Saturday, April 14, 2007

Randy Barnett for Attorney General:

It's not likely to happen for any number of reasons, but Glenn "Instapundit" Reynolds has proposed appointing the VC's very own Randy Barnett as the next Attorney General. For what it's worth, Randy has my full support! He'd be a major improvement over both the incumbent AG and his recent predecessors.

"Whiplash and Other Useful Illnesses":

I've read most of this very interesting and entertaining book, written by Toronto psychiatrist Andrew Malleson. I'm not sufficiently familiar with the scientific literature to vouch for his conclusions, and there are places in the book where Malleson seems to me to go well beyond his own expertise and reach conclusions that are not directly supported by his evidence. Indeed, I think the book would benefit from being edited down by about a third, with the weaker and more speculative material deleted.

Nevertheless, there are many useful tidbits of information and startling hypotheses in this book, with sufficient citations to the academic literature that the reader could look up the relevant studies for himself if he is skeptical. This is certainly a book that should be on the shelf of, among others, (a) anyone who represents insurance companies in automobile accident injury litigation; (b) anyone interested in "junk science" in general; (c) anyone interested in how the medical profession, or elements thereof, sometimes creates official "illnesses" that are really just clusters of symptoms with no common or known physical cause; (d) anyone interested in the effects of litigation on accident victims, and whether the victimization that are required to exhibit for legal purposes may hinder their emotional and physical recovery; (e) anyone interested in somatic illnesses; (f) anyone interested in malingering and fraud in the workers' compensation and tort systems; and (g) anyone interested in how the legal system encourages, profits from, and sometimes precipitates (c).

Perhaps because the book was written by a Canadian and published by a Canadian press, it hasn't received much attention from American legal scholars since its initial publication in 2003; indeed, it has only been cited once on Westlaw so far. But the book provides abundant material to inform debates on a host of legal issues.

Wisdom vs. Intelligence:

An interesting essay by Paul Graham; thanks to Arnold Kling (EconLog) for the pointer. Here are some excerpts, selected by Kling:

"Wise" and "smart" are both ways of saying someone knows what to do. The difference is that "wise" means one has a high average outcome across all situations, and "smart" means one does spectacularly well in a few.

...As knowledge gets more specialized...intelligence and wisdom drift apart, [and] we may have to decide which we prefer. We may not be able to optimize for both simultaneously. knowledge has grown more specialized, there are more and more types of work in which people have to make up new things, and in which performance is therefore unbounded. Intelligence has become increasingly important relative to wisdom because there is more room for spikes.

...Wisdom seems to come largely from curing childish qualities, and intelligence largely from cultivating them.

...cultivating intelligence seems to be a matter of identifying some bias in one's character—some tendency to be interested in certain types of things—and nurturing it. Instead of obliterating your idiosyncrasies in an effort to make yourself a neutral vessel for the truth, you select one and try to grow it from a seedling into a tree.

...perhaps one reason schools work badly is that they're trying to make intelligence using recipes for wisdom. Most recipes for wisdom have an element of subjection. At the very least, you're supposed to do what the teacher says. The more extreme recipes aim to break down your individuality the way basic training does. But that's not the route to intelligence. Whereas wisdom comes through humility, it may actually help, in cultivating intelligence, to have a mistakenly high opinion of your abilities.

Gary Kasparov Arrested:

Russian opposition leader and former chess world champion Gary Kasparov has been arrested in Moscow while leading a demonstration protesting the government's policies. Here is the New York Times account, and a shorter one by CNN. Kasparov is arguably the most famous political opponent of President Vladimir Putin's increasingly authoritarian government, and a strong supporter of democracy, civil liberties, and free markets. Here is a January Wall Street Journal article describing Kasparov's opposition activities in more detail. Back in 2001 - at a time when George W. Bush was still assuring us that Putin was a "good man" because he had "see[n] into his soul," Kasparov sounded an early warning about the ex-KGB President, noting that "Putin's KGB roots have informed a style of governance that is neither reformist nor particularly democratic" and that Russia's government was sliding towards authoritarianism by suppressing opposition media and playing on nationalistic fears. Since then, Putin has suppressed nearly all opposition electronic media, and probably connived in the murder of print journalists who had criticized the regime.

Kasparov's arrest is not only an outrage in its own right, it is significant as an indicator of Putin's willingness to further tighten his authoritarianism. If Putin is able to get away with arresting even a world-famous opposition leader, less exalted opponents of the government can expect even harsher treatment. Hopefully, there will be enough of an international outcry to persuade Putin to desist and force him to tread more cautiously in the future. But it is hard to be optimistic about Russia's immediate political future after the experience of the last several years. As Kasparov put it in 2005, Putin has "abolished the nature of democratic institutions [and] he will go further." The mere fact that the current president of Russia is an authoritarian former high-ranking KGB official is a strong indication that things have gone badly wrong 15 years after the fall of communism. It is as if the Chancellor of West Germany in 1960 had been a former high-ranking Gestapo or SS leader.

UPDATE: For those who read Russian (I know we have some readers in that category), here is a link to the website of the United Civic Front, the opposition political movement that Kasparov founded in 2005. It has extensive coverage of his arrest, as well as that of some 250 other opposition leaders and protestors arrested at the same demonstration in Moscow.

UPDATE #2: Apparently, Kasparov has been released, but only after being forced to pay a fine "for participation in a banned protest rally."

Administration Seeks More Surveilance Authority:

Today's Washington Post reports that the Bush Administration has asked Congress for greater authority to conduct surveillance of foreign citizens and international communications.

Currently, under the 1978 Foreign Intelligence Surveillance Act, individuals have to be associated with a foreign terrorism suspect or a foreign power to fall under the auspices of the FISA court, which can grant the authority to institute federal surveillance. The White House proposes expanding potential targets to include non-citizens believed to possess, transmit or receive important foreign intelligence information, as well as those engaged in the United States in activities related to the purchase or development of weapons of mass destruction.

The proposed revisions to FISA would also allow the government to keep information obtained "unintentionally," unrelated to the purpose of the surveillance, if it "contains significant foreign intelligence." Currently such information is destroyed unless it indicates threat of death or serious bodily harm.

And they provide for compelling telecommunications companies and e-mail providers to cooperate with investigations while protecting them from being sued by their subscribers. The legal protection would be applied retroactively to those companies that cooperated with the government after the Sept. 11, 2001, attacks.


Friday, April 13, 2007

The State of Post-Kelo Reform - Final Rejoinder to Bert Gall:

Bert's most recent criticism of my analysis of post-Kelo reform focuses on one major point: that the majority of post-Kelo reforms have been effective in curbing eminent domain power. While Bert is right to note that important progress has been made since Kelo (a point I never contested), he still paints a rosier picture than is justified by the evidence.

Even with the recent passage of what I agree are effective reform laws in New Mexico, Virginia, Wyoming, it still remains the case that 22 of the 43 reform laws enacted by 38 states and the federal government have been largely ineffective, in the sense that they impose no meaningful new constraints on the power of government to condemn property. This total includes the forty laws analyzed in my paper, plus the three passed in recent weeks, but excludes one or two ineffective laws passed in the aftermath of Kelo, which have since been superseded by effective ones (e.g. - in Alabama). Far more important than the raw total of effective and ineffective laws is the fact (noted in my previous post, as well as in my paper), that very few of those states that engage in Kelo-style takings the most have enacted effective reforms. Even after Virginia's recent enactment of an effective reform law, thirteen of the twenty states that recorded the most private-to-private condemnations from 1998 to 2002 according to an Institute for Justice study have enacted ineffective reforms or none at all (see Table 5 of my paper). This is also true of fourteen of the twenty states with the highest numbers of "threatened" condemnations for private owners, according to IJ (ibid., pg. 44). To understand the true state of post-Kelo reform, it is essential to recognize that many of the strongest new laws have been enacted by states with little or no record of eminent domain abuse to begin with. Tellingly, two of the three most recent states to enact effective reforms (Wyoming and New Mexico) recorded no condemnations for private development at all, according to IJ. For example, IJ described New Mexico as:

. . . one of a handful of states that have no reported condemnations for private parties between 1998 and 2002. Its local governments have respected constitutional limits on government power, and home and business owners can feel secure in the knowledge that their rights in this area will be respected.

By contrast, several large states with extensive records of abuse - including California, New York, New Jersey, and Texas, among others - have enacted either no reforms at all or ineffective ones. Reforms in states with little or no preexisting record of abuse are not completely useless. Such laws do serve to prevent future abuses, even if the possibility of such is slight. However, they cannot make up for the lack of success in most states with records of serious abuse.

Bert lists 20 states that have enacted reforms restricting the definition of "blight." I agree with him that such limits are extremely important, and have argued for their necessity myself. In fact all but three of these states (Utah, Wisconsin,and South Carolina) are listed as states with effective reforms in my paper. Of the exceptions, Utah is not included because it passed a law forbidding blight condemnations even before Kelo was decided, so its law is not part of the Kelo backlash proper; indeed, as the Institute for Justice recently noted, Utah has just engaged in some backsliding from its pre-Kelo achievements. On Wisconsin and South Carolina, I stand by the analysis of these two states' laws in my paper. The issues are technical in nature, so I will not go into them in detail here, though I may do so in a later post if there is enough reader interest in the subject. Bert also mentions the Colorado law (whose effectiveness he defends to a limited degree). He is right to note that the law eliminates judicial deference to local governments' determinations of blight, but wrong to suppose that this will make a big difference. As I explain in my paper (pp. 16-17), Colorado's definition of "blight" is so broad that virtually any area can be declared blighted, whether judges are deferential or not.

As I noted in my previous post, it is still not clear how many state laws Bert and I actually disagree about. Depending on how one interprets his posts, the figure may be as low as three (Wisconsin, South Carolina, and - to a lesser degree - Colorado). It is also not clear whether he accepts my conclusion that most of those states with the worst abuses have enacted ineffective reforms or none at all. Bert does seem to question with my view that political ignorance is a principal reason for the large number of ineffective reforms, but does not present any alternative explanation or explain why mine is wrong.

I end on this point of agreement between us: Bert is undoubtedly correct to say that there has been significant progress, and he is also right to note that "proponents of reform shouldn't declare victory and go home."

Bert Gall Responds to my Critique of Post-Kelo Reform:

Last week, Bert Gall of the Institute for Justice engaged in a debate on post-Kelo eminent domain reform triggered by my paper arguing that most of the reform laws enacted since Kelo have been largely ineffective. For the earlier posts, see here and here. Bert has submitted the following reply to my arguments, and I have agreed to post it. I will be writing a brief rejoinder:

I thank Ilya for the opportunity to participate in this friendly debate about the status of Kelo reform legislation. For the sake of brevity, I will not comment on his take on Kelo's holding and its real-world impact on eminent domain abuse, although, for the reasons discussed here and here, he's wrong on both counts. Instead, I'll focus on my main concern: Ilya's overly pessimistic take on the status of Kelo-reform legislation. His statement that most eminent domain reforms are "ineffective" is simply incorrect. That was true at the beginning of last week, when the number of eminent domain reforms was 34. And it is true now that the number of reforms has grown to 37, thanks to the legislatures in Virginia, New Mexico, and Wyoming. (If we add the Nevada citizen's initiative, which Ilya counts, but I do not since the voters must approve it again in November of 2008 before it takes effect, the number is 38.) And still more good reforms are making their way through state legislatures (e.g., Texas and Ohio) this year.

Most state reforms that have passed so far are strong. For example, 20 states have either significantly narrowed the definition of "blight" or eliminated the ability of local governments to condemn for "blight." Because bogus "blight" is the principal vehicle for private-use condemnations, these reforms are anything but "ineffective." The states that have enacted these reforms are Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Minnesota, New Hampshire, New Mexico, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Wisconsin, and Wyoming. There's not adequate space here to discuss each of these state's reforms; for a full explanation and analysis of the reforms in these and other states, check out "Legislative Action Since Kelo," by the Institute for Justice. (It will soon be updated to reflect the new laws that just passed, and IJ is releasing a report card on all passed legislation.) The reason that I critiqued Ilya's analysis of the the South Carolina and Wisconsin legislation in my last post -- something that, tellingly, he does not respond to -- was to demonstrate that his analysis incorrectly counted some good reforms as "ineffective" ones. Moreover, even so-called "ineffective" reforms may prove themselves to be good protections against eminent domain abuse in future legal battles. For example, Colorado's legislation may not be perfect, but it does eliminate the most significant problem with the state's case law: judicial deference toward municipalities' findings of blight. Add in the other positive changes in other state laws described in my previous post (also discussed in "Legislative Action Since Kelo") and it's hard not to conclude that legislative reform efforts -- which, it should be emphasized, have taken place in the short span of less than two years -- have been very successful.

Ilya's paper starts with the premise that "political ignorance" makes getting good reform hard, and ends with the conclusion that most reforms that have passed are weak. The vital middle step between premise and conclusion -- a careful analysis of each reform that has passed, and the improvement it represents -- is where the paper runs into serious trouble. Believe me: we at IJ do not view the legislative process with an unjaundiced eye. And, of course, proponents of reform shouldn't declare victory and go home. But Ilya and others have gone much too far in the opposite direction. I invite him to take a fresh, complete, and up-to-date look at a battle that, in reality, is going far better than his theory predicts.

How Not to Use PowerPoint:

A video on the Law LIbrarian blog offers some advice.

Muller's Medals - Update

Eric Muller got good news about his Uncle Leo's medals.

Related Posts (on one page):

  1. Uncle Leo's Kennkarte:
  2. Muller's Medals - Update
  3. Muller's Medals:
The "Defense of Property" Defense:

I much appreciate Orin's posts on the subject, and I should note again what I noted at the outset — there are quite plausible policy arguments for barring "hacking back" even when it's done to defend property against an ongoing attack, and Orin has expressed some of them in the past. That an action falls generally within the ambit of an existing defense, or is closely analogous to an existing defense, doesn't preclude the conclusion that we should nonetheless bar the action because of special problems associated with it.

Nonetheless, I do disagree with two parts of Orin's analysis. First, it seems to me that the defense-of-property defense has indeed been recognized as part of a general class of common-law defenses — including justifications such as self-defense and defense of others, and excuses such as duress or insanity — that are by default accepted in all jurisdictions, or at least all jurisdictions that have not expressly codified their defenses. (I say "by default"; they may be expressly statutorily precluded, as a few states have done as to insanity.) Robinson's treatise on Criminal Law Defenses describes it well, I think,

Every American jurisdiction recognizes a justification for the defense of property. The principle of the defense of property is analogous to that of all defensive force justifications and may be stated as follows: ... Conduct constituting an offense is justified if:

(1) an aggressor unjustifiazbly threatens the property of another; and

(2) the actor engages in conduct harmful to the aggressor

(a) when and to the extent necessary to protect the property,

(b) that is reasonable in relation to the harm threatened.

More generally, defense of property, self-defense, and defense of others are generally treated by the law more or less similarly, though subject to the general principle that defense of property will generally not justify the use of lethal force. I have never seen in any case, treatise, or other reference any indication that federal law differs from this, and rejects the notion that defense-of-property is a general default.

I agree with Orin that the defense has been rare. But I suspect that it is rare because defense of property generally doesn't authorize the use of deadly force, and because use of supposedly defensive nondeadly force is less likely to draw a federal prosecutor's attention than the use of supposedly defensive deadly force. The typical nonlethal defense of property scenario — someone says I punched him, and I claim I did this in order to keep him from stealing my briefcase — just isn't likely to end up prosecuted by the local U.S. Attorney's office, even if there's some reason to doubt my side of the story.

Second, Orin points to the Model Penal Code as evidence that "when stated as a defense in federal criminal cases, 'defense of property' seems to mean only defense of physical property from physical access or removal"; and the MPC does define defense of property as limited to "use of force upon or toward the person of another ... to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property ..., [or] to effect an entry or re-entry upon land or to retake tangible movable property" (plus provides for a related but different defense in § 3.10).

But the MPC seems to define defenses in a way that's focused on those crimes that the MPC covers. For instance, the MPC's self-defense provision literally covers only "the use of force upon or toward another person"; it would not cover imminent self-defense as a defense to a charge of being a felon in possession of a firearm (though no such crime is defined by the MPC in the first place). Yet federal law does recognize this. Likewise, state cases recognize self-defense as a defense to the use of force against an animal, when the use would otherwise be illegal (I could find no federal prosecutions involving the question).

Now perhaps the answer is that federal law would reject even self-defense as a defense to non-physical-force crimes, and that the defense in felon-in-possession cases is actually a species of the necessity defense. But if that's true (which isn't clear, since it's not even clear that federal law recognizes a general necessity defense), then one could equally argue for digital self-defense under the rubric of necessity.

Likewise, while Orin brackets § 3.10, that might very well be the defense-of-property provision (though labeled by the MPC under the more general rubric of "justification in property crimes") that an MPC-following federal court might adopt, if it chooses to take a narrow view of the common-law defense-of-property defense. Section 3.10 generally allows "intrusion on or interference with property [when tort law would recognize] a defense of privilege in a civil action based [on the conduct]," unless the relevant criminal statute "deals with the specific situation involved" or a "legislative purpose to exclude the justification claimed otherwise plainly appears." And the common law has generally recognized defense of property as a privilege in civil actions. (See, e.g., Restatement (Second) of Torts § 79, which allows even nonlethal physical force against a person when necessary to terminate the person's intrusion on your possession of chattels. That doesn't literally cover use of nonlethal electronic actions against a computer, but the point of common-law defenses is that they are applicable by analogy; the Restatement is thus a guide, not a detailed code to be followed only according to its literal terms even in novel situations.)

