Author: Danielle Citron

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Commission on Torture: Restoring the Rule of Law

120px-Torture_Inquisition.jpgNewsweek reports that Obama advisers are considering the possibility of a 9/11-style investigatory commission that would ask what has gone wrong (and right) with our counterterrorism policies and make public its findings. According to a senior adviser, “the American people have to be able to see and judge what happened.”

An independent investigatory commission on our post-9/11 counterterrorism practices is crucial to defend our commitment to the rule of law. To be sure, previous administrations exercised far-reaching powers and engaged in abusive conduct in times of crisis. (Geoffrey Stone’s Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism does a superb job capturing these past excesses). But the current administration’s power grab was both unprecedented and deeply damaging. According to former Chief Counsel to the Church Committee and current Senior Counsel to the Brennan Center on Justice Frederick A.O. Schwarz, Jr., the Bush Administration gave itself extraordinary “powers of coercion, detention, and surveillance” that produced a separation-of-powers imbalance, eviscerated our rights and liberties, and perverted American values. Understanding this history is crucial to prevent its repetition.

As Schwarz urges, any investigatory commission should be “independent, bi-partisan in membership and non-partisan in approach.” It should have available to it investigative tools such as the power of subpoena to conduct a thorough investigation, including access to all relevant information held by agencies, the White House, and private contractors. And the proposed commission needs access to secrets. For instance, it must have free reign to order U.S. intelligence agencies to open their files for review and question senior officials who approved waterboarding and other controversial practices. Such a commission would surely help us prevent future abuses of power. But our transparency about past mistakes would also enhance confidence in our democracy, both here and abroad.

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Open Source Censorship

82px-Censuraindex.jpgIn nations with strong Internet censorship policies, the government typically runs the effort to block unwanted Web content. China, for instance, uses its vast resources, both technological and human, to maintain its Great Firewall. But Saudi Arabia has followed a different path to acheive similar results. As Business Week reports, Saudi Arabia claims to rely on its citizens to recommend sites that should be blocked. The government reportedly receives roughly 1,200 messages a day, typically students and religious leaders, flagging offensive sites. Its Communications & Information Technology Commission (CITC) only has 25 people working on censorship issues although it does employ software to block clear-cut violations of its communications policy, such as web sites for pornography and gambling. CITC uses software from San Jose-based Secure Computing that offers a menu of 90 categories of sites to block.

Groups that monitor press freedom around the world suggest that Saudi censorship policies are “among the most restrictive in the world” in targeting criticism of the royal family and religion. Human rights group Reporters Without Borders has extensive coverage on Saudi Arabia’s censorship policies. For instance, all discussions of women’s rights are blocked. And, as Business Week notes, local blogger Fouad al Farhan was jailed early this year for advocating political reforms. While Farhan wrote under his own name, most of the country’s 2,000 bloggers write anonymously.

The CITC, however, suggests that its censorship has the imprimatur of its citizens who participate in the government’s efforts to ban pornography and unpopular ideas. It explains that only 40% of its citizens are concerned about its censorship efforts. Questions remain as to whether citizen participation in the work of CITC is, in fact, as wide-spread as the government suggests and whether our free speech values truly do have little resonance there.

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Transition at the FCC

120px-US-FCC-Seal_svg.pngOn Friday, the Obama-Biden Transition Team announced its pick of experts who will review key agencies, departments, and commissions of the U.S. government and make recommendations regarding strategic policy, budgetary, and personnel decisions before inauguration. Technology scholars Susan Crawford and Kevin Werbach will lead the FCC transition team. Susan Crawford, a Professor of Law at the University of Michigan, teaches communications law and Internet law. Before teaching, she was a partner with Wilmer, Cutler & Pickering (now WilmerHale). Crawford recently ended her term as a member of the board of directors of ICANN. As p2pnet notes, Crawford is internationally famous as the person behind OneWebDay, held annually on September 22, an “Earth Day for the Internet.” Kevin Werbach is an Assistant Professor of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton School and the organizer of the annual Supernova technology conference. He writes about the legal and business implications of information and communication technologies and served as counsel for new technology policy at the FCC during the Clinton Administration.

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Uncle Sam’s Corporate Helpers in the War on Terror

Jon Michaels has written a superb article, “All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror,” recently published by California Law Review, which criticizes the Bush Administration’s informal intelligence-gathering partnerships with private actors, including data brokers, FedEx, and Western Union. As the article explores, this “privitization” of intelligence gathering has operated in the shadows, without legislative or judicial oversight. Michaels’s piece suggests reforms to enhance the accountability of such practices that the Obama Administration and the newly-elected Congress would be wise to heed.

