TGIS: Thank God It's Schadenfreude! (268)

This week's joy in the misfortune of others comes courtesy of Reuters (from Wednesday, April 28; link good at time of posting):

A man who thought he was sailing along the coast of southern England had to be rescued by emergency services after his motor boat ran out of fuel while repeatedly circling a small island in the River Thames estuary.

The man, who had no nautical guides and only had a roadmap to navigate by, had been trying to sail from Gillingham, about 35 miles east of London, to Southampton on April 19 by following the southern coast of England.

But he ended simply doing laps of the 36-square mile Isle of Sheppey a short distance away in the mouth of the Thames.

Eventually a lifeboat and coastguard were sent to rescue him after he used up all his fuel and ran aground, officials said on Wednesday. He told them he had been trying to navigate by keeping the coastline to his right.

[Previous TGIS]

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.

There's a lot of IP in "Phillips".

This week's Blawg Review #261 is hosted by Jeremy Phillips at The IPKat. He was recruited to host the carnival of legal blogging on World Intellectual Property Day and he offers a good collection of recent legal blogging on intellectual property topics. Amongst the topics are Geographic Indications in world trade ("Dutch-Style" cheese made by a New Zealand company and sold in Hong Kong), the (mis)use of trademark references to God (the big cheese Himself), and a noteworthy trade secrets blog which has failed to find a good home (uh... the cheese stands alone?).

Blawg Review #262 will be hosted next week at the PUBLICintellectual blog.

TGIS: Thank God It's Schadenfreude! (267)

This week's joy in the misfortune of others comes courtesy of The Inquisitr (from Wednesday, April 21; link good at time of posting):

[Previous TGIS]

A Round Tuit (28)

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 Pope plans to arrive in Britain this autumn for a scheduled visit; whether he leaves the country after an unscheduled arrest remains to be seen. In the wake of new revelations about the widespread and systematic sexual abuse of children within the Catholic church, two prominent British atheists, Richard Dawkins and Christopher Hitchens, have proposed that Pope Benedict be arrested when he arrives in England and be brought to trial on charges relating to the abuse and the church's efforts to conceal it over a period of decades. Their suggestions have met with a certain degree of public acclaim. Whether the plan is legally tenable was considered in some depth by several legal bloggers this week.

Allen Green, whose Jack of Kent blog has been shortlisted for the prestigious Orwell Prize, can understand the sentiments of those who would arrest the Pope, but urged that such a course of action would compromise the liberal values it purports to uphold:

There would be a certain irony if Joseph Alois Ratzinger, the 265th "pope", was arrested, charged, convicted, and punished in controversial circumstances.

For after all, that is what supposedly happened to Jesus of Nazereth, and so led to the various religious movements which we now generally call "Christianity".

Such an irony would in some ways be pleasing, for the Roman Catholic church has long sought arrogantly to put themselves beyond the reach of the civil authorities.

In principle, watching the pope do the "perp walk" - perhaps handcuffed to some surly female police officer - would be satisfying to those, like me, of a strong atheist and anti-clerical temperament.

However, such fantasies must yield to the fundamental liberal requirements of due process and the rule of law.

Of course, Ratzinger should not be immune from arrest or charge, prosecution or punishment, just because he is the pope; but he also should not arrested or charged, prosecuted or punished, just because he is the pope.

....

There is always an impulse to use the coercive power of law as an aid in controversial issues: for example, alternative health practitioners sue for libel just as Christian Evangelicals used to try and bring blasphemy prosecutions.

But it is an impulse one really should resist.

Dapo Akande explained the uphill battle prosecutors would face to overcome the Pope's immunity from criminal prosecution as the head of the Vatican state:

[T]his attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.

The reason the Pope cannot be arrested and prosecuted in the UK is because he is entitled to Head of State immunity. Dawkins and Hitchens are not unaware of this problem. Apparently they have enlisted Geoffrey Robertson QC to provide an opinion stating that the pope is not a head of State and therefore not entitled to head of State immunity. Robertson elaborates on this point in a recent article in the Guardian. Robertson argues that the Pope is not entitled head of State immunity as a matter of international law because the Vatican is not a State. His arguments are simply incorrect. The Vatican has a tiny territory and a tiny population but it does fulfill the criteria for Statehood.

....

[A]s far as I know Britain has not objected in the past to the Vatican’s claims to be a State nor has it, as far as I know, opposed the Vatican’s accession to treaties that are only open to States.

....

The suggestion that the Pope could be indicted by the International Criminal Court will fail for similar reasons. Although the Vatican is not a party to the Statute of the ICC, the ICC will have jurisdiction over acts committed on the territory of States parties. But, even if these acts amounted to crimes against humanity – and that would be very hard to prove – the Pope would still be entitled to immunity as the head of a non-Party State. The indictment of Sudanese President Bashir is not a precedent here unless those mounting this campaign are able to get the Security Council to refer the case to the ICC. I have written on these issues at length on this blog and elsewhere so I won’t go into the details of the argument. However, the immunities of non-parties to the ICC Statute is recognised by Article 98 of the ICC Statute

So the campaign to get the Pope arrested has generated enormous media coverage but the legal analysis deployed in support is very weak indeed. Don’t expect to see the Pope in handcuffs anytime soon.

Carl Gardner noted that while the Pope's immunity claim is a strong one, it need be considered only if credible criminal charges could be brought; Gardner considered crimes against humanity as defined under the Rome Statute and criminal statutes in Britain and concluded that these could not:

I admire both Dawkins and Hitchens immensely, and agree that the Pope should be held accountable for his own actions and for the policies of his church. I support their efforts to have him subjected to international law in just the same way as any ruler. And few things give me greater pleasure than the knowledge that, although baptised and confirmed in the Church of Rome, I am now excommunicated from it. I hope I’ve made it clear that I am no fan, and no defender, of the Pope. But I don’t see how he can be arrested or put on trial when he visits England later this year.

Geoffrey Robertson QC, who with Mark Stephens is considering possible legal avenues of redress, places great emphasis on the question of the Pope’s immunity as a head of state, arguing that it does not apply, either because the Vatican is not a state or because in any event, there is no immunity from prosecution in the International Criminal Court. I think he has a decent argument on the first point, and he’s right on the second – see article 27 of the Rome Statute.

But before any question of immunity arises, the prior question is whether there’s any offence for which the Pope can be arrested or with which he can be charged in the first place. Only if there is does he have any need of immunity.

....

At this point, I can hear some readers thinking, how come a warrant was granted recently for the arrest of Tzipi Livni recently, the former Israeli foreign minister? The key difference in that case was that the warrant was sought in respect of an alleged offence under the Geneva Conventions Act 1957, which provides for universal jurisdiction. A war crime under that Act can be committed by anyone, anywhere. Whatever else the Pope might be guilty of, it isn’t war crimes.

Gardner explored these issues further in an excellent podcast interview with Charon QC and in a follow-on post wherein he rebutted the arguments made by the Catholic Union against Dawkins' and Hitchens' proposal:

To say, as they do, that

There is not a single criminal offence under British law which could conceivably be alleged against Pope Benedict

is I think putting their case unnecessarily high. I agree there’s nothing he can realistically be arrested for, but to consider the documentary evidence of what he has done in the past in legal terms, as Richard Dawkins and Christopher Hitchens have asked lawyers to do, and to suggest that international human rights law may be or should be relevant is neither inconceivable nor “risible”, as the Catholic Union also suggests.

I don’t think they help their moral case by implicitly arguing on technical grounds that the Pope, or Cardinal Ratzinger as he was, cannot be legally responsible for the Church’s actions... [w]hich amounts to defending him on the basis that “he never gave any orders”. This strikes me as the worst sort of casuistry.

He was even more dismissive of the Catholic Union's suggestions that discussion of the Pope's potential arrest and criminal liability for the crimes undeniably committed by so many priests and covered-up by the official church amounts to incitement of religious hatred, a crime in Britain.

If the Pope can't be charged, much less convicted, under applicable international and British law, can he be sued in a civil court? It may be difficult to prevail, but Antonin Pribetic suggested that it may be possible. He discussed a number of precedents in the United States and Canada and concluded:

In my personal opinion, absolute immunity is inappropriate in cases where the Vatican or Holy See directly aids and abets the cover-up of sexual abuse by its priests by transferring them to a different parish in order to avoid public scrutiny. State immunity for tortious acts by priests, bishops or cardinals (or any other employees of a religious organization) is not sacrosanct. The commercial activity exception falls squarely in the respondeat superior (employer-employee) context, irrespective of the nature of the work or services performed, whether or not it is "good works" or "salvation".

