A Round Tuit (29)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

The "Hitler Reacts" YouTube meme feels like it's been around nearly as long as Der Führer's thousand-year reich existed. Taking a single scene from the 2004 German film Downfall, dozens of satirical videos have been produced and circulated, parodying the original drama, poking fun at the Nazi regime, and commenting on sporting events and current events and nearly every conceivable topic in-between.

The director of the film, Oliver Hirschbiegel, is on the record as a fan of the seemingly-endless stream of parodies, telling New York magazine this past January, "Someone sends me the links every time there's a new one. I think I've seen about 145 of them! Of course, I have to put the sound down when I watch. Many times the lines are so funny, I laugh out loud, and I’m laughing about the scene that I staged myself! You couldn't get a better compliment as a director." Though he lamented the fact that he receives no royalties from the repurposing of his film, he agreed that the videos, in addition to being great fun in their own right, essentially serve the same purpose as the movie did — "to kick these terrible people off the throne that made them demons...."

The producers of the movie, Constantin Film, attempted to put an end to the meme this past week (on Hitler's birthday, appropriately enough) by forcing the removal of the parody videos hosted on Google's YouTube service. The Associated Press offered a good overview:

It was the meme that refused to die — until it did.

On Tuesday, the clips on YouTube, many of which had been watched by hundreds of thousands, even millions, began disappearing from the site. Constantin Films, the company that owns the rights to the film, asked for them to be removed, and YouTube complied.

Martin Moszkowicz, head of film and TV at Constantin films in Munich, said the company had been fighting copyright infringement for years. Jewish organizations have also complained about the tastefulness of the clips, he said.

"When does parody stop? It is a very complicated issue," Moszkowicz said. "So we are taking a simple approach: Take them all down. We've been doing it for years now. The important thing is to protect our copyright. We are very proud of the film."

Abraham Foxman, national director of the Anti-Defamation League, said the league was "delighted."

"We find them offensive," said Foxman of the videos. "We feel that they trivialize not only the Holocaust but World War II. Hitler is not a cartoon character."

One might think that anything which mocked Hitler to the point where he becomes like "a cartoon character" would be a good thing, but I'll defer on this point to those whose jobs it is to be outraged full-time. Regardless, though it was kind of Foxman's Anti-Defamation League to provide Constantin Film with a fig leaf to cover its play, many legal bloggers were quick to criticize the take-downs on copyright grounds. Corynne McSherry wrote:

Because [YouTube's] Content I.D. filter permits a copyright owner to disable any video that contains its copyrighted content -- whether or not that video contains other elements that make the use a noninfringing fair use -- a content owner can take down a broad swath of fair uses with the flick of a switch. It seems that’s exactly what Constantin Film has chosen to do.

This is hardly the first time that Content I.D., has led to overbroad takedowns of legal content. Copyright owners have used the system to take down (or silence) everything from home videos of a teenager singing Winter Wonderland and a toddler lip-syncing to Foreigner’s Juke Box Hero to (and we’re not making this up) a lecture by Prof. Larry Lessig on the cultural importance of remix creativity.

YouTube users do have options for response... [b]ut YouTube's procedures for "removing" videos have created considerable confusion among users, and it's a fair bet that most YouTube users aren't aware of their ability to "dispute" these removals. Others may be leery of exercising the dispute option. While the risks may be low, our broken copyright system leaves users facing the prospect of paying outrageous statutory damages and even attorneys' fees if they stand up, fight back and, despite overwhelming odds in their favor, lose. It’s a gamble many people just aren’t willing to take, even when their works are clear fair uses.

If copyright owners want to block remix creativity, they should have to use a formal DMCA takedown notice (and be subject to legal punishment if they fail to consider fair use), rather than a coarse automated blocking tool.

Though the Hitler in the Downfall parodies is livid over the collapsing fronts in his own war, Jacqui Cheng suggested that the mass removal of those parodies has opened a new front in the ongoing copyright war:

...Constantin did not actually use the traditional DMCA takedown route that most others use in order to target video clips uploaded by other users. Instead, the movie company used YouTube's Content ID filter, which essentially gives copyright holders direct access to videos on the site thanks to audio and video fingerprinting. The idea is to give copyright holders the ability to monetize their content uploaded by other users or block it, and they can block varying levels of it depending on their own tastes. A YouTube spokesperson told Ars that copyright owners are allowed to decide what level of "fair use" they're comfortable with—they can choose to keep content under a minute long online while blocking longer clips, for example. Copyright owners can also choose to keep videos that use under a certain percentage of their content while blocking those with more.