Here is the abstract:

Commentators who have examined the Executive’s post-September 11 practice of persuading corporations to enter into informal and, at times, unlawful intelligence-gathering partnerships have largely viewed the participating firms as co-conspirators, unwitting pawns, or coerced captives of the Executive-and understandably so. After all, participating corporations have been instrumental in enabling U.S. intelligence officials to conduct domestic surveillance and intelligence activities outside of the congressionally imposed framework of court orders and subpoenas, and also outside of the ambit of inter-branch oversight. Yet despite their track record as enablers, corporations are uniquely positioned to help rein in the currently unregulated practices.

This Article analyzes corporate-government agreements and provides the rationale and blueprint for shifting the principal locus of compliance with existing laws (and oversight obligations) from the intelligence officials to the corporations. The inquiry begins by laying out the Article’s fundamental postulates: the intelligence agencies depend on private actors for information gathering; the Executive is institutionally predisposed to seek maximum discretion in conducting intelligence operations, both because of the overwhelming pressure to thwart acts of terrorism and because its officials are relatively immune from serious legal or political sanction for proceeding ultra vires; and, the Executive may choose to conduct intelligence policy through informal collaborations notwithstanding the legal, political, and economic harms these shadowy bargains may generate.

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Keeping Track of Domestic Violence Abusers

120px-Old_bracelets_%28aka%29.jpgHawaii, Michigan, and other states now permit courts to grant protective orders requiring domestic violence abusers to wear GPS devices that would notify authorities and victims of an abuser’s whereabouts. In some states such as Illinois, the device would let the victim know if the defendant is within a certain distance from the victim’s home or work. Such protective orders have great potential to prevent or stop abuse–abusers often target victims at their workplaces. Some domestic violence advocates worry that the technology may give victims a false sense of security because technology is, of course, imperfect. A GPS system does a victim little good if a system provides notice of an offender’s location via cell phone and the victim has traveled to a spot with no cell service and the offender is too close to the victim to allow the authorities to come to her aid before the offender strikes. Aside from technical difficulties, victims surely leave their home and work areas and thus would be unprotected if the GPS device only notifies victims when an offender has traveled within the zone of exclusion, i.e., the victim’s home and work. Nonetheless, the use of a GPS system could play an important role in a larger effort to deter domestic violence. Harvard’s Civil Rights-Civil Liberties Journal has devoted scholarly attention to the issue that is worth serious study.

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The Bionic Eye

120px-Brushfield.jpgAccording to Government Technology, engineers at the University of Washington have developed contact lenses with integrated circuitry. Although the lenses have only been tested on animals, researchers are working on having electronic lenses overlay a display over a person’s visual field without impairing sight. Researchers hope that the lenses, once completed, will allow users to zoom in on distant objects and see useful facts. Future applications might allow drivers and pilots to see their direction and speed projected across their view or to surf the Web without a monitor. The circuit components would be powered by integrated solar cells and a wireless radio-frequency receiver.

Electronic contacts lenses gives rise to interesting questions about their potential use. Could a zoom function and connection to the Net allow drivers to record and transmit the license plates of reckless drivers to insurance companies and local police? Lior Strahilevitz’s superb article “‘How’s My Driving’ for Everyone (and Everything?)” contemplated the use of technologies to report driver misconduct to assist the police in combating dangerous driving, reduce information assymetries in the insurance market, improve the tort system, and alleviate driver frustration over the current feeling of helplessness in the face of reckless driving. As the article demonstrates, the virtual anonymity of drivers magnifies dangerous behavior on the road because drivers do not suffer social disapproval for poor driving and have a profound sense that they will never get caught. These lenses could fundamentally alter that sense of anonymity on the road and could deter antisocial behavior. The bionic eye could play an important role in altering behavior and may raise privacy concerns worth discussing.

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Social Pressure for a Green Good (and Perhaps Red, White, and Blue Too)

According to this month’s Scientific American, academics at UCLA have found that peer pressure does a better job of motivating people to conserve resources than do standard environmental messages. In an experiment, researchers presented two different signs to hotel guests: one had a typical conservation message and the other told guests that most of their fellow travelers had reused towels. The study found that the social-norm message worked 25% better than the generic environmental message in convincing guests to reuse their towels. It also found that telling guests that those who had stayed in same room had reused their towels worked even better than saying that other guests at the same hotel had done so.

Crowd motivation seemed at work yesterday as well. According to The New York Times, recent studies attribute our drive to cast a ballot to the desire to see ourselves as the kind of people who vote. In other words, we vote to maintain our moral self-image. This desire seemingly operates internally and externally. We vote because we want to feel good ourselves and because we want others to feel good about us too. Hence, so many kept on their “I Voted!” stickers throughout the day. As the UCLA study suggests, those “I Voted!” stickers likely motivated others to head to the polls, especially if they were worn by colleagues and friends. Although the heavy turn out was no doubt due to the historic nature of the race–an African American candidate (now President elect)–and the unbelievably high stakes given our economy and the war, it also created a contagion of the greatest kind, one that was red, white, and blue.