Supreme Court Justice Stevens' pending retirement has been mentioned once or twice in the legal blogosphere recently. While many bloggers have speculated about the impact Stevens' departure will have on the Court's jurisprudence in coming years, none has done so more competently or comprehensively than Tom Goldstein this week. Goldstein detailed the future of the Stevens-less SCOTUS (as best anyone can, considering the fact that we don't yet know President Obama's nominee to replace him) in Constitutional and other law; he summarized these assessments for us:

The single largest body of cases in which Justice Stevens’ retirement could hypothetically shift the balance on the Supreme Court involves ideological issues on which the four most liberal Justices (Stevens, plus Souter, Ginsburg, and Breyer) joined with Justice Kennedy to create a majority. But although these cases involve very important issues, most of them are not very relevant to an examination of how the Court might shift because for that to occur Justice Stevens’ successor would have to be more conservative than not just him but also each of the other four members of the majority: Souter, Ginsburg, and Breyer, but also (the reasonably conservative) Kennedy. That is very unlikely.

....

There nonetheless are a couple of issues... for which a new appointment could realistically change the result because the issues do not necessarily track the traditional liberal-versus- conservative breakdown: executive power and preemption.

Thus, the Court has been narrowly divided, with the left prevailing, in cases relating to the rights of military detainees to have access to the federal courts, including particularly on federal habeas corpus. A nominee who had a substantially more robust view of presidential powers, or even greater confidence in this Administration’s approach to detainee questions, could shift the course of those rulings. In addition, other important presidential-power questions are headed towards the Supreme Court, including with respect to the NSA wiretapping program.

On preemption, Justice Stevens recently had significant success in securing a majority for two important opinions limiting the extent to which federal law trumps state law. His successor could take a broader view of the extent to which federal law controls, which would allow fewer state-law tort suits to proceed.

....

Another example is the death penalty, where Justice Stevens (who late in his tenure concluded that the death penalty is unconstitutional) was relatively willing to provide a vote in favor of stays of execution. His replacement might be less willing to do so.

For those who are looking for an assessment of Stevens' departure "in plain English", Goldstein's co-blogger, Lisa McElroy provided it:

A President’s number one criterion in this day and age? Confirmability. The Constitution states that a President’s choice is subject to the “advice and consent” of the Senate. That’s why we see these seemingly endless meetings between Senators and the nominee (remember Justice Sotomayor making her rounds with a broken ankle?) and the days-long confirmation hearings in which Senators ask the nominee difficult questions in an attempt to determine her confirmability. No President wants to be “Borked,” or have his choice’s character and judicial temperament disparaged and destroyed (as in the case of Judge Bork), and no President wants to have his choice exposed as lacking in experience or smarts (as in the recent case of Harriet Miers). In fact, no President wants much of a fight at all – he’d like to see his nominee sail through confirmation, as Justice O’Connor did with a unanimous vote in 1981. But the days of unanimity are over, at least for now, and so a President must choose someone who is less, rather than more, controversial. That – and the fact that the Republicans have threatened to filibuster an unpalatable nominee – may mean that Obama’s choice will be more moderate than liberal, or perhaps lacking in a judicial record.

For all the discussion of ideology, however, Erik Gerding hopes that the nominee will be able to add a bit of practical business experience to the Supreme Court mix. He wrote that "the Court has not had a justice with significant transactional experience since Lewis Powell retired" and reassured liberals that "[h]aving a business law background doesn't necessarily make one "conservative," even on business law issues. Example: William O. Douglas." Frankly, after what we witnessed this week during arguments in City of Ontario v. Quon, a fifth-grade level understanding of modern technology might not be another qualification worth considering. Before we arrive there, however, let's take a look at the case itself.

Lyle Denniston previewed the case and explored its somewhat complicated facts. In a nutshell, an Ontario, California police officer sent a number of sexually-explicit and otherwise indiscreet text messages to his estranged wife, his girlfriend, and a male colleague using a City-issued pager device. The content of the messages was obtained by the City from the service provider and, as they say, hilarity ensued and the City was sued by the officer — Quon — and those with whom he corresponded. Denniston outlined the legal issues:

It has been long been clear that government employees have some privacy while they are at work in their public jobs. The Supreme Court reinforced that notion a quarter-century ago in O’Connor v. Ortega, declaring that “individuals do not lose their Fourth Amendment rights merely because they work for the government instead of a private employer….We reject the suggestion…that public employees never have a reasonable expectation of privacy in their place of work.” That 1987 decision — still regarded as the Court’s leading pronouncement on privacy in the government work setting — involved the search of a California state employee’s desk, files and cabinets in his office, turning up only personal items; the worker’s work-related files were kept elsewhere.

The O’Connor precedent’s application to texting to and from a government employee’s pager is now before the Court in a new case from California, City of Ontario, et al., v. Quon, et al. It has a special factual twist that may, or may not, make a difference: the pagers involved were provided to members of the Ontario Police Department’s SWAT team by the Department itself, for official use. That, however, only refines the issue before the Court into a more specific question: no matter who owns the device, is there a right of privacy in the text messages to and from the police officer using the device? A related question is how or when that right might be violated by a government agency or supervisor.

....

This is another case in which the Court’s view of the facts may powerfully influence its reaction to the constitutional arguments. If, as the O’Connor precedent seems to require, the Court must look at the particular facts that each public employee privacy case presents, the Justices must satisfy itself that it knows what those facts actually are. It thus will find itself moving past the “spin” that each side puts on the facts on operations of the Ontario Police Department, to see if it can establish what actually happened. Just as one example: suppose that the Court were to view the actions of the police lieutenant as crucial to the constitutional equation, these are some of the factual disputes it will have to resolve: what did the lieutenant say about use of the devices, when did he say it, how binding was what he said, did he switch later and give actual — or implied — permission to do private texting, how did Sgt. Quon and others on the force interpret what they were told by the lieutenant? Or take another example: did the city have a no-privacy policy that actually applied to pagers?

Although the Justices usually can rely on the lower courts’ articulation of the facts in a case, it is evident, from the exchanges in the en banc Ninth Circuit when it passed up further review, that not even those judges, closer to the scene, could agree on what the facts are.

Moving beyond that fundamental task, the Court may well have to provide some clearer guidance than it has up to now about what it meant, in O’Connor, about taking into account the “operational realities of the workplace” in evaluating the breadth of public employee privacy and the scope of Fourth Amendment protection for that privacy.

Also previewing the arguments, Daniel Solove pointed-out that the Court's inquiry may not end with a consideration of Quon's expectation of privacy:

Suppose the Supreme Court finds that Quon lacks a reasonable expectation of privacy in his text message communications. What about the other people, including Quon’s wife, who had no idea whether the city was monitoring Quon’s communications or not?

....

What if the Court were to expand the misplaced trust doctrine to encompass not only situations where any party to the communication consents but also to situations where any party to a communication lacks a reasonable expectation of privacy? This would create a very broad and unprecedented hole in Fourth Amendment protection.

Orin Kerr attended the arguments and provided an early impression of their tone and focus:

Based on the questions, the strongest proponent of Fourth Amendment protection in this case appeared to be Chief Justice Roberts. Yes, seriously.

....

There was a lot of discussion of the Stored Communications Act, and whether breach of a statutory privacy law essentially created or at least helped make the case for a Fourth Amendment violation. I don’t think there was a real resolution of the issue, or that enough Justices tipped their hand on this, but there was a lot of discussion of it. As I’ve written here before, I don’t think the statutory questions should be part of the constitutional inquiry: Especially so with a hypertechnical statute like the Stored Communications Act. But there were at least some Justices (including Roberts, if I recall correctly) who seemed to think SCA violations were relevant to whether there was a constitutional violation.

Kashmir Hill was struck by the what the arguments revealed about the general lack of awareness at the Court of basic modern technology characteristics and capabilities:

The facts in the case make it complicated enough to warrant SCOTUS review. But what seemed especially complicated to The Nine were the technological issues.

Stepping into One First Street is like stepping back into the 1950s. No Blackberries or electronic devices allowed. No cameras (in spite of C-SPAN’s fervent wishes). The most technologically advanced items in the courtroom are the microphones. So it seemed appropriate then that many of the justices’ questions strayed away from reasonable expectations of privacy and proper searches, and got into how exactly texting works…

If you were to split the Court into two categories — The Hip Justices and The Hip-Replacement Justices — Chief Justice Roberts would fall into the former category.

