Archives for Law & Order
Declan McCullagh reports that “FBI Director Robert Mueller told a House of Representatives committee that Internet service providers should be required to keep records of users’ activities for two years.” Not only is this a giant unfunded mandate that deputizes private companies, but it’s incredibly intrusive. How is this different from the Postal Service opening, photocopying, and archiving your mail before delivering it?
Those seeking to free the Jefferson 1 should take note: The NYT today has an article about a “silent rave” that took place Friday in Union Square in NYC: “More than a thousand people, most of them young, gathered for a dance party without audible music, known as a silent rave.” No one was arrested. The story also goes into the pedigree of such flash mobs.
Jim, I’m doctor, not a Ph.D.
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According to German criminal law, the title “Dr.” is reserved only for individuals who received a doctoral degree from a European Union institution, explains Erik Kraatz, a criminal lawyer at the Free University, Berlin. Kraatz notes that the law also prohibits masquerading as a police officer, medical doctor, or professor. …
Indeed, to legally use the title “Dr.” in Germany, foreign-trained scientists must request permission from their local German state government. With this state-level consent, they can use the title “Dr.” anywhere in the country. But without the state’s permission to use the title, a scientist breaks two laws: the state law requiring approval to use the “Dr.” title and the federal impersonation law, Kraatz says.
I wonder if I.J. is available for foreign gigs? (Hat Tip Houman.)
I’ve created a new site called OpenRegulations.gov that is an alternative interface to the federal government’s Regulations.gov database. The notable improvement is that unlike the official offering, OpenRgulations.gov offers an RSS feed of Federal Register notices for each agency. I explain it in more detail here. Please spread the word!
Legal blog citation rant
Marginal Revolution points to an NIH style guide that includes a section on how to cite to blogs in academic medical papers. They rightly criticize the superfluous “place of publication” component as irrelevant to online publications (and likely print materials, too). Well, I’ve been wrestling with the citation of blogs in legal academic publications recently because the paper I’m finishing up now (with over 200 footnotes) is partly on the topic of blogs themselves and so internet-source-heavy.The 18th edition of The Bluebook, published in 2005, adds a new citation form for blogs. Past editions contained simply a citation form for web pages whether blog or not. The problem I’m having with the newfangled blog form is that it ignores that footnotes convey information in and of themselves apart from being a pointer to the source material. Trusting that an article from a respected legal journal has been vetted more or less adequately, I often just glance down at a footnote to see who said what, just to get a flavor for the source and never intending to go look it up. The new form for blogs makes this difficult. For example, if a blog has only one author, the form is like so:
Freedom to Tinker, http://www.freedom-to-tinker.com/ (Oct. 17, 2007, 09:13 EST).
That is, you cite the title of the blog and the main URL and then just give the date and time of the post. It doesn’t tell you the name of the author, so if you don’t know any better you won’t know the above citation is to Prof. Ed Felten’s blog. Scanning the footnote quickly it’s of great value to know that it’s Prof. Felten who’s being cited. You also don’t know what the title of the blog entry is. Here’s the form for multi-author blgos:
Posting of James Gattuso to Technology Liberation Front, http://www.techliberation.com/ (Oct. 15, 2007, 16:27 EST).
While this tells you the author’s name, it doesn’t tell you the title of the post, which would likely give you a flavor of what the post is about. In this case it would be “New LECG Study Puts Cost of Unbundling at 30 Billion Euros.”
So, memo to the Bluebook editors: Why make it so complicated? Why not just author, title, blog title, date, and URL for the individual entry? It’s worked for newspapers for years. Blogs aren’t any different.
Thomas knocks newspapers and cynicism
Justice Clarence Thomas is interviewed by Brian Lamb on Q&A this week. It’s a pretty good wide-rangin interview that’s worth a listen. Despite the recent press about him, he seems like a centered person. A couple of things he said were interesting to me:- He’s a big fan of Churchill. The main reason is Churchill’s resilience. Thomas says, “If you quite, you run, you hide, you get negative. You get cynical. You’ve given up. Churchill didn’t do that.”
- He doesn’t read newspapers. LAMB: “How much do you read the newspapers?” THOMAS: “Oh, I don’t. I don’t. I don’t think it’s a good use of my time.” I know how this sort of thing was used against George Bush, but I think it’s pretty refreshing. It doesn’t mean he doesn’t read, and newspapers are hardly the most useful way to stay informed.