This, of course, allows copyright owners to go as far as they want. If they so choose, they can flip the switch on everything they don't like—even if the clips otherwise constitute fair use—and watch the videos disappear. The EFF has publicly hammered YouTube to tighten its ContentID requirements, but the company seems content to let copyright owners themselves determine what's OK and what's not. All users can do is submit a dispute through YouTube.

This is the reason the system is controversial, as it allows copyright holders to take content down without having to work within the legal limits of the DMCA. Content ID bypasses the DMCA, as it's merely a partnership between YouTube and copyright holders who choose to make use of the system. Although affected users can dispute their takedowns, it's not as cut and dried as a typical DMCA takedown would be.

Brad Templeton, an EFF board member, created one of the more clever Downfall parodies, a video in which Hitler angrily orders that DMCA take-downs be issued against the dozens of Hitler parodies floating around. In a bit of irony nearly powerful enough to tear a hole in the universe, that prescient meta-parody of the entire Hitler meme was itself taken-down in Constantin Film's purge; Templeton reposted it on another video-hosting site, where it serves as one of the best indicators of the overbreadth of this latest skirmish in the copyright war. Shortly after the take-downs, a blistering critique was posted as, of course, a Downfall parody in which Hitler rants about Constantin Films' failure to consider and YouTube's failure to protect fair use rights. Cory Doctorow posted the video and it's worth watching in its entirety, both for the humor and the commentary; amongst the best lines were these, which start around the 2:41 mark:

HITLER: Sure, it's not Google's fault that the takedown notice law is so broken and ill-conceiveved [sic], but come on! I mean, they pulled out of China for shit like this. Google's basically doing the same thing the British did in 1937: They're doing nothing while these fucking Nazis start destroying the world!

WOMAN IN HALLWAY (to a crying woman nearby): Don't worry, he'll realize the irony soon.

HITLER: I thought that we could have nice things on the Internet. I thought that we were free to make fun of Hitler on the Internet. But I guess not. And nobody will care. Everyone's gonna get upset about how corporations an illegally take down parodies. But tomorrow, they'll forget all about it and watch cat videos. I fucking hate cats

For his part, Mike Masnick was left scratching his head over the business logic of this controversial move:

It's not clear what Constantin is looking to gain by issuing these takedowns. Constantin is killing the very promotional vehicle that has been driving sales and rentals of Downfall itself. Each viewing of these videos has played a part in pulling the 2004 movie out of oblivion -- without these millions of views, very few, if any, people would have ever heard of the movie.

As quoted in the Associated Press article linked above, Constantin Film's Moszkowicz tends to disagree: "We have not been able to see any increase in DVD sales," he said. "There is no correlation between Internet parodies and sales of a movie, at least not that I am aware of." I for one haven't seen Downfall and the presence or absence of these parodies on the internet doesn't motivate me one way or the other; I prefer my movie Nazis to be abusing Indiana Jones rather than copyright laws and, regardless, I already know how the bunker scene ends. Eriq Gardner suggested that the business motivation behind the broad take-downs might be Google's more so than Constantin Film's:

[M]aybe Constantin isn't entirely culpable here. This one may be YouTube's fault.

As the EFF points out, the videos were taken down as a result of YouTube's automated filtering system, Content I.D., which checks uploaded videos against a database of copyrighted content and flags possible infringements so a rights holder can make the call. Taking something down is as easy as a head nod. This removes the necessity of actually having to send a takedown notice and moves copyright towards more of an opt-in, rather than opt-out, system. In other words, it's exactly what copyright holders want.

In the midst of fighting Viacom, YouTube may not mind the content-friendly publicity. This could be a good opportunity to show studios that the video-sharing service has changed from its "Steal it!" days.

A move like that won't sit well with "fair use" advocates, but killing Hitler could be one way to achieve peace in the larger copyright war.

