recourse.

But even more neutrally: simply having people be able to observe, record, and convey what they observe increases everyone's understanding of the world around us and enables us to participate in it more effectively.

Of course, there can be downsides to photography. I'm certainly no fan of the unblinking eye of Big Brother with its cameras everywhere watching everyone. Yes, it might also keep people's behavior in check, but not with an authority that a free democracy should tolerate. Rather, the type of photography I'm advocating is essentially gap-ridden, covering only what a person with their own eye at the time could see. Some technological intermediation could be acceptable, e.g. with reasonable zoom lenses and/or time delays, etc. The point though is to (a) not permit cameras to act autonomously, without the inherent limitations of human controllers, and (b) to ensure that parties other than governmental authorities have the ability to monitor and record as well. After all, someone needs to be able to watch the watchers, and private photography is one way to ensure that happens.

The other downside to public photography is that the people being photographed do have privacy rights that can be invaded by being recorded, regardless of who is doing the recording. They can also have other rights, too, such as rights of publicity. There always will be tension between the rights of the recorder and the rights of the recorded, but I think the best course of action is to allow more latitude to the recorders. After all, any harm that comes from the recording stems from what is done with the recording after it is made, so it would be much better to put limits on that later usage as opposed to limits on the initial creation. For instance, if someone took a picture of me in a crowd, I would have my rights of publicity violated if they used it in an ad without my permission. On the other hand, if it appeared on the front page of a newspaper in a story about the event, that would be permissible. As would someone else's private snapshot capturing me that would simply live in their private family album or perhaps be shared among their limited circle of friends and relatives. Maybe I wouldn't really like it, maybe I was having a bad hair day or something... But no one's hair or personal vanity is more important than the public's need to understand the events around them in the way photography permits.

Which brings me to the issue raised at the Stern Grove Festival, where photography was banned. I can understand forbidding audio-visual recordings, which were in fact also forbidden, because copyright law makes the unauthorized fixation of a performance illegal. But I couldn't figure out under what authority the venue could prohibit private photography. It was, as far as I could tell, a free concert at a public park.

Now, if it turns out the "park" wasn't actually public, then that could make a difference. We were allowed to trespass on the land subject to the owner's permission, and that permission could be contingent on our agreeing not to take pictures. However, if the park was public, as it seems it was, then people's attendance did not require permission, and thus making such permission contingent on a no-photography condition wouldn't have been possible. On the contrary, trying to do so raises the issue of state action affecting people's free speech rights, and it is not at all clear that the state would be able to do this constitutionally.

So under what other theory could the festival organizers have banned photography? Perhaps contract? Most concerts are ticketed events, and a ticket is a contract for which both parties (attendees and the venue) give the other consideration (the attendees pay money, and the venue provides the concert). As part of this contract there could be other ancillary terms, such as a photography ban. In that case, taking pictures would be a breach of the contract. But at Stern Grove, there are no tickets. Furthermore, because it's free, patrons don't supply any consideration for being there at all, which prevents any sort of implied contract from being inferred either. Anyone could come or go as they pleased (subject to crowd maximums). In fact, in theory the venue could have even canceled the performance at any time since its advertisement was merely a gratuitous promise and not an offer made to the public as a precursor to forming a contract. (Of course, if the venue had canceled the show it might still have been liable to patrons on an estoppel theory if the attendees had suffered damages in their reasonable reliance that the concert would take place, but that scenario is beyond the point here.) So without a contract there could be no contract term for the venue to enforce to prevent attendees from taking pictures.

There is the possible copyright angle, which does apply to the ban on audio-visually recording the concert since copyright law makes it illegal to fix a performance into a permanent medium without the permission of the performer. However, that rule applies only to performances. It does not apply to the split second pose that happens to be captured by a snapshot, which is likely not protectable by copyright at all. Perhaps if the performance had been a specially-costumed, highly-choreographed spectacle one could find sufficient originality in each pose upon which a copyright could be based, but then again, a snapshot is such a tiny snippet of the performance that then you'd have to consider whether fair use would apply to its capture. In any case, the copyright in such a scenario would be based entirely on what was done with the picture after it was taken. And in this particular case the point is definitely moot since it was not a particularly choreographed or costumed performance (nor are any other events at Stern Grove this summer likely to be).

