Moving again

I'm hanging up the blog pseudonym and continuing the blog under my own name. You can find this year's posts at http://samuelpnelson.wordpress.com/posts/ Thanks for reading.

SPN

Brandenburg v Ohio??

Watch this campaign commercial and apply Brandenburg v Ohio? Thoughts?

Steampunk cupcake cannon

Because you need a study break:

Facebook sucks

So, Facebook is rolling out a new system to obliterate your privacy. It hasn't swept up all users yet (I think fb does these things alphabetically, so it might take a day or two). Anyway, any status update or comment you have posted that includes the phrase "university of x" where x=the name of your university, is now on a PUBLIC page that anyone can read whether or not they are one of your friends and regardless of whether you have set the information to private (or "friends only") or whatever. If you have comments posted like "Professor y sucks" and the post also includes "university of x" then Professor y is going to be able to read that comment. It may also include pictures you have posted with captions like "party at university of x" which, given that Res Life uses social network sites to track down under-age drinkers may turn out to be a problem for some people. I haven't been converted over yet but some of my friends are finding their status updates and comments all over the place about pretty much any interest.

So, I'm not really sure what is going on here, but I have deleted all my info from my profile and suggest you look into this, particularly if you have status updates that might get you in trouble with the university or, you know, anyone else.

update: Here is facebook's info about this but information about how to opt out isn't until the end of the post. There will be a new privacy setting called "Friends, tags, and connections" that will default to "everyone" until you go in and change it. And I think you really really should. That setting won't show up as an option until your account has been converted to the new system. You will know that you have been exposed to the world when you log in and get a pop-up message about sharing contact info. Even if you say no to everything in the pop-up, you will still have to go in and manually set the privacy options.

Christian Legal Society v. Martinez

The Supreme Court will hear oral arguments in Christian Legal Society v. Martinez on Monday. Hastings Law School denied funding to CLS, a student group, because it did not allow LGBT students as members. State law in California requires all student groups at public universities to allow any student to participate. So, in this case we see a clear conflict between free exercise (Hastings is a public school following state law so the necessary state action for a free exercise claim is in effect) aspects of religious equality and non-discrimination policy. It is a difficult case in many ways and raises substantial issues related to the things we have been discussing in both classes over the last 4-5 weeks.

Video from Federalist Society and American Constitution Society sponsored panel discussions on the case are here.

Oral arguments may appear at Oyez.

Abortion rights links

A couple of relevant links for the discussion of the abortion rights cases.

Data on abortion rates since 1974 from the Guttmacher Institute.

The new Nebraska law on abortion restrictions raises several issues that have not been addressed by the Supreme Court in any previous case, as well as several that are more similar to restrictions that have already been tested. We will discuss this new law in light of the precedents that we have been reading and see how the Court might decide the cases that are sure to emerge once the law goes into effect. According to the Times account the law bans "most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain"

Another Nebraska law signed at the same time requires "health care providers to screen women seeking abortions for possible physical or mental risks."

Also see the report from ABC News.

Update: Amanda Marcotte has a good explanation of the new constitutional issues raised by the Nebraska law and some of the implications of these changes. Fetal pain, rather than viability, would be an entirely new consideration and one that fundamentally challenges Roe v Wade while opening up a great deal of space for states to impose new legal limits on abortion.

Supreme Court vacancy

So, per our discussion yesterday, I think this clip gives some sense of why representation on the Court matters regardless of the outcome of the cases. Read the language of the opinion in Gonzalez v Carhart and then watch Pamela Karlan comment on the case and imagine the conferences on the merits of future cases if she were to be nominated to the Court.

Olmstead for the 21st century?

Privacy is a hotly contested political concept, and not just in the area of abortion rights and sexual freedom. From Olmstead on, the Supreme Court has tended to lag behind the public's expectation of privacy in new technology. Current law regarding electronic privacy is out of date in many surprising ways and there is a great deal being written, litigated, and legislated regarding the proper balance between electronic privacy and other social interests.

More marriage links

Marriage laws state by state - in which states are same sex marriages legal and which states have DOMA provisions in their constitutions.

Divorce rates by state, sorted based on availability of same sex marriage.

Public support for same sex marriage, state by state including change in support over time.

These graphs are easier to read, public opinion on same sex marriage, a Federal Marriage Amendment, and anti-discrimination laws broken down by age of respondent.

A useful exchange between Andrew Koppleman and Robert George - these posts and the linked papers should give you a good sense of the contours of the debate over the natural law position on marriage.