Perhaps then, if Gardner's correct, "Hitler" is wrong in the new video I quoted above; Google isn't standing by like the British, but instead is collaborating like the Vichy French. Still, who am I to quarrel with Hitler? Andrew Moshirnia characterized Constantin Film's decision as akin to the proverbial "land war in Asia" which Vizzini famously cautioned against in The Princess Bride:

The fair use defense looks to the purpose and character of the use, the nature of the work itself, the amount of the work used, and the effect of the use on the market value of the work. 17 U.S.C. § 107. It seems to me that the majority of these factors point in the favor of Hitler artists. These videos appear to be non-profit (though I suppose they might be hosted on other sites with embedded ads), the amount of the movie used is rather short, and my gut tells me that these videos had no negative effects on the market value of Downfall. (I, for one, first watched Downfall after seeing the particularly intense “Hitler finds out Barack Obama is the presumptive nominee.”)

Also, I’d like to briefly correct a view I have seen on several sites: just because the videos are being used as parodies does not automatically render them fair use. While it is true that courts generally look favorably on parody, they are much more likely to allow parodies which provide commentary on the originally copyrighted content. For example, the song Barbie girl and the art installation “Food Chain Barbie” were deemed fair because these works commented on the social values embodied by Mattel's Barbie doll. Here, the great majority of “Hitler Finds Out” videos aren’t parodying Hitler or the Movie Downfall or Constantin films (though I have a feeling that’s about to change), but are instead simply using the image of Hitler to comment on Brett Farve’s career, or the rabidity of Apple Fanboys, or the pressure to create new and interesting memes.

So to sum up: these take downs are like waging a two front war – monumentally dumb. This whole maneuver seems to be a pointless exercise of copyright for copyright’s sake – if it’s wrong to want to live in a world where I can see Hitler complain about the ending of Inglourious Basterds, then I don’t want to be right.

Just as Hitler's downfall didn't end the greater war, it seems that the end — or more probably just the interruption — of the Hitler meme is likely just another battle in the ongoing copyright war. In a pair of posts, Mike Masnick noted the next developments in that war (or perhaps in the insurgencies, police actions, and guerrilla conflicts which attend it). In the first, he discussed a new bill to extend DMCA-style take-down processes to personal information:

[T]he so-called "Cyber Privacy Act" would require any website that allows open posting of content to provide "a means for individuals whose personal information it contains to request the removal of such information" and would then be required to "promptly remove the personal information of any individual who requests its removal."

Notice that there is no other option. You can't respond as to why that content is reasonable and should be left available. You can't defend basic freedom of speech. In fact, this is even worse than a DMCA-style notice-and-takedown regime, which at least has a process of counternotices and the allowance that content can be put back up under certain conditions. That does not exist in this case.

In the second post, Masnick reported the first DMCA take-down of a post on Twitter, a short message linking to a blog post about a leaked album:

[T]his whole thing is troubling and a clear abuse of the DMCA -- which you would hope Twitter would stand up against. Specifically, nothing in the tweet itself is infringing -- which means that the DMCA takedown for the tweet is bogus, and a violation of the DMCA itself. Even if there was a link in the post that's infringing, we're talking about a takedown on a tweet that links to a blog that links to a potentially infringing file. That tweet itself is not a violation of copyright law in any way, and the takedown notice is clearly fraudulent. Pretending that anything that links to a page that links to a potentially infringing file is, by itself, copyright infringement, is clearly ridiculous.

On top of that, there have already been questions asked about the copyrightability of Twitter messages, and it's rare that such tweets would be covered by copyright. In this case, it's unlikely that there's any copyright (the tweet was just a headline, and for the most part, you can't copyright headlines). Even if it was covered by copyright, it would be JP's copyright for having written the headline. In other words, there's nothing in the tweet that is held as a copyright by someone else, and thus the takedown message itself was a clear abuse of the DMCA -- and a violation of basic First Amendment principles, as the takedown sought not to takedown copyrighted material (as allowed by the DMCA), but to silence conversation about a leak of an album through misuse of copyright law.

It's unfortunate that Twitter decided to take the easy way out and automatically pull down the clearly non-infringing message with no review whatsoever. It's actions like that which encourage more abuse of the DMCA.

Is this the downfall of free expression on the internet? Almost certainly not, but it's sure enough to put us all into a bunker mentality.