Bong Hits 4 Jesus
Here is an oral argument I want to hear. The Supreme Court will hear Morse v. Frederick on March 19. As one commentator put it, it’s probably “the most important free speech case of our time.” According to Wikipedia:In January 2002, a “Winter Olympics Torch Relay,” supported by private businesses, was held in Juneau, Alaska, Students were released from school to watch the Olympic torch pass by. Joseph Frederick, an 18-year-old senior at Juneau-Douglas High School, was late to school the day of the Olympic torch relay. When Frederick arrived, he stood on the sidewalk on the other side of the street from the high school. Frederick and his friends waited for the television cameras so they could display their banner reading “Bong Hits 4 Jesus.” When they displayed the banner then-principal Deborah Morse, who was across the street, grabbed and crumpled up the banner.
Hat tip J. Adamson.
Spectrum and the definition of deregulation
Today Lawrence Lessig released the second in his series of presentations about what Congress should do on internet policy. The first installment was about orphan copyrights, and I addressed it here. Today, Lessig writes about “deregulating spectrum,” which is an apt title if by deregulating you mean regulating. Lessig likens the current command-and-control system of spectrum regulation to communism, and I think he’s right. He goes on, however, to argue that a property system is no longer the right alternative to regulation.Instead, Lessig suggests a market not in spectrum, but in devices that use free spectrum without causing interference to any other user. As he says in his presentation, this system would require “minimal rules governing the devices.” What he doesn’t say is who would set these “minimal rules” and what exactly would guarantee that these rules would remain minimal or even rational. The answer, as I explain in my new paper out this week from the Stanford Technology Law Review, is that government will set the rules, and the only tools that government has to make rules is its inefficient command-and-control processes. A “commons” model is not a third way between regulation and property, it is just another kind of regulation.
Lessig also exhibits lots of outrage at the fact that the current regulatory system is manipulated by special interests to suit their own purposes and not the interests of consumers generally. Well, how will things be any different when government goes about setting his “minimal rules”?
One last thing. I take umbrage to Lessig’s reference to those of us who support property rights in spectrum as “property-ideologues,” which I for one take as a pejorative term that implies an unthinking blind belief. He says, these are “people who I will, to be fair, refer to as ‘extremists.’” I may think that Lessig is wrong, but I don’t doubt that he’s considered empirical evidence, given lots of thought to different ideas, and come to his own conclusions for intellectually honest reasons. There can only be reasoned debate if the conversation is respectful, and I would appreciate it if Lessig showed some respect to his intellectual opponents.
WaPo: ‘WiFi Turns Internet Into Hideout for Criminals’
The Washington Post runs an article today about police tracing online criminals–mostly pedophiles–to a physical address only to find an unsecured Wi-Fi hotspot and not the criminal. The good news in the article is that the police seem to understand that just because something illegal happened over your IP address, it doesn’t mean you did it. The bad news is the “there oughta be a law” implication present in the article. Here’s how the reporter, not a quoted source, describes Wi-Fi:Open wireless signals are akin to leaving your front door wide open all day — and returning home to find that someone has stolen your belongings and left a mess that needs cleaning.
One way to combat it is for people to secure their wireless networks by making them password-protected. But, authorities said, businesses and cities that offer free connections need some way to track the users, such as filtering measures that could scan to see who is accessing the network.
I don’t get the “stolen belonging” analogy, and the “mess that needs cleaning” is a stretch. I’ll let our resident piggybacking expert explain why. Police should be supported in their pursuit of criminals, but there are a lot more innocent people using coffee shop hot spots than pedophiles.
DOJ to expand DNA database
“The Justice Department is completing rules to allow the collection of DNA from most people arrested or detained by federal authorities, a vast expansion of DNA gathering that will include hundreds of thousands of illegal immigrants, by far the largest group affected,” according to the NYT. The law that allows this was sneaked in via the Violence Against Women Act renewal last year. It allows DNA sampling of anyone arrested where previously only those convicted where sampled.The only hint at a justification offered by supporters in the article is the story of Angel Resendiz, and illegal immigrant and serial killer who was arrested and deported 17 times during his 15-person rape and murder spree. The implication seems to be that if we had had such a database, then when Resendiz was arrested, his DNA would have been cross-referenced and matched to DNA taken from a crime scene. If that’s the rationale, then wouldn’t it be better to mandate DNA sampling of everyone? “Hey, that’s not a bad idea,” I can hear half the country say.