So we have to remember, it seems to me, that the federal law of criminal defenses is common law, borrowing from both the substance of the traditionally recognized common-law defenses, and from the common-law method, which involves reasoning by analogy. The common-law method also allows analogies to be resisted, if the new situation is vastly different from the old; and of course Congress can trump common-law defenses by statute. But the background remains that there's a common-law defense of defense of property (buttressed, where necessary, by the necessity defense, and to the extent one is influenced by the Model Penal Code, by § 3.10's borrowing from the common-law tort defenses), and that there's no reason to think that federal law takes a narrow view of this defense.

More on the ERA:

There are new posts on the subject from John Rosenberg (Discriminations) and Andrew Koppelman (Balkinization). An excerpt from Koppelman's post:

Somin and Volokh are right that conservative Federal judges might seize on the ERA as a reason to invalidate sex-based affirmative action programs and special protections for women’s sports. But those aren’t the effects that ERA proponents have in mind.

When I said that the ERA would make no difference [referring to something Koppelman said to Chicago Tribune columnist Steve Chapman -EV], I was thinking about the difference that its proponents say it will have. Rep. Carolyn Maloney reportedly “noted that women still get only 77 cents for every dollar that men are paid, that only 3 percent of federal contracts go to women-owned firms, and that the poverty rate of older women in nearly twice that of older men.” There is no reason to think that prohibitions on sex-based classifications will ameliorate any of these problems....

I suspect that the real rationale for pushing this now was better stated by Terry O’Neill, executive director of the National Council of Women’s Organizations: “I would love for the American people to see who votes against women's equality.” If one could get Democratic legislators to speak candidly about why they’re supporting a measure that does so little that’s real for their constituents, I imagine that they’d say this:

“Yes, it’s true that this is an empty, symbolic gesture. But there are going to be political costs for Republicans who vote against this, just as there were political costs for Democrats who voted against the constitutional amendment to ban same-sex marriage. Both of them are silly, demagogic measures. But that’s how the political game is played these days....”

More on the "Hacking Back" Defense: I wanted to add one more round to the exchange Eugene and I were having about whether a defendant charged with a federal computer intrusion crime can assert a "hacking back" defense. I'm still of the opinion that defendants cannot assert such a defense, and I wanted to respond specifically to Eugene's most recent post about it. Specifically, I want to make two points. First, I'm not entirely sure a general defense of property defense doctrine exists as a default in federal criminal law, and second, if the doctrine exists I don't think it covers computer intrusions.

  The reason I'm unsure that the "defense of property" defense exists as a Congressiional default is that the defense seems to be quite rare in federal court, and the cases appear almost entirely in a very specific context. Based on a quick Westlaw check, at least, I could only find about about 30 federal criminal cases that seem to apply it or discuss it at all. Further, those cases arise in almost entirely in a very specific context: a defense raised in a prosecution for physical assault. There's also a bit of homicide and one or other two crimes thrown in, but not much. Perhaps =a lot more cases exist beyond what I could find, but I couldn't find much — and what I found was quite narrow and applied only on in a very small subset of criminal cases. Clearly this doesn't rule out that Congress legislates all criminal offense against a general background norm of a "defense of property" defense being available, but I think it does shed some doubt on it.

  Second, when stated as a defense in federal criminal cases, "defense of property" seems to mean only defense of physical property from physical access or removal. For example, in the context of the Model Penal Code's defense of property section, which has been influential in federal court applications of defenses, the provisions are available only "to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property . . . , [or] to effect an entry or re-entry upon land or to retake tangible movable property." MPC 3.06. (The MPC seems to treat the kind of interference with property that includes computer intrusions under a separate section, § 3.10, Justification in Property Crimes, which seems to foillow a different set of principles. Also, while you might think "entry" includes virtual entry, entry in the context of criminal trespass statutes are generally understood to mean physical entry.) Given that, it seems that whatever "defense of property" doctrine is established as a background norm when Congress creates a new criminal law, it doesn't seem to me to apply to computer attacks.

  Anyway, I should stress that we don't yet have any cases on this, so both Eugene and I are guessing as to what courts would or should so based on the legal materials out there. It's a very interesting question. Finally, I'll just add further thoughts in the comment thread in the future, as I'm not sure a lot of readers are interested in this issue.
Former AG Ed Meese to Speak at GMU Law School:

Next Wednesday, April 18, former Attorney General Edwin Meese III will speak at the GMU Law School at 5:00 p.m. on the subject of "Reclaiming the Constitution – Originalism Today." The speech is sponsored by The Federalist Society and the GMU Law SchoolL

In a 1985 speech to the American Bar Association, Attorney General Meese sparked a dramatic public debate on the question of constitutional interpretation. In reviewing Supreme Court decisions in the areas of federalism, criminal procedure, and religious freedom before the American Bar Association, the Attorney General urged that the Court be guided by a "jurisprudence of original intention."

Twenty-two years after his original address, former Attorney General Meese will again take up the issue, reflecting on the current status of constitutional interpretation and questioning how the judiciary can return to the principle of federalism.

What Exactly Happened at the Albuquerque Airport?: I wanted to add one last post on the Walter Murphy story, addressing a part that I haven't focused on much before: the details of exactly what happened to Professor Murphy at the airport. (Sorry if this is a bit late; I wrote part of it yesterday morning, and didn't get to finish it until today.) In earlier coverage, I have tended to accept that Professor Murphy's name was in fact on the No-Fly list; but the work of some other bloggers and commenters has suggested that even this is untrue. Let's focus on what we know, based on combining the details of the original Balkinization post with what Murphy told Ryan Singel:
  1. Professor Murphy arrived at the Albuquerque Airport and attempted to check in at the curbside. He was informed that he could not do a curbside check-in.

  2. Professor Murphy inquired as to why he could not get a boarding pass at the curb-side, and was informed that it was because he was on a "Terrorist Watch List."

  3. Murphy then handed his Marine Corps ID to the American Airlines clerk, who then left to show the ID to the TSA.

  4. The American Airlines clerk returned about ten minutes later with Professor Murphy's boarding pass. (The sense I get from the Singel interview is that Murphy is still waiting at the curbside at this point, although it's not entirely clear.)

  5. During the approximately ten-minute wait for a boarding pass, Professor Murphy had a discussion with an American Airlines clerk about why he was selected for the list. The clerk wondered if Murphy has been to a political protest; Murphy stated that he gave an anti-Bush speech; the clerk responded "that'll do it."

  6. On the return flight, Professor received his boarding pass without incident or extra questioning. However, his luggage arrived a few hours late.
  So the evidence here suggests three events that deviate from the unusual (or at least might do so). First, on one leg of the flight, Professor Murphy could not check in curbside and had to wait for ten minutes (apparently while still at the curbside, although that's not entirely clear) before his boarding pass was brought to him. Second, the American Airlines clerks told him (a) that he was on a "Terrorist Watch List," and (b) that in their experience protesting against Bush or giving an anti-Bush speech could get a person on the "Terrorist Watch List." Third, Professor Murphy's luggage arrived a few hours late on the return flight.

  In trying to interpret these events, some background brought out by James Taranto and others is helpful. First, there is no such thing as a "Terrorist Watch List." There are two lists: a No-Fly list and a "selectee" list. As I understand it, if a name appears on the No-Fly list the person is not allowed to board a flight period unless the individual can prove they are not the person who the FBI had in mind when putting the name on the list. So for example, Ted Kennedy could fly even though his name was on the No-Fly list because he could prove he was not the same "T. Kennedy" as the terrorist suspect who used that name as an alias. As I understand it, that has to be done on each check-in for air travel, so if a name is on the No-Fly list people with that naame have to prove they are not that particular person targeted in order to fly.

  On the other hand, the selectee list is a list of individuals who are subject to extra screening for either a particular flight or all flights for any number of reasons. Those reasons may include buying a one-way ticket or paying in cash. Also, I know from personal experience that at least as of 2 or 3 years ago, buying a round-trip ticket online that combines multiple airlines would put a person on the selectee list (apparently because the airlines only know of their leg and see it as a one-way flight). Like individuals on the No-Fly list, people on the selectee list for a particular flight are not permitted to check in curbside.

  Why is this background relevant? Well, as Taranto and others have noted, it suggests quite strongly that Murphy was never on the No-Fly list. Rather, he was on the selectee list for one leg of one flight. He was not permitted to check in curbside for only one leg; on the return flight, his name was not on any list at all. Given that so many people have been on selectee list before — I suspect most VC readers have been on the list for a flight at some point — it seems pretty unlikely that Murphy was put on the list for that one leg of one flight for any reason related to his Princeton speech. (Think about it — what kind of oppressive government would punish its critics simply by taking away their right to curbside check-in for a single flight?)

  That leaves two remaning clues, the late luggage and the clerk(s)' statements. I trust that the luggage isn't bothering too many people. Note that the luggage was delayed on the return flight, the leg of the flight when Murphy was not on any list at all. Again, if an evil government is seeking to punish its critics, couldn't they come up with something better than delaying their luggage a few hours?

  This brings us to the most significant evidence: the statements from an American Airlines clerk. Trying to analyze these statements is a bit tricky because we don't know who said them. Unfortunately, Professor Murphy didn't provide or recall any names. But the statements don't seem to provide much support for Murphy's beliefs. First, there is no such thing as a "Terrorist Watch List," which suggests that perhaps the clerk was just playing games or didn't know what he was talking about. Second, even in Murphy's retelling, they at best reflect a clerk's general impressions of the kinds of things that get people on the selectee list — not anything at all specific about Murphy's case. And in our searching over the last few days, we've had a pretty hard time trying to come up with evidence that what the actually was correct. When the story first broke, it seemed possible that an airlines clerk could have a better impression than most of us as to who was made a selectee. But the evidence to back up the clerk's statements didn't seem to surface. (There were a handful of reports of fears that this was happening, but the actual evidence was sparse to nonexistent.) And once again, what are the chances that an evil government would punish someone for their speech by taking away their curbside check in for a single leg of a single flight?

  Anyway, sorry for the long post. But I did want to cover this aspect of the story, as it seems to further confirm that this is much ado about nothing.
[Paul Ohm (guest-blogging), April 13, 2007 at 12:11pm] Trackbacks
The Analog Hole is Worth Twenty-Four Cents (2 of 2):

Recently, Chris Sprigman published an article called the 99 Cent Question in the Journal on Telecommunications and High Technology Law. He asked a simple question: Why are almost all major-label songs sold online for exactly 99 cents? More to the point, why don’t music labels price discriminate? They can probably sell higher quality songs at a higher price or intentionally degraded versions for less. They can try charging more for DRM-free music, or they can offer a menu of DRM restrictions; the more restrictions you’ll accept, the less you’ll pay.

Maybe law professors sometimes can influence decision-making, or at least maybe Professor Sprigman can. With last week’s announcements from EMI and Apple, price discrimination is coming to online music in the form of $1.29, DRM-free, higher quality downloads. The songs won’t be available for sale for a few more weeks, but many predict that they will sell well.

Unfortunately for economists, Apple decided to alter two variables at the same time – DRM and audio quality – so this won’t be a pure price discrimination experiment. Even if people show up in droves to pay 30 cents more for these tracks, will they be doing it for the freedom from DRM, the quality, or both?

This brings me back to our paper. We tested whether consumers would be willing to pay different prices for different sound quality. But instead of asking whether higher quality was worth more, as Apple and EMI are asking, we asked whether consumers would pay less for lower quality music. If yes, how much less? We also used this survey to answer some fundamental questions about the analog hole and signal degradation. Before I get to our results, a few words about signal degradation:

Debates about the analog hole inevitably turn to signal degradation. Each trip through an analog-to-digital converter or digital-to-analog converter degrades the signal, as information is lost in the process. For example, ambient noise and distortion can be introduced and stereo information and bass can be lost.

If it is typical for analog hole copies to be significantly degraded, perhaps they are a poor substitute for traditional fair use and First Amendment rights, and maybe the content industry should not worry so much about the analog hole being a “DRM loophole.”

In reality, it is hard to say what is “typical” signal degradation. Some analog hole copies are horribly degraded (aim your digital tape recorder out the window in the direction of your neighbor’s blaring boombox) and others are near perfect (spend thousands of dollars on professional-grade equipment). We chose to use the “line-out to line-in” and “speaker to microphone” tests I described yesterday, with the understanding that they were just two types of a wide variety.

We generated an online survey, asking respondents to listen to pairs of recordings of songs, and to compare their subjective quality. For each song, there were three different recordings, the digital original, the line-out/line-in copy and the speaker-to-microphone copy. These were played to the respondent in pairs, and each respondent heard and was asked to compare all nine possible pairwise combinations. (In other words, if the three recordings were A, B, and C, each respondent heard AA, AB, AC, BA, BB, BC, CA, CB, CC in some random order during the survey.)

Seventy participants completed the survey. The results suggest first that our listeners could tell the difference between the analog hole copies and the original digital files, but perhaps not on the scale we had anticipated. In side-by-side preference tests, the digital original was picked approximately 51 percent more often than the line-out/line-in copies and 42 percent more often than the speaker-to-microphone copies.

But we didn’t stop there. We also randomly assigned hypothetical prices to each song in each pair, and asked our respondents to select based on both quality and price. For example, if A was played alongside B, we would ask “If A cost $0.55 and B cost $0.25, which do you prefer?” In this way, we set up a stated preferences econometric model. This statistical technique allowed us to isolate specific consumer preferences when many factors—utility, cost, and quality—interacted. Read the paper if you want more detail.

The bottom line is the model allowed us to calculate the population’s willingness to pay for quality. How much less, if any amount, were listeners willing to pay for signal-degraded, analog hole copies than for their digital originals?

The answer is tantalizingly specific: our respondents found the difference in quality in the analog hole copies to be worth 24 cents (23.9828 cents to more significant digits). In other words, if ordinary digital tracks cost 99 cents, these respondents would be willing to pay 75 cents for a lower-quality copy.

What does this all mean? If it wanted to, the music industry could probably price discriminate in the way we’ve described. If it offered lower-quality music downloads for less money, it would probably find a market. Although lower-quality tracks are no cheaper to produce than the standard-quality tracks sold today, lower-quality files are usually smaller, resulting in less bandwidth to distribute, leading to possible cost savings. Also, lower-quality tracks may be good enough for an iPod but not for a home audio system, which could possibly spur multiple purchases of the same song by the same consumer.

More likely, the music industry will follow the lead of the EMI/Apple deal, and attempt to price discriminate for higher prices, if at all. It is unclear whether our result is generalizable to that situation.

My stay here is almost up. This weekend, I'll try to post once or twice with some reflections about this week's stimulating discussions.

Related Posts (on one page):

  1. The Analog Hole is Worth Twenty-Four Cents (2 of 2):
  2. The Price of Music and the Analog Hole (1 of 2):

I just finally watched the newest episode of the Sopranos last night. It took me 6 days and multiple phone calls to get Verizon Fios to activate HBO for me. They kept telling me that my order was having trouble "flowing" through the system--yet somehow there was no one who could get it unstuck. There are many reasons why I wouldn't recommend Verizon Fios, but the pure incompetence in dealing with that simple request, and the degree of frustration and time, is a big one.

Since this may not be of interest to a lot of readers, I've put the extended under hidden text. I'd be interested in hearing your own comments and speculations on what is going on.

I know a lot of people were down on the first part of Season 6, but I have enjoyed it throughout. I see three themes emerging and building to the end of the series:



Thursday, April 12, 2007

Time to Revamp Rational Basis Review:

Eugene's most recent post notes yet another case where courts have purportedly applied "rational basis" scrutiny to a law, but in reality have held it to a stricter standard. If judges believes that a particular classification deserves a less deferential form of scrutiny, they may well have good reason for reaching that conclusion. But instead of pretending to apply the rational basis test, they should explicitly indicate that they are applying a higher standard, such as "intermediate scrutiny" (the level of scrutiny now applied to sex-based classifications), or "strict scrutiny (applied to racial, ethnic, and religious classifications).

Traditionally, a law that is only subject to "rational basis" review by courts applying the Equal Protection Clause of the Fourteenth Amendment, would almost certainly be upheld. The law or regulation need only be "rationally related" to a "legitimate government interest," with no real judicial scrutiny of 1) the likelihood that the law actually will succeed in promoting the "interest" in question, or 2) the degree to which the enactment of the law actually was motivated by the supposed interest. The whole point of the rational basis test was to ensure that only most incredibly moronic of laws using a given classification would be struck down.

In recent years, however, courts have increasingly used the rational basis test to strike down laws that would almost certainly be upheld under the traditional ultradeferential version of the test. Eugene's post on the Tenth Circuit's decision to strike down Oklahoma's rule for considering the admission of nonpublic schools to the state athletic association is a noteworthy recent example; as Judge McConnell explains in his concurrence, the rule would almost certainly be upheld under the standard form of rational basis review. Perhaps the most famous example is <Romer v. Evans, a 1996 case where the Supreme Court essentially held that some kinds of laws discriminating against homosexuals, although officially subject to rational basis review, would in reality have to pass a more stringent version of the test than that applied to most other laws.

In many cases, I think that increasingly stringent judicial scrutiny is justified. But courts that decide to hold a given type of classification to a higher standard should be open about what they are doing, instead of pretending to apply the traditional rational basis test. Otherwise, it will be difficult to distinguish between those classifications that are still subject to the traditional highly deferential rational basis scrutiny, and those that must pass a stricter "rational basis plus" standard. This point is particularly relevant to appellate courts, especially the Supreme Court. Perhaps the most important function of appellate courts is to provide clear rules for lower courts to follow in making decisions.