There were a number of search-and-seizure-related topics to discuss this past week and the legal blogosphere didn't disappoint. When the Fifth Circuit's decision in United States v. Garcia was handed-down, the court's take on what Garcia meant when he gave permission for police to look through his car's interior probably surprised Garcia himself; Scott Greenfield has been in the criminal law game for some time now, however, and he wasn't so surprised to see how strained Garcia's "permission" became in police (and judicial) hands:

The court held that general consent doesn't give the police carte blanche, but that a search must still be reasonable under the totality of the circumstances. The court then finds the search reasonable for no particular reason at all.

When the war on drugs was at its most heated stage, it was hardly surprising that courts would empower the police to engage in routine dismantling of cars to search for secret compartments. Hey, that's how the drugs were transported and that's what was needed to find them. Nobody was going to let a detail like excess or reasonableness stand in the way of the war on drugs. So what if consent was obtained without any clue that it entailed the destruction of the car. As the 5th Circuit says, it's only "natural".

But the war on drugs has wound down quite a bit since then. The old crack days are largely past, and headlines no longer scream about the plague of drugs on the streets. Courts can now take a more principled view of the old search at any price precedent when it came to drugs and automobiles, and rein in the harm done to the warrant clause when there was no search they didn't approve.

But the 5th Circuit instead stuck to the old drug war program and approve the search, engaging in the legal fiction that anyone giving consent would naturally understand that to mean approval of the cops dismantling the car, or any part of it, they wanted. Isn't that what we would all believe to be the case when we knowingly, voluntarily and intelligently consent to a quick look by the cops to see if there's "anything illegal" in there?

And I'm sure that the defendant's name, "Garcia", didn't have anything to do with it.

If the "reasonable" search in Garcia seems a bit difficult for some of us to understand, the issues aren't getting easier from this point. Orin Kerr has published an article (Acrobat/.pdf format) arguing that current Fourth Amendment law should be extended to the internet in a "technology neutral" fashion. In last week's post, I linked to some early commentary on Kerr's article, but this week Rick Horowitz posted a couple of lengthy essays critiquing the article (see here and here). Kerr's article and Horowitz' essays are worth a careful read in their entirety.

It was a search in meatspace rather than cyberspace which garnered the most attention this week. Recently, a prototype of Apple's next-generation iPhone was (allegedly) lost in a Bay Area bar; it was (allegedly) found by an (allegedly) unrelated bar patron and after some (allegedly) cursory efforts to find the rightful owner and return the device, the finder (allegedly) negotiated the sale of the prototype iPhone to an editor at the Gizmodo gadget blog (oh, sorry; that last bit actually happened — I over-allegedlied). Gizmodo published detailed information about the device before returning it to Apple. While many in the blogosphere have speculated over the past several days about the possible legal implications of the affair, those speculations have more-or-less been inconclusive; frankly, no one's certain which applicable laws have been broken by Gizmodo editor Jason Chen, if any.

Undaunted, members of the Rapid Enforcement Allied Computer Team (REACT), an organization which was, I suspect, formed at least in part to justify an acronym someone thought clever, procured and executed a search warrant on Chen's home. Kim Zetter reported that the search led to the seizure of "four computers and two servers, an iPhone, digital cameras, records from a Bank of America checking account" in addition to a printed e-mail from the blog's managing editor specifically describing to Chen how he was protected by California's journalism shield law. Perhaps the police just wanted to take the printout to REACT's batcave, where the light is better for thoughtful reading? At any rate, Zetter noted that the use of the warrant was improper in these circumstances, according to a civil liberties expert:

Jennifer Granick, civil liberties director for the Electronic Frontier Foundation, said Chen is protected from a warrant by both state and federal laws.

The federal Privacy Protection Act prohibits the government from seizing materials from journalists and others who possess material for the purpose of communicating to the public. The government cannot seize material from the journalist even if it’s investigating whether the person who possesses the material committed a crime.

Instead, investigators need to obtain a subpoena, which would allow the reporter or media outlet to challenge the request and segregate information that is not relevant to the investigation.

“Congress was contemplating a situation where someone might claim that the journalist was committing a crime [in order to seize materials from them],” Granick says.

California state law also provides protections to prevent journalists from being forced to disclose sources or unpublished information related to their work.

“California law is crystal clear that bloggers are journalists, too,” she says.