On interoperability, is it worth implementing the 9/11 Commission’s recommendation?
Implementing the 9/11 Commission’s recommendations was the House Democrat’s top priority during their recent “first 100 hours” legislative spree. One of the recommendations addressed in the resulting H.R. 1 bill had to do with public safety communications interoperability. The 9/11 Commission found that communications between firefighters, police officers, and other emergency personnel failed that day with deadly consequences. Here is a quick analysis of H.R. 1’s interoperability provisions, as well as the Commission’s recommendation itself, in which I argue that they are both overlooking the fundamental causes of the interoperability problem.Continue reading this post »
Wikipedia, courts, and anonymity
Wikipedia has been cited in more than 100 judicial opinions since 2004, including 13 from federal circuit courts of appeal, according to the NYT. The article implies this is a trend:A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term “booty music” as played during a wet T-shirt contest.
The article then cites pro and con takes. Judge Posner has cited Wikipedia in at least one opinion, and thinks it’s O.K. as long as it’s not used to support a central fact in the case. That’s a completely reasonable stance and Cass Sunstein seems to agree with Posner even though he’s more skeptical of the practice.
I’m not sure this is a trend at all. The NYT was able to find 100 instances of citation to Wikipedia from all courts, including district courts and special masters. But consider that the federal appeals courts (excluding the Fed. Circuit and the Supreme Court) published 29,913 opinions in the 12 month period ending Sep. 2005.
I think Wikipedia is a great resource and it’s the starting point for lots of my own research, but I think that’s how self-respecting judges and scholars will use it, as a staring point. It’s not that the information on Wikipedia is necessarilly inferior. It’s not. In my view the problem is that it’s anonymous. If you rely on a book or an article for a fact, you know who to hold accountable if the fact turns out to be erroneous–the author. An author has a track record and a reputation. This is something you can scrutinize, and something the author has an incentive to protect. This is doubled when an article is peer-reviewed, and tripled when you consider publications also have reputations to uphold.
I understand Wikipedia has a bias toward correcting errors, but fairly or unfairly its reputation is inscrutable. Sure, it may have a 99% accuracy rate today, but what about tomorrow? Wikipedia is great to link to in a blog post, but in more serious published writing, a writer will also be concerned about his own reputation. Getting context from Wikipedia is very helpful, but when it comes to citation I’ll take the extra time and find another source to cite to. This is why I love that Wikipedia has begun to include its own footnoted citations for the sources of the information included in its articles. (Hat tip Joe A. for the link.)
American entrepreneurship
From today’s WaPo: “About 25 percent of the technology and engineering companies launched in the past decade had at least one foreign-born founder, according to a study released yesterday that throws new information into the debate over foreign workers who arrive in the United States on specialty visas.” Just the wealth created by Sergey Brin (Google), Jerry Yang (Yahoo!), and Steve Chen & Jawed Karim (YouTube) is astounding.Smoke-filled rooms
Awesome. Needs no comment. From the WaPo: “When the District goes smoke-free Jan. 2, at least one nicotine haven will remain: the U.S. Capitol. Lawmakers, several of whom enjoy a good cigar, have exempted themselves from the city’s smoking ban, not to mention rules that forbid lighting up in federal buildings across the country. … Smoking is permitted in lawmakers’ offices, in two cafeterias in the House and Senate buildings and in an unmarked, cramped room in the basement of the U.S. Capitol.” Smoking is also permitted in the Speaker’s Lobby, which sounds like a club room to me, but Nancy Pelosi might be changing the rules. Hat tip Kathleen.NYC bans trans-fats
They actually did it. According to AP: “The Board of Health voted [unanimously] Tuesday to make New York the nation’s first city to ban artery-clogging artificial trans fats at restaurants — from the corner pizzeria to high-end bakeries.”“Nobody wants to take away your french fries and hamburgers — I love those things, too,” Mayor Michael Bloomberg said recently. “But if you can make them with something that is less damaging to your health, we should do that.”
We can also make walking down the street safer by requiring everyone to wear padding and a helment. I wonder if he’s for that, too? Next Wednesday AFF will host a roundtable on the burgeoning nanny state. Baylen Linnekin will not be speaking at the event.