To be sure, it may be that Supreme Court justices would like to continue to fudge the meaning of the rational basis test in order to increase their discretion in deciding future cases. A law discriminating against homosexuals that the justices dislike (such as the one in Romer) can be struck down by applying "rational basis plus," while one that they prefer to leave alone (such as a ban on homosexual marriage), can be upheld under the traditional rational basis test. And all of this can be done without ever explicitly committing the Court to any clear general rule governing judicial scrutiny of sexual orientation classifications. However convenient for the Supreme Court, this kind of sleight of hand undermines the transparency of the legal system, and also makes it difficult for lower courts to apply Supreme Court precedent consistently. If the Supreme Court majority believes that laws discriminating on the basis of sexual orientation require greater scrutiny than that imposed on ordinary legislation, they should write an opinion explicitly stating that holding, and outlining the higher standard that such classifications must meet.

It may be unoriginal to suggest that appellate court decisions should mean what they say and say what they mean. But it's a good - and even "rational" - rule nonetheless.

Related Posts (on one page):

  1. Time to Revamp Rational Basis Review:
  2. Religion:

From Judge McConnell's separate partial concurrence and partial dissent in Christian Heritage Academy v. Oklahoma Secondary School Activities Ass'n (Apr. 9):

The plaintiff's name may suggest this case is about religion, and in a sense that is true. It is about Oklahoma high school football. And there is only one path to the honor and the glory of interscholastic football competition in Oklahoma: membership in the Oklahoma Secondary School Activity Association (OSSAA). Members of the Association enter the promised land of regularly scheduled games with neighboring schools and the prospect of championship competition with the leading teams in the State; those not of the elect are thrown into the outer darkness of few teams to play against and long bus rides to get to them. For public schools, membership in the OSSAA is sola gratia: all they have to do is knock, and the door is opened unto them. For nonpublic schools, narrow is the gate and difficult is the way. They may be admitted only according to the inscrutable will of a majority vote. The question is whether this violates the Equal Protection Clause.

The substantive question that divides the panel -- and that divides the Tenth Circuit from the New York Court of Appeals -- is also quite interesting.

Ethnically/Racially Linked Law Journal:

What is the oldest (whether existing or defunct) ethnically/racially linked law journal — which is to say a publication for articles that are at least partly of intellectual interest (as opposed to pure professional news value), and that is expressly tied to a particular ethnic/racial subgroup within the U.S.?

I think I have an answer, which I will post tomorrow, unless someone beats me to it. If you think you have an answer, please post it to the comments, and indicate the date that your candidate started publishing.

Posing for a Playboy Video and a Would-Be Lawyer's "Character and Moral Fitness" Evaluation:

A reader pointed me to this story:

A Brooklyn law student who shed her briefs for a Playboy TV series may have to kiss off her career after the sexy video made its way into e-mail in-boxes all over the city....

The brainy blond with Ivy League credentials was looking for a lark last July when she answered a Craigslist ad for women to appear in the Playboy TV series "Naked Happy Girls."

The episode, called "Rock Star and the Lawyer," aired in January -- and was barely noticed.

But in the past three weeks, a 45-second clip spread on the Internet among students and some faculty at almost every New York law school....

If she applies for the New York State Bar this year, [the student] could face tough questions from the Committee on Character and Fitness, which examines the personal character of future lawyers.

"It may have an effect. It's a possibility in the worst-case scenario that the person does not get admitted," a committee representative said....

I would surely not advise would-be lawyers -- or almost anyone who doesn't really really need the money -- to pose naked in Playboy TV series. Rightly or wrongly, such behavior may make employers and clients think the less of you.

This having been said, it seems to me that it would be a clear First Amendment violation for a state bar to consider this in the character and fitness evaluation. The government, even in its capacity as licensor, generally may not penalize you for exercise of your First Amendment rights; and making sexually themed videos is part of your First Amendment rights just as is making other videos (at least unless the videos are child pornography or are such hard-core porn that they fit within the category of obscenity).

The government has been historically granted some extra latitude when it comes to licensing lawyers. Consider the controversial Illinois decision denying racist Matthew Hale bar membership based chiefly on his racism, see In re Hale, 723 N.E.2d 206 (Ill. 1999), or the Supreme Court decisions allowing exclusion of those who refuse to swear or affirm that they will support the Constitution of the United States (and that of the relevant state), see Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971). Lawyer speech may also be restricted in situations where citizen speech may not be, see Gentile v. State Bar, 501 U.S. 1030 (1991). But these are narrow exceptions to the broad protection that lawyers, alongside other citizens, enjoy; before lawyers may be disciplined, disbarred, or denied bar membership based on their speech there needs to be a pretty powerful explanation of why the speech may undermine the administration of justice. No such explanation seems likely here.

I should note that I called up the Committee on Character and Fitness, to check whether the quote accurately represented the Committee's view; the person I spoke to said he couldn't comment on the subject. So it's possible that the Daily News misunderstood the matter, or that their source misspoke -- I much hope that this is so. But if the bar does try to exclude the applicant based on her participation in the making of a constitutionally protected video, that would be a pretty clear First Amendment violation.

And I say that as a Penn & Teller-certified expert on naked breast law.

[Paul Ohm (guest-blogging), April 12, 2007 at 1:09pm] Trackbacks
The Price of Music and the Analog Hole (1 of 2):

Today, I will switch from the Superuser article to describe a short article I have co-authored entitled The Analog Hole and the Price of Music: An Empirical Study, which will be published imminently in the Journal on Telecommunications and High Technology Law. The citation will be 5 J. on Telecomm. & High Tech. L. 573 (2007).

I talked briefly about the article last month while guesting at Concurring Opinions, and I’ll try not to repeat much of what I said over there.

My co-authors — Doug Sicker, Assistant Professor of Computer Science at the University of Colorado, and Shannon Gunaji, a recent graduate of the University’s Interdisciplinary Telecommunications Program — conducted a series of experiments and surveys initially designed to test various aspects of the Analog Hole, but which ended up being much broader in scope.

The first result, which appears last in the paper, is based on a survey of people who reported that “most of [their] digital music collection was obtained through illegal file sharing.” (Note, the older draft hosted on SSRN contains an inaccurate definition of the class of people in this survey.) We also limited our survey to people who reported not to have purchased music from an online store in the previous six months. I’ve learned this week to prepare to be called to task for terminology, and I’m sure many of you will let me know why we shouldn’t have called these people, “so-called pirates.”

Our surveys explore the price of music. Some have complained that 99 cents is too much for a song, especially for students and other people with low incomes. They have argued that given the low costs of online music distribution, music companies should experiment pricing below 99 cents. Swirling around this discussion is the question: would pirates be willing to pay anything for music? Or are we dealing with a subset of people who would rather download music for free than pay anything?

Our 90 survey respondents were asked at what price point they would be willing to pay for music. They split into a bimodal distribution. Twenty percent were not willing to pay anything for music. The remaining 80% were willing to pay from 20 to 40 cents for a legal download, instead of obtaining copies from non-paid sources.

We also gave the respondents space to comment on why they would prefer to purchase instead of pirate. Aggregating these answers, they appear motivated by three things: the desire to own legal content, the convenience of being able more easily to find songs, and the guarantee of a high-quality product. Finally, we asked the survey respondents for their thoughts about DRM. Eighty percent indicated that were they to purchase music, they would want the flexibility to move the music onto different media players or to control and access it in various other ways.

Second, we looked at the analog hole. As I said in the other blog post I have written about this paper:

Point a video camera at a television screen, aim a microphone at a speaker, or run a cable from the “line out” to the “line in” ports on the back of your computer, and you’re ready to exploit the so-called analog hole. Just press “play” on one device and “record” on the other, and you can copy a movie, television show, or song, even if the original is supposedly protected by digital rights management technology designed to prevent copying.

This is known as the analog hole, which as I say in the paper, “arises as an inevitable byproduct of the interface between computer technology and human biology.” If we humans are to see or hear relatively-easy-to-protect digital content, it must first be converted into harder-to-protect analog signals.

The analog hole comes up in the DRM/DMCA debates in interesting ways. For example, many debate whether the DMCA’s prohibitions on DRM circumvention should be amended to add exceptions for the exercise of First Amendment and Fair Use rights. Is the law unconstitutional without such exceptions? Those who oppose new DMCA exceptions for fair use (content owners, mostly) point to the analog hole in response. Don’t worry, they say, because you can always exercise these rights by exploiting the analog hole. In litigation, in the face of Constitutional challenges to the DMCA, courts in 321 Studios and Corley accepted similar arguments.

Others have fired back, arguing that the Analog Hole is a poor substitute for DRM-protected content, because it is too complicated or costly to exploit. (See footnotes 17 and 18 of the article for citations to legal scholars who have made this argument.) In other words, exploiting the Analog Hole requires a Superuser.

Our research suggested otherwise. We created analog copies of digital songs in two ways: first, by running a cable from a computer’s “line out” jack into the “line in” jack of another computer; second, by placing one computer’s high-end speakers next to another computer’s high-end microphones. In the latter case, we needed access to expensive hardware, and in both cases, we had to install software that did not come bundled with our computers. Furthermore, both tests were somewhat time consuming. Still, neither case required much technical know-how.

Although this result probably does not surprise any VC readers, we thought it would be helpful to publish our anecdotal, qualitative observations.

Tomorrow, I’ll talk about the loss of sound quality which results from exploiting the analog hole. Do consumers notice or care about this loss of quality? Would consumers be willing to buy music with degraded sound quality for less money? I’ll also talk about what all of our results may say about the recent EMI/Apple announcement. Here’s a teaser. What’s the analog hole worth? Exactly twenty-four cents. (of course, the article is short, so you can quickly learn the punch-line today.)

Related Posts (on one page):

  1. The Analog Hole is Worth Twenty-Four Cents (2 of 2):
  2. The Price of Music and the Analog Hole (1 of 2):
More on Joshua Bell Playing in the DC Metro: A number of readers enjoyed the Washington Post's story this weekend about Joshua Bell playing in the DC Metro. On Monday, the Post did an online chat with the author of the piece, Gene Weingarten, that sheds light on the story and reader reaction to it. (Hat tip: ZSM)

From the University of Maine student newspaper (Sept. 16, 2002):

Over the summer a policy was created concerning parental notification of students found in violation of alcohol and drug laws at UMaine. Parents and guardians will be notified of their student's behavior if it is determined that the student has committed a violation regarding alcohol or any other controlled substance and is under the age of 21....

"A student involved in and found in violating conditions of the [conduct] code as far as alcohol or drugs is subject to parental notification if they are under 21," David Fiacco, director of Judicial Affairs said Wednesday....

On the other hand, in 2005, when a fraternity upset with Fiacco because they were being disciplined for various offenses publicized, among other things, a "set of court documents and two newspaper articles discuss Fiacco’s conviction of Driving While Ability Impaired (DWAI), where he had a blood alcohol content of .089 percent," Fiacco sued it for intentional infliction of emotional distress.

So let's see if I understand this: When a legally adult student is found through university administrative processes to have violated alcohol laws, his parents not only may but should be notified. But when someone discovers that a university administrator has pled guilty in court to violating drunk driving laws, notifying the public of this is supposedly tortious, and in Mr. Fiacco's view ought to lead to substantial damages liability (including punitive damages).

I realize that it's possible that Mr. Fiacco, despite his fairly high position within the university disciplinary system, was simply following orders back in 2002, and wasn't involved in actually creating the parent notification rule, or opposed it internally. Maybe. But is it too much to ask that a university administrator in charge of enforcing a system such as this tolerate student revelations of his alcohol infractions, just as students are supposed to tolerate his revelations of their alcohol infractions?

(Yes, I realize that the students tried to convey Fiacco's past to the public, and Fiacco's office has a policy of conveying it to the parents. But surely conveying something to parents can be highly embarrassing, and intrusive into the student's lives, especially given that the infractions may involve little threat to others, while Fiacco's infraction involved not just illegal possession of alcohol but drunk driving; and conveying the information to the public has the benefit of informing the public about the character of its public servants. I also realize that the university's motive is the students' own good and the fraternity's motive may have been retaliation, though it might also have been exposing someone who they thought was unfit for his job. But whatever the motive, the means strike me as pretty similar; and it seems particularly improper that an administrator who uses such means against students would try to use the legal system to punish students who use similar means against him.)


Wednesday, April 11, 2007

On Cooper, Nifong, and Actual Innocence:

The rap on Roy Cooper (the North Carolina Attorney General) among my friends who know a good bit about him is that he is overcautious — a smart guy who is too often hesitant and a bit of a plodder. People I know who followed the investigation closely were confident that Cooper's investigators had concluded that the charges against the lacrosse players were without merit and that the lacrosse players were in fact innocent, but the betting money seemed to be that Cooper would issue a bland statement saying that there wasn't enough evidence to support a trial and leave it at that. That, after all, is the easy way out — the path of least resistance. He could have said that there was insufficient evidence, and that he would not go beyond that characterization because no further statement about the strength of the evidence was necessary for his decision. And I imagine that his political advisors probably told him that this would be the politically safe route to take (I can see counter-arguments, but my guess is that would have been their advice).

I find it remarkable, then, that he went so much further, saying that the accused players were in fact innocent, that there was no credible evidence against them, that the accuser's many different statements could not be rectified and that she contradicted herself, etc. This was not a garden-variety statement about insufficient evidence but instead was about as complete a vindication as the defendants could have imagined. Indeed, I think that Cooper said just about everything that the defendants could have wanted. Cooper must have really been convinced.

One final note: A defense lawyer (or a libertarian) treating this as a cautionary tale about the awesome power of a "rogue prosecutor" to run amok is not a surprise. But an attorney general framing the case that way is more striking. Not that Nifong didn't deserve this drubbing — just that I wasn't betting on it.

David Brooks on the Influence of Walt and Mearsheimer in the Arab World:


I just attended a conference that was both illuminating and depressing. It was co-sponsored by the Center for Strategic Studies at the University of Jordan and the American Enterprise Institute, and the idea was to get Americans and moderate Arab reformers together to talk about Iraq, Iran, and any remaining prospects for democracy in the Middle East.

As it happened, though, the Arab speakers mainly wanted to talk about the Israel lobby. One described a book edited in the mid-1990s by the Jewish policy analyst David Wurmser as the secret blueprint for American foreign policy over the past decade. A pollster showed that large majorities in Arab countries believe that the Israel lobby has more influence over American policy than the Bush administration. Speaker after speaker triumphantly cited the work of Stephen Walt, John Mearsheimer and Jimmy Carter as proof that even Americans were coming to admit that the Israel lobby controls their government.

It seems that a significant reason that people believe conspiracy theories, whether about "Big Pharma," 9/11, the Bush Administration, the "Israel Lobby," or anything else, is that the theories in question provide what appear to be "rational" support for views that were already deeply held from "the gut". And it doesn't hurt if the conspiracy theory advances the believers' self-interest.

Walter Murphy--The Argument From Authority:

With regard to Prof. Murphy's claims about himself and the TSA, discussed previously by Orin, I've noticed several comments on blogs and discussion lists suggesting that we should presumptively credit both his account of the event and his interpretation of it because he is a respected emeritus professor at Princeton. Without getting into the merits of the claims [acknowledgment: I do tend to agree with Orin's take], I find it interesting that some would think Prof. Murphy's academic position is meaningful evidence of credibility. Academics, it seems safe too say, often believe strange things, even (especially?) academics with prestigious positions at top universities. Whether or not they believe strange things less often than the average person, but it's certainly not exactly unheard of.

Putting aside the bizarre attraction "scientific" Marxism has had among prominent academics for generations, consider, for example, that one of the leading opponents of the accepted theory that HIV causes AIDS is a professor of molecular biology at University of California at Berkeley and a (former?) member of the National Academy of Science. Then there's the Harvard psychiatry professor who has become a leading academic advocate of the view that people have been abducted by aliens flying "UFOs."

More generally, in my work on expert witnesses and junk science, I've seen that it's not at all unusual for well-credentialed experts with impressive academic titles to sincerely believe (and testify to in court) all sorts of ridiculous nonsense.

Of course, the fact that some professors at prestigious universities have not been paragons of believability does not mean that Prof. Murphy isn't 100% right. But, on the other hand, contrary to what some have argued, the fact that he taught at Princeton isn't evidence that he's right, either.

University Administrator Suing Student Group:

By the way, a quick query on my part suggests that the Fiacco v. Sigma Alpha Epsilon Fraternity decision noted below hasn't led to any newspaper coverage. The Bangor Daily News covered the lawsuit when it was filed in Sept. 2005; but the April 5 decision I quote below doesn't seem to have made the news, or even the Foundation for Individual Rights in Education site.

New Twist for University Administrators Who Want To Silence Criticism:

Sue the critics for intentional infliction of emotional distress — even if their criticism consists of distributing accurate public record information about you. Here's an excerpt from Fiacco v. Sigma Alpha Epsilon Fraternity:

Plaintiff David Fiacco was hired by the University of Maine in Orono as the Director of Judicial Affairs in 2001. Fiacco was responsible for overseeing the process through which allegations of student misconduct were investigated, adjudicated and potentially sanctioned. Fiacco had the capacity to investigate allegations of student misconduct, adjudicate cases, conduct hearings himself and prescribe sanctions or refer a case to a committee for its action. In addition, as Director of Judicial Affairs, Fiacco helped develop policy statements regarding the student code of conduct for the University....

In the spring of 2002, the Maine Alpha chapter of SAE was being prosecuted for violations of the student code of conduct at the University [apparently involving $10,000 worth of stolen signs found at the SAE's house, as well as various safety violations, see Bangor Daily News, Sept. 20, 2005 -EV]. Fiacco, as the Director of Judicial Affairs, was in charge of investigating and processing the allegations on behalf of the University. Attorney N. Laurence Willey, Jr. was retained to aid in the defense of Maine Alpha. Willey, in turn, retained a private investigator, Victor Kraft, to look into Fiacco’s background. While it is unclear who instructed Kraft or exactly how he was instructed, a small group, consisting of Sexton, Dill, Irace, Jamison and Nowak, met with Kraft and Wiley in the spring of 2002. Private Investigator Kraft then gathered the various documents.