Orin Kerr explained that until the affidavit in support of the warrant is made public, it's not clear whether the warrant was issued properly; notwithstanding, he was able to offer some (preliminary) thoughts about the applicability of California's journalism shield law and the Federal Privacy Protection Act:

[A]t least at first blush... it seems certainly possible that a court could construe [one section of the California statute's] language as meaning that at least part of the warrant violates the California warrant statute. Note that this might be a rather weird result. The unpopular outcome in Zurcher was that the government could target the news-gathering process even though reporters had no involvement in the crime: The police could execute warrants at news offices simply on the theory that crime reporters would have evidence of crime that they would gather in their work. In contrast, the claim here is that the law doesn’t allow state officials to get warrants even if the claim is that the reporters themselves have engaged in crimes. But the California law doesn’t clearly make that distinction, as best I can tell.

....In contrast, the federal version of the same basic law, the Privacy Protection Act, 42 U.S.C. 2000aa, does make that distinction. While it protects journalists and reporters from warrants targeting them for news collected, it mostly allows such warrants if the warrants are targeting the journalist/reporter as the person who committed the offense, which would seem to be the alleged theory of the crime in this case. See 42 U.S.C. 2000aa (a)(1). But we really can’t be sure without looking at the affidavit. Notably, the remedy for a PPA violation is a civil lawsuit, not suppression of any evidence, and there is also a good faith exception to liability.

Scott Greenfield suggested that any analysis of the coverage of California's shield law or the Federal privacy act should wait until the authorities can demonstrate that probable cause existed:

The "authorities have questions?" So what? Questions aren't cause. Probable cause is that quantum of evidence sufficient to make a reasonable man believe that a crime was committed and that evidence of that crime could be found at the location where the warrant allows. This was purely a fishing expedition.

....

[I]f you don't know whether a crime has been committed yet, then you've got no basis to go fishing around Chen's place for answers.

....

From the face of the warrant, it looks awfully broad, as if whoever drafted it, and the judge who signed it, don't have a particularly good feel for technology, and consequently gave blanket authority (overbreadth, be damned) to seize anything and everything that might conceivably come into play. You know, better safe than sorry when it comes to stuff you don't understand.

I'm sure Gawker Media, Giz's parent company, will find Chen a really top notch criminal lawyer to fight for his property back. I'm sure that they will come to the realization that the efforts of their in-house counsel, by providing a very strongly worded letter for Chen to hand the police, demanding that they not violate Chen's journalist privilege, must have given a bunch of cops a really good belly laugh. And that's why the Gawker lawyer should go back to doing Gawker-lawyer-type stuff and stay away from search warrant.

Maybe the next step of this Apple fascination will focus on the unscrutinized questions of why the cops are doing the clean up for Apple, and how exactly a warrant issued before anyone has decided that a crime occurred? With all the techies types fascinated with anything Apple, maybe we'll broaden this whole probable cause thingy to the point where even lawyers obsessed with iPads think about it. It could happen.

The governor of Arizona signed a law this week vastly expanding local police powers to investigate immigration status. Many — including many within the legal blogosphere — immediately criticized the state's decision to enforce existing immigration laws where the Federal government has been unable or unwilling to do so, or characterized the frequent verifications of identity and status required by the law as akin to Nazi Germany. Tsk, so negative — and inappropriate, since Constantin Film has claimed all online Nazi references. I was glad to see Scott Greenfield took a more reasonable position and celebrated a new era of police friendliness in the Grand Canyon State:

[T]his is the heart of the law.

FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

It begins with "any lawful contact." There's nothing unlawful about saying "good morning" to a dark skinned fellow in blue jeans walking down the street. It's just being friendly. Certainly, cops can be friendly. But now that lawful contact has been made, the response of "buenos dias" may take on new meaning.

The second prong is "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States." This gets a bit dodgy. Does looking like a foreigner suffice for reasonable suspicion to believe the fellow is an illegal? They don't have scarlet letters on their foreheads, and it's not clear what part of their appearance, speech or dress would distinguish a legal alien from an illegal. Or even a citizen from an alien. From my view, it's going to be very hard to tell the illegals from others. But there's no harm in asking a question between friends.