....

It’s fair to say that his fellow justices are less comfortable. Justice Kennedy, 73, doesn’t appear to be a frequent SMSer.

Surprisingly, as Hill noted in another post, even the attorneys who argued the case were not especially clear on the finer details of the technologies involved:

Quon’s lawyer didn’t know whether deleting a message on his pager would erase the message from the wireless company’s transcript (My guess is that it would not.) There was a lot of talk about how you could review Quon’s messages to see how many were for work-purposes and how many were personal, without actually looking at the messages themselves. The obvious solution to me was to sort them by number dialed, and then figure out which were work numbers and which were personal numbers, but that solution was not raised. Instead, Quon’s lawyer suggested that the transcripts could have been printed out and that Quon could have redacted the personal stuff.

Only Unfrozen Caveman Lawyer couldn't have responded better, I think. Even the relatively-hip Chief Justice seemed a bit flummoxed by the differences between a pager like the City of Ontario-issued one used by Quon and e-mail. Ashby Jones highlighted a few particularly galling exchanges:

[T]he first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)

At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Maybe the justices are against cameras in the court because when they think of cameras, they think of those huge cameras on tripods with the cloth to cover the photographers and the supernova flash-bulbs.

Brett Trout rightly concluded that the Court's lack of familiarity with current technologies ("current" being very generously defined here) handicaps its ability to competently decide matters which are inherently technological — like many patent cases — or even where technology is more incidental to the facts, as in Quon. Trout wrote:

With billions of dollars hanging in the balance in cases like In re Bilski, it is imperative that courts fully inform themselves about the technologies at issue and the ramifications various judicial rulings will have not only on the specific technology at issue in the case, but on technology as a whole. Uncertainty in this decision-making process or the appearance of a less than fully informed judiciary encourages untoward actions in the industry and discourages desirable conduct. The announcement of Justice John Paul Stevens’ retirement provides President Obama the perfect opportunity to add certainty to this decision-making process, by selecting a technological savvy Justice to the Court. Selecting a technophile would not only provide the Court with much needed expertise, but would allay concerns, however unfounded, that future decisions of the Court might be decided on Twentieth Century notions of Twenty-First Century technology.

Forget cutting-edge technology; at this point, familiarity with mainstream technology would be welcomed at all levels of the judiciary, including our highest court. Fifteen years ago, we could find some humor in the judge or lawyer who was not just befuddled by or resistant to technological advancement, but wore his Luddism like a badge of honor. There's no honor in it anymore and there's very little humor to be found, either.

The much-anticipated decision in U.S. v. Stevens was handed-down this week and it was a nearly-unanimous victory for First Amendment rights. Lyle Denniston summarized the decision:

Refusing to remove another form of expression from the protection of the First Amendment, the Supreme Court on Tuesday ruled 8-1 that the government lacks the power to outlaw expressions of animal cruelty, when that is done in videotapes and other commercial media. The Court noted that it had previously withdrawn “a few historic categories” of speech from the First Amendment’s shield, but concluded that “depictions of animal cruelty should not be added to the list.” The decision nullified a 1999 federal law passed by Congress in an attempt to curb animal cruelty by forbidding its depiction. That law, the Court said, sweeps too broadly.

The Court, in an opinion written by Chief Justice John G. Roberts, Jr., stressed that it was not restricting the power of government to punish actual acts of animal cruelty, and it noted that such prohibitions have “a long history in American law” and now are on the books in all 50 states and Washington, D.C. But it said there was no similar history behind Congress’s attempt to ban video or other portrayals of acts of cruelty to living creatures.

....

Recalling its precedent putting child pornography outside the First Amendment, the opinion said that the Court had done so because the depictions of such pornography was necessarily linked to actual abuse of children in the production of such materials. That approach, and other cases discussing what the First Amendment does not protect, the Court added, “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

Marc Randazza was overjoyed at the result, calling it "a sunny day for the First Amendment". He was less complimentary of dissenting Justice Alito's position on the wrong side of the decision:

[I]t appears that Alito has decided to become the modern-day Rehnquist as he issued a 19 page dissent in which he seems to demonstrate a complete lack of understanding or respect for what the First Amendment is supposed to protect. Essentially he feels that if the amount of free speech that might be burdened is small, then that is okay. He completely ignores the fact that the number of “crush videos” produced worldwide is so painfully small (I would venture to guess it is less than 10), that there would be more legal expressive conduct banned under his view than illegal conduct suppressed.

Jeff Gamso suggested that the decision came down to issues of trust:

By a vote of 8 to Alito, the Court did the right thing. It refused to carve out a new exception to the First Amendment. And it refused to trust the government. Wisely, of course.

....

Roberts wrote the opinion. Here's the money quote:

Not to worry, the Government says: The ExecutiveBranch construes §48 to reach only “extreme” cruelty, Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6–7. The Government hits this theme hard, invoking its prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).

It's that line about noblesse oblige that should be put on placards.

David Kopel noted that this "big First Amendment win" was made possible by the overbreadth of the invalidated statute and the government's unconvincing assurances that it would use those overbroad powers with restraint:

The government argued that hunting videos and magazines are protected by the exception for depictions of “serious” educational, journalistic, etc. value. However, as the Court notes, relying on amici briefs from Safari Club International, the Congressional Sportsmen’s Foundation, and the National Rifle Association, many hunting videos or magazines are not instructional, artistic, or historical, but are mainly for entertainment or recreation. The government urged that the exception be applied to any depiction which has at least “scant” value. However, the majority declines to read “serious” as equivalent to “scant.”

....

[T]he statute is plainly invalid under well-established First Amendment doctrine.

Ashby Jones appreciated the First Amendment significance of the decision, but suggested that the content of the speech at issue in this case made that decision harder for the Court's majority, as it would have for many of us:

It’s one of those arguments that make even the most fervent free-speechers flinch a little bit — does a First Amendment right attach to videos that show graphic violence against animals?

Frankly, we can’t imagine who would want to watch such a video — or, further, who would want to make such a thing. And we’d bet the justices all feel the same way.

At the Popehat blog, Patrick put it just as aptly and even more succinctly, summarizing the decision thusly: "Bullfighting Videos And Old Yeller Are Still Legal. The First Amendment Survives. Robert J. Stevens Is Still An Asshole." He continued:

The statute, according to the Court, is blatantly unconstitutional in that, as written, it goes far beyond the dog-fighting and “crush” videos (you don’t want to know) Congress claimed to be outlawing, to prohibiting possession of Field & Stream in the District of Columbia, where hunting is illegal. Cockfighting videos would be legal in Puerto Rico, where the “sport” is legal, but illegal in all 50 states. Fishing magazines would be legal everywhere, but Goth music videos, all of which for some reason feature gasping fish out of water, might be criminal, though fish suffocation features prominently in each.

Of course the government, in defending the statute, says it would never seek to prosecute Field & Stream subscribers in DC, and would never imprison cockfight journalists in Puerto Rico. We just want to go after those evil dogfight video makers and the like. “Trust us.”

Fortunately in this case the Court doesn’t seem to trust the government, which receives a rebuke worth reading from the Chief Justice. As does Congress, for its incompetent drafting of a statute which, while intended to eliminate only one sick and obscene form of entertainment, does indeed by its terms ban hunting magazines in DC. Congress drafted an elephant of a law, to kill a gnat.

There were new revelations this week in the surveillance scandal involving the Lower Merion School District in Pennsylvania, about which I wrote a few weeks ago. When the scandal broke, Radley Balko was appalled, as many of us were, by the allegations of surreptitious surveillance of underage students by school administrators; at that time, however, he suggested that perhaps the plaintiffs' contentions about the amount of surveillance were somewhat exaggerated. As new information surfaced this week, he reassessed:

I was a little skeptical when the story of the Pennsylvania school snapping photos of its students through the cameras in school-issued laptops first came out. I thought the story had the signs of being a bit overblown.

I stand corrected. Jesus.

Dan Filler also noted the new findings:

Now it turns out that in the last two years, the surveillance system was used 146 times and captured 56,000 photos. While most of these were probably within the officially intended scope of the program, technicians failed to stop the surveillance even after several of the computers were found. In fact, 13,000 of the pictures were snapped after computers had been located. The district assures everyone that nothing really inappropriate was photographed. No need to worry, folks. But hey - we did notice that your wallpaper is peeling in the corner!