These documents consisted of publicly available court documents and newspaper articles. The first set of court documents detail Weaver v. Fiacco, a legal proceeding that occurred in Colorado. Through this proceeding, Kelly Weaver, Fiacco’s former girlfriend, sought and obtained a temporary and then a permanent restraining order against David Fiacco pursuant to the Colorado Domestic Abuse Act, §14-4-101 et seq. The second set of court documents and two newspaper articles discuss Fiacco’s conviction of Driving While Ability Impaired (DWAI), where he had a blood alcohol content of .089 percent. Two additional newspaper articles reveal Fiacco’s dismissal from his employment as director of public safety at Fort Lewis College in Colorado....

[SAE] then decided to distribute the documents to select individuals and newspapers within the University of Maine community. The group collaborated to draft a cover memorandum, which read:

Enclosed please find newspaper articles and court documents detailing Mr. Fiacco’s previous legal difficulties: DWI, Sexual Harassment, and Domestic Violence. Is this honestly the best qualified candidate that the University of Maine could find for the Office of Judicial Affairs?

(emphasis in original). The documents were placed behind the memorandum and into plain manila envelopes, bearing no return address. The envelopes were then placed in a box and sent to an alumnus of Maine Alpha in Colorado. The alumnus then placed the envelopes in the mail to be sent to multiple recipients in the Maine. Peter S. Hoff, then- President of the University of Maine, the Board of Trustees of the University of Maine System, Dean Dwight Rideout, the Bangor Daily News and the Maine Campus all received a manila envelope containing the memorandum and documents. At the time the memorandum and documents were sent, proceedings continued against Maine Alpha, but Fiacco had been recused from participating in the proceedings.

Fiacco then sued SAE for a variety of charges boiling down to intentional infliction of emotional distress.

Fortunately, the court concluded that Fiacco was a public official or at least a limited public figure, and the statements about him were about matters of public concern, so that the First Amendment barred intentional infliction of emotional distress liability unless the statements about him were knowing or at least reckless falsehoods. (The Supreme Court's Hustler v. Falwell decision so held; whether such liability based on true statements or opinions is permissible where the subject is a private figure, or the statements are on matters of private concern, has not squarely been resolved, though the majority of lower court cases considering the subject have extended Hustler v. Falwell to all statements on matters of public concern, whether about public figures or not.)

The court also held that the statements about Fiacco were substantially true. And, finally, the court quite sensibly held that "Even if the First Amendment did not prevent recovery on this cause of action, the dissemination of truthful, publicly available documents is not sufficiently outrageous to permit recovery [as a matter of state tort law]."

My view: The SAE people sound like no saints, if the initial charges against them are correct (and they may well be). But whatever their possible sins, a high-level university official — an official who has judicial responsibility — shouldn't be trying to sue people or groups for telling the truth about him, a truth that may well bear on his suitability for his job.

I think the emotional distress tort should generally be abolished as to otherwise protected speech (i.e., speech that doesn't fit within the First Amendment exceptions, such as for threats, falsehoods said with a sufficiently culpable mental states, and the like). But wherever you stand on that, university administrators should have more respect than Mr. Fiacco has shown for students' freedom to criticize them, and to convey the truth at institutions where truth is supposed to be the paramount value.

David Fiacco "remains in his position as the Director of Judicial Affairs" at the University of Maine.

UPDATE: Some commenters disagree with my condemnation of Fiacco on the grounds that the SAE people seemed to have been motivated by a desire to retaliate against him. But so what?

Maybe they were just upset that he was taking them to task. Maybe they thought he had behaved badly in the proceedings against them, and saw themselves as blowing the whistle on his poor character. (I don't know why he had been recused from the proceedings, and who if anyone was at fault in that.) It doesn't matter. People are, and should be, free to tell the truth about university officials, without being dragged into court and having to spend tens of thousands of dollars in legal fees. And university administrators should not sue students and student groups who reveal the truth about them (even if they are suing with their own money, as seems to have been the case here).

There was once a different rule, at least in criminal libel cases and in some jurisdictions in civil libel cases, too: Even true statements could be punished as libel if the defendant couldn't prove that he spoke "with good motives and for justifiable ends." But the Supreme Court rightly rejected this, reasoning:

Debate on public issues [including the character and behavior of public officials -EV] will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, "it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded." Moreover, "[i]n the case of charges against a popular political figure ... it may be almost impossible to show freedom from ill-will or selfish political motives."
Or, as the Court said in Hustler v. Falwell, "in the world of debate about public affairs [again, including the character and behavior of public figures -EV], many things done with motives that are less than admirable are protected by the First Amendment." University officials who sue students and student groups for telling the truth about them deserve to lose in court, and to be condemned by the public.

Related Posts (on one page):

  1. Priceless:
  2. University Administrator Suing Student Group:
  3. New Twist for University Administrators Who Want To Silence Criticism:
Tanking and the NBA Draft:

The other day Professor Michael McCann of Sports Law Blog had a post on the recurring concern about whether bad NBA teams "tank" late in the season in order to secure a better draft pick. Concern about this phenomenon is what led to the unique "lottery" system in the NBA. I wrote him asking why this concern continually arises in the NBA and not other pro leagues.

Michael has written a long and persuasive response to my query, Why Does Tanking Occur in the NBA but Seemingly Not in Other Leagues?

In a nutshell, his argument is that the benefits of tanking are higher in the NBA and the costs are lower. Seems persuasive to me, but if you are interested, read his full post for the argument.

Common-Law Federal Criminal Defenses:

I just wanted to very briefly comment on Orin's post on the subject. Dixon v. United States involved the question of who is to bear the burden of proof as to a duress defense. The "long-established common-law rule" had been that the defendant must prove duress by a preponderance of the evidence, and the Court held that Congress did not intend to displace this rule. This is where the "offense-specific context" language comes up (citation omitted):

Congress can, if it chooses, enact a duress defense that places the burden on the Government to disprove duress beyond a reasonable doubt. In light of Congress' silence on the issue, however, it is up to the federal courts to effectuate the affirmative defense of duress as Congress "may have contemplated" it in an offense-specific context. In the context of the firearms offenses at issue -- as will usually be the case, given the long-established common-law rule -- we presume that Congress intended the petitioner to bear the burden of proving the defense of duress by a preponderance of the evidence.

It seems to me that this common-law tradition is the most important factor here, and the longstanding common-law acceptance of the defense-of-property defense should lead federal courts to assume that Congress didn't mean to preempt it, at least absence a statement from Congress to the contrary.

It's true that Congress likely didn't think much about the defense when enacting computer crime laws; but the point of the common-law criminal defenses is precisely that the legislature often doesn't think much about defenses, which often (as with duress, for instance) involve relatively rare circumstances. The defenses are out there to be used when the triggering circumstances arise, and Congress doesn't need to think much about them when enacting specific statutes.

So it seems to me that Dixon is quite consistent with my position: Congress legislates against the background of various common-law rules related to criminal law defenses, and the general presumption is that Congress doesn't mean to displace these background rules.

Appearances in San Antonio:

Tomorrow (Thursday) at 4:00, I'll be speaking to the St. Mary's Law School Federalist Society on threats to civil liberties from antidiscrimination laws. Friday morning, I'll be appearing on a panel at the ABA Section on Litigation discussing state rules for the admissiblity of expert testimony and toxic tort litigation. If any VC readers are in the audience for either event, please introduce yourselves.

Does a "Cyber Self-Help" Defense Exist, and Would It Be A Good Idea?: I enjoyed Eugene's post below about "digital self-help," although I have a very different take on the question.

  First, I highly doubt that a defendant can assert a "digital self-help" claim in a prosecution brought under the Computer Fraud and Abuse Act, 18 U.S.C. 1030. Eugene is right that federal criminal statutes generally do not mention self-defense and other defenses, and yet courts sometimes have recognized those defenses for some crimes. But I don't think it's accurate to say, as Eugene does, that "federal criminal law already includes judicially recognized and generally available self-defense and defense of property defenses." Some commentators have said this, but I believe it clashes with the Supreme Court's most recent take on such questions in Dixon v. United States, 126 S.Ct. 2437 (2006).

  As I read Dixon, it seems that whether a federal defense exists is a question of Congressional intent. Specifically, the question is whether and how Congress meant to incorporate the common law defenses when it enacted that particular crime. Where Congress was silent, courts are supposed to reconstruct what Congress probably wanted or would have wanted "in an offense-specific context." Id. at 2447. (It's true that Dixon was a duress case, not a self-defense case, but it cited the Cannabis opinion, which was a necessity case; to me that suggests that the Court sees all the common law defenses together.)

  This is pretty straightforward when considering a federal criminal law that closely tracks a traditional criminal prohibition, such as homicide. As Justice Kennedy put it in his concurrence in Dixon, "When issues of congressional intent with respect to the nature, extent, and definition of federal crimes arise, we assume Congress acted against certain background understandings set forth in judicial decisions in the Anglo-American legal tradition." It's hard to imagine Congress enacting a homicide statute without meaning to incorporate a self-defense provision. So in that context, courts have readily applied self-defense even though it's not technically written into the statute.

  I think the Computer Fraud and Abuse Act is quite different. I don't know of any evidence that anyone in Congress had ever even heard about "hacking back" when Congress passed the Computer Fraud and Abuse Act in 1986. Congress did consider whether there were some kind of computer intrusions that would be okay based on the context; specifically, it created an exception in 1030(f) exempting "any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency." But it didn't create an exception for self-defense, and I don't know of any reason to think that there was a background sense that those defenses would apply as seems to be required under Dixon. Given that, I would tend to doubt that a federal "cyber self-defense" doctrine exists.

  Although it's not directly contrary to Eugene's post, I'll also add my 2 cents that I think such a defense would be a really, really, really bad idea. Here's an excerpt of what I wrote on the topic in a 2005 article, Virtual Crime, Virtual Deterrence: A Skeptical View of Self-Help, Architecture, and Civil Liability:
  It is very easy to disguise the source of an Internet attack. Internet packets do not indicate their original source. Rather, they indicate the source of their most immediate hop. Imagine I have an account from computer A, and that I want to attack computer D. I will direct my attack from computer A to computer B, from B to computer C, and from C to computer D. The victim at computer D will have no idea that the attack is originating at A. He will see an attack coming from computer C. Further, the use of a proxy server or anonymizer can easily disguise the actual source of attack. These services route traffic for other computers, and make it appear to a downstream victim as if the attack were coming from a different source.
  As a result, the chance that a victim of a cyber attack can quickly and accurately identify where the attack originates is quite small. By corollary, the chance that an initial attacker would be identified by his victim and could be attacked back successfully is also quite small. Further, if the law actually encouraged victims of computer crime to attack back at their attackers, it would create an obvious incentive for attackers to be extra careful to disguise their location or use someone else's computer to launch the attack. In this environment, rules encouraging offensive self-help will not deter online attacks. A reasonably knowledgeable cracker can be confident that he can attack all day with little chance of being hit back. The assumption that an attacker can be identified and targeted may have been true in the Wild West, but tends not to be true for an Internet attack.
  Legalizing self-help would also encourage foul play designed to harness the new privileges. One possibility is the bankshot attack: If I want a computer to be attacked, I can route attacks through that one computer towards a series of victims, and then wait for the victims to attack back at that computer because they believe the computer is the source of the attack. By harnessing the ability to disguise the origin of attack, a wrongdoer can get one innocent party to attack another. Indeed, any wrongdoer can act as a catalyst to a chain reaction of hacking back and forth among innocent parties. Imagine that I don't like two businesses, A and B. I can launch a denial-of-service attack at the computers of A disguised to look like it originates from the computers at B. The incentives of self-help will do the rest. A will defend itself by launching a counterattack at B's computers. B, thinking it is under attack from A, will then launch an attack back at A. A will respond back at B; B back at A; and so on. As these examples suggest, basing a self-help strategy on the virtual model of the Wild West does not reflect a realistic picture of the Internet. Self-help in cyberspace would almost certainly lead to more computer misuse, not less.
  More in the article itself (unfortunately, the version on SSRN is only an early draft, but the final is on Westlaw and Lexis.)
The Rhetoric of Opposition to Self-Help:

I was just talking to some people recently about the question of "digital self-defense" — whether organizations that are under cyberattack should be free to (and are free to) fight back against attacking sites by trying to bring those sites down, by hacking into the sites, and so on.

I don't claim to know the definitive answer to this question; but I did want to say a few words about some common anti-self-help rhetorical tropes, which are sometimes heard both in this context and other contexts.

1. Vigilantism: Allowing digital self-defense (or, to be precise, digital defense of property), the argument goes, would mean sanctioning vigilantism; the nonvigilante right solution is to leave matters to law enforcement.

Yet the law has never treated defense of property as improper "vigilantism." American law bars you from punishing those who attack you or your property, but it has always allowed you to use force to stop the attack, or prevent an imminent attack. There are limits on the use of force, such as the principle that generally (though not always) property may be defended only with nonlethal force. But generally speaking the use of force is allowed, and shouldn't be tainted with the pejorative term of "vigilantism," which connotes illegality. (Black's Law Dictionary echoes this, defining vigilantism as "The act of a citizen who takes the law into his or her own hands by apprehending and punishing suspected criminals.")

2. Taking the Law Into Your Own Hands: Critics of self-defense and defense of property also sometimes characterize it as "taking the law into your own hands." This too implies, it seems to me, extralegal action, through which someone unlawfully taking into his own hands power that the law leaves only in law enforcement's hands.

Yet the law has always placed in your own hands — or, if you prefer, has never taken away from your own hands — the right to defend yourself and your property (subject to certain limits). By using this right, you aren't taking the law into your own hands. You're using the law that has always been in your hands.

There are many reasons the law has allowed such self-defense and defense of property: It's generally more immediate than what law enforcement can do; even after the fact, law enforcement is often stretched too thin even to investigate all crimes; sometimes law enforcement may be biased against certain people, and may not take their requests for help seriously, so self-help is the only game in town. There are also reasons to limit self-defense and defense of property (I'll note a few below). But let's not assume that self-defense and defense of property somehow involve unlawful arrogation of legal authority on the defenders' part. Rather, they generally involve legally authorized exercise of legal authority.

3. But the Statute Has No Self-Defense Exceptions: Ah, some may say, perhaps in the physical world you have the right to defend yourself and your property — but the Computer Fraud and Abuse Act secures no such right, so whatever one's views on self-help, the fact is that self-help is illegal.

Yet, surprising as it may seem to many, self-defense and defense of property may be allowed even without express statutory authorization. These defenses were generally recognized by judges, back when the criminal law was generally judge-made; and many jurisdictions don't expressly codify them even now. Federal law, for instance, has no express "self-defense" or "defense of property" statute. The federal statute governing assaults within federal maritime and territorial jurisdiction simply says, in part,

Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows ....
(4) Assault by striking, beating, or wounding, by a fine under this title or imprisonment for not more than six months, or both.
(5) Simple assault, by a fine under this title or imprisonment for not more than six months, or both, or if the victim of the assault is an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 1 year, or both.
(6) Assault resulting in serious bodily injury, by a fine under this title or imprisonment for not more than ten years, or both.
(7) Assault resulting in substantial bodily injury to an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 5 years, or both.
Assault is generally defined (more or less) as "any intentional attempt or threat to inflict injury upon someone else, when coupled with an apparent present ability to do so, and includes any intentional display of force that would give a reasonable person cause to expect immediate bodily harm, whether or not the threat or attempt is actually carried out or the victim is injured." The federal criminal code thus on its face prohibits all assaults, including ones done to defend one's life. Yet self-defense is a perfectly sound defense under federal law — because federal courts recognize self-defense as a general criminal defense, available even when the statute doesn't specifically mention it.

Likewise, federal law generally bans possession of firearms by felons, with no mention of self-defense as a defense. Yet federal courts have recognized an exception for felons' picking up a gun in self-defense against an imminent deadly threat, again because self-defense is a common-law defense available in federal prosecutions generally.

Given this, a federal statute's general prohibition on breaking into another's computer doesn't dispose of breakins done in defense of property against imminent threat — just as federal statutes' general prohibitions on assault or on possession of a firearm by a felon don't dispose of assault or possession done in defense of life (or sometimes property) against imminent threat. Federal criminal law already includes judicially recognized and generally available self-defense and defense of property defenses, even when the defendant is prosecuted under a statute that doesn't expressly mention such defenses.

There still remains a good deal of uncertainty about how the defense of property defense would play out in any particular digital strikeback situation, and I suppose it's possible that courts might even decide that it's categorically unavailable as a matter of law in computer breakin cases (though it would be unusual, given the general availability of self-defense and defense of property defenses). But it is a mistake to simply assert that such a defense is unavailable simply because the statute doesn't mention it.

* * *

All this having been said, I want to stress that there are plausible arguments in favor of prohibiting digital self-defense (either criminalizing it or making it tortious), and reasons to be skeptical about easy analogies between digital self-defense (or, more precisely, defense of property) and physical self-defense. It may be, for instance, that there's more of a risk of error in digital self-defense cases, in that you might disable, directly or indirectly, a computer that's not actually attacking you. (Say, for instance, you're defending against a worm by launching a counterworm; there's more risk of massive damage to many third parties from an error in the counterworm than there is in a typical situation where you're confronting someone who's trying to run off with your bicycle.) It's also not obvious what should be allowed when you're going after a computer that is attacking you but only because it's been hijacked. Should that turn, for instance, on whether the computer's owner was negligent in allowing the computer to be hijacked?

It's also not clear how the general principle that defense of property must generally be nonlethal should play out — what if you're under attack using a hijacked computer that belongs to a hospital, an airport, a 911 center, or some other life-critical application? Is disabling that computer potentially lethal force, because it may have lethal consequences? How can you tell whether the computer is indeed running some application on which lives turn?