But there's nothing wrong with the police officer, after a friendly greeting, asking a fellow if he's an illegal alien. I mean, it's just a question and there's a common law right to inquire. He can't force the guy to answer. But if he does answer, then the cop can ask for some proof, since the dark skin fellow asserted he's here legally and the officer would be remiss if he didn't followup. On the other hand, if he runs from the officer rather than answer, well, that's suspicion since a legal immigrant would never do that. And it's definitely suspicious if he refuses to answer.

If the Spanish speaking guy says he doesn't have his proof of citizenship on him, then the officer will be required to determine his immigration status with the Feds. That could take a while, of course. A day or two. The Feds are busy, you know, and can't always answer the phone, or run the computer check, or care.

You know, rereading Greenfield's post as I quoted it here, I'm not so sure he really was sincerely celebrating a new era of police friendliness in the Grand Canyon State. Thankfully, Norm Pattis made things easier for me when he unequivocally proclaimed that because of a provision in this new law he is moving to Arizona:

Arizona's new immigration legislation wasn't enough to make me think of moving there. The thing that caught my ear is a provision in the law giving ordinary citizens a private right of action if the police do not do their job. It's enough to set me to thinking about packing my bags and heading Southwest.

The law is a civil rights lawyer's dream come true.

....

Arizona is doing something no federal court has done: It has created a right of action for citizens who want to sue because a police department is not doing its job. These so-called failure to protect claims have been a dead letter in federal courts for decades. The government's duty to protect you is largely unenforceable.

But Arizona is generous. Under federal law, a plaintiff must show actual injury. In Arizona it is enough to say a cop isn't doing his job. What are your damages for the violation of this somewhat abstract right? You needed prove them. Arizona guarantees you $1,000 to $5,000 a day plus attorney's fees for violations resulting from unlawful policies. This is taking posse comitatus to the courtroom.

This is pretty amazing stuff, but there's yet more.

Most often, a civil rights law is designed to protect a vulnerable minority from those in power. Read up on David's struggle versus Goliath when you swagger into a courtroom on behalf of the downtrodden. Arizona's law creates a crazy new dynamic: Are the cops not repressive enough? Then sue to make 'em snap the whip with more alacrity. The new law deprives police of discretion when applying one of the law's most amorphous standards -- reasonable suspicion.

There's a gold rush forming on in Arizona. Anyone out there care to enlighten me on how to seek admission to the courts of that state? Or better yet, any lawyers out there looking for experienced counsel in civil rights action to serve as of counsel in testing this law?

This law will not last long. Arizona can't afford it. In the meantime, I'm looking for cowboy boots and a hat.

Jack Balkin suggested that regardless whether one favors or dislikes the new law, it's a moot issue as it will be found to be preempted by federal immigration policy:

The new Arizona law aims to assist in enforcement of federal laws against illegal immigration. So this is not a statute that only incidentally affects federal immigration policy. Quite the contrary: its stated purpose is to cooperatively assist the federal government in protecting the nation's borders, identifying illegal aliens, apprehending them, and delivering them to federal authorities. The bill was deliberately written to be preemption-proof by tracking federal definitions and placing state law enforcement officials in the service of enforcing federal law.

If so, how can the law be preempted by federal law? The answer is that the federal government might well believe that Arizona's attempt at helping it enforce its immigration laws is counterproductive and therefore actually conflicts with federal enforcement policy. In this case, the fact that Arizona is tracking federal definitions of who is an illegal alien might make things worse for the law's constitutionality, not better. First, Arizona will not be able to justify the law on the grounds that it has only incidental effects on federal immigration policy; Second, it will be more difficult for Arizona to argue that the scope of its new law is not already occupied by the federal scheme and that the law does not interfere with federal law's balancing of the relative costs and benefits of adopting particular enforcement policies.

Balkin continued, further suggesting that if the aim of the law was not to complement federal enforcement of existing immigration laws but to "stick a thumb in the eye of the federal government by engaging in draconian measures", the new law would be invalidated. I'll confess that I'm not the Constitutional scholar that Balkin is, but I'm hard-pressed to understand how this measure is invalid because it adopts the existing Federal definitions, would be invalid if it created new definitions for "legal" status, is invalid because it cooperates with Federal laws and aids Federal enforcement, would be invalid if it actively inhibited Federal enforcement of immigration laws, and is invalid because (apart from the actual words of the statute) it embarrassingly draws attention to the failure of the Federal government to do what it should be doing already. Yes, immigration is a Federal concern, but they've made their laws and, whether for political gain or through inattention or inability, have largely failed to enforce them in border states like Arizona. That failure has very real social and financial costs for such states particularly and for the rest of the nation more generally.