At the Popehat blog, Ken took a closer look at plaintiff Blake Robbins' motion for sanctions against the school district administrator:

The motion seeks sanctions against district administrator Carol Cafiero, one of two people who ran the webcam program, for refusing to produce her home computers for examination. The judge previously granted Robbins’ motion to compel Cafiero to sit for deposition; in light of the pending federal grand jury investigation of the incident, she prudently took the Fifth. Quoting emails produced in discovery, the motion paints an ugly picture of Cafiero’s attitude towards her ability to spy on kids through their webcams. The motion claims that an IT staffer wrote to Cafiero that using the webcams was like a window into “a little LMSD soap opera,” and claims that Cafiero responded “I know, I love it.”

Robbins’ motion goes much further than that. It rather unfairly accuses Cafiero of being a voyeur, which I think is an irresponsible and baseless accusation — at least if “voyeur” is defined as someone who derives sexual pleasure from secretly viewing others. Robbins doesn’t cite any evidence that Cafiero used the system for sexual gratification. The quote from her, however, suggests that she used it for bureaucratic gratification — the pleasure that petty officials take in nosing into the private lives of citizens. It may not be sexually perverse, but it is, in fact, sick and despicable.

Karl Bode also noted these petty bureaucrats' casual disregard of the Constitution and common sense in overstepping their authority:

Even if you could somehow argue the project didn't violate the Fourth Amendment, it remains mind boggling that anybody, at any level in the district, would think that off-site covert photography of students was a bright idea for any reason. As more and more schools offer kids laptops and netbooks, this case acts as a reminder to parents and students to ask questions as these kinds of programs are developed elsewhere. It's also a warning shot to administrators who think protecting their property (or personal amusement) trumps a student's right to privacy at home. You do start to wonder where people could possibly be getting the idea that surveillance with no recourse to law or common sense is a good idea.

No doubt, when the time comes, the school district will attempt to find some exception to the Fourth Amendment which permits their gratuitous surveillance of their students; they might just find one, considering how shot full of holes the Fourth Amendment is today. Blogging as "Publius" at the Affirmative Links blog, one observer counted those holes — Terry stop-and-frisk searches, searches of vehicles incident to arrests, full inventories of impounded vehicles, DUI checkpoints, immigration checkpoints, plain view, open fields, and exigent circumstances exception, not to mention allowances for "good faith" even where authorities screw up and no exception arguably applies. Publius wondered like many of us, "How many exceptions can you have, before you no longer have a rule?"

That was precisely Scott Greenfield's concern when Orin Kerr suggested that existing Fourth Amendment law could be ported to searches in the future in a technology-neutral manner. Greenfield argued that existing law is fundamentally broken and technological advancements give us a prime opportunity to restart things, returning to the basic rule that warrantless searches are unconstitutional and starting anew from there:

It's been clear for some time that Orin's "net neutrality" approach, the application of existing "brick and mortar" Fourth Amendment precedent to evolving technologies and the digital world by analogy meant that we are doomed. Same black letter law. Same 17 million exceptions to cover every search. Same judges using the "file cabinet" analogy to explain why suppression is denied.

....

Ultimately, the technology neutral approach leaves it up to the only person in the room who can't distinguish a text message from twitter to decide which inapplicable analogy strikes him as most appealing. At least when we went from Conestoga to Packards, you could see that one had chrome and the other didn't.

Since Orin first floated his tech neutral approach, I've tried to persuade him that it was the wrong way to go. I've failed.

In comments to Greenfield's post, Kerr replied:

It seems to me that you see the choice as being between (a) your personal fantasy of what the Fourth Amendment should be or (b) a virtual version of what the Fourth Amendment is in the physical world. You then lament that if the choice is (b), because you don't like the Fourth Amendment we have now, and if we accept that Fourth Amendment we have now then we will never have the Scott Greenfield fantasy come true. But why are those the two choices?

Greenfield defended his position:

We've been through this before. The state of the Fourth is horrific, with a general rule that is observed only as lip service prefacing a million exceptions. My personal fantasy is to return to the rule. My personal fantasy is to not perpetuate an exception for everything. My personal fantasy is to not have a ibunch of judges who don't really grasp the digital world making decisions by analogy. My personal fantasy is to not have constitutional rights determined by which side can muster the cuter analogy.

My personal fantasy is to start with the rule, that warrantless searches are unconstitutional, develop Fourth Amendment jurisprudence anew for the digital world, from the position of protecting the expectation of privacy and enforcing it, without the million exceptions from horse and buggy days, or cute analogies to file cabinets, or result oriented application of rubrics that ignore the rationale. The baggage developed over the past 100 years has choked the Fourth to death. My personal fantasy is to see it live again.

Kerr agreed to disagree, suggesting that disregarding reality is both unproductive and unnecessary, considering that things aren't really as bad as Greenfield makes out:

I think existing Fourth Amendment law is actually pretty sensible, on the whole. Sure, it has some problems, and if I were king of the world, I suppose I would make some changes. But life is short, and perfection is impossible in any real-world system (especially a real-world system run by the government). So unlike you, I don't have any wish to burn down the edifice and start anew.

Kerr's view, right or wrong, is shared by the Supremes, who are not edifice-burners by any stretch of the imagination. We'll continue to argue over existing exceptions and to create new ones and in our technological future, our privacy and security are in the hands of the only nine people in existence who have less understanding of technology than my grandmother.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., "Noli Me Tangere" (Antonio da Correggio; 1534), Make: Magazine, and Paris Odds n Ends Thrift Store.

Blawg Review pays tribute to Watson and Crick, the greatest Anglo-American comedy duo since Laurel and Hardy.

This Friday is DNA Day, commemorating the 1953 scientific paper wherein James Watson and Francis Crick published their description of the double helix structure of DNA. Their discovery made possible today's precise genetic testing, without which thousands of illegitimate offspring of NBA players would be living in poverty.

Though DNA and genomics were once purely scientific inquiries, these now have many legal overtones; genetic patenting, genetic privacy, and genetic ethics are of concern to many in the legal community. This week's Blawg Review #260, hosted by Dan Vorhaus at the Genomics Law Report blog, explores a few of those issues, along with many others including troubleshooting patent application difficulties, allowing fair comment on questionable medical procedures, and wondering at the slow biotech response to social media.

The group bloggers at the IPKat blog will host next week's Blawg Review #261.

TGIS: Thank God It's Schadenfreude! (266)

This week's joy in the misfortune of others comes courtesy of The New York Times (from Monday, April 12; link good at time of posting):

It is often said that the new health care law will affect almost every American in some way. And, perhaps fittingly if unintentionally, no one may be more affected than members of Congress themselves.

In a new report, the Congressional Research Service says the law may have significant unintended consequences for the “personal health insurance coverage” of senators, representatives and their staff members.

For example, it says, the law may “remove members of Congress and Congressional staff” from their current coverage, in the Federal Employees Health Benefits Program, before any alternatives are available.

The confusion raises the inevitable question: If they did not know exactly what they were doing to themselves, did lawmakers who wrote and passed the bill fully grasp the details of how it would influence the lives of other Americans?

[Previous TGIS]

A Round Tuit (27)

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.

Neutrality used to be only for the Swiss. Now through the miracle of a series of tubes known as the internet, we can all enjoy being neither here nor there. What's that, Senator Stevens? Oh. It seems that net neutrality is something else entirely. Amir Efrati explains what it is and why it's in the news:

Net neutrality.

It’s a notion that for years has been the subject of intense debate between Internet content providers like Google who favor it and telecom companies like Comcast who don’t. In short, the debate is about how much control telecoms should have over the Internet networks they built, and whether all Internet traffic should be treated equally by telecoms.

....

It’s long been clear that some net neutrality battles would be waged in court. Today the DC Circuit Court of Appeals weighed in and handed the telecoms a victory against the Federal Communications Commission, which has supported net-neutrality principles.

The case before the DC circuit stemmed a citation issued by the FCC against Comcast in 2008 for interfering with or blocking its subscribers’ use of peer-to-peer networking applications. Those applications, such as BitTorrent, allow users to share large files directly with one another but consume significant amounts of bandwidth.

A unanimous three-judge DC Circuit panel ruled the FCC exceeded its authority when it issued the citation, ruling that Congress hadn’t given the FCC the power to regulate an Internet service provider’s network-management practices.