It's therefore not obvious whether the law should criminalize most or all forms of digital self-defense, criminalize some and make others tortious, leave it entirely to the tort system so long as the actor sincerely believed (or perhaps reasonably believed) the actions were necessary to defend his property, or whatever else. Some limits on digital defense of property may well be proper, especially if we think that on balance allowing such defense would lead to too much harm to the property of third parties. But we need to analyze things carefully, by asking some of the questions I noted in the last few paragraphs — not just by condemning digital self-defense as vigilantism, as taking the law into one's own hands, or as clearly illegal under current computer crime law.

Thanks to Warren Stramiello, a student whose paper first alerted me to the defense of property analogy; and note this Journal of Law, Economics & Policy symposium on the subject, which is available in volume 1, issue 1 of the Journal, but unfortunately not on the Web. (Participants included our very own Orin Kerr, as well as my incoming colleague Doug Lichtman.)

Live Blogging the "Information Revolution":

This afternoon I om on a panel on "The Information Revolution" keynoted by Ambassador Joseph Wilson. The panel is part of the university's annual Research ShowCASE symposium. (See the schedule here.) Given the title of the program — and the potential for an interesting discussion — I'm liveblogging the panel.


How Did Walter Murphy Get Off the No-Fly List?: My apologies for posting so much on the Walter Murphy story — I think it's pretty interesting, although I realize some readers will disagree — but I wanted to flag this remarkable portion of Ryan Singel's interview with Walter Murphy on getting off the No-Fly list. (Thanks to commenter "JonC" for drawing it to my attention.)

  Recall that when Professor Murphy flew to Newark from Albuquerque, he was told that he was on the Terrorist Watch List. However, by the time of his return flight to Albuquerque, he was apparently no longer on the list; he was able to get his boarding pass without incident. So one obvious question is, if the Bush Administration is trying to attack Professor Murphy to suppress his speech, why would they take his name off the list just a day or two later? In the Singel interview, Professor Murphy speculates as to the reason:
I flew back without having trouble getting a boarding pass. But when I was in Princeton, I had breakfast with former student — a Republican congressman, and called a number of friends in my academic life, and the NSA monitors a lot of phone calls, especially cell phone calls, so I tried to use the words that might trip their computers like starting calls by saying, "I'm on the terrorist watch list" and "I've been criticizing George Bush" and if indeed these things are monitored, maybe they heard this, I don't know.
  I realize that Professor Murphy honestly and genuinely feels targeted. But am I right that we're veering off into UFO-sighting territory here? Think about this for a second. Murphy suggests that the fact that he was only questioned once rather than on every flight doesn't mean that perhaps his name wasn't actually on the No-Fly list. Rather, it means that his name initially was put on the list to punish him for his Princeton speech — but then, by the time of the outbound flight, perhaps NSA or other government surveillance of him had tipped off the government that he was on the list, and led them to take him off the list. I really don't mean to be harsh, but that strikes me as just, well, weird.

  Professor Murphy also states in the interview that he knows other people have been taken off the No-Fly list. In particular, he suggests that "bright, highly paid legal secretaries" might be able to use connections to get lawyers taken off the list:
One friend who called me said, "I got put on, too." He used to be [a] fairly high-powered mover and shaker. "How did you get off?," I asked. "I'm partner in large law firm and I told my secretary to get me off," he said. "And I've been able to fly since."
  Again, this just sounds really unlikely. (Okay, okay, get your mind out of the gutter, people.) I know law firm partners often receive excellent secretarial assistance, but why would a private law firm secretary know how to get a name removed from the government's No-Fly list?

  Finally, the Singel interview sheds a little more light on the matter of Murphy's lost luggage. In the original post at Balkinization, Professor Murphy said the following about his lost luggage:
On my return flight, I had no problem with obtaining a boarding pass, but my luggage was "lost." Airlines do lose a lot of luggage and this "loss" could have been a mere coincidence. In light of previous events, however, I'm a tad skeptical.
  From this passage, it sounds like Murphy's luggage completely disappeared. In the Singel interview, however, Murphy explains that the "lost" luggage actually just showed up a few hours late:
When I got back to Albuquerque, the airline said my luggage was lost. It was delivered later that night, sometime after midnight. I don't know when. I left a note on the door telling them just leave it. It arrived some time overnight and I found nothing missing.
  Again, I realize that Professor Murphy honestly and genuinely feels targeted. And it's true that Professor Murphy is an academic giant; he's he author of many major and important works, including one of my favorite books, Wiretapping on Trial. At the same time, I'm increasingly finding this story rather embarrassing. At this point it sounds to me like much ado about nothing, perhaps just a story of miscommunication or what happens when bored American Airline clerks in Albuquerque decide to have fun with a distinguished gentleman flying to Newark.

  In any event, it seems to me extremely unlikely that Professor Murphy was actually targeted by the government for his Princeton speech.
[Paul Ohm (guest-blogging), April 11, 2007 at 1:09pm] Trackbacks
The Myth of the Superuser, Part Three, The Failure of Expertise:

Over the past two days of discussion about my article, I have essentially been saying that we (policymakers, lawyers, law professors, computer security experts) do a lousy job calculating the risks posed by Superusers. This sounds a lot like what is said elsewhere, for example involving the risks of global warming, the safety of nuclear power plants, or the dangers of genetically modified foods. But there is a significant, important difference: researchers who study these other risks rigorously analyze data. In fact, their focus on numbers and probabilities and the average person’s seeming disregard for statistics is a central mystery pursued by many legal scholars who study risk, such as Cass Sunstein in his book, Laws of Fear.

In stark contrast, experts in the field of computer crime and computer security are seemingly uninterested in probabilities. Computer experts rarely assess a risk of online harm as anything but, “significant,” and they almost never compare different categories of harm for relative risk. Why do these experts seem so willing to abdicate the important risk-calculating role played by their counterparts in other fields? Consider four explanations:

1. Pervasive Secrecy. Online risks are shrouded in secrecy. Software developers use trade secrecy laws and compiled code to keep details from the public. Computer hackers dwell in a shadowy underground. Security consultants are bound contractually not to reveal the identities of those who hire them. Law enforcement agencies refuse to divulge statistics about the number, type, and extent of their investigations and resist Congressional attempts to increase public reporting.

Which brings us to California SB 1386. Inspired by experiences with this law, Adam Shostack argued at this year’s Shmoocon that “Security Breaches are Good for You,” by which he really meant, “breach disclosure is good for you,” setting off a mini-debate in a couple of blogs. (See this post and work backwards from there). On his blog, Adam said:

The reason that breaches are so important is is that they provide us with an objective and hard to manipulate data set which we can use to look at the world. It's a basis for evidence in computer security. Breaches offer a unique and new opportunity to study what really goes wrong. They allow us to move beyond purely qualitative arguments about how bad things are, or why they are bad, and add quantifatication.

I think Adam is on to something, and this quote echoes some of my conclusions in the article. But I’m not hitching my argument directly to his. Because even if you conclude that Adam is wrong; if you think the need for secrecy and non-disclosure trumps his desire for a more scientific approach to computer security, secrecy still shouldn’t trump accurate, informed policymaking (lawmaking, judging). What does this mean? If someone wants to keep the details behind a particular risk secret, for whatever reason, perhaps that’s his prerogative. But if he then complains to policymakers about vague, anecdotal, shrouded risks, he should be ignored or at least his opinion should be greatly discounted.

2. Everyone is an Expert. “Computer expert” is a title too easily obtained. Unlike modern medical science, where the signal advances require money and years of formal education to achieve, many computer breakthroughs tend to come from self-taught tinkerers. In many ways, the democratizing nature of online expertise is cause for celebration; it is part of what makes Internet innovation and entrepreneurship so exciting.

The problem is that so-called computer experts tend to have neither the training nor inclination to approach problems statistically and empirically. People can be called before Congress to testify about identity theft or network security, even if they have no idea nor even care how often these risks occur. Their presence on a speakers’ list crowds out the few who are thinking about these things empirically and robustly.

3. Self-Interest. Many experts have a self-interest in portraying online actors as sophisticated hackers capable of awesome power. Law enforcement officials spin yarns about legions of expert hackers to gain new criminal laws, surveillance powers, and resources. The media enjoy high ratings and ad revenue reporting on online risks. Security vendors will sell more units in a world of unbridled power.

4. The Need for Interdisciplinary Work. Finally, too many experts consider online risk assessment to be somebody else’s concern. Computer security experts often conclude simply that all computer software is flawed, and that malicious attackers can and will exploit those flaws if they are sufficiently motivated. The question isn’t a technology question at all, they contend, but it is about means, motive, and opportunity, which are questions for criminologists, not engineers.

Criminologists, for their part, spend little time studying computer crime, perhaps assuming that vulnerability-exploit models can only be analyzed using computer science. The answer, of course, is that they’re both wrong – and both right. Assessing an online risk requires an interdisciplinary blend of computer science, psychology and sociology; short-sighted analyses that focus only on some of these disciplines often result in misanalysis.

One Prescription: Better Data. I won’t spend too much time summarizing my prescriptions. The gist is that we need to start to police our rhetoric, and we need to do a better job collecting and using data. Two sources of data seem especially promising: the studies coming out of the burgeoning Economics of Information Security discipline, and the ongoing National Computer Security Survey co-sponsored by DOJ’s Bureau of Justice Statistics and DHS’s National Cyber Security Division and administered by RAND.

There is much more to my arguments and prescriptions, but I hope this is a good sample. Tomorrow, I will transition to something very different: a two-day look at a paper I have co-authored describing some empirical results about the Analog Hole and about consumer willingness-to-pay for digital music.

Related Posts (on one page):

  1. The Myth of the Superuser, Part Three, The Failure of Expertise:
  2. The Myth of the Superuser, Part Two, Harm:
  3. The Myth of the Superuser, Part One:
Privatization and the Law and Economics of Political Advocacy, Part 7:

This post continues my series on my upcoming Stanford Law Review paper on Privatization and the Law and Economics of Political Advocacy (see here for the technical paper). In the last post, I documented how there's a lot of hard evidence that public-sector corrections officers' unions advocate incarceration, and virtually no hard evidence that private firms do the same.

In this post, I consider what lessons we might draw from that. Then (below the fold), I elaborate on two curlicues of the theory (which you can skip if you're so inclined) -- first, why focus on public-sector unions and private firms only, and second, whether the public and private sectors really act strategically against each other.

* * *

As noted above, there is little hard evidence that private firms advocate stricter criminal law at all. Perhaps they do so secretly, in which case this simple model may be entirely unrealistic. Or perhaps this simple model is basically right, and the private firms are actually spending their money on a form of advocacy where the public good aspect isn’t important—pro-privatization advocacy.

Pro-privatization advocacy is an area where, obviously, the private sector can’t free-ride off the public sector, since the public sector is their enemy on that issue. If the private firms cooperate with each other, they reap all the benefits of their pro-privatization advocacy; and even if they don’t cooperate with each other, an individual firm’s pro-privatization contribution may benefit it directly to the extent that it (perhaps improperly) increases the likelihood that it will obtain a particular contract.

In real life, of course, money may be multi-purpose. I have treated “mute” campaign expenditures as though they were for some purpose—either privatization or incarceration—that was known to the donor but unknown to us. In fact, they could be for “access” to the candidate, which can be used at any time after the candidate prevails. But the model is general enough to accommodate this framework. At some point, donors will try to call in a favor. Favors cost something in terms of “political capital,” and political capital is scarce: Calling in one favor makes it harder to call in another favor. At the point where donors have to determine what to ask for, we are back in the previous model.

The “access” framework has thus only postponed the applicability of the model until after the election. One would still predict, under this model, that the smaller donors would prefer to spend their capital supporting something with more of a private-good component, like privatization, and leave the pro-incarceration advocacy to the dominant actor. And this may in fact be what happens.

Domestic partnerships pass Washington state legislature:

With the expected signature of the governor, the state will now grant some of the benefits of marriage to same-sex couples. According to the Seattle Post-Intelligencer:

Gays and lesbians can't legally wed, but the Legislature took another step toward that Tuesday by passing domestic partnership legislation for same-sex couples.

"It's not marriage," said Rep. Jamie Pedersen, D-Seattle. "There are more than 400 state law rights or obligations that don't come with domestic partnership, and we are going to have our hands full trying to get those rights and protections, too....

The bill passed easily on a 63-35 House vote despite condemnations from conservatives who said the bill was an affront to community values and religious freedom.

Gov. Chris Gregoire plans to sign the bill, which earlier passed the Senate, into law. Senate Bill 5336 creates a domestic partnership registry with the state and provides enhanced rights for same-sex couples, including hospital visitation, the ability to authorize autopsies and organ donations, and inheritance rights when there is no will.

Couples would have to share a home, not be married or in a domestic relationship with someone else and be at least 18.

Similar to California law, unmarried heterosexual couples would also be eligible for domestic partnerships if one partner were at least 62.

The advocates' intent to incrementally move toward gay marriage was one of the main reasons opponents fought the legislation. . . .

[Sen. Ed Murray, (D-Seattle),] said the bill moves gay marriage one step closer.

"I think we are closer to marriage than people realize, but it's still a multiyear process, it's still going to take a lot of work," he said.

Overall, the movement toward recognizing same-sex relationships in state legislatures has greatly accelerated since the fall election brought more Democratic control of state houses.

In Washington state, the legislature is also responding to a 5-4 decision by the state supreme court last summer that denied a gay marriage claim but left open the possibility of future claims for legal benefits. I commented here on that decision and its suggestion for legislative action to alleviate the legal difficulties faced by gay families. Whether the new domestic partners legislation will satisfy the court may be tested in future litigation.

Lydon and Murphy on the No-Fly List: Over at Open Source, a Public Radio International program, Christopher Lydon has a very sympathetic interview with Walter Murphy about his experience in March at the Newark Airport. Murphy contends that his treatment at the Airport is "a Constitutional Crisis writ small, an attack on an individual who dares to point out" that the Bush Administration's view of Executive power is dangerous and troubling. (Here's the video of the speech that Murphy believes led the Administration to target him.)

  Much to my surprise, I am personally named and criticized by Lydon as a blogger who "wants to make excuses for the government" by questioning the story. Lydon states that it is just "fascinating" that I would think to question Murphy's belief that he is being harassed for his speech. Unfortunately, Lydon doesn't explain why asking questions reveals a wish to "make excuses for the government" as compared to a wish to figure out the truth. Anyway, if you're interested, the mention of me is about a third the way through the program.

  The guest following Murphy is a Washington Post staff writer, Karen DeYoung, who points out a bunch of likely alternative explanations for Murphy's experience. She suggests that Murphy was probably just on the "selectee" list, not the No-Fly list, both because he was allowed to board the flight and because he wasn't even questioned on the return flight. Hmm, who knew that a Washington Post reporter would "want to make excuses" for the Bush Administration, too?

  Finally, Ryan Singel also interviewed Murphy recently; you can find his extensive interview here.

Tuesday, April 10, 2007

A Dear Leader Bites Rabbit Story:

A few weeks ago, I blogged about the North Korean communist goverment's plan to alleviate its food shortages by breeding giant rabbits purchased in Germany. At that time, I listed several reasons why North Korea's giant rabbit breeding program was unlikely to succeed any better than have other experiments in economic central planning. However, I have to admit that I didn't expect that the program would fail for this reason. According to the Sydney Morning Herald (hat tip Tom Palmer):

A German farmer who sold 12 giant rabbits to North Korea with the aim of setting up a breeding program to alleviate famine has said he was shocked to hear they were eaten at Kim Jong-il's birthday banquet.

Karl Szmolinsky sent his oversized bunnies to Pyongyang to boost meat production. Der Spiegel reported that the 68-year-old breeder had been due to travel to North Korea to help set up the farm, but had received a telephone call last week from an official cancelling the trip.

Mr Szmolinsky told Der Spiegel that although he had no evidence, he believed his rabbits, which each weighed more than 10 kilograms, had been eaten at a banquet for the North Korean leader on February 16. "North Korea won't be getting any more rabbits from me, they don't even need to bother asking," he told the magazine.

In retrospect, maybe I should have foreseen the problem. Since Kim Jong Il is more than willing to kill millions of people, he surely wouldn't have any scruples about offing a few rabbits in order to liven up his birthday party. More generally, in a centrally planned economy, the most desirable goods tend to end up in the hands of the central planners. And the chief central planner in North Korea is undoubtedly Mr. Dear Leader Kim Jong Il. As the North Korean government's official website puts it, he is "the sun of the nation and of mankind." The people of North Korea - and the world - would be better off if Dear little KJI were fed to the giant rabbits instead of the reverse. Perhaps we should put the "killer rabbit" that once attacked Jimmy Carter on the case.

When Does C.J. Roberts Write Strongly-Worded Dissents?: In the Sunday New York Times, Linda Greenhouse had a very interesting article on Chief Justice Roberts' dissent in Massachusetts v. EPA. An excerpt:
  This case was a rude reminder that [Chief Justice Roberts'] careful self-presentation comes with a price. He is no more likely than any other justice to yield on what he regards as a matter of principle. But the raised expectation of consensus magnifies a defeat like this one: his consensus project lost as well.
  That Chief Justice Roberts cast a dissenting vote in Massachusetts v. Environmental Protection Agency was no great surprise. He had advocated a narrow view of standing, particularly in environmental cases, since his days as a lawyer in the Reagan administration. . .
  It was his vehemence rather than his dissenting vote that was the surprise. This was no dry document written by a law clerk. The chief justice was spending capital and speaking in his own voice.
  Roberts' dissent in Massachusetts v. EPA reminds me a lot of his dissent in Georgia v. Randolph, the Fourth Amendment case from last year. First, the style and reasoning are somewhat similar. Both are intense and sharply worded; neither pulls any punches. In both cases, the majority was creating new and uncertain ground to reach a satisfying result in a case with sympathetic facts. In both cases, Roberts had then-existing precedent on his side. In both cases, he urged the Court to stick to the preexisting approach rather than to break new ground.