Balkin wrote that "opponents of the new law would be well advised to assemble a factual record demonstrating how enforcement of the new law interferes with federal policy or makes it more difficult, for example, by alienating Latino communities and other local organizations in Arizona, thereby making them more reluctant to provide information or cooperation in ways that assist enforcement." I find it very hard to believe that any impartial fact-finder would buy that circular logic. The state is endeavoring to police what the Federal government identifies as illegal but does not police itself. Following Balkin's suggestion, opponents of the new Arizona law would argue that, until now, before passage of that new law, "Latino communities and other local organizations" were willing to provide information to authorities in ways which assist enforcement; we and the people of Arizona can see by the results that either that community cooperation or the Federal enforcement it purportedly enabled has not occurred. People much, much more cynical than myself might venture that this entire construct of a community-supported Federal enforcement strategy undermined by Arizona's new law is little more than a fraud suggested to accomplish other ends.

Tom Smith resides in a border area himself and can see both sides of this difficult issue:

This is one of those cases in which one of my knees jerks one way and the other knee the other. It is symbolic of a free society that the people there (legally anyway) do not have to carry papers around with them and prove to the police their lawful status. Not for nothing is the demand for "Your papers!" (in German or French or Russian) redolent of the worst abuses of European style police states. I don't blame people for being alarmed at this law.

But on the other hand, it does seem that things in Arizona have gotten completely out of hand, for the simple reason that the federal government is not maintaining anything like a secure border with Mexico. I live just a ways, maybe 15 miles or so north of the border. I try to follow the news about what is going on in northern Mexico, and now, it is all about the drug war. In the course of this war so far 22 thousand people have been killed.... Worries that Mexico may become a failed state do not seem misplaced to me. Evidently now some of this criminal culture is seeping into Arizona, and drug and human trafficking organizations are establishing themselves there. Arizonans apparently perceive the situation as out of control, and how could they not.

....

Of course the police can't be going around demanding proof of legal status from every Hispanic person they see. But fear of offending people is no justification for failure to provide basic security for citizens against foreign invasion, not by an army in this case, but by people too many of whom are ready to inflict serious harm on others.... It should go without saying, but I will say it anyway, that I am talking here about illegal immigrants who come into the US and commit crimes. I am not talking about people who are here legally to work, or even about the middle category of people who are here illegally but make a net contribution to society by working and paying taxes. This last category presents are really problem for immigration policy and for places like Arizona. Somehow the criminals have to be sorted out from the productive members of society and something reasonable and humane figured out for the latter group, and what this would be, I don't know. But the difficulty of figuring this out should not mean letting Arizona revert to a lawless frontier while we ponder and argue.

It does strike me as nuts that with the billions we are spending propping up GM and promoting democracy in Iraq, not to mention all the money we are just wasting, we can't put enough boots on the ground and choppers in the air to make the southwest of this country, which is part of, you know, the union, secure. Maybe this law that Arizona has passed will serve as a wake up call to the feds. Or maybe Arizona will serve as an experiment in the laboratory of federalism about how states can provide basic functions when the federal government is unable or unwilling or perhaps in the future too broke to do so.

If Arizona seemed like a foreign country to some this week, Dan Harris reminded us what a real foreign country looks like; he posted a very useful (for those of us who do business in China, anyhow) e-mail from Steve Dickinson identifying key aspects of Chinese employment laws and highlighting some differences between those practices and American ones. Halfway around the world in Britain, Victoria Russell discussed how existing employment laws address some of the consequences of the recent volcano-related disruptions there. She wrote:

It may be a good time to consider updating employment contracts generally, to have provisions in place for such situations, not least because the unpronounceable Icelandic volcano isn’t finished yet ….. but then we would say that wouldn’t we.

I was all prepared to pack my bags and (once the skies cleared, that is) move to Britain, but then I read Carl Gardner's recent opinion piece in the Guardian newspaper; running a lap-dancing club is not a basic human right in Britain?! Nevermind then.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Scrape TV (Charlie Chaplin in The Great Dictator), Boing Boing (Doormat), and Paris Odds n Ends Thrift Store.