The legal blogosphere swung into action and rushed to post their thoughts on the decision before their ISPs shifted them back to dial-up access for twice the price of broadband. Fortunately for Elie Mystal, a friend gave him an early heads-up and he got a jump on the competition; he did not think the decision was "Comcastic":

This morning, a friend texted me, “You should do a post on D.C. destroying net neutrality.” In my best Arnold Drummond text/voice, I responded “What the f*** are you talking about, [Friend]?” See, in my world, the courts are here to help us — not to come into my home and place of business like the Visigoths hell bent on destroying the civilized world just because they can.

But my friend was right. For reasons passing understanding, the D.C. Circuit decided that today was a good day to try to ruin the internet.

....

Holy God. If you read the decision, it’s nothing short of a total smackdown of every argument the F.C.C. asserted to gain authority over the cable providers.

....

This is not good. Essentially the D.C. Circuit holds that the F.C.C. doesn’t have any authority to regulate how Comcast manages web traffic. That means that in this area, Comcast can do what it wants. That’s terrible news for people who think you should be in control of what you see on the ‘net, not your cable company.

Mitchell Lazarus was also displeased by the decision, but he wasn't entirely surprised by it:

The FCC’s position was a little shaky from the start. It never had a rule prohibiting the Comcast action that caused all the trouble, just a loosely-worded policy statement. And nothing in the Communications Act, from which the FCC derives all of its authority, specifically authorizes control over Internet traffic. The FCC thus had to fall back on a claim of “ancillary authority,” based on a catch-all statutory provision that allows the FCC to do pretty much anything “as may be necessary in the execution of its functions.”

But as the Court had previously held on a number of occasions, ancillary authority applies only if (1) some other statutory provision covers the subject matter, and (2) the challenged action is “reasonably ancillary” to the FCC’s exercising of its authority under (1). The FCC passed the first test, but not the second. The “other provisions” on which the FCC relied, said the Court, were either mere statements of congressional policy (which cannot support ancillary authority) or statutory provisions that miss the specific topics involved in Comcast’s behavior.

As a result, the FCC is legally barred from imposing or enforcing network neutrality.

Marvin Ammori took the loss a bit more personally as he was the attorney who prepared the complaint which led to the FCC's action:

I'll begin with how the decision affects you: it's really bad news for you and other Americans. I'm sorry to be the one to tell you, but I'm sure you've heard (from multiple news sources). The court decision is a stunning, sweeping defeat for the FCC and for its ability to protect consumers, foster competition and innovation, and preserve the Internet's role as an engine of free speech and democratic discourse. It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us.

....

For this post, I want to look on the bright side.

First, we succeeded in many ways, factually. Politically, we brought a case that helped educate the public and the FCC about blocking and discriminating practices that Comcast claimed were becoming an industry standard across the entire Internet, at least in the US; hundreds of thousands of people got involved to stand up for an open, free Internet; and organizations ranging from the Christian Coalition to Moveon to people who love Barbershop Quartets stood together to ask their government to preserve the democratic promise of the Internet. And, because of public scrutiny and the FCC investigation, Comcast changed its practices. Those are good things.

....

[T]he carriers backtracked, in their public rhetoric, and argued a few things.

(1) We'd never block or interfere with the open Internet, even though we have announced the intention to do just that, and are spending hundreds of millions of dollars lobbying against "net neutrality" rules forbidding us from doing that. And (2) if we ever did interfere with the open Internet, don't worry, the FCC will punish us. And (3) the FCC will have the jurisdiction to do.

So we tested those three point.

....

So: test case resolved.

1. The carriers will actually interfere with the Internet, though they will lie and say they'd never do it, and then lie and say they haven't done it.

2. The FCC will act, but only if three Commissioners are heroic enough to withstand an overwhelming political assault.

3. The Bush-era FCC decisions gave away FCC authority to protect the American public for the most important communications medium the world has ever known.

Also taking the loss personally was Austin Schlick, the FCC's General Counsel; he wrote that the decision will disrupt and complicate the agency's broadband initiatives, but will not derail them:

Does the FCC still have a mission in the Internet area? Absolutely. The nation’s broadband networks represent the indispensable infrastructure for American competitiveness and prospects for future job creation, economic growth, and innovation. The Court did not adopt the view that the Commission lacks authority to protect the openness of the Internet. Furthermore, in 2009, Congress directed the agency to develop a plan to ensure that every American has access to broadband. Just three weeks ago, the Commission released its National Broadband Plan. The Plan contains more than 200 recommendations for bringing high-speed service to underserved individuals and communities, and using broadband to promote American competitiveness, education, healthcare, public safety, and civic participation.

The Comcast/BitTorrent opinion has no effect at all on most of the Plan. Many of the recommendations for the FCC itself involve matters over which the Commission has an “express statutory delegation of authority.” These include critical projects such as making spectrum available for broadband uses, improving the efficiency of wireless systems, bolstering the use of broadband in schools, improving coordination with Native American governments to promote broadband, collecting better broadband data, unleashing competition and innovation in smart video devices, and developing common standards for public safety networks.

At the same time, yesterday’s decision may affect a significant number of important Plan recommendations. Among them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy. The Commission must have a sound legal basis for implementing each of these recommendations. We are assessing the implications of yesterday’s decision for each one, to ensure that the Commission has adequate authority to execute the mission laid out in the Plan.

So Comcast v. FCC boils down to "evil communications conglomerates can throttle-back and meter your internet usage; women, children, those living in the sticks, the poor, Native Americans, and the handicapped hardest hit". Jon Siegel discussed what's at stake (particularly if you're a Native American in a wheelchair who lives off the beaten path):

This is a big deal. It would appear, as of today, that ISPs are free to charge different prices based on the kind of content users want to access and to discriminate against certain kinds of content that they think take up too much bandwith -- peer-to-peer file sharing applications, for example. If we want mandatory net neutrality, it looks like we'll have to get it from Congress.

Not everyone was so disheartened by the opinion. Fred von Lohmann is no fan of the Comcasts of the world picking-and-choosing amongst their customers' web traffic or adding new costs based on content, but he's more leery of the FCC's attempts to impose its authority on the internet:

The ruling is not likely to make much difference to Comcast subscribers—Comcast had already agreed to cease its BitTorrent interdiction before the FCC's ruling was issued. Instead, the court's ruling is important because it represents a blow to FCC Chairman Genachowski's proposed net neutrality regulations, which are premised on the same theory of "ancillary jurisdiction" that the FCC used against Comcast and that the court rejected today.

Here's the problem: Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, the FCC decided to rely on its "ancillary jurisdiction," a catchall source of authority that amounts to “we can regulate without waiting for Congress so long a the regulations are related to something else that Congress told us to do.” Of course, this line of reasoning could translate into carte blanche authority for unelected bureaucrats to regulate the Internet long after Chairman Genachowski has moved on.

....

So while we are big supporters of net neutrality, we are glad that today's ruling has reasserted the important limits on the FCC's authority to regulate the Internet.

Mike Masnick (who became a father this week... congratulations, Mike!) channelled Martha Stewart and called the decision "a good thing":

Lots of people seem upset by this, but they should not be. This is the right decision. The FCC was clearly going beyond its mandate, as it has no mandate to regulate the internet in this manner. In fact, what amazed us throughout this whole discussion was that it was the same groups that insisted the FCC had no mandate over the broadcast flag, that suddenly insisted it did have a mandate over net neutrality. You can't have it both ways (nor should you want to). Even if you believe net neutrality is important, allowing the FCC to overstep its defined boundaries is not the best way to deal with it.

....

That doesn't mean that Comcast should get off free for its actions. It should still be punished -- but by the FTC, rather than the FCC -- for misleading its customers about what type of service they were getting, and what the limitations were on those services.

Jim Harper characterized the Comcast decision as a "crisis" we can live with:

Recall that in 2007 Comcast degraded the service it provided to a tiny group of customers using a bandwidth-hogging protocol called BitTorrent. Recall also that before the FCC acted, Comcast had stopped doing this, relenting to customer complaints, negative attention in news stories, and such.

In the wake of the D.C. Circuit ruling and the crisis it has created, Internet users can expect the following changes to their Internet service: None.

Wow. With crises like these, who needs tranquility?

“As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites,” the release intones.

That would be worrisome, though still not quite a crisis—except that Comcast would be undercutting its own business by doing that. Did you know also that no federal regulation bars people from burning their furniture in the backyard? That’s the same kind of problem.