Marriage equality links

Just a few items of interest as we move to marriage equality and privacy.

Robert Bork "Neutral Principles"

Select documents in Perry et al v Schwarzenegger et al (Prop 8 case)

Trial coverage of Perry

Wedding photographer can't refuse to work same-sex weddings under New Mexico anti-discrimination law.

Scientology in the news

Since Scientology has come up a few times in our discussion of the religion clauses, I thought some of you might be interested in this account of the experience of some people who have sought to leave the religion and the response of Church officials.

Raised as Scientologists, Christie King Collbran and her husband, Chris, were recruited as teenagers to work for the elite corps of staff members who keep the Church of Scientology running, known as the Sea Organization, or Sea Org.

They signed a contract for a billion years — in keeping with the church’s belief that Scientologists are immortal. They worked seven days a week, often on little sleep, for sporadic paychecks of $50 a week, at most.

But after 13 years and growing disillusionment, the Collbrans decided to leave the Sea Org, setting off on a Kafkaesque journey that they said required them to sign false confessions about their personal lives and their work, pay the church thousands of dollars it said they owed for courses and counseling, and accept the consequences as their parents, siblings and friends who are church members cut off all communication with them.

The article also includes a summary of some of the key tenets of Scientology.

Scientology is an esoteric religion in which the faith is revealed gradually to those who invest their time and money to master Mr. Hubbard’s teachings. Scientologists believe that human beings are impeded by negative memories from past lives, and that by applying Mr. Hubbard’s “technology,” they can reach a state known as clear.

They may spend hundreds of hours in one-on-one “auditing” sessions, holding the slim silver-colored handles of an e-meter while an auditor asks them questions and takes notes on what they say and on the e-meter’s readings.

By doing enough auditing, taking courses and studying Mr. Hubbard’s books and lectures — for which some Scientologists say they have paid as much as $1 million — Scientologists believe that they can proceed up the “bridge to total freedom” and live to their full abilities as Operating Thetans, pure spirits. They do believe in God, or a Supreme Being that is associated with infinite potential.

More details on waterboarding

Salon has a special feature up on waterboarding that collects a lot of information from various documents that have been made public in the last year, but don't read too far into it if you are squeamish, because some of it is very detailed.

The documents also lay out, in chilling detail, exactly what should occur in each two-hour waterboarding "session." Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to "dam the runoff" and prevent water from spilling out of a detainee's mouth. They were allowed six separate 40-second "applications" of liquid in each two-hour session – and could dump water over a detainee's nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus.

Huckabee on God and Constitution

Here's Mike Huckabee from two years ago:



And the next morning, talking about what he said (starting at about 1:50).

Is there a technological fix for privacy?

Interesting overview of issues related to Internet privacy and the combination of technology and business practices that might be used to give people more choices about how their data might be used.

Problems in determining tax exemptions for religious organizations

Two current examples of the problem of trying to determine whether an organization warrants the tax exemption granted to religious organizations.

Liberty University and political endorsements.

Christian crashpad for Congressmen.

Free speech and terrorism in USSC

The Supreme Court heard oral arguments yesterday in Holder v. Humanitarian Law Project which is a case concerning Patriot Act provisions that make it illegal to provide expert advice to groups linked to terrorism.

That did not seem to satisfy Justice Ruth Bader Ginsburg. “So you can communicate, but the communications are censored,” Justice Ginsburg said. “You can be a member, you can attend meetings, you can discuss things, but there is a certain point at which the discussion must stop, right?”

Ms. Kagan responded, “The discussion must stop when you go over the line into giving valuable advice, training, support to these organizations.”

Ms. Kagan gave examples of prohibited conduct. A lawyer would commit a crime, she said, by filing a friend-of-the-court brief on behalf of a terrorist group. Helping such a group petition international bodies is also a crime, she added.

Justice John Paul Stevens asked if there was an authentic risk that Mr. Fertig would be prosecuted were he to make a presentation on behalf of the Kurdish group at the United Nations. He seemed to expect a negative answer.

But Ms. Kagan would say only that the matter would involve a “prosecutorial judgment.”

Chief Justice John G. Roberts Jr. said at least one part of the law, banning expert advice, seemed vague to him. “I don’t know sitting down that I could tell,” he said, whether advice about peaceful advocacy was covered.

I don't know if the oral arguments will be made available, but if they are you can find them at Oyez along with the summary of the case that they have already posted.

Cool

I think I picked the wrong sort of professor to be, no access to liquid nitrogen around my office. Of course, I don't share this guy's attitude and I don't work with props but what sort of fun can I have throwing laptops in a bucket of Supreme Court cases? None at all.