Rights of privacy also don't seem particularly salient here either: a person standing on a public stage, knowingly performing before thousands of people, can't reasonably claim a right of privacy in that action. Rights of publicity could be relevant, but again, they pertain to what happens to the picture after it is taken, not that it is taken in the first place. Granted, it's easier to control what happens to your picture if you can prevent it from being taken at all, but, as discussed above, there can be reasons for taking the picture that would trump the rights of those possibly affected by it, and thus it should not preemptively be prohibited.

It's possible I'm missing something in my analysis, and I welcome any comments as to what that might be. But running this situation through my head yesterday I couldn't figure out under what authority the venue could enforce its photography ban. Of course, I still didn't take many pictures, because while it might not have had authority to enforce it, that didn't mean it wasn't going to try.

Edited slightly 2/5/08.

I enjoy reading security expert Bruce Schneier's blog. He often notes and explains the difference between effective security measures and the zero-tolerance, zero-intelligence overreactions so often made by authorities who would choose to use 9/11 as an excuse to abandon all civil liberties and common sense.

A number of concerning examples of this type of injudicious behavior have unfortunately come out of Boston, where local authorities seem to think there are boogiemen everywhere out to get everyone. Boston became famously mockable when it chose to wildly and wantonly misinterpret a Cartoon Network advertising campaign, which was at most citable as littering, as a terrorist threat. And that's just one of the more conspicuous examples of its authorities' regular efforts to whip everyone up into a "they're out to get us!" frenzy.

Although technically several jurisdictions are involved, Boston's airport authorities are also developing a similar reputation for an absence of judgment. And innocent people keep ending up paying the price: trumped-up criminal charges and unjustifiable excoriation by their communities. Salem's witchhunting influence is clearly affecting its neighboring city, as instead of questioning whether it's their own judgment that may be out of kilter, charging authorities instead mount a diversionary campaign to convince the public that it was these people's own fault that their otherwise innocent behavior were so willfully misinterpreted by their reactionary, and apparently bored, inquisitors. After all, with no real terrorists to catch obviously they need to do something. Even it's just ruining innocent people's lives.

I touched on some of the ethical issues raised by the course in my last post, vis a vis when to treat someone and when to move on. The situation does implicate some legal issues with respect to abandonment of a patient, because once you undertake a rescue you take on a duty to the person. It seems though that triaging may not necessarily be a rescue itself, but once you take steps to extricate someone that might.

On the other hand, these legal considerations were not significantly discussed in our training, and maybe that's just as well. The goal really should be to save as many people as possible, not to worry about lawsuits. Something is wrong with our legal system when people end up dying because people rightly are reluctant to even try the rescue for fear of being vulnerable to suit. While you wouldn't want a careless rescue (which can do more harm in good) you probably would want to encourage, and at least not discourage, reasonable attempts.

Still, I'm left with the concern that by having done the training I may in fact already have picked up an affirmative duty to do something in case of emergency (though what exactly I'm not really sure) by virtue of the document we signed at the end. The upside to the document is that it means that if we do perform a rescue under the auspices of our training program we will be considered employees of the state and (a) protected (insured?) against liability, and (b) covered by worker's compensation if we're injured in the course of our work. All that is very nice, although I do wish we were told more about it. The lawyer in me gets very nervous when duties, obligations and indemnities are left unspecified.

And there was another seemingly strange feature to the document: the state loyalty oath. In a sense it's not strange. I've seen it every time I've gotten on payroll at UC Berkeley because it's something that every state employee is required to sign. I think this oath is hugely problematic for many reasons, not the least of which being that it's ridiculous to require from non-US citizens, who may still be appropriate candidates for the work they are being hired to do yet not be in a position to swear loyalty to a state and country not their own.

It is furthermore absolute lunacy to require it from volunteers. At least if it was a paying job the non-US citizen could decide that the paycheck made the oath worthwhile (although I doubt any in such position would take the oath with any sincerity. In fact, I doubt any coerced American citizen does either) but in the case of this training these are volunteers who simply want to assist the community they live in. Talk about demanding a pound of flesh, but what is the point of doing that? We should want every able-bodied person to step up to support their neighbors. Why on earth would be want to require an oath of loyalty before letting them? Do we think that without the oath they might not put their backs fully into it when they raise wreckage from a wounded body? Or that they might insincerely spray the fire extinguisher to suppress a fire? Is there really some correlation in the amount of bravery it takes to enter the ruins of a house to look for people in need of help with whether or not the rescuer swore an oath of loyalty to defend the Constitution and the State of California?

