Author: Danielle Citron

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Call for Papers: “Governing Intelligence in the Digital Age” Sponsored by Stanford Journal on International Law

The Stanford Journal on International Law has a call for papers for an upcoming conference entitled “Governing Intelligence in the Digital Age.”

Governing Intelligence

in the Digital Age

May 2-3, 2014 at Stanford Law School

Background

 

In the aftermath of former US National Security Agency (NSA) contractor Edward J. Snowden’s disclosures about the scale of the NSA’s electronic surveillance operations, the recurrent dispute over the post-9/11 boundaries of the national security state is once again in full swing.

In the United States, the revelations have brought to the fore concerns ranging from the so-called balance between national security and privacy to the proper degree of judicial and congressional oversight of the Intelligence Community.  Legislators, academics, and commentators have put forward various proposals to rein in intelligence including, most prominently, calls for greater transparency in the Foreign Intelligence Surveillance Court.  As a result, Senator Dianne Feinstein, Chair of the U.S. Senate Select Committee on Intelligence, has pledged to conduct a “total review” of all intelligence programs.

Across the Atlantic, the LIBE Committee of the European Parliament has launched a wide-ranging inquiry into the legality of the alleged electronic mass surveillance of EU citizens.  The EP has also called for the suspension of the US-EU Agreement concerning the US Department of the Treasury’s Terrorist Finance Tracking Program (TFTP), which is meant to facilitate the transatlantic exchange of financial data for counterterrorism purposes.  Although the EP lacks formal authority to suspend the agreement, its forceful response may be indicative of the EU’s considerable concern for privacy, which may also be at work in its robust data protection regime. Read More

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Attention Prawfs in NYC for AALS: the Annual Prawfs/CoOp Happy Hour

Attention Prawfs in NYC for AALS: the annual Prawfs/Co-Op Happy Hour will be this Friday at 930pm until midnight (at least) at the Hilton “Bridges” Bar. See you then and there, and please pass it on!
As you’ll see from Yelp, we’re apparently prioritizing location and big pours in our selection of venue:
http://www.yelp.com/biz/bridges-bar-hilton-new-york-new-york

Much thanks to the wonderful Dan Markel for organizing it!

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Exciting news for the Center on Democracy & Technology: Nuala O’Connor Appointed President and CEO

Brilliant news: CDT’s Board of Directors just announced that Nuala O’Connor has been named President & CEO, effective January 21, 2014. O’Connor will succeed Leslie Harris, who is stepping down after leading CDT for nearly nine years. As the privacy community knows well, Harris provided extraordinary leadership: vision, enthusiasm, and commitment. O’Connor will build on that tradition in spades. She is the perfect leader for CDT.

From CDT’s announcement:

“Nuala drove an ambitious civil liberties agenda as the first Chief Privacy Officer at the Department of Homeland Security in a post 9-11 world. She fought for and implemented policies to protect the human rights of U.S. and global citizens in a climate of overreaching surveillance efforts. The Board is thrilled to have Nuala at the helm as CDT expands on 20 years of Internet policy work advancing civil liberties and human rights across the globe,” said Deirdre Mulligan, CDT Board Chair.

O’Connor is an internationally recognized expert in technology policy, particularly in the areas of privacy and information governance. O’Connor comes to CDT from Amazon.com, where she served both as Vice President of Compliance & Customer Trust and as Associate General Counsel for Privacy & Data Protection. Previously she served as the first Chief Privacy Officer at the U.S. Department of Homeland Security (DHS). At DHS, O’Connor was responsible for groundbreaking policy creation and implementation on the use of personal information in national security and law enforcement.

“I am honored to join the superb team at the Center for Democracy & Technology. CDT is at the forefront of advocating for civil liberties in the digital world,” said O’Connor. “There has never been a more important time in the fight to keep the Internet open, innovative and free. From government surveillance to data-driven algorithms to the Internet of things, challenges abound. I am committed to continuing to grow CDT’s global influence and impact as a voice for the open Internet and for the rights of its users.”

“Nuala is a brilliant choice to lead CDT. She is a passionate advocate for civil liberties, highly expert about the emerging global challenges and fully committed to CDT’s mission. She is a bold leader who will guide CDT into its next chapter. I have had the honor of working with CDT’s talented and thoughtful team for almost nine years. I am confident that they will thrive with Nuala at the helm,” said Leslie Harris.

Beyond her experience at Amazon and DHS, O’Connor has also worked in consumer privacy at General Electric, and as Chief Counsel for Technology at the U.S. Department of Commerce. She also created the privacy compliance department at DoubleClick and practiced law at Sidley Austin, Venable, and Hudson Cook.

O’Connor, who is originally from Belfast, Northern Ireland, holds an A.B. from Princeton University, an M.Ed. from Harvard University, and a J.D. from Georgetown University Law Center. She currently serves on numerous nonprofit boards, and is the recipient of a number of national awards, including the IAPP Vanguard Award, the Executive Women’s Forum’s Woman of Influence award, and was named to the Federal 100, but is most proud of having been named “Geek of the Week” by the Minority Media & Telecom Council in May 2013. She lives in the Washington, D.C. area with her three school-aged children.