Agree or disagree with the court's ruling, many speculated about the FCC's options. Paul Feldman discussed four possibilities: appeal to the Supreme Court, get Congress to grant them the authority they lack to regulate the internet, reclassify key aspects of internet access as telecommunications services rather than information services (and thereby bring it within their established authority), or build a stronger case for ancillary jurisdiction under the current classification. Jack Balkin also discussed the former three options, though his omission of the final one probably shouldn't be interpreted as disagreement with Feldman; Balkin wrote that "Comcast and the rest of the broadband industry shouldn't pop the champagne corks just yet". Mitchell Lazarus was cautiously — very cautiously — optimistic that the FCC could ultimately prevail:

Network neutrality – the principle that Internet providers should treat content even-handedly – seems to be dead, waiting only for someone to close its eyes and straighten its tie. The more desperate among its advocates – including at least one FCC Commissioner – speak openly about the nuclear option: a step called “reclassification.” This means the FCC would reclassify broadband Internet service as a common carrier “telecommunications service,” thereby exposing it to a wide panoply of regulation. As my colleague Paul Feldman notes, reclassification would generate opposition from several industry segments and possibly Congress, and would certainly lead to protracted court appeals. Also the legality of reclassification is in doubt. Many components of Internet service simply do not fit the definition of telecommunications service (see below), and so are not plausibly subject to regulation.

Reclassification is a sledge-hammer. We need a scalpel. Fortunately, one is available.

....

Suppose the FCC were to revisit that 2002 cable decision, the one holding the telecommunications and non-telecommunications aspects of Internet service to be inseparable. Could the FCC now change its mind, and separate out the transport-for-pay component as a telecommunications service? Then, instead of applying the full weight of common carrier rules, it could impose just one: a requirement like that in Computer III, requiring the operator to allow competing ISP on the cable. That would bring back competition among ISPs, and create a major disincentive to tampering with content.

Michael Dorf considered the controversy from another angle:

[C]onsider a different conception of neutrality, one drawn from free speech jurisprudence: What matters is the reason for the different treatment. If a municipality bans sound trucks but not leafletters from residential neighborhoods, that's a kind of different treatment of different speakers, but it's not censorship. Why not? Because the reason for banning the sound trucks has nothing to do with the identity of the speakers or the content of their speech. We can say that the prohibition of sound trucks but not leafletting is neutral in the more relevant sense of neutral with respect to speech and speakers.

So too here, one might think that if Comcast is slowing down bittorrent because it gobbles up much more bandwidth than Google or Yahoo! does, then interfering with bittorrent but not Google or Yahoo! looks neutral in the relevant sense.

For my part, I tend to agree with Jim Harper that the net neutrality situation is, to some extent, self-correcting through market mechanisms. I also share Fred von Lohmann's and Mike Masnick's opinions that, to whatever extent the market can't correct access providers' oversteps, the FCC shouldn't. For the FCC, net neutrality is a square-peg/round-hole problem. Just because the FCC is the most enthusiastic agency angling for the chance to regulate the internet doesn't make it the best-suited; frankly, they've overstepped and "ancillaried" their authority so egregiously for so many years that I'm enjoying this past week's slap-down just a bit more than I should.

It isn't every day that a Supreme Court justice announces his retirement, so Justice Stevens' announcement this past week was covered to a fare-thee-well in the legal blogosphere and elsewhere. Erin Miller provided a good overview of the early news coverage of the announcement. Lyle Denniston has watched the Court longer and more closely than most and he discussed how Stevens' retirement will change the dynamics at the SCOTUS:

If it has been so that the Supreme Court could properly be called the “Kennedy Court,” because of Justice Anthony M. Kennedy’s grip on a tie-breaking vote much of the time, that may well be even more so when the Justices open a new Term next October. Without Justice John Paul Stevens, who announced Friday that he is retiring soon, Justice Kennedy moves into position to become a frequent “assigning Justice.” That is a role not well known beyond Court-watchers, but it is quite important, and can make a difference in how ambitious, or cautious, the Court is in ruling on major, hard-fought cases.

But Kennedy also will no longer be an object of Justice Stevens’ efforts to marshal a majority of the Court for results that are — more often than not — liberal rather than conservative. There is, at present, no other member of the Court’s liberal bloc likely to match Stevens’ ability to persuade a sometimes-reluctant Kennedy to join with that bloc in a closely divided case. If Kennedy is to vote for liberal outcomes, it may well have to be more of a personal choice than it has seemed to be up to now.

Jeff Gamso wrote that Stevens' announcement has set in motion another act of a tiresome drama:

I've never met Obama. I have no inside information. But the guy's not a radical no matter what Newt Gingrich says. He's shown no inclination to appoint to much of anything anyone who looks controversial. That means a safe pick.

• It means someone the Republicans won't hate however much they claim they do and even if they won't vote for confirmation.
• It means someone who's most radical mantra is likely to be "with all deliberate speed."
• It means someone who believes in the American Dream because "it darned well worked for me and everyone I hang out with."
• It means someone who can look at the Senate Judiciary Committee and say with a straight face:

I have no ideas that are relevant to being a judge and never have had any; I understand that the job of being a Justice is like any other job that requires some arcane knowledge but no insight; I recognize that the mainstream of constitutional interpretation involves not actually interpreting it but understanding that the Constitution means what it says. Except for parts of the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments and all of the Ninth and Tenth Amendments, except maybe not the Tenth all the time, and I'm actually on both sides of the question when it comes to the First and Second.

The Democrats will praise that person with the adopted persona for its wisdom. The Republicans will say they don't believe the person is telling the whole truth. There will be lots of posturing.

Let the Games Begin.

Gamso could see what's coming; Matthew Franck discussed what we wouldn't be seeing:

1. The president and his advisers will not send up a nominee who could actually be defeated in an up-or-down vote in the current Senate, nor someone so insufficiently vetted that some subsequent discovery or dissatisfaction will cause his or her withdrawal. In short, no Harriet Miers out of this White House.

2. The Senate Republicans will mount no serious effort at filibustering the nomination. And, of course, they shouldn't. I doubt they will even talk about it to any extent that requires our attention. The only justification for senatorial sand in the gears would be an unseemly Democratic rush to the final confirmation vote without sufficient time for debate. Democrats will want a vote sooner rather than later, but they will not act so hastily as to give Republicans much purchase in complaining about the timetable.

3. The nominee will be neither candid nor specific in answer to senators' questions, either about precedents and patterns of jurisprudence, or about overall judicial "philosophy" in interpreting the Constitution. We will certainly learn nothing new about his or her views, and may even know less after the hearings than before. The playbook here was written in the Sotomayor nomination. Disingenuous disavowals will be made of any past statements that openly embraced "progressive" outcomes or the "living Constitution." The prestige press will proclaim the nominee a "moderate" and will get an assist from lefties who profess, sincerely or not, to be disappointed....

4. No Republican senator will express an altogether consistent view in opposition to the large role the Supreme Court has arrogated to itself in our constitutional order in the last century and a quarter. It hasn't happened yet, so I don't expect to be pleasantly surprised on this score.

Ashby Jones agrees that a Republican filibuster is unlikely:

[F]or now, at least judging from the tenor displayed Sunday on the talk-show circuit, Senate Republicans don’t seem all that revved up, all that eager to come out swinging. Perhaps we’re misinterpreting their remarks Sunday, but they seem to be signaling that they might be okay with any of the five names getting mentioned most prominently — Solicitor General Elena Kagan, Seventh Circuit judge Diane Wood, D.C. Circuit judge Merrick Garland, Homeland Security Secretary Janet Napolitano and Michigan Governor Jennifer Granholm.

While some were handicapping the confirmation process, nominee unseen, others were proposing (seriously or not) nominees. Norm Pattis suggested that the President nominate a trial lawyer rather than the typical academic or legal politico:

The current court is composed almost exclusively of lawyer's whose blood runs pure blue with Ivy League pedigrees, big law experience and years laboring in the vineyards of the nation's federal appellate courts. Altogether absent from the court is anyone with substantial experience in the trenches where legal abstractions have the most direct impact on the lives of ordinary Americans.

....

I often wince when I read high-court decisions. They sometimes read as though they were written by tourists beholding the suffering of others. Such legal theories as the harmless error doctrine, qualified immunity and the explosion in exceptions to the Fourth Amendment have the redolence of a Wall Street bailout: Power wins. The Government, like Wall Street, is too big to fail. Hence, legal doctrine deserts those in need in favor of those in need of deceit to remain in control. The courts drift further and further away from the promise of liberty, and the people, like sheep, are expected simply to bleat in unison that all is well in this the best of all possible nations.