Even as an American citizen and at least erstwhile Californian I'm grossly offended by this form. I gave up two days of my life to learn what I felt I needed to be able to help my neighbors, only to find that wasn't good enough unless I also was willing to swear an oath of loyalty. How onerous, and how redundant, as I think it's fair to say that anyone willing to get the training to do these things is by their very actions doing exactly what the oath requires.

Edit 11/6: Here's the oath:

OATH OF LOYALTY: I, [name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

I've never wanted an automatic toll-paying account. Call them what you will in your region, e.g., Fastrak (Bay Area), EZ Pass (NY/NJ), Fast Lane (Massachusetts), etc. but I've always seen them as having significant downsides that would counter-balance, and indeed outweigh, their alleged convenience. At minimum I've questioned whether they could be trusted to debit your account properly and whether it would not be an enormous headache, if actually possible, to correct their inevitable mistakes.

But more importantly, I was not keen to put a transponder in my car that could let the government know where I was at all times.

Even if all the transponder readers could be counted on to reside only at actual toll booths, I still did not want my presence there to be so discoverable. Nearly every other Law and Order episode seems to involve someone's alibi being checked against the EZ Pass records. Do we really want the government to be able to know where we've been so easily? Because unless there are significant safeguards like warrant requirements that must be met before the police can access the EZ Pass accounts there is nothing preventing them from knowing where any one of us have been at any time -- even when we're completely innocent.

So I deprived myself of the discounts that the government plied the masses with. In the Bay Area, you see, bridge crossings are a dollar cheaper if you let the government attach a tracking device to your car. I decided my privacy was worth more than that and so have refused it.

But I may need to rethink my approach, because it turns out I didn't have any privacy anyway.

In order to ensure that people without Fastrak accounts don't sail through the unattended toll lanes, they've hung cameras up. The cameras take pictures of every single license plate that passes through, whether the toll is paid or not. But maybe that's reasonable; after all, if you have a transponder, the government already knows you're there -- and in an indexable, storeable, and searchable way.

There are other toll lanes though, staffed toll lanes that allow you to either drive through with Fastrack or stop and pay the attendant in cash. I always opt for that latter, more anonymous payment choice. What I hadn't realized, however, is that they are taking pictures of my car anyway!

I discovered that they were rather unpleasantly earlier this month. An envelope had arrived, containing in it a notice of a Fastrak violation. Even though I had stopped to pay cash, as I do every time, the toll booth panopticon had taken a picture of my front plate anyway, and then arbitrarily decided to accuse me of toll evasion.

I am now thrust into a Byzantine bureaucracy where the burden seems to be on me to prove my innocence. The first step is to sign a box on the form declaring that I am innocent of the charge and enclose some written justification (pity the non-English speaking and/or illiterate drivers who get similarly trapped) for my declaration. Unfortunately, I did not have a receipt to copy and send along with my dispute. It's not like receipts are automatically handed out, and, even if I'd gotten one, I'd probably long since thrown it out. (New policy: always ask for a receipt, and always keep it for at least a month.) So I sent off what's essentially little more than a self-righteous diatribe and we'll see if that's enough. Otherwise the next step is to request an administrative hearing, which seems great: due process! Except you first have to pay the charge!! Which is not only the now twice-taken toll, but also the $25 penalty. Good luck getting that back if you win... How is such a system to be trusted to make refunds accurately when it can't even figure out how to charge people properly?

Driving through the toll area on the next occasion I stopped and asked the attendant if perhaps the earlier one had failed to press a button. You know, the button they must press to indicate that cash was paid and therefore there's no reason to engage the Fastrak system, which would then take pictures of their cars and dun them for non-payment. Apparently, however, no such button exists, which makes me wonder why I haven't received a violation notice for every other time I've passed through the tollgate. How did it know then whether or not I'd paid?

And, she went on to inform me, the toll booth takes a picture of everyone. No matter how law-abiding the driver of that car was, the government takes a picture, an indexable, storeable, and searchable picture, of where you've been.