Free speech and privacy in the UK

The British constitution protects freedom of speech, but not in the same ways or to the same extent as the First Amendment here. Two recent cases demonstrate this in stark terms.

First is the case of the guy who posted a joke about an airport on Twitter.

He was arrested on suspicion of communicating a bomb hoax and later charged with sending, by means of a public electronic communications network, a message that was grossly offensive or of an indecent, obscene or menacing character.

Yesterday, the court heard that the message read: "Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!"

....

Adjourning the case, District Judge Jonathan Bennett told Chambers that all sentencing options, including custody, were open. He was granted unconditional bail to appear before the same court for sentencing on 12 March.

After his arrest, Chambers was suspended from work pending an internal investigation. Detectives also confiscated his iPhone, laptop and home computer.

Take a careful look at the language of the statute in the first paragraph quoted above - which cases in US First Amendment law does this fall under? And is there any chance that this conviction would be upheld here?

In another set of incidents, British authorities have stepped up their harassment of photographers in public places (despite the law authorizing such harassment having been struck down by the ECHR). And they appear to be getting ready to seriously limit, if not eliminate, professional photography (which I think would include artists and documentarians) in public places. Photos in public places will be barred if any person in the photograph objects to being photographed.

Not content with abrogating photographers' copyright, another part of Government is now going some way to ban photography altogether in public places, for data protection reasons. The Information Commissioner's Office (ICO) proposed new code for personal information online has "commonsense" new rules that in effect will prohibit photography in public places where anyone who's in the photograph might be unhappy about being photographed. A photo, taken in public, is now deemed private data, y'see.

CCTV, full body scans at airports, no problem, but if an ordinary person takes a photo, this Kafkasesque notion of privacy in public will apply. Unless it's on film. You'd probably be OK taking photos of someone committing a criminal offence too, as ICO thinks this shouldn't be private information.

Mindful of the damage this would do to tourism and how much it would piss off Joe Public to be told he can't use his cameraphone in the street to make humiliating snaps of his drunk mates for Facebook (and quite possibly subsequent orphan use by Rupert Murdoch), ICO have decided that this lunacy shall only apply to pro photographers, a small enough constituency to castrate with impunity.

And, according to the same article, it appears as though Rupert Murdoch will be stealing your flickr stream whenever he wants to.

Anyway, I'm glad that I took my trip to England before all this took effect, or else I might not have been able to share this radically invasive, offensive, dangerous photograph with you all.

Public Opinion and the Supreme Court

So Citizens United was tremendously unpopular across the political spectrum. This is really interesting to me since people usually don't pay that much attention to the Supreme Court and rarely coalesce around opposition to a decision so quickly. Perhaps that says something about the Washington Post poll involved as well as the issue of corporate political speech, but off hand, these are the sorts of poll numbers you might expect on a case about flag burning, not campaign finance law.

More on Yoo and Bybee

Good overview and criticism by David Luban of the Margolis decision to not refer Yoo and Bybee for disciplinary action by the bar association. He includes lots of links to additional commentary.

Yoo and Bybee

Lots of reporting about the Office of Professional Responsibility report that was released yesterday. The previously top secret documents, including the OPR report, the final decision to clear Yoo and Bybee of professional misconduct, and Yoo and Bybee's responses to earlier drafts of the report can all be found here.

From the New York Times.

The ethics lawyers, in the Office of Professional Responsibility, concluded that two department lawyers involved in analyzing and justifying waterboarding and other interrogation tactics — Jay S. Bybee, now a federal judge, and John C. Yoo, now a professor at the University of California, Berkeley — had demonstrated “professional misconduct.” It said the lawyers had ignored legal precedents and provided slipshod legal advice to the White House in possible violation of international and federal laws on torture. That report was among the documents made public Friday.

But David Margolis, a career lawyer at the Justice Department, rejected that conclusion in a report of his own released Friday. He said the ethics lawyers, in condemning the lawyers’ actions, had given short shrift to the national climate of urgency in which Mr. Bybee and Mr. Yoo acted after the attacks of Sept. 11, 2001. “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” Mr. Margolis said.

More on the laptop cam privacy case

More details are emerging on the laptop camera student privacy case. The school district claims that it would only use the remote activation feature if the laptop was reported stolen. According to an email from one of the students involved in the lawsuit, the green lights next to the webcams would come on from time to time and students were told this was just a "glitch."

UPDATE: Additional details emerging, along with an FBI investigation.

Privacy violation

Hmnmm, wonder if this one is a privacy violation.