On franchising, who needs Congress?
It looks as if now that national cable franchise reform is dead in Congress, the FCC is moving forward with its proceeding on the issue. According to USA Today, “Federal Communications Commission Chairman Kevin Martin has proposed rules to make it easier for phone companies and others to jump into the video business.” According to the newspaper’s sources, the new rule would require localities to rule within 90 days on competitive franchise applications by phone companies and others with existing access to public rights-of-way. In a new article in the Journal on Telecommunications & High Technology Law (and a public interest comment), Jerry Ellig and I tell the FCC not only that they should preempt unreasonable local franchise practices, but how they can do so. One of the points we make is that while requiring localities to act expeditiously in making franchise rulings, that’s just a start. The FCC also has the power to curb unreasonable denials of franchises.In our paper we calculate the cost of franchising to consumers, and it looks like the FCC has such costs in mind. According to the USAT article, “Martin is using the FCC’s upcoming annual report on cable TV prices as ammunition. FCC officials say the report shows that satellite TV and cable TV operators have settled into a cozy duopoly, keeping prices in a steady, upward climb. It shows the average price of cable TV in 2005 was $43.33 a month. Where satellite TV also was available, the average was $43.34. But in markets with another “wired” video provider, the price was dramatically less: $35.94. The upshot: Absent credible land-based rivals, cable TV prices will keep going up.”
Cross-posted at TLF. You can leave and read comments there. →
Clubs collecting personal data?
Clubs are apparently turning to swiping your drivers’ license at the door. A device tells bouncers your age. What they don’t tell you is that your name, address and other info is also collected. “Joseph Surdo, a manager at KatManDu, said his club has built a database of more than 15,000 names in a year, but he stressed the information is used only for in-house promotional purposes.”Oh, the legal cites they are a-changin’
A new research paper finds the top ten musicians cited in the legal literature. Bob Dylan takes the top spot with 186 citations, followed by The Beatles and Bruce Springsteen. The author confesses, “I never asked anyone why they do it, but I think it is because it is fun to do and they’re bored.” I can attest to that. I always try to title my law review articles after 80s songs or lyrics (”Relax, Don’t Do It: Why RFID Privacy Concerns Are Exaggerated and Legislation Is Premature,” “Video Killed the Franchise Star: The Consumer Cost of Cable Franchising and Policy Alternatives,” and the forthcoming, “Sending Out an S.O.S.: Public Safety Communications Interoperability as a Collective Action Problem.”) In my RFID paper I also cite Ice-T’s Don’t Hate the Playa to illustrate a point.
“Although [the study’s author, Alex B. Long,] finds a few occasions when the lyrics work, Long mostly criticizes the use of lyrics because ‘legal writing is easy, comedy is hard.’ He cites many occasions when it feels like the author is stretching by using the lyrics or ‘reaching for a way to plug a favorite artist.’” Yeah, legal writing sure seems easy for him. Hat tip Bridget.
Fraternity boys sue Borat
The RV frat boys from Borat who made racist and sexist remarks on camera are suing for “loss of reputation” among other things. When I saw the movie I couldn’t believe the things they were saying and I thought to myself, they deserve everything that’s coming to them. They now claim they only made those remarks because they were duped into thinking the film would only be shown outside the U.S. So I guess they still meant everything they said. Also, here’s a story about the woman who hosted the dinner party from the movie. Sure, it’s hard not to feel bad for her and her guests, but to my point about condescension, she repeatedly refers to “American toilet training.” What’s American toilet training?China tests computer-aided sentencing
From Ars: China tests computer-aided sentencing: “When farmer Li Jiaxin came up for trial in Zibo, Zichuan District, Shandong Province, China, he faced something new: computer-aided sentencing. Li had used a knife to slash the face and arm of his victim. Apparently contrite over what he had done, Li paid 17,800 yuan ($2,200) in compensation and turned himself in to police. He eventually came up for trial and was found guilty. Before the sentencing, though, the judge entered information about Li’s crime into a computer program. Based on the crime, the victim’s injury, and the fact that Li had paid compensation and surrendered himself to authorities, the software calculated that he deserved a 5.4 month jail sentence. The judge gave him six.” Wow. I’m glad to see, at least, that the final sentence is nevertheless still up to a judge. Looks a lot like our own Federal Sentencing Guidelines, except faster.-
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