Except we know that this isn't paradise. It is no longer even much of a city on a hill. The American Century ended long ago with a thud. Now even the American dream is becoming, for many, a cynical farce. We do not need another Supreme Court justice who has grown fat, sassy, and insulated from the raw emotions most Americans struggle with -- fear, need, and, yes, sometimes fury. What we need is a lawyer who has spent a career representing ordinary people in ordinary trouble.

Brian Tannebaum wasn't afraid to propose a longshot nominee whose confirmation would be anything but business as usual — Scott Greenfield. Tannebaum wrote:

Many know that Scott is a friend of mine, but when contacted today, he would only say that he "would seriously consider it."

Scott, while no darling of conservatives, brings 25 years of experience as one of New York's most well-known criminal practitioners. He has an AV rating, the highest possible, from Martindale Hubbell, and is recognized in “Who’s Who” in the world, America and American Law. He has served as a legal expert and analyst for television news shows from “60 Minutes” to “20/20”, and ABC, NBC, CBS, BBC, Court TV and Fox.

....

While he may be considered a long shot, I wouldn't count him out. The Court needs a criminal practitioner, and Scott Greenfield may just be the one to get the nod.

Greenfield isn't packing his bags for Washington just yet, but he addressed the groundswell of support for his nomination:

Based upon my deep sense of patriotism and public service, and recognizing that the trench lawyer who be first in this movement will likely be subjected to as much, if not more, scrutiny than given an appointee from the opposing political party by the Senate, I offer myself as the sacrificial lamb to my president as the next associate judge of the Supreme Court of the United States.

....

It's not going to be easy. As one person commented to Tannebaum,

No way Obama has ever even heard of Greenfield. Furthermore, presidents pick people who write legal treatises and the like, not blog posts.

Certainly, my appointment will be a bit outside the box, if you will. But Mr. Anonymous' points are precisely why my appointment, at this juncture in history, would be perfect. Should we limit selection of a branch of government consisting of only nine (count them, 9) people, appointed for life, to those who pal around with the president? Isn't that just a wee bit restrictive for a position so important to the future of our nation? Should our President not look beyond those he's heard of to those who would serve with distinction? I say, think bigger, Mr. Anonymous. And smaller.

As to the second point, I cannot agree with Mr. Anonymous. I've read legal treatises. I've read blog posts. Let me tell you, the former are not nearly as interesting as the latter. In fact, the former are a bore. I'm talking a crushing bore. Boring. Boringas. Boringamos. Isn't it time that we broke from the old, the tedious, the incomprehensible, and tried to do better? Would it be a crime for Supreme Court opinions to be a little less obtuse and a little more interesting?

Of course, odds are that no trial lawyers, Greenfield or anyone else, will be President Obama's nominee; as Orin Kerr pointed out in a cheeky post, the short list is nothing but the usual suspects:

[C]onsider the broad range of choices Obama faces. His shortlist consists of former law clerks to a wide range of the liberal Justices of the 1970s and 1980s. Obama must choose between a Brennan clerk (Garland), a Marshall clerk (Kagan), and a Blackmun clerk (Wood). Further, the shortlisters differ dramatically in that they had different high-level positions in the Clinton Administration. Will Obama pick the former Deputy Assistant Attorney General for the Criminal Division (Garland), the former Deputy Assistant Attorney General for the Antitrust Division (Wood), or the former Associate White House Counsel (Kagan)?

Even if Obama decides on a former academic, he has to pick which kind of resume he wants. For example, does he pick the woman who was a full-time law professor at the University of Chicago from 1981 to 1993 (Wood)? Or does he pick the woman who was a full-time law professor at the University of Chicago from 1991 to 1995 (Kagan)? Obviously, these are big choices.

Jack Balkin discussed President Lincoln's nomination of Salmon P. Chase and the lessons history holds for today's president:

When Abraham Lincoln explained why he had nominated Salmon P. Chase, one of his political rivals, for Chief Justice in 1864, he explained that "we want a man who will sustain the Legal Tender Act and the Proclamation of Emancipation. We cannot ask a candidate what he would do; and if we did and he should answer, we should only despise him for it."

....

Ironically, although Lincoln appointed Chase because he believed Chase would vote to uphold the legal tender act (Chase had been Treasury Secretary during the Lincoln Administration), after the war Chase ultimately voted to strike down the law in 1870. It is possible that Chase did so in part because he still thought he could become President in 1872, this time as a hard-money Democrat. It was not to be, however.

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What is the modern equivalent of emancipation and legal tender for President Obama? It would probably be, in no particular order, support for the constitutionality of the recently passed health care bill, preservation of Roe v. Wade (as modified by Casey), and support for robust (but not necessarily unilateral) Presidential power in surveillance, detention, military commission, rendition, and other war on terror issues. With a few notable exceptions, President Obama has adopted most of President Bush's war on terror policies, especially the versions during Bush's second term. At the same time, Congress has ratified many of these policies through legislation, including the FISA Amendments Act of 2008 and the Military Commissions Acts of 2006 and 2009. Obama wants all of these war on terror policies upheld. He doesn't want any trouble from his nominees on these issues. That is to say, he hopes for someone who will not be like Salmon Chase, who double-crossed him on legal tender. And because Supreme Court Justices today rarely have presidential ambitions, Obama is much more likely to get what he wants.

I won't rehash the Tale of the Unethical April Fool's Prank from last week's "Round Tuit" post. If you're unfamiliar with the back-and-forth which followed Eric Turkewitz' masterful "Official White House Legal Blogger" announcement and Jack Marshall's subsequent accusations that Turkewitz had breached rules of legal ethics, please take a look back at that post; you'll need to go there or to one of the other blogs which covered Marshall's bogus accusations and his subsequent defense of his unfounded claims because the posts at Marshall's blog, together with the hundreds of comments those attracted, have been largely removed in favor of a sanitized overview of the incident. Where Marshall's original accusation was, there is now this notice, pointing to his apology/explanation/whitewash:

A note entitled "April Fool's Day Isn't For Everybody" was originally included in this post. It discussed a web hoax pulled off on the New York Personal Injury blog by attorney Eric Turkewitz, with the assistance of other bloggers, and I took the position that this was inappropriate and unethical, even on April Fool's. My criticism was unfair and excessive, however, and I defended my position carelessly in subsequent posts and replies without sufficient thought or perspective. I have apologized privately to Eric, who was gentleman and kept his sense of humor through the whole fiasco, and he has been more gracious than I deserve. My explanation of the incident and my apology is here.

[Link omitted.] Marshall's explanation for this restructuring of the record on his blog is that unlike others' blogs, his is an information resource and having demonstrably-incorrect information (along with unflattering commentary, presumably) does a disservice to those who visit seeking ethics enlightenment. Marshall attributed some of the turnabout in his opinions and demeanor over the course of Prankgate to his finally consulting his mysterious and reputedly-miraculous "files"; if his blog is an offshoot of those, I suppose some heightened reverence and special treatment might be warranted. On the other hand, in explaining his decision to leave legal practice to pontificate about legal ethics, he's also written that he "abandoned the practice of law precisely because I found wrestling with the ethical conflicts and dilemmas too stressful". To me that sounds like a naval officer abandoning the sea for fear of drowning, opting to teach weekend swim classes at the local "Y" instead; you can make of it what you will, however.

Scott Greenfield was amongst Marshall's earliest and strongest critics after his accusations against Turkewitz were made; following Marshall's "apology" (but before the deletion of the record on his blog), Greenfield remained critical:

He apologized to Turk, which Turk gracefully accepted. Others praised his willingness to admit he was wrong and apologize. The "hoary" (to borrow a word) chestnut that it takes a big man to apologize was floated. Kumbaya was heard in the distant background. The train stopped wrecking itself, over and over, and we could all return to our normal blogospheric viewing. Who cared that some idiot named Marshall flung a false accusation, raised a ruckus against a respected lawyer, smeared many of the most respected members of the blawgosphere, then skunked off with his tail between his legs, admittedly wrong?

Despite watching for the past two days, mostly laughing at the antics of one of the most pompous, narcissistic ignoramuses I've yet to see online, I'm not satisfied with this conclusion.

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Without question, it's better that this worthless, pontificating, ignoramus finally conceded that he was wrong, even if he does so in a vain attempt to salvage what remains of his reputation only after the universal condemnation of the blawgosphere. We tend to be a fairly forgiving bunch, and the amount of energy put into dealing with this otherwise inconsequential self-promoter far exceeded his worth. But I don't buy his apology. Not in the slightest.

