Author: Danielle Citron


Midnight Madness

94px-The_Mountain_Brook.jpgA flurry of rulemaking activity typically accompanies Presidential transitions, a means for the exiting Administration to leave its final imprint on policy. (See this post on Presidential transitions and agency rulemaking). In this respect, the Bush Administration is no different than its predecessors. According to The New York Times, the White House Office of Management and Budget recently approved a final rule that will make it easier for coal companies to dump rock and dirt from mountaintop mining operations into nearby streams and valleys. This readies the rule for publication in the Federal Register, the final stage in the rulemaking process. The new rule will allow coal companies to dump materials that in the past they could do only in exceptional circumstances and only with permission from the government.

E.P.A. Administrator Stephen Jonhson applauds the rule, initially proposed five years ago, as a way to increase our dependence on clean coal technology and decrease our dependence on foreign oil. A coalition of environmental groups argue that the rule would accelerate “the destruction of mountains, forests, and streams throughout Appalachia.” For instance, policy analyst of the Sierra Club, Edward Hopkins, noted that: “The E.P.A.’s own scientists have concluded that dumping mining waste into streams devastates downstream water quality. By signing off on this rule, the agency has abdicated its responsibility.”

Environmental law scholar Robert Percival recently noted in an interview with Maryland Public Radio that the Bush Administration is in the midst of finalizing dozens of other rules that would cater to the needs of energy industries and degrade the environment. Some would involve major changes to the Clean Air Act, such as permitting pollution that would degrade visibility in national parks and exempting factory farms from reporting Clean Air Act violations. To be sure, some of these midnight rules may has limited lives: the Congressional Review Act permits an up or down vote on regulations passed 60 days before a new Administration takes over and some rules may not survive judicial review. But, as Percival explains, some midnight regulatory activity may be very hard for the Obama Administration to undo, such as leases to oil companies. Time will tell how much midnight madness ensues.


CBGB’s Post Script: Not So Punk

120px-CBGB_club_facade.jpgThe iconic music club CBGB & OMFUG (aka CB’s) opened its doors in 1973, featuring acts like Patti Smith Group, Television, The Ramones, Talking Heads, The Dictators, and Blondie. Although initially intending to showcase a variety of music (hence the full name “Country Blue Grass Blues and Other Music For Uplifting Gormandizers”), founder Hilly Kristal ended up nurturing America’s punk scene. During the 1980s, hardcore bands such as Reagan Youth, Muphy’s Law, and Agnostic Front appeared during Sunday matinees, often called “thrash days.” At CB’s, the bathrooms had no doors; fliers papered the walls. After a thirty-three year run, the club closed in October 2006. Patti Smith appeared in a final concert to bid the club adieu.

Although now gone, the club remains legendary, the memory of rebellion, stale beer, and cigarettes firmly stuck in many’s minds. This Tuesday, fans and celebrities like Stevie Van Zandt and The Dictator’s Handsome Dick Manitoba came to the opening of the Rock and Roll Hall of Fame Annex NYC to see an exhibit of CBGB artifacts, including the club’s tattered awning, cash register, and flier-covered phone booth.

But the club’s past does not resemble the present wranglings over its legacy. When club founder Hilly Kristal died last year, he left the majority of his estate (worth millions due to the popularity of CBGB tee-shirts) to his daughter, leaving his son and ex-wife disappointed and ready to challenge the will. In a suit filed in Surrogate’s Court in Manhattan, Mr. Kristal’s former wife (and mother of his children) claims that she is the rightful owner of the business and that Mr. Kristal and their daughter deceived her by hiding the money from the sale of the CBGB merchandise. As Karen Kristal (the founder’s ex-wife) explained to The New York Times, “I put up the money, spent my time in there. And then my daughter says that they get it all. And that’s a lie.” Longtime members of the CBGB community shake their heads at the ugliness of the dispute but insist that CBGB’s symbolic place as the birthplace of punk rock will remain undisturbed. The Ramones’ artistic director Arturo Vega offers that the lawsuit “shouldn’t reflect what this place was about . . . . CBGB was a beacon of freedom for young people, something to believe in.” Indeed.


The Booming Cybercrime Economy

111px-Digitale-crimi.pngAs ars technica reports, the underground cybercrime economy is flourishing. A recent whitepaper released by security company Symantec documents the vast market involved in the sale and trading of stolen credit cards, bank account credentials, email accounts, software, and other data that can be exploited for profit. The report estimates that, for the period covering July 2007 to June 2008, the total value of advertised stolen goods added up to $276 million. The most advertised, requested, and expensive product was credit card information, probably because it is difficult for merchants to identify fraudulent transactions before an online sale is completed. Bank account data stood as the next most popular product, likely due to the fact that balances of accounts can be transferred online to untraceable locations within minutes. “Attack tools” are also prominent goods for sale–services that steal information through denial-of-service attacks, engage in spamming and phishing campaigns, and generate botnets. (Most of the stolen information is obtained and distributed through these services).

Protecting sensitive information from this underground market, however, is often difficult. Consumers and organizations can follow welll-known (but imperfect) strategies to protect themselves. They can use antivirus, firewall, and antiphishing software. Because computer users are themselves a large part of the problem, technology alone cannot reduce the theft of sensitive information. Individuals need to be educated about phishing, which lures people into giving up personal or corporate information. An estimated 3.6 million Americans fell victim to phishing last year, leading to losses of more than $3.2 billion. As computer scientist Lorrie Faith Cranor recently explained in Scientific American, the number of phishing victims can be reduced by constantly improving phishing detection software and updating computer users about new types of phishing attacks. At the end of the day, however, phishers and their criminal cohorts are constantly evolving their tactics to stay a step ahead of technologies that combat their efforts and improving their ability to evade law enforcement. Time, of course, will tell if this underground market grows even more robust in the months to come.


Introducing Guest Blogger Shruti Rana

srana.jpgI am delighted to introduce my colleague Shruti Rana who will be guest blogging with us this month while she teaches in China. Professor Rana is an Assistant Professor of Law at the University of Maryland Law School, where she currently teaches Contracts and Comparative Commercial Law. In December 2008, she will be a visiting professor at the Central University of Economics and Finance in Beijing, China. She received her J.D. from Columbia Law School, an M.Sc. in International Relations from the London School of Economics, and her B.A. from the University of California, Berkeley. Prior to joining the University of Maryland, she was a Social Affairs Officer at the United Nations and practiced commercial and administrative law at Williams & Connolly LLP in Washington, D.C., and Quinn Emanuel LLP and Bingham McCutchen LLP in San Francisco, CA. She also clerked for the Hon. James R. Browning at the U.S. Court of Appeals for the Ninth Circuit.

Her research focuses on the intersection of administrative law and immigration policy, comparative approaches to credit regulation, and corporate accountability.

Some of Professor Rana’s publications include:

Streamlining” the Rule of Law: How the Department of Justice is Undermining Judicial Review of Agency Action, University of Illinois Law Review (forthcoming 2009).

From Making Money Without Doing Evil to Doing Good Without Handouts: The Experiment in Philanthropy, 3 Journal of Business & Technology Law 87 (2008).

Fulfilling Technology’s Promise: Enforcing the Rights of Women Caught in the Global High-Tech Underclass, 15 Berkeley Women’s L.J. 272 (2000), reprinted in Women, Science & Technology: A Reader in Feminist Science Studies (Mary Wyer et. al. eds., 2d ed. 2008).


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.

Wikimedia Commons


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.