It's funny, and I use that term bitterly, that my now-growing pile of receipts in my car would have some clear constitutional protections against search and seizure, seeing how they clearly qualify as the "papers" and effects covered by the Fourth Amendment. But surely so should my front license plate, because the consequence of its capture is just as violative of my privacy, if not more, as a warrantless search of my receipts would be.

The Legal Pad blog had a post the other day about a recent California case I found troubling. The court upheld a search following a traffic stop. The alleged infraction justifying the stop? An tree-shaped air freshener was hanging from the rearview mirror.

[The police officer] based his traffic stop on his belief that a tree-shaped air freshener — which was 4.75 inches tall and 2.75 inches at its widest point — violated a Vehicle Code preventing drivers from hanging anything from their rearview mirrors that obstruct their vision.

In fact, according to this post, it was this specifically-articulated belief that distinguished this case from a 2003 ruling where a sister court found that things merely dangling in the windshield provided too specious a ground to warrant a traffic stop upon which a search could follow.

What troubles me most about any of these cases is how ordinary it is to have something hanging in the windshield. Now, it may be illegal - under Vehicle Code section 26708, subdivision (a)(2), “No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver’s clear view through the windshield or side windows” - but unless so much of the windshield is blocked so as to present an immediate and manifest hazard to the operation of the vehicle, it seems to be much too minor an infraction to provide an overture for the police to invade a driver's privacy.

Even minor windshield-obscuring scofflaws should have an expectation of privacy in the rest of the vehicle, but, because once the car is pulled over the police can look through it more thoroughly in an attempt to prosecute even greater crimes than windshield-obscuring, this is why minor windshield-obscuring alone should not provide grounds for a traffic stop. The 2003 ruling largely said as much, ruling that without some objective basis to believe a driver's view was actually being impeded (e.g., erratic driving), the mere presence of an object alone could not justify a stop.

Sure, one can argue that if you aren't guilty of anything you have nothing to hide - so what if a cop pulls you over? But it's a bad argument. I remember a few years before I went to law school a friend of mine working in a criminal defense clinic through his law school. One of his clients had the misfortune of being in the wrong place at the wrong time. Other nearby miscreants were creating criminal mischief, but because a police officer saw something dangling off of his rearview mirror he got pulled over, and his life derailed. A nearly-indigent parolee without the resources to properly defend himself, even though he had been wholly innocent of the crime accused, because the cops were able to make the stop the whole weight of the legal system fell on his head. My friend fought tooth and nail to get the charges (including the parole violation stemming from his alleged participation in the crime) thrown out as a result of it being a bad stop (this was several years before the 2003 case that might have made it easier), arguing that what his client had dangling from his mirror was so ordinary that nearly every driver in California could be pulled over for the same reason. Even cop cars themselves are typically outfitted with greater obstructions to the driver's view.

In the end the best my friend could do was arrange a less draconian plea than the original charges would have led to. This poor guy ended up in a whole host of trouble that far outweighed the imaginary danger his small, dangling talisman might possibly have posed. The judge had rejected his challenge to the initial stop, clinging instead to an absurdly strict reading of the statute. Anything - bird droppings, dust, even conceivably windshield wipers - could violate the statute if it even slightly obscured the driver's view -- and thus provide grounds for a traffic stop. In other words, pretty much every driver could be pulled over. (Point of note: California notes the current registration of a vehicle through a sticker placed on the license plate, unlike other states which place stickers on the windshield. By this judge's thinking, then, in theory any such out of state vehicle could be subject to a traffic stop merely for being properly registered.)

But if the police could effectively have grounds to pull over any driver, then any right of privacy has essentially been eviscerated. Standing on the pretense that traffic stops require the violation of such a statute is meaningless if everyone could be found to have violated it. The court in 2003 seemed to understand this problem and re-established some Fourth Amendment protections for drivers by requiring police to have an objectively reasonable belief that the driver's view was indeed obstructed. Unfortunately this new ruling rolls back those protections, allowing police to foment a sufficiently objective and reasonable belief of an impairment over essentially de minimis obstructions. Because the officer in this later case knew first hand the dimensions of the air freshener, small though they were, the court allowed the stop.

Again, though, if such small and ordinary objects can justify a traffic stop we're back to a legal world where everyone is vulnerable to them. In this case the cop testified that because he once had his own tree air freshener he knew first hand that it could impede a driver's view. And the court seems to have bought this testimony hook, line, and sinker, allowing the cop to narcissistically infer that his own personal experience would be universally applicable to everyone, despite the obvious physical differences among cars and drivers that clearly render such an inference impossible. The only real way to know if a driver's view is impeded is to see some evidence of it, which would then provide its own justification for a stop. Without this requirement, however, no driver is safe.