I believe the apology is wholly disingenuous, replete with spin at every turn. I believe that Marshall is trying to resurrect himself, only because he now realizes that he committed marketing suicide with the universal condemnation. His apology is nothing more than a carefully crafted rationalization of his misconduct. His apology continues his attack, merely from another angle. Even wrong, he's still right.

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If others forgive him, that's their choice. Some may think that he deserves a second chance. That too is their choice. I believe he's a danger to ethics. He can have a second chance being a dog catcher, not an ethicist (if he ever was one except in his own mind). I have deliberately used a wealth of ad hominem attacks on Marshall because I believe he should be attacked for what he's done and how he's done it. I am deliberately harsh. That's what Marshall deserves. It's unfathomable to me that anyone would pay heed to this worthless twerp on any subject, no less ethics.

Mark Bennett was also having none of Marshall's fauxpology, likening the disgraced "ethicist" to the fictional narcissistic and unethical failed lawyer Elmer Gantry:

Ethics “expert” Jack Marshall conceded that he was wrong about Eric Turkewitz’s April Fools’ Day hoax. Which was good. Better, I thought, to sometimes be wrong and realize it than always to be right. A very simple apology should have followed: Dear Mr. Turkewitz, I was wrong. I screwed up. I have no idea what I was thinking. I cannot overstate the magnitude of my error, and hope you will forgive me. If you would like me to remove the offending posts, I am willing to.

But . . . no.

Instead Marshall writes a muddled post (I challenge you to understand what he’s saying on the first reading; I read it twice, and I’m still not sure) purporting to explain how he “Became an April Fool and an Ethics Dunce.” In the lengthy post beginning, “I’m not going to spin this,” he tries to spin it: his error (alleging publicly that another lawyer’s April Fools’ Day prank violated that lawyer’s state’s ethical rules) “was the product of a toxic mix of factors, prime among then being that I didn’t review my own files.”

His own files?

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Jack didn’t accuse Turk of a technical violation: he accused him of a violation that, by definition, involved dishonesty. To an unethical lawyer, making unfounded allegations of dishonesty might be no big deal, but to the rest of us such accusations are a very big deal indeed. Them’s fightin’ words.

From a misguided sense that even scoundrels deserve second chances (even when they've burned-through three or four chances in as many days), I spoke up at Bennett's blog in defense of Marshall's apology:

Marshall’s “apology” may be (and probably is) less than sincere, but... if it’s less sincere or succinct or… well, apologetic than it could’ve been, his apology is also more comprehensive and unequivocal than some. For all the ridiculous “consulting my files” bullshit, it’s still an “I was wrong and he and all the many others were right” rather than the usual “my comments were misconstrued and I’m sorry if anyone took offense” dodge or, even worse, simply going dark and deleting his blog and all the commentary, as has been done elsewhere.

Imagine my chagrin when soon thereafter, those posts started disappearing. Mea culpa. Noting that "rash of disappearances", Scott Greenfield wrote that Marshall's backpedaling and continuing narcissism put "the Me in Mea Culpa":

The rule is that one should never attribute to malevolence what can be explained by sheer stupidity. With that in mind, it would be wrong to suggest that the self-proclaimed ethicist is, himself, intentionally and deliberately unethical. Even if this conclusion can be clearly drawn from his removal of posts and comments that demonstrate his commission of conduct that some might find flagrantly unethical, it's still possible that his finger accidentally hit the delete button on each of these embarrassing and incredibility humiliating posts that undermine his fevered efforts to pretend they never happened, or that his "self-abasing apology" wasn't calculated to excuse, justify and trivialize any itty-bitty, tiny, technical error in his analysis (which was actually correct if you squint really hard). And so I will not attribute malevolence to him.

Jack Marshall is stupid. So says this jackal. Too stupid to ever be allowed to opine to a lawyer on the subject of ethics. I only say this because I'm trying to be kind to Marshall, Nicer than he was to Turkewitz. Nicer than he deserves.

When will this stop? When Marshall stops trying to sell his personal version of ethics to lawyers and get a growth position at Dairy Queen. But as long as they continue to try to sell their crap to lawyers and bar associations as ethics experts, then there will be need for us jackals to protect lawyers from the experts. I'm as tired of this as your are, but it remains a concern that Jack Marshall and ProEthics are still out there trying to sell themselves. Let no one forget or be misled, even if Jack Marshall, in his own opinion, thinks it was no big deal and he's still a really swell guy.

On pretty much any subject you'd choose, I'm happy to let Greenfield have the last word; on this subject in particular, I'm overjoyed to do so.

After spending an inordinate amount of time these past couple of weeks considering unethical ethicism, I felt a need to find my moral center. It turns out that I have none, but I did find a very nice post from Ron Coleman concerning moral rights in Massachusetts' Visual Rights Act. That Act provides in part that artists may block the use of their name in connection with a modification of a work "which would be prejudicial to his or her honor or reputation". Coleman wrote:

Hm. Sometimes I wish I had a scorecard to figure out how libertarians, and or mere free-market magic hand guys like me, are supposed to come out on “moral rights.” I’ll say this much: For a country that doesn’t speak a Romance language, the idea of a federal statute that protects “honor” is problematic. And after all, if you buy the thing, can’t you just do whatever you want with it? If you want to limit my right to do that, then by gum let’s bargain for such a limit. (I guess that’s the difference between a “Judge Ponsor” and a “Judge Posner“!)

And yet I too have some sympathy, as a non-visual artist (i.e., “a face for radio”) who has tasted the bitter experience of having his own “work made for hire” simply put under another person’s name by the copyright holder (and no, the fact that it was a federal judge’s name, and the ABA that did it, did not make it any less bitter) when the collective work in question was reissued in a second edition.

I have sympathy. I didn’t say I think it’s ok, ok? I mean this is America. We don’t need copyrights on our money and we don’t need statutes to protect the “honor” of creative types! I think. In fact if you read too much into “sympathy” I’ll accuse you of dishonor! And we can duel. Pistols at dawn!

Norm Pattis also engaged in some soul-searching this past week, as he had occasion to revisit some of his earlier writing on his tenth anniversary as a columnist for the Connecticut Law Tribune:

[L]ooking back on the columns made me cringe. It is so much easier to be a critic than a builder of something of enduring value. In the course of ten years, I cast enough stones to fill a coliseum. Rarely did I give thanks or express gratitude. Reviewing the decade was not, I repeat, a source of contentment. It made me realize that the note of discord is sometimes too shrill. My ears were ringing after the review.

I draw no larger lesson from this. I simply report it and recognize the need for new notes. And I wonder whether I am capable of learning to sing in a different key.

Finally this week, I'd like to highlight some excellent political blogging and podcasting ahead of Britain's upcoming election by my friend and occasional collaborator, Charon QC. He's taken a bullet for his countrymen by reading the Conservative party's manifesto so that they didn't need to do so (though he admitted at one point that he began "to reel slightly from the rather dull prose and, possibly…the wine"):

Today Great Leader Kim Il Kamer On launched an invitation to the people of Britain to join him in government…. of all places… at Battersea Power Station, which allowed soon to be ennobled John Lord Two Shags Prescott to tweet…. “Tories to launch manifesto at Battersea Power Station – impressive from the outside but hollow and empty within”.

Battersea Power Station used to spew out a lot of things that were not terribly good for ‘one’. It may be that things have not changed that much?

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There is to be an emergency budget. This we knew. The Faustian Pact with the people did not mention VAT and appeared to my jaundiced eye to be a bit thin on how they were going to start cutting the deficit. Cunningly, they are going to cleanse the nation of the NI rise and fund it through cutting waste – where, we are not told.

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The plan to provide 5000 community volunteers to fart about in uniforms, no doubt, is still in the plan. What these worthies will actually do of value to society is not set out in any detail. Join the Police Community Support Service and eat buns on street corners like the others?

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Discipline in the classroom: Words to create a frisson in the savage breast of some ‘old school’ Tories. Children are running amok in classrooms. The Tories plan to give the headmaster the ‘last word on discipline’ – presumably not the type of Papal last word… like ‘This is our little secret. Tell no-one about this beating, waterboarding, roasting in front of a fire secret…and for good measure here is a superinjunction…” type of last word?

Charon has also begun a series of twenty-minutes-long podcasts with notable figures in British politics and political commentary. The first two, with candidate-turned-publisher Iain Dale and Labour party Member of Parliament Tom Harris are available now at his site.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Concurring Opinions, The New York Times Magazine, and Paris Odds n Ends Thrift Store.