  And just as importantly, both dissents were strategically placed. In both cases, the Court was almost evenly divided, and attracting just one more vote to his side would have likely changed the outcome. Masachusetts v. EPA was 5-4, and getting Kennedy's vote would have led the Court to affirm instead of reverse. Georgia v. Randolph ended up being 5-3, with Alito not yet participating, but a 4-4 vote would have led to reargument with Alito and a likely outcome the other way. In both cases, Roberts assigned the primary dissent to himself and wrote a piercing opinion, perhaps to see if he could pick off the swing vote in the case.

  It's too early to tell if these two cases will reflect a broader trend, both because these parallels may be a coincidence and because Roberts may change tactics in the future. But I did find the similarities between these two dissents pretty interesting. (And I'm very interested to know if others saw the same parallels; some of these judgments are of course a matter of opinion.)

If you're in the D.C. area, I heartily recommend that you go see Patience, by Gilbert & Sullivan, put on by Georgetown Law School's Gilbert & Sullivan Society ("America's only theater group with its own law school").

It starts at 8 p.m. tomorrow night (Wednesday, April 11) and runs through Saturday, April 14. Georgetown Law School is at 600 New Jersey Ave. NW, between the Union Station and Judiciary Square metro stops.

This is not as well known as some of their other shows, but it's a little gem of a play. I myself was in the Georgetown G&S Society's production of Patience back in March 1994. Plus, if you show up tomorrow -- opening night -- you may see a certain conspirator in a brief walk-on role.

The Equal Rights Amendment and the Judiciary:

Many conservative critics of the Equal Rights Amendment, as well as some commenters on my previous ERA posts, claim that the ERA would never be used to strike down liberal policies such as affirmative action for women, because liberal judges would interpret it to avoid this result. As evidence, they cite the interpretation of the Civil Rights Act of 1964 to permit affirmative action, despite the fact that racial preferences seem clearly inconsistent with the law.

This argument is not wholly implausible, but it ignores the massive differences between the judiciary today and that of the 1960s and 70s which created the dominant interpretations of the Civil Rights Act. At that time, the judiciary was overwhelmingly liberal and nontextualist. As a result, they were willing to deviate from the text to reach liberal results, especially at a time when Congress and the president largely approved of their objectives (as did even Republican President Richard Nixon, who supported affirmative action). Today, the judiciary is largely made up of judges appointed by conservative Republican presidents Reagan, Bush I, and Bush II, all of whom tried hard to pick judges with strong conservative credentials and (to a lesser extent) textualist approaches to constitutional and statutory interpretation. For example, almost 60% of today's federal court of appeals judges were appointed by conservative Republican presidents. With the replacement of Justice O'Connor (who waffled on the issue) by Justice Alito, the Supreme Court also has a majority hostile to affirmative action. And today's presidency is often held by conservative Republicans. Congress, even under the Democrats, is unlikely to have the kind of strong liberal majority that existed in the 60s and 70s.

It is therefore highly unlikely that the today's judiciary would approach the Equal Rights Amendment in the same way that their predecessors treated the civil rights acts of the 1960s. Unlike in the case of the civil rights acts, where today's conservative judges are to some extent constrained by yesterday's liberal precedents, modern judges will have the chance to interpret the ERA on a blank slate. Even with respect to the civil rights acts, it is worth noting that the more conservative Supreme Court of the 1980s cut back on some of the liberal Warren and Burger Court precedents in this area, only to be swatted down by Congress in the 1991 Civil Rights Act. To paraphrase Donald Rumsfeld, we interpret constitutional amendments with the judges we have, not with those we had decades ago. And that will have a major impact on the judiciary's treatment of the ERA.

Professor Murphy On Why He Thinks He Was Targeted: The Daily Princetonian has an interesting story on Walter Murphy and the No-Fly list that sheds more light on why Professor Murphy thinks he was intentionally targeted for his speech:
  Murphy added that it could be a coincidence — "if you believe in the Easter bunny, yeah" — but said he doesn't think that it is.
  "The coincidences are multiplying," he said. He cited the "outing" of CIA agent Valerie Plame immediately after her husband's public questioning of the rationale behind the war in Iraq and two of his personal acquaintances, who are critics of the Bush administration and are also on the no-fly list.
  "It begins to strain credulity," he said.
The story continues:
  Murphy doesn't think that his name — which, he points out, is half-German, half-Irish — is common enough to suggest a case of mistaken identity.
  "I've only known of one other Walter Murphy, and that was a rock guy back in the '70s," he said.
  Ultimately, Murphy said, there's little doubt in his mind that the airline ban is an annoyance deliberately devised for him by the government, albeit one that he has found amusing. "I was always sorry I didn't make Nixon's hit-list, but making Bush's hit-list is almost as good," he joked.
  Assuming Professor Murphy's views are being represented here accurately, these explanations don't exactly inspire confidence that Professor Murphy's beliefs are justified. First, I can't see any connection between this and the outing of Valerie Plame. Second, a quick check with Peoplefinder found 380 people with the name "Walter Murphy." The fact that Professor Murphy has "only known of one other" seems a bit myopic. And finally, even though it's a joke, the comment about regretting not having been on Nixon's enemies list suggests that Professor Murphy may be a bit too inclined to interpret events as having targeted him in particular.

  Of course, none of this directly answers whether Professor Murphy was targeted. But I think it does add reason to think (in light of the sparse facts we know) that Professor Murphy may be reading a bit more into things than is warranted.
Privatization and the Law and Economics of Political Advocacy, Part 6:

This post continues my series on my upcoming Stanford Law Review paper on Privatization and the Law and Economics of Political Advocacy (see here for the technical paper). In my last post, I wrote:

In brief, there is a lot of hard evidence of pro-incarceration advocacy by public corrections officers’ unions (though a small part of union advocacy also cuts the other way). (There is also hard evidence that most Departments of Corrections advocate the other way—in favor of alternatives to incarceration.) But there is virtually no hard evidence of private-sector pro-incarceration advocacy. This may simply mean that the private sector advocates secretly. But, in light of the theory, it is more plausible that the private sector simply free-rides, saving its political advocacy for policy areas where the public good aspect is less severe—pro-privatization advocacy.

This post documents that assertion. For a more footnoted version—there's a limit to how much I can link to here—consult the paper.

* * *

In 1987, E.S. Savas, a supporter of privatization, dismissed the claim that private firms advocate incarceration by noting that “[i]f this argument was sound . . . prison officials, guards, and their unions presumably would act in the same manner for the same reasons. This, however, is not the case.”

Whether this was true even back then is questionable. At one time, corrections officials were politically aligned with liberal groups, but by the 1970s correctional unions were already advocating incarceration.

This activism continues today. The most active public corrections officers’ union in advocating incarceration is the California Correctional Peace Officers Association (CCPOA). It gives twice as much in political contributions as the California Teachers Association, though it’s only one-tenth the size; only the California Medical Association gives more in the state. CCPOA spends over $7.5 million per year on political activities. It contributes to political parties, political events, and debates; it gives money directly to candidates; it hires lobbyists, public relations firms, and polling groups.

Many of its contributions are impossible to trace back to any particular agenda item: Since the union also opposes privatization, favors higher wages, and has positions on other issues, it’s just as plausible that the contributions were made for those other purposes.

But many of its contributions are directly pro-incarceration. It gave over $100,000 to California’s Three Strikes initiative, Proposition 184 in 1994, making it the second-largest contributor. It gave at least $75,000 to the opponents of Proposition 36, the 2000 initiative that replaced incarceration with substance abuse treatment for certain nonviolent offenders. From 1998 to 2000 it gave over $120,000 to crime victims’ groups, who present a more sympathetic face to the public in their pro-incarceration advocacy. It spent over $1 million to help defeat Proposition 66, the 2004 initiative that would have limited the crimes that triggered a life sentence under the Three Strikes law. And in 2005, it killed Gov. Schwarzenegger’s plan to “reduce the prison population by as much as 20,000, mainly through a program that diverted parole violators into rehabilitation efforts: drug programs, halfway houses and home detention.”

CCPOA doesn’t always favor increasing incarceration, but the bulk of its advocacy has been in this direction. Dan Pens has quoted CCPOA member Lt. Kevin Peters as saying:

You can get a job anywhere. This is a career. And with the upward mobility and rapid expansion of the department, there are opportunities for the people who are [already] correction staff, and opportunities for the general public to become correctional officers. We’ve gone from 12 institutions to 28 in 12 years, and with “Three Strikes” and the overcrowding we’re going to experience with that, we’re going to need to build at least three prisons a year for the next five years. Each one of those institutions will take approximately 1,000 employees.

This isn’t just a story about California. Though corrections officers’ unions outside of California are nowhere near as active as the CCPOA, many of them do advocate incarceration. (As I note below, everything is bigger in California: While private prison firms make political contributions nationwide, they, too, spend more in California.) The correctional wing of Florida’s police-and-corrections union has endorsed candidates for being tough on crime. The Michigan corrections officers’ union has opposed boot camp proposals. The New York City corrections officers’ union endorsed Gov. Pataki because he ended parole for violent felons. The New York State corrections officers’ union is said to have stymied efforts to overhaul mandatory minimum sentences. And the Rhode Island corrections officers’ union endorsed a candidate for his prosecutorial record and position in favor of tougher criminal penalties. (I am not considering the more usual demands for tougher penalties for criminals who commit crimes while in prison—a particularly salient issue for corrections officers, who are often victims of such crimes.)

Some corrections officers’ unions are combined with police unions, for instance in Florida or New Jersey. So except where (as in Florida) the corrections officers’ wing has been independently politically involved, any of these unions’ advocacy can’t be traced directly to corrections officers.

In some states, corrections officers are also affiliated with AFSCME, the general public employees’ union; AFSCME Corrections United represents 60,000 corrections officers and 23,000 corrections employees nationwide. It’s plausible that corrections officers’ concerns would be swamped by the potentially contrary concerns of public employees as a whole (who tend to be fairly liberal). And, indeed, the evidence that AFSCME has advocated incarceration is weak. AFSCME has advocated alternatives to incarceration, and the national organization has advocated legalizing medical marijuana (though of course this would only account for a tiny proportion of crime). The Oklahoma public employees’ union—also a general union—has also advocated alternatives to incarceration.

So much for public corrections officers' unions. Now let's go on to private prison firms.

[Paul Ohm (guest-blogging), April 10, 2007 at 9:40am] Trackbacks
The Myth of the Superuser, Part Two, Harm:

First, a quick note to lawyers: today’s installment about my article is much more law-focused than yesterday’s.

I am grateful for yesterday’s comments. Many of you took issue with my use of the word, “Superuser.” You all have almost persuaded me to use “Superhacker” instead, although it would be a painful change. After living with this article for the past year-plus, it’ll be hard to think of it as anything but the Superuser piece. I’m still on the fence, so for the rest of my stay here, I’ll continue to call these mythical people, Superusers.

Why should we care whether exaggerated arguments about Superusers cause legislators to address risks that are unlikely to materialize? Because many, significant harms flow from the Myth of the Superuser. Due to the near-universal belief in the Myth, there has never been a thorough accounting of these harms, and we have been doomed to repeat and extend them. In my article, I discuss six harms which flow directly from policies and laws that are justified by the Myth. Today, I want to focus on two:

1. Overbroad laws. Congress’s typical response to the Myth of the Superuser is to write broad criminal prohibitions. It is haunted by the possibility that someday a Superuser who commits a horrific wrong will not be able to be brought to justice because of a narrow prohibition in the law. They fear an American version of Onel de Guzman, the Philippine citizen who confessed to writing the “I LOVE YOU” virus but escaped punishment because Philippine law did not criminalize the type of harm he had caused.

Consider, for example, the principal federal law that prohibits computer hacking, the Computer Fraud and Abuse Act (CFAA). Many of the statute’s prohibitions apply expansively, and I contend that Congress has repeatedly broadened the law, in large measure, to deal with the scary prospect of Superuser hackers. For proof, count the number of stories about anonymous Superusers in any House or Senate Report accompanying an amendment to the CFAA; an especially egregious example is the 1996 Senate Report.

The CFAA’s prohibitions cover an expansive laundry list of activity. You might be a felon under the CFAA’s broad “hacking” provisions if you: breach a contract; “transmit” a program from a floppy to your employer-issued laptop; or send a lot of e-mail messages. And even if the FBI decides not to prosecute you for these transgressions, the broad CFAA gives it the right to investigate you, to read your e-mail messages and maybe even wiretap your phones and Internet connections.

2. Infringements of Civil Liberties. Part of what is terrifying about the Superuser is how the Internet allows him to act anonymously, hopping from host to host and country to country with impunity. To find the Superuser, the police ask for better search and surveillance authorities and tools, as well as the latitude to pursue creative solutions for piercing anonymity.

But broadened search authorities can be used unjustifiably to intrude upon civil liberties. Search warrants for computers are a prime example; the judges who sign and review computer warrants usually authorize sweeping and highly invasive searches justified by storytelling about the Superuser Data Hider.

It has become standard boilerplate for agents in their affidavits supporting search warrant applications to talk about sophisticated technology that can be used to hide data. According to this boilerplate, criminals “have been known” to use kill switches, steganography and encryption to hide evidence of their crimes. In addition, file names and extensions are almost meaningless, because users can easily change this information to hide data.

Convinced of the prowess of the data hider, a typical judge will usually sign a warrant that authorizes the search of every single file on a suspect’s computers; that authorize the search of parts of the hard drive that don’t store files at all; and that allow off-site computer searches, where data is forensically examined for months or maybe even years. In upholding the scope of these kinds of searches, reviewing courts make bare and broad proclamations about what criminals do to hide evidence. These broad pronouncements (which are also citable precedent) are built upon nothing but an agent’s assertions and a judge’s intuitions about computer technology.

If, in reality, some criminals tend not to hide data inside obscured filenames or unusual directories, then judges might feel compelled to ask the police to cordon off parts of a computer’s hard drive.

So where does this particular myth end and reality begin? Common sense suggests that some criminals are paranoid enough to hide evidence. But it’s highly improbable that all criminals are equally likely to use these tactics. Home computer users who are committing relatively non-technological crimes — death threats or extortion via e-mail, for example — may have less incentive to hide evidence and no access to the tools required to do so. Painting all criminals in every warrant application as uniformly capable of hiding information is a classic example of the Myth.

In the Article, I call for judges to require a more particularized showing of “criminal tradecraft” before they sign sweeping warrants. How do we know that this class of criminal is likely to have used these particular tactics? The hurdle need not be very high; police training and experience are owed deference. But deference is not the same thing as acceptance of sweeping generalizations. In some cases, constraints on the police on the allowable scope of the search of a hard drive may be sensible, and perhaps even required by the particularity clause of the Fourth Amendment.

Very briefly, in addition to these two harms — overbroad laws and civil liberties infringements — the other four harms I identify are guilt by association (think Ed Felten); wasted investigative resources (Superusers are expensive to catch); wasted economic resources (how much money is spent each year on computer security, and is it all justified?); and flawed scholarship (See my comment from yesterday about DRM).

Tomorrow, I will conclude my discussion of the Superuser by focusing on a root cause of the myth, the failure of expertise.

Another Program that Would be Struck Down Under The ERA:

It so happens that the New York Times recently published an article about an education program that would almost certainly be invalidated by the courts were the Equal Rights Amendment in force:

[S]ome minority students, the black boys at [the] Brookside [School in Westchester County, New York], are set apart, in a way, by a special mentoring program that pairs them with black teachers for one-on-one guidance outside class, extra homework help, and cultural activities during the school day.....

.... school officials said they were not singling out black boys, but after a district analysis of high school students’ grade-point averages revealed that black boys were performing far worse than any other group, they decided to act. In contrast, these officials said, the performance of black girls compared favorably with other students and did not warrant the same concern.

The district calls it a “moral imperative,” and administrators and teachers say their top priority is improving the academic performance of black male students, who account for less than 10 percent of the district’s 4,200 students but disproportionately and consistently rank at the bottom in grades and test scores. The programs are voluntary, school officials said, and some students choose not to take part.

It is far from certain that this program would survive judicial review even under current Equal Protection Clause doctrine. As the NYT article points out, there are lawsuits underway on this issue. Under the ERA, however, the demise of the program would be virtually certain. Even if it is true that, on average, black male students have more severe education problems than whites or black females, under the ERA that would almost certainly not be enough to justify a program that categorically excludes the latter groups. The same is true of claims, mentioned in the article, that black male students need a separate program because they have "special" needs that are not shared by other groups. Again, even if true on average, this claim would not be enough to justify the complete exclusion of other groups under the Equal Rights Amendment, which categorically forbids virtually any legal rule that assigns rights on the basis of gender.

I take no position on the educational efficacy of this program. Perhaps it really will increase the academic achievement of African-American male students, and perhaps not. Either way, however, it and other similar programs would not be permitted under the ERA, and that is something to think about in deciding whether the ERA should be enacted or not.

The Housing Bubble--A Credit Bubble:

Back in January 2006, I authored a post entitled "Is the Housing Bubble Really a Credit Bubble?" I wrote: "I've seen some persuasive evidence, both scholarly and anecdotal, that a major factor driving the 'housing bubble' is historically loose credit standards: no money-down (or even negative money down) mortgages, cursory (or even non-existent!) checks of reported income levels, qualification based on teaser rates that rise substantially after a year or two, and so on."

With the subprime meltdown, an Alt-A meltdown potentially on the horizon, and evidence of historically unprecedented levels of mortgage fraud, I think it's fair to say that the answer to my original query is "yes."

