Author: Danielle Citron


The Future of Civil Rights

As U.S. News and World Report highlights, civil rights advocates now find themselves in the exciting position of suggesting policy changes to an incoming administration whose Commander in Chief really understands civil rights issues. James Rucker, executive director of, an online community devoted to black politics, notes: “Now we’re moving from hypothetical mode to people saying we have to figure out what our agenda is so we can present it to President Obama.” To be sure, meaningful equality for members of traditionally disadvantaged groups will require policy changes. But it also can, and should, be pursued by enforcing existing law, something the prior Administration had difficulty doing. As Professor Helen Norton testified before Congress last year, the Bush Administration had an appalling record in its enforcement of civil rights laws, including those involving employment discrimination, as compared to previous administrations. And the Obama Administration will undoubtedly reverse that course: at the head of the EEOC transition team is Helen Norton, who served as the Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice during the Clinton Administration, where she managed the Civil Rights Division’s Title VII enforcement efforts. Her most recent testimony before the U.S. House of Representatives Committee on Education and Labor Subcommittee on Health, Employment, Labor, and Pensions at a hearing concerning workplace discrimination demonstrates how exciting her appointment as head of the transition team for the EEOC is.


Cyberchondria: Too Much Bad News

According to the New York Times, health-related Web searches are making us unecessarily anxious. A Microsoft study released on Monday reveals that search engines often lead people to fear the “worst about what ails them.” Web searches for medical problems are “as likely or more likely” to lead people to pages describing serious conditions as benign ones, even though the more serious illnesses are much more rare. For instance, a search for the term “headache” retrieved as many articles about brain tumors as those discussing caffeine withdrawal, even though the chance of having a brain tumor is extremely small. According to artificial intelligence researcher Eric Horvitz, people trust search engines to produce information as a human expert would and tend to look at just the first couple of results in a given search. When a search for “headache” produces “brain tumor” or “A.L.S.” in its first few results, people seize on these terms as their “launching point.” As a result, more than half of the study participants said that online medical queries had interrupted their day-to-day activities and made them anxious. And a third of the subjects escalated their follow-up searches to explore serious illnesses.

Our tendency to jump to awful conclusions is well-established. As behavioral economics literature suggests, an array of psychological undercurrents influence our behavior and decision making. For instance, the phenomenon of diagnosis bias causes us to ignore evidence that contradicts our initial assessment of a situation. (Anecdotally, Dr. Horvitz recalled his “medical schoolitis:” his tendency to believe that he suffered from the rare and incurable diseases that he studied in medical school.) And, as the Microsoft study suggests, we suffer from automation bias–the tendency to believe computer decisions in the face of contradictory evidence.

Microsoft hopes to refine its search engines to detect medical inquiries and offer advice that would not automatically make Web searchers jump to the worst conclusions, thus serving as more of an adviser than a blind information retrieval tool. Given the move to personalize our searches based on our prior activity, the question remains whether new developments can alleviate the anxious (like the Woody Allen character Mickey in “Hannah and Her Sisters”) from running into doctors offices to get CAT scans at the first sign of a headache.


Gerken on Election 2008

120px-2008_Senate_election_map.svg.pngHeather Gerken has a terrific post on the Election Law Blog entitled The Invisible Election where she reflects on the administration of the 2008 Presidential election. As a member of Obama’s election protection team, Gerken helped monitor the problems seen in polling places across the country. She found that, contrary to the media’s message that we had a problem-free election and consistent with computer scientists and political scientists fears, election administration in some jurisdictions fell apart for reasons both technical and human. Thousands of people had to wait three hours or more to vote due to the limited number of voting machines or broken machines. Voters showed up to the polls thinking that they had registered to be told that they were not on the rolls. Poll workers did not know the basic rules about provisional ballots and election protocols. Although some jurisdictions administered election day with few hiccups, others did not. As Gerken suggests, we need to make the administrative side of elections visible to the public, policymakers, and election administrators themselves. To that end, Gerken would create a Democracy Index, which would rank states and localities based on how well they run elections. More data on how the election system actually performs would help us assess routine problems and provide insight on the problems that require funding to fix.


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.


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.


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.


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.