Edit 12/20: Eugene Volokh posted on a spate of even more specious traffic stops in California and questions their constitutionality. The language he uses is helpful here:

A police officer's flashing red lights at a driver, which causes the driver to support, constitutes a seizure — a situation "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Under the Fourth Amendment, such seizures must be reasonable, which generally means (for brief seizures) either that there's reasonable suspicion that the seized person has committed a crime (including a traffic infraction), or that there's some administrative need mandating a particular non-law-enforcement search or seizure system (such as airport screening).

In reading a few months ago about the poor woman from MIT who was detained for raising the irrational hackles of Logan Airport authorities for the t-shirt she was wearing I was reminded by my own experience last year bearing what turned out to be my own bit of performance art at the very same airport.

I posted this story last year on the Huey Lewis and the News board but I want to post it in full here too, partly because it's silly and partly because I think it's an allegory about faulty risk assessment:

At the Good Morning America concert at Bryant Park Friday some random guys barged into the front of the crowd and gave out painted styrofoam letters that spelled out "We [heart] Huey." I'm not quite sure how it worked out this way, but by the time the women interested in holding the letters figured out how to spell "Huey" so it wouldn't sound like someone retching, I suddenly found myself holding a blue "Y." Although I could hardly believe my good fortune that I was about to realize my lifelong dream of singing and dancing on national television while holding a "Y," I took my "Y"-waving duties very seriously. "I must not wave the 'Y' negligently," I thought to myself, in so many words. Had you heard me say this out loud you would have been completely justified in slapping me at that point. I was certainly tempted to, just for thinking it.

Anyway, having been laden with this awesome "Y"-waving burden, I decided to make the most of it, and after the show I opted to keep the "Y." This necessitated walking through Manhattan while carrying a spare "Y," but seeing how it was Manhattan no one noticed.

I decreed it to be the official Huey Lewis and the News concert-going "Y," and so brought it with me to the Jones Beach concert that evening. Unfortunately, they wouldn't let me bring it in. Instead they enforced their unwritten "no 'Y'" policy against me. Apparently they feared that either I or a neighboring fan would just go wild with it and poke someone in the eye. Seems that there is such a thing as negligent "Y" waving after all, and they were determined not to have it take place in their venue. I do think, however, that had Huey spelled his name with an "O" that would have been acceptable. Damn Huey for his obstinately phonetic appellation. It ruined all my fun.

Undaunted, however, I brought it with me to the Holmdel, New Jersey concert the next night, where they had no problems with me bringing in my "Y." Apparently in NJ you're free to poke as many people in the eye as you please.

The question now is, should I bring my "Y" to the next show in Turlock, California? Does anyone know if they have a "no 'Y'" policy? Is it likely that they will make one between now and then? This is, of course, presuming that I can remember to pack it. You know how I am with that, and I think it would be really stupid – as well as embarrassing – to pack a "Y" and not, say, pants.

These shows and this travel all took place right after the New York and New Jersey bar exams. I drove back up to Boston and from there flew out to San Francisco, where I stopped off on my way to China to see the concert in Turlock. With my "Y."

Since it didn't fit in my suitcase I had to carry it separately. Outside of Manhattan, where no one would look at you twice even if you had two heads, people do generally notice large blue "Ys" being carried around. Everyone asks, "Why?" (as if they are all being unprecedentedly clever) but it turns out it's kind of fun to be a little eccentric and see how people react. I began to regard it a bit as a piece of performance art, which is generally about engaging in a similar study of human reactions.

Of course, at an airport, this is not the place to stand out. But I didn't do so purposefully, I just needed to get the "Y" from one side of the country to another and this was the only way to do it. I wasn't even thinking about it when I placed it in the X-ray machine. At that point it was just a piece of blue styrofoam to me. Yet perhaps that was unwise; after all it was a piece of blue styrofoam that security officials had already deemed dangerous. So what would the TSA people do with it?

They made the requisite jokes, and then let it through.