I also added a prediction: "when the teaser rates expire, and prices stabilize (which they seem to be doing already) so that mortgagees can't simply 'flip' their properties when their monthly payments rise, this is going to get very, very ugly. And the regulators who've dropped the ball on managing credit standards are going to look a lot like the regulators asleep at the switch in the '80s with regard to S&Ls." The ugliness has started, especially in the former Ground Zero of the housing bubble, South Florida, but it will likely take a recession--perhaps itself brought about by the end of the bubble--to get to the "very, very ugly" stage.

Not irrelevantly, my wife and I are going to look at a bank-owned foreclosure property tomorrow night, selling for 100K less than both its county assessment and the most recent (100%) refinance. The house next door, I've discovered from the public records, which had a different owner, has also been foreclosed upon. Bank-owned properties are suddenly popping up in the MLS all over Northern Virginia. [Note: This is not a recommendation to buy now if you're looking for a "good deal." It's way too early in the cycle for that.]

UPDATE: One of the more interesting aspects of the credit bubble is how many people seem to have had no idea about their mortgage terms. Many buyers approached buying a house in the same (foolish) way many buyers approach buying a car: "what's the monthly payment?" They seem not to have taken into account the carrying costs of owning real estate, much less inquired closely as to whether the relevant monthly payment was guaranteed for the life of the loan. If they did inquire, they were told, "don't worry, you can always refinance before the reset," and many didn't inquire beyond that.


Monday, April 9, 2007

Phyllis Schlafly on the Equal Rights Amendment:

In this column, conservative activist Phyllis Schlafly - who successfully led the fight to defeat the original ERA back in the 1970s and early 80s - expresses her heartfelt opposition to its reconsideration today.

I have several disagreements with Schlafly's arguments. Here, I will note only her total failure to consider those likely effects of the ERA that her conservative political allies might approve of - particularly the abolition of government-sponsored affirmative action programs for women and Title IX rules mandating equal numbers of mens and womens sports teams at universities receiving federal funds.

What Effect Would the Equal Rights Amendment Have if Enacted?

In this recent article, columnist Steve Chapman considers the possible impact of the Equal Rights Amendment, which has been reintroduced in Congress by a group of primarily liberal Democratic supporters. He concludes, that it will likely have little or no impact because:

As Northwestern University law professor Andrew Koppelman puts it, Phyllis Schlafly and other opponents [of the ERA] won the battle but lost the war: "The ERA was defeated, but its rule against sex discrimination was incorporated into constitutional law anyway, by judicial interpretation of the 14th Amendment...."

In fact, says Koppelman, "it's hard to imagine it making any difference at all."

Andy Koppelman knows a lot more about antidiscrimination law than I do, but I have to disagree with him here. Although it is true that the much of what ERA proponents wanted back in the 1970s has been adopted by courts under the Equal Protection Clause since then, there are a number of current laws that could be ruled unconstitutional if the ERA (now called the "Women's Equality Amendment") to be enacted. The ERA's text mandates that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." This language suggests that laws classifying people by gender must either be invalidated automatically or - at the very least - subjected to stringent "strict scrutiny" of the sort applied to racial classifications today.

Eugene Volokh discusses some potential effects of the ERA in this post, including affirmative action for women, limits on the use of female troops in combat, and bans on same-sex marriage. Of these, I think that affirmative action programs for women would be the most vulnerable because they already encounter strong political opposition on the right, and judges would not be as hesitant to strike them down as, say the ban on same-sex marriage, which has broad popular support in most states.

In addition to Eugene's list, I would add a few others:

1. Male-only draft registration.

This is vulnerable for the same reason as are restrictions on women in combat (discussed in Eugene's post). Although the Court upheld male-only draft registration under the 14th Amendment in the 1981 case of Rostker v. Goldberg, it is unlikely to do so under an Equal Rights Amendment that clearly forbids virtually all gender classifications. This may not matter much as long as there isn't a draft. But might matter a great deal if the draft were ever reintroduced.

2. Single-sex bathrooms.

It may seem obvious to most people that rules mandating single-sex bathrooms in public buildings would pass even a very stringent "strict scrutiny" test of the sort that would probably be required to uphold a gender classification under the ERA. It is not so obvious to me. I attended a college that had coed bathrooms; the school was all-male until the 1970s, and many buildings still had only one set of bathrooms, which necessitated making them coed. Coed bathrooms may well be less convenient and more unpleasant than single-sex ones. But one thing I learned from my college experience is that they can function without major violations of privacy, outbreaks of sexual assault, and other severe harms. And the Supreme Court has repeatedly held that convenience and pleasantness are not enough to overcome the strict scrutiny standard in other contexts, such as racial discrimination. I suspect that courts will be initially reluctant to strike down laws requiring single-sex bathrooms in public facilities. But that reluctance might break down over time, as judges become more aware of the fact that coed bathrooms won't necessarily lead to the sorts of massive harms that we might imagine.

3. Civil unions limited to same-sex couples.

As co-blogger Dale Carpenter has pointed out, civilian union laws recently enacted in some states limit this status to same-sex couples. Heterosexual couples are not permitted to enter into civil unions. It is easy to argue that this restriction is a gender classification for exactly the same reasons that one could contend that a law restricting marriage to opposite-sex couples is a sex classification. Under these civilian union laws, Adam can enter into a civil union with Steve, but could not do the exact same thing with Eve - even if Eve and Steve are identical in every way other than gender. A variety of arguments could be made to justify the restriction of civil union status to homosexuals, especially in a context where heterosexuals can marry, but gays cannot. However, I am skeptical that these arguments will be enough to pass strict scrutiny. Moreover, it is more likely that federal judges will use the ERA to strike down laws restricting hetersexual access to civil unions than that they would use it to strike down legislation restricting homosexual access to marriage - even though the latter has already happened in two states with ERA provisions in their state constitutions (Massachusetts and Hawaii). Civil unions for heterosexuals are a less politically charged issue than marriage rights for gays. Judicial decisions requiring the former are less likely to generate a major political backlash than ones mandating the latter; it would be naive to expect that judges won't take this difference into account as they decide cases.

4. Title IX rules on womens' sports teams.

As currently interpreted by courts and federal administrative agencies, Title IX essentially requires universities to have equal numbers of male and female sports teams, regardless of the amount of interest that male and female students have in athletics. This is a fairly obvious gender classification and one that probably won't survive strict scrutiny under the ERA. Eugene suggests in his post on the ERA that it might lead to the complete abolition of all-female sports teams at state universities and public schools. Perhaps so, but in my view the dismantling of this aspect of Title IX is a more likely scenario.

The Bottom Line.

If enacted today, the ERA would have a number of effects that many political liberals will deplore, including abolishing affirmative action for women and cutting back on key aspects of Title IX. It might also have some results that they would approve of, such as potentially undercutting bans on same-sex marriage. To my mind, the effects that liberals dislike are more likely to arise - at least in the short term - than those they will applaud. Affirmative action for women and Title IX gender balancing have considerably weaker political support than the restriction of marriage to opposite sex couples, and are therefore more likely to be struck down by politically savvy judges interpreting the ERA. A possible exception is the abolition of restrictions on women in combat, the one likely effect of the ERA that could occur soon after passage, that liberals would approve of.

Personally, I support nearly all the projected results of the ERA, with the possible exception of eliminating single-sex bathrooms in public buildings (which I don't feel strongly about either way). ERA advocates can count on my staunch backing! Others, including many on the left, might feel differently, however.

Lawprofs Gone Bad:

From Iowa Supreme Court Att'y Discip. Bd. v. Kress (Iowa Supreme Court Grievance Commission, Mar. 5, 2007):

[Finding of Fact] (10) On the evening of April 19, 2004, Respondent [Kenneth Kress, then a tenured Iowa Law School professor] distributed [class] evaluations to 10 students enrolled in his Mental Health Seminar. Later that evening, after the students had completed the evaluations, Respondent reviewed the questionnaire responses and then substituted three evaluations he had completed for three negative student evaluations. Additionally, Respondent altered two other evaluations by erasing the pencil marking of the "(3) Average" circle in Question 2, on teacher effectiveness, and filling in the "(5) Outstanding" circle on both forms....

(12) [The] Registrar at the law school, testified that on April 30, 2004 Respondent told her that he was anxious for [the dean] to see his student evaluations because he knew he had done a lot better on his evaluations that spring than he had in the fall....

(13) [A week later, when the matter was being investigated, Kress] initially responded that "his RA had been involved and it was possible that he had done something or there were others who had keys to the office." But when asked, he said he had no reason to believe anyone else would have done this. He did not admit or deny changing the student evaluations, but asked what would happen next....

The Grievance Commission is recommending that Kress be suspended from the Iowa bar, though he would be eligible for reinstatement in a year. (Kress acknowledged the falsification, but defended himself by pointing to his longstanding bipolar disorder, and claiming that his actions were the result of that disorder.) Kress resigned from his tenured position in January 2006, but the Des Moines Register reports that Iowa has given him a $226,000 severance package, plus other benefits, "to avoid 'the expense and time of further proceedings with the Faculty Judicial Commission.'"

Thanks to Paul Caron (TaxProf Blog) for the pointer.

UPDATE: I've updated the post to make clear that it's undisputed that Kress has suffered from mental illness. The Commission concluded, however, that the illness cannot excuse his actions, and that in any event his actions were not caused in substantial part by his illness.

Comments on SSM posts:

I fully share Eugene's thoughts about civility in comments. Up to now, I've had a very hands-off approach to comments in response to my posts and have allowed the maximum time (5 days) for responses.

But I've noticed the comments in response to SSM posts have been especially repetitive, inflammatory, and personal in nature. There have also simply been too many of them. All of this discourages people with useful and original things to say from entering the discussion or from continuing to contribute when they do. SSM is an issue about which people on both sides have especially strong views and emotions, but there should be a forum for civil debate about it. I've thought about altogether closing my SSM posts to comments, but I'm not yet ready to do that. There have been some really good comments on both sides and I would not want to lose that.

So instead I've decided to do the following on SSM posts: (1) Limit comments to no more than 2 days (frankly, most of the useful things are usually said in the first 20-50 comments anyway); (2) more aggressively delete offensive, inflammatory, and personally abusive posts; and (3) ban commenters who repeatedly violate the civility requirement.

I hope this will make for a more constructive debate.

Related Posts (on one page):

  1. Comments on SSM posts:
  2. Deleted Comments:
Wording Error? Correct Wording That Is Confusing Because It Seems Erroneous?

Claims that certain usages are "bad" because they supposedly create ambiguity are sometimes overstated. But sometimes they're not overstated -- sometimes a term seems to be used in a certain way that's both wrong according to the dictionary, and likely to confuse. Consider this paragraph, from the New York Times "A Call for Manners in the World of Nasty Blogs" article:

Mr. Wales and Mr. O’Reilly were inspired to act after a firestorm erupted late last month in the insular community of dedicated technology bloggers. In an online shouting match that was widely reported, Kathy Sierra, a high-tech book author from Boulder County, Colo., and a friend of Mr. O’Reilly, reported getting death threats that stemmed in part from a dispute over whether it was acceptable to delete the impolitic comments left by visitors to someone’s personal Web site.

Now "impolitic" is defined by the Oxford English Dictionary as "Not politic; not according to good policy; unsuitable for the end proposed or desired; inexpedient." The relevant definition of "politic" is "judicious, expedient, sensible; skilfully contrived. Note that this means something quite different from "impolite."

Yet in context, it seems unlikely that Sierra would have deleted comments because they were injudicious, inexpedient, not according to good policy, or unsuitable for the end proposed or desired. It's possible she might have deleted them because they were senseless, but probably not because they just weren't sensible. It's also possible she might have deleted them because they were so unskilfully contrived as to seem incomprehensible or cranky, but again probably not because they just weren't thought through very well. Given that the debate is about politeness online, that comments are deleted fairly often because they're rude, and that comments are (to my knowledge) rarely deleted because they're injudicious or inexpedient, it sounds like the article author (or an editor) meant to say "impolite" and instead said "impolitic."

Yet what if Sierra did delete comments because they were impolitic, not impolite? My sense is that even then the term "impolitic" would be suboptimal, precisely because it might lead some readers to wonder whether there was an error (and lead other readers to fall prey to the error themselves, and read "impolitic" and "impolite").

Perhaps writers shouldn't have to worry about reader error or about reader misperception of possible writer error. Maybe if "impolitic" is right, the writer should be free to use it regardless of the possibility of confusion. But I doubt it: It seems to me the job of a writer, and especially a journalist, to try to avoid misunderstandings, even misunderstandings that stem from a misunderstanding of a statement that's literally correct (or erroneous suspicion that the statement is incorrect). There may be some exceptions, for instance if you're deliberately playing on the similarity of the words in a way that's amusing, insightful, or memorable; but I see no such justification here.

So if context makes the reader expect a reference to "impolite," but you're really trying to say "impolitic," better to use some suitable synonym for "impolitic" (injudicious, inexpedient, or what have you) and avoid the possible confusion, including confusion about whether you are confused. Better still would be to be more concrete and precise, and explain (briefly, of course) exactly what the impoliteness or impoliticness consisted of, thus avoiding confusion and at the same time avoiding vagueness.

More Irony--Imus Apologizes on Sharpton Show:

I am somewhat overwhelmed by the absurdity of someone apologizing to Al Sharpton for making a bigoted remark, and then Sharpton not accepting the apology. Talk about glass houses! Imus should certainly have apologized for his remark, but not to someone with Sharpton's history.

The "Walter Murphy" Story Takes Off: We still don't know why the name "Walter Murphy" was put on the No-Fly list. But meanwhile the story has raced around the blogosphere in the last 24 hours, drawing links from hundreds of blogs and spiking Balkinization's traffic today to about 40,000 hits by 3pm. As you might have guessed, most of the blogs that link to the story have simply assumed it is true that the name was put on the list to punish Professor Murphy for his speech.

  UPDATE: Ryan Singel, a reporter who has written extensively and critically on the No-Fly list for Wired News (see past stories here, here, and here), is highly skeptical about the story. From a post at Wired's Threat Level blog:
[I]t's 99.9 percent sure the good professor isn't on any government watchlist for giving a speech. I have no idea why the counterperson would say that individuals are put on the list for joining anti-war protests, but that's just not true. . . .

Woe be it for this blog to defend the country's foolish watchlist system, but after having spent more than four years reporting on watchlists, filing Freedom of Information Act requests, and talking with persons flagged by the lists, I have never seen a single case of a person being put on the list for activities protected by the First Amendment. Feel free to drop any proof you might have via email or in the comments. . . .

I'm open to any evidence that the government has watchlisted American citizens for exercising their Constitutional rights, but I've never seen it.
  That's very helpful to know.
Deleted Comments:

As I noted a couple of months ago, I've been trying to block a commenter who goes by the unlikely name of ReVonna LaSchatze; the commenter has personally insulted other commenters, and in a vulgar way. Unfortunately, LaSchatze's posts come from different IP addresses, and don't use a fixed comment account that I can block. (To make things convenient for commenters, I don't require people to set up comment accounts, though I may have to change that.)

My solution to the problem has been to delete LaSchatze's comments; this kept LaSchatze away for a couple of months, but now this unpleasant person is back, commenting up a storm. I have therefore deleted LaSchatze's recent comments, but this has at times either required me to delete or edit other comments that respond to LaSchatze, or has led some of those comments to be hard to understand. I'd rather avoid either result, because those responses come from valued commenters and took some time for them to post. So the request: Please don't respond to LaSchatze's comments.

By the way, just to remind people why I take the view I do about the need to maintain civility in comments, and the propriety of deleting commenters: Comment threads (unlike, say, all the videos on YouTube or generally even books in a bookstore) are a coherent conversation; for the conversation to be readable and pleasant to participate in, people have to maintain some minimum level of politeness. The analogy I give is a party that I host -- if people are rude enough to other guests, they won't be invited back, because that's how one keeps parties pleasant. I generally don't try to exclude people for their viewpoints, though I reserve the right to do that if the views are nasty enough. But I have and will exclude people who express their viewpoints in needlessly offensive ways, for instance by personally insulting fellow commenters.

Related Posts (on one page):

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Not Your Average Street Musician: The Sunday Washington Post had this very interesting story (with video) about what happens when a world class violist (Joshua Bell) plays at a DC metro station incognito. Answer: not very much. Thanks to Josh Marshall for the link.
Law and economics textbooks:

I'm teaching Intro to Law and Economics in the fall. I've got Posner's textbook, Polinsky's short intro book, and the Dau-Schmidt and Ulen anthology.

Does anyone have comments on teaching from, or being taught from, the above books or any other books I might want to look into?

[Paul Ohm (guest-blogging), April 9, 2007 at 10:11am] Trackbacks
The Myth of the Superuser, Part One:

Thanks very much, Eugene, for inviting me to talk about my latest research. I’m offering the VC reader a twofer: Today through Wednesday I’ll describe my ideas about the Myth of the Superuser, and Thursday and Friday I’ll discuss an empirical project involving the Analog Hole. (Quick plug: The Superuser article is looking for a law review to call home, so if you choose articles for a journal, please give it a read!)

My first project is a critique of the rhetoric we use when we debate online conflict. In our debates, storytelling is epidemic, and the dominant trope is the myth of power. To restate it like a less-charged version of Godwin’s Law (I’d call it “Ohm’s Law,” but that’s taken): as a debate about online conflict progresses, the probability of an argument involving powerful computer users approaches one.

For example, law enforcement officials talk about the spread of zombie “botnets” to support broader computer crime laws. Privacy advocates fret about super-hackers who can steal millions of identities with a few keystrokes. Digital rights management opponents argue that DRM is inherently flawed, because some hacker will always find an exploit. (The DRM debate is unusual, because the power-user trope appears on both sides: DRM proponents argue that because they can never win the arms race against powerful users, they need laws like the DMCA.)