According to the filings in Blake J Robbins v Lower Merion School District (PA) et al, the laptops issued to high-school students in the well-heeled Philly suburb have webcams that can be covertly activated by the schools' administrators, who have used this facility to spy on students and even their families. The issue came to light when the Robbins's child was disciplined for "improper behavior in his home" and the Vice Principal used a photo taken by the webcam as evidence.

Follow the link to find the class action filing against the school.

Incitement?

Does this constitute incitement under Brandenburg?

Microchips, religion, and privacy

The Virginia House has a bill to ban involuntary implantation of micro-chips in people.

Del. Mark L. Cole (R-Fredericksburg), the bill's sponsor, said that privacy issues are the chief concern behind his attempt to criminalize the involuntary implantation of microchips. But he also said he shared concerns that the devices could someday be used as the "mark of the beast" described in the Book of Revelation.

"My understanding -- I'm not a theologian -- but there's a prophecy in the Bible that says you'll have to receive a mark, or you can neither buy nor sell things in end times," Cole said. "Some people think these computer chips might be that mark."

Cole said that the growing use of microchips could allow employers, insurers or the government to track people against their will and that implanting a foreign object into a human being could also have adverse health effects.

"I just think you should have the right to control your own body," Cole said.
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The religious overtones have cast the debate into a realm that has made even some supporters uneasy and caused opponents to mock the bill for legislating the apocalypse.

Indecency in musical form

Eric Idle took up the FCC indecency regulations issue with a short song that some people find amusing. Warning: it is meant to be indecent so it does contain a good deal of profanity. Ummm, it contains only profanity, so don't listen near your mom or if you don't find that sort of thing amusing. In any event, it is an illustration of the way in which indecent songs might be intended as a contribution to political debate.

Free speech challenge to Patriot Act provision

There is an important first amendment challenge to the Patriot Act prohibition on material support for "terrorist organizations." The quotes around "terrorist organizations" indicate that this is the real issue in the case, can the government simply declare that non-violent aid to any of a list of organizations constitutes material support for terrorism, or are there protected forms of advice, consulting, or association that are swept up in the law? Are donations to some groups on the list which may have only a tenuous connection to terror activities protected by free speech as campaign contributions are?

The Supreme Court will soon hear Mr. Fertig’s challenge to the law, in a case that pits First Amendment freedoms against the government’s efforts to combat terrorism. The case represents the court’s first encounter with the free speech and association rights of American citizens in the context of terrorism since the Sept. 11 attacks — and its first chance to test the constitutionality of a provision of the USA Patriot Act.

Opponents of the law, which bans providing “material support” to terrorist organizations, say it violates American values in ways that would have made Senator Joseph R. McCarthy blush during the witch hunts of the cold war.

Ellsberg at the Oscars

Daniel Ellsberg, a key figure in the Pentagon Papers case that we studied last week, is the subject of an Oscar nominated documentary. Here is a bit of information about what Ellsberg is up to these days and some of his favorite movies of the last year.

Educational privacy or informational lockdown

A small college in Florida requires every faculty member, staff person, and administrator to sign a very stringent confidentiality agreement that apparently prohibits them from discussing anything that happens on campus. Is this about privacy, or about control over information? Does this protect employee or student privacy, or does it protect the administration of the college from criticism and chill public debate about campus policies?

The Edward Waters agreement, revised this month, is mandatory and classifies all on-campus material as confidential data. That includes employee records, policy documents and even in-class material unless otherwise approved for release.

Faculty, staff and administrators are all included, and any violations can be met with a daily $5,000 fine and additional legal action.

Happy Data Privacy Day!

Yes, someone decided it is data privacy day today, just in time for us to start working on privacy in class. Anyway, follow the link for links to major corporations' data privacy policies - Intel, Google, etc are all there.

What's with Alito?

I'm not sure what was going on here, but it was kind of strange to see a sitting Supreme Court justice have a Joe Wilson moment during the SOTU. Keep an eye on Alito in the upper left part of the frame, what's he saying when Obama criticizes the decision in Citizens United? Notice the stone faced calm of all the other justices which is what one normally sees at these speeches.



I don't think we can draw any particular conclusions from this, but it is interesting.

How easy is it for websites to identify me?

Really, really, easy, in a sense. Every website collects a lot of information about your computer, its configuration, and your browser. This constitutes a kind of fingerprint that could be used to identify you. Want to learn more? Visit the Electronic Frontier Foundation's Panopticlick site and test the machine that you are on. My office machine was "unique" in over 85,000 machines tested so far, and I generally set my browser for as much privacy as I can (consistent with still being able to use the browser in a convenient way).