My note remains as relevant today as when I wrote it. Brad Stone at the New York Times Bits Blog is reporting that various ISPs are considering filtering the Internet traffic whose transmission they facilitate in order to police for copyright violations:

At a small panel discussion about digital piracy here at NBC’s booth on the Consumer Electronics Show floor, representatives from NBC, Microsoft, several digital filtering companies and telecom giant AT&T said the time was right to start filtering for copyrighted content at the network level.

...

Network-level filtering means your Internet service provider – Comcast, AT&T, EarthLink, or whoever you send that monthly check to – could soon start sniffing your digital packets, looking for material that infringes on someone’s copyright.

“What we are already doing to address piracy hasn’t been working. There’s no secret there,” said James Cicconi, senior vice president, external & legal affairs for AT&T.

...

“We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this,” he said. “We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.”

As Orin Kerr noted, "I hope that 'open discussion' includes a frank discussion of legal liability under the federal Wiretap Act." Because, as both he and I agree, the kind of monitoring Cicconi's talking about doing isn't likely to be legal.

My note, CopySense and Sensibility: How the Wiretap Act Forbids Universities from Using P2P Monitoring Tools, 12 B.U. J. Sci. & Tech. L. 340 (2006), directly addressed this issue. Generally speaking, the Wiretap Act forbids the interception of private communications except in specific and narrow circumstances, none of which apply to universities trying to police for copyright infringement and are even less applicable to ordinary ISPs trying to do the same.

Of course, the devil is in the details. The Wiretap Act is a 1968 law that was written well before the Internet age and then significantly amended, sloppily, just before its dawn (with the 1986 Electronic Communications Privacy Act). The current statute, 18 U.S.C. 2500 et seq., is consequently encumbered with language that doesn't directly correlate to the nature of Internet technology, leaving courts to try to figure out whether and how its terms might still be applicable to it. As a result the evolving case law is a little messy, but nonetheless there is precedent to support the extension of the Wiretap Act's language to Internet communications. Which is as it should be, as the privacy interests users have in their Internet communications exist and are similarly worthy of the Wiretap Act's privacy protections as those of their telephonic communications, which the Act definitely protects.

Many people have been weighing in on this issue, including Orin Kerr and Bruce Boyden at Concurring Opinions and all the people in all the comments of all these posts. Many find this plan to filter upsetting and philosophically wrong on several levels, including because of the loss of privacy such monitoring would cause, the subjugation of private interests to large corporate interests these efforts would represent, and the practical problem raised by the fact that nearly everything that passes through the Internet is copyrighted by someone by simple virtue of it having been created, yet the ISPs have no way to know who owns the majority of it nor any way to tell whether if any of it is being transmitted with permission.

These are all significant concerns, but they become largely moot if such monitoring is on its own illegal under the Act. The problem is that because the Act's language is so befuddling, everyone's analysis of this legal question takes different tacks. People go back and forth debating whether and how the proposed filtering qualifies as using a "device" to "intentionally" "intercept" the "contents" of an "electronic communication," as per the Act's language. But what I haven't yet seen in this flurry of reaction is a specific analysis of how these terms relate to the technology of an Internet communication, which I think is necessary to do in order to be able to apply the Act to an Internet monitoring scheme such as this.

In my note this is the tack I took, first taking a look at the nature of an Internet "packet." A packet is a piece of an Internet communication. If you send an email, for instance, it will be broken down into pieces and then transmitted through the Internet separately. Each piece, or "packet," contains "layers" of information: the bit of the actual content itself and then layers of instructions that tell the hardware and software of the Internet where to send the packet and what to do with it once it arrives. In my view it's integral to look at the layered nature of Internet communications because I think the legal analysis hinges on what layer of the packet the Internet monitoring is working on.

It's particularly important when it comes to analyzing the idea of "interception." Because Internet packets pass through routers on the way to their destination, it would break the Internet if a router's capture and handling of a packet amounted to an illegal interception under the statute. But the basic operation of a router only requires looking at the address information attached to the packet; it's when a device looks at the message being sent within that packet -- its content -- that an illegal interception takes place. Which makes sense, because it's in the content of a communication where an Internet user has a privacy interest. Indeed, the whole reason for the monitoring exercise proposed by the ISPs is because they want to scrutinize and react to specific content. If users therefore want their communications to reach their destination unmeddled-with, then they'll need to ensure that they do remain private, legally obscured to parties transmitting them. Which the Wiretap Act should do.