These stories could usefully contribute to these debates if they were cited for what they were: interesting anecdotes that open a window into the empirical realities of online conflict. Instead, in a cluttered rhetorical landscape, stories like these supplant a more meaningful empirical inquiry. The pervasive attitude is, “we don’t need to probe too deeply into the nature of power in these conflicts, because these stories tell us all we need to know.”

Too much attention is paid to the powerful user, or the Superuser as I call him. (UNIX geeks, I’m aware I’m overloading the term.) Today I focus on the first part of the argument, my “proof” that the Superuser’s importance is often exaggerated. Superusers inhabit the Internet, but they are often so uncommon as safely to be ignored.

(Two quick asides, that are sure to come up in comments: First, even a few Superusers deserve attention if they act so powerfully that they account for a significant portion of the harm. Measuring the impact of the Superuser requires more than a head count; it also means measuring the amount of harm caused by any one Superuser. Second, Superusers can empower ordinary users by building easy-to-use tools; I address this so-called “script kiddy” problem in the article.)

We know that the Superuser’s power is often exaggerated for three reasons:

First, some statements of Superuser harm are so hyperbolic as to be self-disproving. For example, as Cybersecurity Czar under the Clinton and second Bush administrations, Richard Clarke was fond of saying, “digital Pearl Harbors are happening every day.” I’m not sure what meaning Clarke was giving to the phrase, digital Pearl Harbor: he may have meant attacks with the psychologically damaging effect, horrific loss of life, terrifying surprise, size of invading force, or historical impact of the December 7, 1941 attack; no matter which of these he meant, the claim is a horribly exaggerated overstatement.

Second, experience suggests that some online crimes are committed by ordinary users much more often than by Superusers. Take data breach and identity theft. Data breachers are often portrayed as genius hackers who break into computers to steal thousands of credit card numbers. Although some criminals fit this profile, increasingly, the police are focusing on non-Superusers who obtain personal data using non-technical means, like laptop theft. Similarly, identity thieves are often not computer wizards; the New York Times reported last year that many District Attorneys see more meth addicts committing identity theft than any other segment of the population.

Consider also claims that terrorists are plotting to use computer networks to threaten lives or economic well-being. There has never been a death reported from an attack on a computer network or system. In fact, many experts now doubt that an attack will ever disable a significant part of the Internet.

Of course, there are limits to using opinions and qualitative evidence to disprove the Myth, because they share so much in common with the anecdotes that fuel it. The third way to dispel the Myth is through studies and statistics. As one very recent example, Phil Howard and Kris Erickson of the University of Washington released a study which found that sixty percent of reported incidents of the loss of personal records involved organizational mismanagement, while only thirty-one percent involved hackers.

This is just a taste; in the Article, I go into much greater depth about why the Myth is not to be believed. Tomorrow, I will discuss the significant harms that result from Myth-influenced policymaking. Finally, on Wednesday, I will focus on a root cause of the problem: the inability of computer security experts to discriminate between high risk and low risk harms online.

Privatization and the Law and Economics of Political Advocacy, Part 5:

This post continues my series on my upcoming Stanford Law Review paper on Privatization and the Law and Economics of Political Advocacy (see here for the technical paper). Two posts ago, I set out the basic economic theory—be sure to read that post if you're having trouble following (or if you're disagreeing with) the discussion of free-riding. And in the last post, I discussed various miscellaneous points about the theory and how it applies to privatization. Now, on to the primary case study in the paper: prisons.

* * *

Now let us apply the theory to a real-world industry subject to the “political influence” critique of privatization: prisons. When I speak of “pro-incarceration advocacy,” I use the term “advocacy” broadly to include any use of political influence, licit or illicit, including endorsements, political contributions, lobbying, and bribes. And I use the term “incarceration” as a shorthand to include the criminalization of a greater range of behavior, more active enforcement, greater reliance on imprisonment, longer sentences, and less parole; thus, endorsing a politician for being “tough on crime,” donating money to a “Three Strikes” initiative, or testifying in favor of a “truth in sentencing” law all count as advocating incarceration.

Consider the main political actors in the prison industry: the private prison firms and the public corrections officers’ union. Without privatization, the public sector is the monopoly provider of prison services, and the corrections officers’ union enjoys the benefits that flow from serving the whole system. Now suppose that part of the system is privatized. At first, the public sector is clearly the dominant sector, that is, the sector with the largest proportion of total benefits from provision of the service—from 100% of the industry, it has gone down slightly, and the private sector is not big enough to even come close. Because it has shrunk, it is less willing than it used to be to spend money on reforms that would increase the size of the prison pie. And because the private sector is tiny, it free-rides. Provided the public sector stays the dominant sector, privatization will always have this effect—because, in terms of the model presented above, any reform that shrinks the dominant sector will reduce industry-expanding advocacy. As it happens, this proviso is true in the case of prisons. At current levels of privatization, the public sector both has a larger industry share and extracts more benefit from the system than does the private sector.

We can easily perform some rough estimates to verify this (I provide the detailed derivations of the numbers elsewhere):

  • Industry share. The private sector has a smaller share of the industry. Of the 1.5 million prisoners under the jurisdiction of federal or state adult correctional authorities in 2004, 7% were held in private facilities; this includes 14% of federal prisoners and 6% of state prisoners. Among the 34 states with at least some privatization, the median private percentage was 8–9%. If we are interested in the private share of marginal prisoners—i.e., how likely a prisoner is to go to a private prison if he is convicted today—the private share becomes larger, mainly because private firms have absorbed much of the recent growth in federal incarceration. A reasonable estimate of the private share of marginal prisoners over the period 2000–2005 yields 6% for state systems, 54% for the federal system, and 22% overall.

  • Private-sector profitability. The profits of the private sector are low. If the industry were perfectly competitive—like in textbook models of perfect competition—every firm would make zero economic profit. “Economic profits” measures how profitable a company is relative to other ways of investing one’s money; thus, “zero economic profits” means not that firms are making no money but rather that all firms are doing as well as the rest of the market. In such a (hypothetical!) world, firms wouldn’t care whether their market were growing or shrinking, because they would be indifferent between running prisons and putting their money into the stock market. This is, of course, unrealistic—the prison industry is oligopolistic, so prison firms do make some profit. But not much: 10% would be a generous estimate of prison firms’ profitability.

  • Public-sector rents. Public-sector correctional officers, on the other hand, benefit substantially from public provision of prisons, because their wages are quite a bit above what they would be making in the private sector—by about 30–65%. This is a lot of money, because wages are about 60–80% of most prisons’ operating expenses.

I make the assumptions—oversimplified but common in the economic literature on firms and unions—that firms maximize profits and that unions maximize total “union rents” (that is, the difference between public-sector and private-sector wages, times the size of the public sector). Trying to put these numbers together rigorously requires a fair amount of algebra, which I provide elsewhere. But it should be intuitively clear that the public sector extracts substantially more benefit from any given prison than does the private sector; and it is likewise clear that the public sector has a greater share of the industry than the private sector.

Thus, the public sector enjoys a greater benefit from prison provision than the private sector does, perhaps by an order of magnitude. This model predicts that the public sector should be doing all the pro-incarceration advocacy, and the private sector should be entirely free-riding. Moreover, privatization reduces the public sector’s share of total benefits. So, at current levels, privatization should cause total pro-incarceration advocacy to decrease.

Paul Ohm Guest-Blogging:

I'm delighted to report that Prof. Paul Ohm (University of Colorado Law School) will be guest-blogging this week. Paul specializes in computer crime law, criminal procedure, intellectual property, and information privacy; before going into teaching, he worked in the Computer Crime and Intellectual Property Section at the U.S. Justice Department, and before law school he worked as a computer programmer. Like me, Paul is a UCLA Law School graduate; go Bruins!

Paul will be discussing two of his recent articles this week. First, he will talk about "The Myth of the Superuser: Fear, Risk, and Harm Online," in which he critiques the rhetoric used in debates about online conflicts. On Thursday, he begin to talk about "The Analog Hole and the Price of Music," which gives the results of an empirical study he co-authored about what people are willing to pay for music online.

Why Is "Walter Murphy" on the No-Fly List?: Over at Balkinization, Mark Graber posts a story from Walter Murphy, the McCormick Professor of Jurisprudence Emeritus at Princeton (and the author of one of my favorite books, Wiretapping on Trial), about having his name appear on the No-Fly List. As I understand it, being put on the list doesn't mean that you can't fly; rather, it means that you have to speak to a supervisor and get individual clearance before getting a boarding pass. Professor Murphy writes that he discovered he was on the list when flying to Princeton for a conference last month about his new book.

  Professor Murphy believes that he has been singled out because he gave a speech at Princeton last year criticizing the Bush Administration. He concludes that he is being harassed, and he wants this episode to be publicized to draw attention to the Administration's conduct:
That harassment is, in and of itself, a flagrant violation not only of the First Amendment but also of our entire scheme of constitutional government. This effort to punish a critic states my lecture's argument far more eloquently and forcefully than I ever could. Further, that an administration headed by two men who had "had other priorities" than to risk their own lives when their turn to fight for their country came up, should brand as a threat to the United States a person who did not run away but stood up and fought for his country and was wounded in battle [Ed: Professor Murphy served in the Marines in the Korean War], goes beyond the outrageous. . . . . Thus I hope you and your colleagues will take some positive action to bring the Administration's conduct to the attention of a far larger, and more influential, audience than I could hope to reach.
  The post is certainly bringing the story to a larger audience; just a few hours after the story was posted, it has already drawn links from Atrios and Crooks and Liars.

  The question is, why was the name "Walter Murphy" on the list? The Bush Administration has a lot of harsh critics; if being a harsh critic were enough to end up on the No-Fly list, wouldn't we have heard about it sooner? Professor Murphy's primary evidence that he was singled out for his speech is that when he mentioned it as a possible reason to an American Airlines clerk, the clerk responded "that'll do it." I wonder, though, would the airline clerk know? Perhaps, as the clerk apparently professed a lot of knowledge as to who gets on the No-Fly list. On the other hand, how much do you trust an airline clerk about something like this?

  I'm also reminded of when Senator Kennedy's name ended up on the No-Fly list back in 2004. Based on news reports at the time, Kennedy's name wasn't on the list to harass Senator Kennedy. Rather, a suspected terrorist had at one point used an alias of "T. Kennedy," and the name was then entered into the database. I wonder, did something like that happen here?

Sunday, April 8, 2007

Appalling, If True:

The Sunday Telegraph (UK) reports:

Amid the deaths and the grim daily struggle bravely borne by Britain's forces in southern Iraq, one tale of heroism stands out.

Private Johnson Beharry's courage in rescuing an ambushed foot patrol then, in a second act, saving his vehicle's crew despite his own terrible injuries earned him a Victoria Cross.

For the BBC, however, his story is "too positive" about the conflict.

The corporation has cancelled the commission for a 90-minute drama about Britain's youngest surviving Victoria Cross hero because it feared it would alienate members of the audience opposed to the war in Iraq....

Note, though, the "if true"; the BBC has not admitted that this is the reason ("[a] spokesman for the BBC admitted that it had abandoned the VC project but refused to elaborate"), and the story relies on anonymous sources -- certainly not an uncommon or inherently illegitimate reporting practice, but one that leaves considerable room for error.

Thanks to InstaPundit for the pointer.

More Details on Gonzales Preparing For April 17 Testimony: In Newsweek, Michael Isikoff has a remarkable piece on the Attorney General's preparations for his April 17 Senate testimony. I blogged about this topic before, but Isikoff adds a lot more details. An excerpt:
  At a recent "prep" for a prospective Sunday talk-show interview, Gonzales's performance was so poor that top aides scrapped any live appearances. During the March 23 session in the A.G.'s conference room, Gonzales was grilled by a team of top aides and advisers—including former Republican National Committee chair Ed Gillespie and former White House lawyer Tim Flanigan—about what he knew about the plan to fire seven U.S. attorneys last fall. But Gonzales kept contradicting himself and "getting his timeline confused," said one participant who asked not to be identified talking about a private meeting. His advisers finally got "exasperated" with him, the source added. "He's not ready," Tasia Scolinos, Gonzales's public-affairs chief, told the A.G.'s top aides after the session was over, said the source.
Another excerpt:
  "There's nobody quarterbacking this," said another frustrated administration official, who asked not to be identified for the same reasons. "The department is in a state of paralysis." But Gonzales remains determined to make his case. He is spending hours alone in his office, poring over documents and calling members of Congress; his staff is planning "murder board" sessions later this week where outsiders may be brought in to play the roles of Judiciary chair Sen. Patrick Leahy or Sen. Chuck Schumer. Gonzales is likely to start out next week's hearing with a more expansive mea culpa.
Thanks to Howard for the link.
David Hicks Can't Sell Detention Story:

One-time Gitmo detainee David Hicks is back home in Australia, where he had hoped to sell his story about meeting Osama bin Laden and his eventual capture and detention by the U.S. military. No dice. Although the provision in his plea deal not to sell his story is unenforceable in Australia, the Australian Attorney General says such a sale is barred under Aussie law, according to this press report.

Ruddock said a separate Australian federal law against criminals profiting from crime through media deals will stop the 31-year-old former kangaroo skinner from selling his story about meeting al-Qaida leader Osama bin Laden in Afghanistan, and his allegations of being tortured during his five years at the Guantanamo prison.

"We would seek to ensure that he would not be able to profit from any story that he sought to tell," Ruddock told Nine Network television.

The Australian government agreed to let the U.S. charge Hicks because his training with al-Qaida and the Pakistani terrorist group Lashkar-e-Taiba in 2001 did not break any Australian law at the time.

But the government had Hicks in mind when it passed legislation in 2002 that prevents lawbreakers from selling their stories if they have committed offenses that can be tried by a U.S. military commission, established by President Bush's order in 2001.

Defining Stalinism Down:

From a Rush Limbaugh interview of Vice-President Cheney:

Q One more, and that's the recess appointment of Sam Fox. Sam Fox is from my home state, and I know Sam Fox -- he's an immigrant, a Ukrainian Jewish immigrant, whose parents would have nothing -- when they died they had nothing. He is a totally self-created man, a great American. And he was treated horribly by Senator Kerry and others on that committee, simply because he had made a political donation. They essentially told him he did not have freedom of speech in this country, until he would apologize, until he would go up to Kerry and apologize for supporting the Swift Boats. Now the President has recess-appointed him. And of course, the Democrats have said they're going to investigate this and going to look into this.

This is the kind of move that garners a lot of support from the people in the country. This shows the administration willing to engage these people and not allow them to get away with this kind of -- well, my term -- you don't have to accept it -- Stalinist behavior from these people on that committee.

THE VICE PRESIDENT: Well, you're dead on, Rush. I know Sam well. He's a good friend of mine and has been for many years. I think he's a great appointment. He'll do a superb job as our Ambassador to Belgium. I was delighted when the President made the recess appointment. He clearly has that authority under the Constitution. And you're right, John Kerry basically shot it down.

Is that what Stalin is famous for? Using his constitutional power as an elected representative to decline his consent to political appointments based on his political disagreement with the appointer or appointee -- or, for that matter, based on his desire to retaliate against a political actor, by blocking political payback for that actor? If Stalinism had consisted chiefly of this, Stalinism wouldn't be the pejorative that it rightly is today.

Even if you read Stalinism broadly to refer to any attempt to impose political orthodoxy -- which seems to me an abuse of the pejorative, just as it is an abuse of the term Nazi to use it to refer to, say, any militarism or police enforcement one finds excessive -- it's not sensible or fair to use it in fields where political decisionmaking is routine, and routinely practiced by both sides.

It's not Stalinism for the Bush Administration to decline to appoint its political adversaries, or to choose an appointee because of his past political support. An Administration quite properly looks to political affiliation in its appointment decisions. Bush's decision to appoint Fox rather than, say, John Kerry is not "[telling Kerry] he did not have freedom of speech in this country"; political appointments properly turn on the content of the appointee's past political speech. Likewise, it's not Stalinism for Democratic Senators to decline to confirm their political adversaries.

Such political tit-for-tat may sometimes be unwise, or counterproductive. But it cheapens what should be a serious pejorative, insults the memory of Stalin's victims, and undermines public consciousness of Stalin's crimes, to use "Stalinism" to label political hardball in a historically (and bipartisanly) political arena.

Thanks to Mark Kleiman and Obsidian Wings for the pointer. I should also note that Limbaugh apparently misspoke about Sam Fox's being an immigrant -- he's the son of a Ukrainian immigrant, but he himself was born in the U.S.

Sunday Song Lyric: Listening to Arcade Fire, I can't help being reminded of Echo and the Bunnymen. Arcade Fire utilizes a broader range of instruments, and are more engaging on stage, but if I close my eyes I can imagine Ian McCulloch singing many of their songs.

One of the many good songs on their new album, Neon Bible, is "Keep the Car Running." Here are the opening lyrics:
Every night my dream's the same.
Same old city with a different name.
Men are coming to take me away.
I don't know why, but I know I can't stay.

There's a weight that's pressing down.
Late at night I can hear the sound.
Even the noise you make when you sleep.
Can't swim across a river so deep.
Here is Arcade Fire performing the song on SNL. Here they are on Letterman, and here they are performing with David Bowie (who was an early fan).
Did Gonzales Ignore Red Flags on Kerik?

The Washington Post has an extensive story about the White Hose vetting of Bernard Kerik, who President Bush nominated to be Secretary of of Homeland Security. Although the background investigation turned up many potential problems, Bush went ahead with the nomination, only to have Kerik withdraw under a cloud.

According to the Post account, Attorney General Alberto Gonzales played a key role in vetting Kerik and, it seems, short-circuiting the process. If this account is correct, this is another example of the AG's poor performance.

On a related note, this morning on Fox News Sunday, former House Speaker Newt Gingrich joined the ranks of those calling for Gonzales to resign for his clear "performance failure" in his handling of the U.S. attorney controversy.