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Andrew Blair-Stanek on “IP as a New Front in the Tax Avoidance Battle”

My colleague and guest blogger Andrew Blair-Stanek is working on a fascinating new piece entitled “IP as a New Front in the Tax Avoidance Battle.” As the piece exposes, multinationals’ IP-based tax avoidance is a serious problem that IP law, scholars, and practitioners have largely ignored. The abstract and corresponding cool diagram can be found here. I will blog more about it after the piece goes up on SSRN.

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Talent Wants To Be Free Symposium: Lending Support to Lawmakers and Raising Questions for Open Government Efforts

Like my fellow symposium participants, I loved Orly’s book. As Catharine Fisk noted, Orly’s stories and lessons, informed by literature, experiments, and more, captivated me. Beside teaching me much, more importantly, it will educate policymakers. Talent Wants to Be Free serves as a slam-dunk rebuttal to those who say that legal scholarship lacks value in the real world. Orly’s book is a must read for state legislators interested in encouraging innovation in their backyards. Some lawmakers have proposed bills to limit or eliminate non-compete agreements as contrary to public policy. As Orly’s book demonstrates, good for them and for all of us. Orly’s book provides powerful arguments for the adoption of those laws and for other states to pay attention. And it sounds like an upcoming Restatement will recommend rules that would send judges in the opposite direction–towards less mobility, not more. They too need to read Orly’s original research and powerful arguments.

The book raised an interesting disconnect about our understanding of the mobility of talent. On the one hand, the media is all abuzz about companies that find talent for employers who presumably could move from their current jobs. As a recent New York Times piece discussed, analytics firms crunch data to search for and assess specialized talent in particular fields. Remarkable Hire scores a candidate’s talents by looking at how others rate her online contributions. Talent Bin and Gild create lists of potential hires based on online data. According to the Times, big-name companies like Facebook, Wal-Mart, and Amazon use these technologies to find and recruit job candidates. These stories don’t take into account the barriers that Orly’s book discusses: strictly interpreted non-compete agreements and their functional equivalents such as the inevitable disclosure of trade secrets concept. These analytics firm are likely to identify fabulous talent who cannot realistically move or at least may not be worth the money to buy them out of their non-competes. Of course, California companies like Facebook can gorge on Big Data about talent all they want–California lawmakers have banned non-competes.

A concern that came to mind is whether Government 2.0 efforts are worth it for employees. What if employees spend their free time innovating for government and it turns out that they shared some skill that their employer can claim ownership over or worse sue the employee for spilling trade secrets. Reading Orly’s book raised concerns about the practical problems and perils raised by lending one’s time to government hack-a-thons and the like. I don’t have any concrete answers to these problems except to tell lawmakers and employers to listen to Orly’s recommendations.

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Upcoming Boston University Law Review Symposium: America’s Political Dysfunction, Constitutional Connections, Causes, and Cures

On November 15-16, 2013, the Boston University Law Review is hosting a terrific symposium entitled “America’s Political Dysfunction: Constitutional Connections, Causes, Cures.”

In recent years and especially in recent months, many have despaired over America’s political dysfunction. A conference at University of Texas asked, “Is America Governable?” Some, like Mann and Ornstein, have contended that “it’s even worse than it looks.” Others, like Levinson, have claimed that we face a “crisis of governance.” Schlozman, Verba, and Brady have criticized “the broken promise of American democracy,” Gutmann and Thompson have lamented the breakdown in “the spirit of compromise,” and Lessig has argued that we have “lost” our republic through the corruption of money.


More generally, there is considerable talk of dysfunction, breakdown, and failure in the air these days. Just consider these titles: Bruce Ackerman, The Failure of the Founding Fathers, not to mention The Decline and Fall of the American Republic; Ronald Dworkin, Is Democracy Possible Here?; Alan Wolfe, Does American Democracy Still Work?; and Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), along with Framed: America’s 51 Constitutions and the Crisis of Governance.

BU Law Review is hosting a conference that will assess such claims about dysfunction, breakdown, and failure. But unlike some prior conferences, it will focus on constitutional connections, causes, and cures. Taking up the forms and manifestations of dysfunction, breakdown, and failure, the conference will ask “What, if anything, does the Constitution have to do with all this?” For example, are we experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an institutional failure, or a failure of policy that may or may not be directly related to the Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution? Do they stem from a feature or defect of the Constitution? Do they result from constitutional requirements? Are they made more likely by our constitutional design?

The conference will address not only whether there are such constitutional connections to and causes of dysfunction, but also whether any proposed cures would likely alleviate it. For example, Putnam has proposed building social capital. Sandel and Ackerman have called for reinvigorating the civic and deliberative dimensions of political and constitutional discourse and practice. Seidman has proposed “giving up on the Constitution.” Levinson, Lessig, and Sabato have proposed amending the Constitution or holding a constitutional convention to adopt a new one. Will such proposals alleviate dysfunction or will the conditions giving rise to them virtually insure that they will fail?