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Predictably Irrational

89px-Woody_Allen_%282006%29.jpgAs our readers at CoOp know well, my posts have highlighted concerns about the accuracy and security of our e-voting machines. See here, here, here, and here. My rational self thus tells me that the e-voting technology sitting in my precinct is problematic, plain and simple. With this in mind, I should have put my memory card into the Premier (formerly Diebold) voting machine with dread. I should have felt despair. But, truth be told, once I had touched the screen eleven times to cast my choices for the Presidential ticket, a Congressional race, local judges and numerous ballot initiatives and pressed enter (or something like that), I was filled with joy. The final screen told me that my ballots had been cast–and, in that moment, I believed. Behavioral economists unquestionably know of which they speak–optimism bias is a powerful thing. But now, as Alvy Singer told Annie Hall’s brother, it is time for me to return to planet earth.

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Certification of Voting Machines: Little Reassurance to Voters

120px-Ecounting-scanning3.jpgElection officials try to alleviate voters’ concerns about the reliability of e-voting machines with the following refrain: labs ran our machines through rigorous testing and certified them as reliable and safe. But, of course, those officials fail to explain that many of the e-voting machines in use today were certified by labs whose credibility has been seriously called into question. The Election Assistance Commission has just suspended SysTest Labs, a company that tested and certified voting machines since 2001, due to their “failure to conform to procedures and requirements set by the National Institute of Standards and Technology.” According to the EAC, SysTest failed to create and validate testing methods, maintain proper documentation of its testing, and employ properly trained or qualified personnel. The key question is really: if all of that is true, what did the testing lab do at all?

To add to voters’ worries, another lab involved in testing today’s e-voting equipment, CIBER, similarly faced suspension by the EAC in January 2007 due to its lax oversight of vendors’ e-voting systems. And even long before CIBER’s suspension, it was roundly criticized for its security and reliability problems. (CIBER appears to be back in the testing game, along with three other companies).

All of this suggests that the certification of these machines should give us little comfort–two of the four testing labs that certified the software running our voting machines were less than reliable. Moreover, as for all of the e-voting machines that we will use on Tuesday, vendors paid for the testing labs’ services and the certification reports were never released to the public, raising concerns about the lack of impartiality of all of the testing labs.

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Fairfax on Gambling

Lisa Fairfax at the Conglomerate has a thoughtful post on state ballot initiatives to legalize gambling. She writes:

“[T]his election day, voters in several states will be considering ballot initiatives involving gambling or lotteries. Indeed, my own state of Maryland has proposed such an initiative, which would add a new constitutional amendment approving up to 15,000 “video lottery terminals” in five locations throughout the state. Like other states, Maryland’s initiative aims to raise money to cover its significant budget shortfall—a shortfall of about $430 million. As one can imagine, these initiatives have sparked considerable debate, and that debate seems to be heightened when viewed in the context of the current financial and economic crisis.

Proponents of the Maryland measure contend that the initiative could potentially raise $600 million, a significant portion of which would go to fund public education. From this perspective, in a time when states are strapped for cash and thus not only have had to increase taxes, but also have had to take measures such as slashing budgets and instituting hiring freezes and/or mandatory furloughs, it is hard to argue with a proposal designed to inject $600 million into the state’s coffers. As the Baltimore Sun noted in its recent endorsement of the measure, while raising revenue from gambling is not ideal, it may be better than the alternative choices of higher taxes or allowing public education and health care to suffer if budget cuts continue unabated. Proponents also point out that many Marylanders travel out of state to nearby states like Delaware or West Virginia where gambling is allowed, and hence we might as well enable these Marylanders to spend those funds in their own state.

Opponents first question whether gambling initiatives can be counted on to raise significant revenue. Given recent reports indicating that revenue has fallen sharply in many casinos, this is not an idle question. These reports reflect the reality that people no longer have discretionary funds to spend on activities like gambling. Then too, opponents insist that gambling has costly secondary effects because, as studies suggest, it is addictive, leads to increased alcoholism and otherwise negatively impacts other businesses and the surrounding community. Moreover, opponents express concern that gambling measures will prove especially harmful to lower class communities, imposing what some describe as a regressive tax on those communities. Again, such an argument has particular salience in these economic times. Indeed, if more people are living paycheck to paycheck, can or should we pin even part of our economic recovery on the hope that they will use part of their paychecks to gamble?

In the end, much like recovery/bailout measures at the federal level, these gambling initiatives sorely test our ability to find solutions that do not exacerbate our problems or otherwise offer short-term fixes that undermine our long-term ability for economic growth and financial health. In its opposition to the initiative, the Washington Post insisted that the gambling measure will not promote healthy economic growth and hence voters should resist the “false promise of pain-free revenue” that the gambling measure represents. The Baltimore Sun also recognizes the problems associated with relying on gambling revenue to finance government, but nevertheless suggest that while relying on such revenue represents a painful choice for voters, these extraordinary times require us to make painful choices.”