EFF is a good resource in general for all things related to internet privacy and security. They have legal guides for bloggers, tips, and commentary. They also work as an advocacy group for internet freedom and security with political and legal mobilization strategies.

The latest styles in body armor

What is the relationship between the politics of fear and fashionable bulletproof vests? Is the individual choice to sport the Jack Bauer look a political choice or does it have political effects and consequences?

“When people are feeling less secure, there is more demand for armor,” said Nick Taylor, who is the manager of BulletProofME.com, a Web site selling tactical gear to police officers, security guards and journalists in war zones. Sales of antiballistic jackets, vests and even backpacks have risen by some 20 percent this year, Mr. Taylor said. Recently he has found himself fielding requests from real estate agents involved in foreclosure eviction proceedings, repo men, convenience store clerks and “regular folks from all walks of life who’ve kind of had a brush with crime.”

And fashion folks, of course — many of them self-styled S.W.A.T. commandos who scour spy shops, army surplus outfitters and online retailers for vests and coats that combine serviceability with a significant measure of style. Bulletproof vests have yet to claim the modish status of a biker jacket, but to those in the vanguard, they offer a comparably hard-edged chic.

No cameras in Prop 8 trial

The US Supreme Court has blocked cameras for the Proposition 8 trial in California, overturning the decision by the Chief Judge of the 9th Circuit to allow those cameras.

Linda Greenhouse has an interesting column about the cameras issue both in the Prop 8 case and more generally, then turns to several other first amendment cases related to the politics of same-sex marriage. She concludes:

The issue of cameras in the courtroom, presented by the California case the court ruled on this week, is itself of long standing. But it has typically been seen as posing a free-press-versus-fair-trial question — in terms of First Amendment doctrine, a claim by those behind rather than in front of the camera. This week’s development suggests that a merger of two separate lines of First Amendment precedent, one on freedom from compelled disclosure and the other on access to government proceedings, may not be far off. In fact, in this media-saturated age, it may be overdue. Whether this deeply divided court can navigate the contested terrain of same-sex marriage to arrive at a useful synthesis is another question.

The column also has some gossip-y info about intrajudicial squabbling, check it out.

Watch list problems

Compiling watch lists sometimes leads to fairly ridiculous outcomes like this:

“Meet Mikey Hicks,” said Najlah Feanny Hicks, introducing her 8-year-old son, a New Jersey Cub Scout and frequent traveler who has seldom boarded a plane without a hassle because he shares the name of a suspicious person. “It’s not a myth.”

Lists can lead to a lot of false positives possibly undermining the goals of making the list in the first place. Lists can also be fairly easy to evade, if one is determined enough.

Mario Labbé, a frequent-flying Canadian record-company executive, started having problems at airports shortly after Sept. 11, 2001, with lengthy delays at checkpoints and mysterious questions about Japan. By 2005, he stopped flying to the United States from Canada, instead meeting American clients in France. Then a forced rerouting to Miami in 2008 led to six hours of questions.

“What’s the name of your mother? Your father? When were you last in Japan?” Mr. Labbé recalled being asked. “Always the same questions in different order. And sometimes, it’s quite aggressive, not funny at all.”

Fed up, in the summer of 2008, he changed his name to François Mario Labbé. The problem vanished.

What other sorts of effects might these lists have, intentional or not?

California Same-sex marriage trial begins

An important trial began yesterday in California challenging California's Proposition 8 that bans same-sex marriage in the state. I think this case will probably lead all the way to the Supreme Court and it will certainly be closely watched. One sign of its significance, the lawyers for the plaintiffs challenging the marriage ban are Ted Olson and David Boies, teamed up here but who famously opposed each other in Bush v Gore (Olson for Bush, Boies for Gore). This one is worth watching closely because most of the arguments we will discuss later in the semester when we read about marriage equality are likely to be made in the course of this trial and in later appellate cases.

Food for thought - career information

These are just two bits of a complex puzzle when trying to decide whether or not you want to go to law school, but they are worth considering since they run against the conventional wisdom. The upshot here is that lawyers face difficult labor markets and many don't make enough money to pay off big loans and live well at the same time. For more detailed discussion of the bi-modal distribution of income in the legal profession, see the empirical legal studies blog which is worth reading in general.

Tangled first amendment case

Just to get us started this semester, here is Dahlia Lithwick on the oral arguments in US v Stevens a case involving a conviction for distribution of dog fighting videos.