The papers and proceedings will be published in Boston University Law Review.

This conference will take place in Barristers Hall. All – including not only professors, law students, graduate students, and undergraduates, but also alumni and the general public – are welcome to attend. To register, please contact Elizabeth Aggott, Events & PR Manager, at lawevent@bu.edu. If you have academic questions about the program, please contact Professor James E. Fleming at jfleming@bu.edu. Read More

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Squaring Revenge Porn Criminal Statutes with First Amendment Protections

Yesterday, the New York Times editorial board endorsed the efforts of the Cyber Civil Rights Initiative to criminalize revenge porn. As the editorial board urged, states should follow the lead of New Jersey in crafting narrow statutes that prohibit the publication of nonconsensual pornography. Such efforts are indispensable for victims whose lives are upended by images they shared or permitted to be taken on the understanding that they would remain confidential. No one should be able to turn others into objects of pornography without their consent. Doing so ought to be a criminal act.

Professor Mary Anne Franks has been at the forefront of legislative efforts in New York, Wisconsin, and Maryland. Soon, I will be blogging about the work Franks and I have done with Maryland legislators. Now, I would like to shift our attention to the First Amendment. As free speech scholar Eugene Volokh has argued elsewhere, non-consensual pornography can be criminalized without transgressing First Amendment guarantees. Let me explain why from the vantage point of my book Hate 3.0 (forthcoming Harvard University Press) and an essay Franks and I are writing for the Wake Forest Law Review. Read More

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New York Times Editorial Board: Calling for the Criminalization of Revenge Porn

From the New York Times editorial board, an endorsement of the work of the Cyber Civil Rights Initiative (led by Holly Jacobs and on which Mary Anne Franks and I are Board members) in calling for the criminalization of non-consensual publication of sexually explicit images:

Revenge porn is one of those things that sounds as if it must be illegal but actually isn’t. It’s the term of art for publishing sexual photos of someone without his or her — usually her — permission, often after a breakup.

Consider Holly Jacobs, founder of the Cyber Civil Rights Initiative, who exchanged intimate pictures with a boyfriend while in graduate school. When the relationship ended he started posting them online. She sought help from law enforcement, but the police said she didn’t have a case because she was over 18 when the pictures were taken, and they were her ex-boyfriend’s property.

So far only two states have restricted this humiliating, reputation-killing practice. In 2004, New Jersey adopted an invasion-of-privacy law aimed at voyeurs, which also prohibits the dissemination of sexual recordings or pictures without consent. This month, California Gov. Jerry Brown signed a bill making revenge porn a misdemeanor punishable with up to six months in jail and a $1,000 fine. But it contains a large loophole: it applies only if the individual who distributed the pictures was also the photographer.

California’s law does not cover situations where someone took a self-portrait and shared it with a partner, who then uploaded it to the Internet. The Cyber Civil Rights Initiative has estimated that 80 percent of revenge-porn images were recorded by the victim.

California’s law, though inadequate, has at least brought attention to the problem, and other states are considering action. New York Assemblyman Edward Braunstein, a Democrat, and State Senator Joseph Griffo, a Republican, recently announced revenge porn legislation that would make non-consensual disclosure of sexually explicit images a Class A misdemeanor. It would include pictures taken by victims.

Neither current nor proposed state laws are likely to have an effect on the Web sites that make the explicit images available to the prurient public, because they can claim protection under the Communications Decency Act. Section 230 of that statute has been interpreted by courts to shield sites that host third-party content from liability, unless that content, like child pornography, violates federal law. (Or unless sites cross the line from aggregators to co-creators of the material in question.)

It is not clear how many people have been affected by revenge porn — activists rely on self-reporting — but Ms. Jacobs has said that over 1,000 victims have reached out to her since she started speaking out on this issue. And a tour through a site like Private Voyeur reveals a depressingly large cache of photographs.

Going through a breakup is bad enough; going through a breakup and finding out that your ex is a horrible person is worse. Although lawmakers can’t do much to help their constituents with these difficulties, they can work to provide recourse for when exes seek revenge through un-consensual pornography.

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David Gray on the Supreme Court’s Contemporary Fourth Amendment Exclusionary Rule

dgray2Tomorrow, if you are in the D.C. area in the afternoon, Georgetown Law’s American Criminal Law Review, American Civil Liberties Union, and Criminal Law Association are hosting my brilliant colleague David Gray to talk about his article, A Spectacular Non Sequitur: The Supreme Court’s Contemporary Fourth Amendment Exclusionary Rule Jurisprudence (forthcoming in ACLR). His lecture will focus on the Exclusionary Rule and the recent cases involving the 4th Amendment. Location: Hotung 1000. Starts at 3:30 p.m. Will be worth it, indeed. Professor Gray is an illuminating and dynamic speaker.