Author: Danielle Citron

1

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.

0

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.

8

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

0

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

1

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.

1

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.

5

Introducing Guest Blogger Zephyr Teachout

I’m delighted to introduce Professor Zephyr Teachout who will be a guest this month. Professor Teachout is an Associate Law Professor at Fordham Law School, where she teaches political law and p20090421_zephyr_teachout_18roperty law. She writes about political law and has just completed a manuscript for Harvard University Press on the meaning of corruption in American law. She is a member of the Board of Center for Rights, the Public Campaign Action Fund, and the Antitrust League. She is the former National Director of the Sunlight Foundation and the Director of Online Organizing for Howard Dean’s 2004 Presidential campaign. She began her career as a lawyer representing people on death row in North Carolina.

 

4

Recommended Reading: Avlana Eisenberg’s Expressive Enforcement

Avlana Eisenberg recently posted on SSRN her article “Expressive Enforcement” forthcoming in the UCLA Law Review. The piece makes an important contribution to the literature on hate crimes laws and enriches the literature on expressive theories of law. Eisenberg’s study of hate crimes charging decisions (based on a set of interviews with prosecutors in 23 states) finds some surprising patterns. While the prosecutors Eisenberg spoke to often don’t bother with hate crimes charges in archetypal hate crimes cases (because they already can get a serious conviction for a violent crime, and it’s not worth the difficulty of proving bias motives), many do charge hate crimes in certain kinds of cases that don’t really seem “hate”-related at all–for instance, frauds that target senior citizens. Such crimes may well involve “vulnerable victims,” but they do not involve the kind of group-based animus that hate crimes laws are generally intended to condemn. (I blogged about such prosecutions here). Eisenberg uses this to illustrate a broader point: when we talk about the “expressive message of a law,” we usually are thinking about the message legislators intended to express when they passed the law, or at least some message that is encapsulated, even if unintentionally, by the legislation itself. But the way the law plays out on the ground may be very different, and that affects the way the expressive message is actually heard by communities (and, in this case, risks devaluing it, by turning the threat of hate crimes prosecution into just another instrumental tool in prosecutors’ toolboxes).

2

Coding Freedom Symposium: The Hacker Citizen

Does hacker culture tell us anything about good citizenship (even as it is meritocratic)? As Biella Coleman commented in Nicklas’s post, hacker platforms are”laboratories” where “participants learn and refine a range of technical, legal, political, and legal skills.” As she notes, the time is ripe to revisit debates about democratic participation from the 1920s with Walter Lippmann championing the expert as the necessary bridge between the public and government and with John Dewey calling for citizen to participate directly in public life. That struck me as one of the most salient insights of Coding Freedom. Lippman’s expert is one and the same as the public citizen participant, or at least that person, the hacker, could be.

The hacker process of production creates a culture of an engaged citizenry. Debian developers have moral commitments to personal development, mutual aid, transparency, and collaboration. Reading Coding Freedom, one senses that hackers see themselves as Justice Brandeis saw citizens–duty-bound to speak/develop code for “mutual benefit of each other and society.” (p. 120). The inert, as Brandeis would say, are not welcome. Hackers expect quite a lot of themselves and of others. Hence, the “read the f***ing manual” response to those who don’t try to solve simple questions first on their own. At the same time, hacker developers do what they can to mentor newbies needing guidance. The fruits of their labors are transparent. As the Debian “Social Contract” pledges, “We will keep our entire bug-report database open for public view at all times.” (p. 131). Hackers often make decisions through rough consensus, though not always.  To join Debian projects, hackers go through a process whereby they have to make clear that they share the community’s values. As Coleman aptly writes in her Epilogue, in the world of free software, developers “balance individualism and social cooperation, populism and elitism, and especially individualism and social cooperation.” Collaborators “make technology at the same time that they experiment in the making of a social commonwealth; it is there where the hard work of freedom is practiced.” (p. 210).

Hackers, if interested, could be the perfect marriage of the technical expert and the engaged public participant. State and federal governments have tried to interest hackers in their work, opening up data for hack-a-thons designed to identify solutions to tough problems. E-voting technology is crying out for the hacker’s tinkering. E-voting systems, built by private vendors, are notoriously inaccurate and insecure. Because the software is proprietary, hacker citizens cannot inspect the source code to ensure that it works or is safe. In too many cases, buggy software (or perhaps worse) has disenfranchised voters. Why not open up the source code to hackers who can help identify bugs and insecurities? Hackers could provide feedback on the privacy and security risks posed by e-voting systems. This feedback would exert pressure on vendors to fix problems that they might be inclined to ignore (and could ignore given the black box nature of proprietary software). Non-U.S. countries require the use of open source software in government offices. Australia’s open code e-voting project demonstrated this potential. A private company designed Australia’s e-voting system and posted all the drafts of its source code online for review and criticism. Interested tinkerers and independent auditors studied the source code and provided feedback. Serious problems were detected, and the vendor fixed the source code, shoring up the system’s security. Coding Freedom suggests the great potential of opening up the source code of government systems for hackers to perform as citizen tinkerers.

 

1

Introducing the Coding Freedom Online Symposium

This week, a deep bench of thinkers, tinkerers, and scholars will be blogging to discuss Professor Gabriella Coleman’s book Coding Freedom: The Ethics and Aesthetics of Hacking (Princeton University Press 2012). Coleman, the Wolfe Chair Scientific and Technical Literacy at McGill University, is a leading scholar and cultural guide in all matters concerning digital activism and engagement. Coding Freedom untangles and illuminates the contributions of computer hackers to the trajectory of intellectual property law specifically and liberalism generally. Joining Gabriella Coleman and the CoOp crew for this weeklong symposium are Karl FogelAmy KapczynskiEdward W. FeltenLaura DenardisNicklas LundbladJulie CohenSteven BellovinNabiha SyedLawrence Liang, and James Grimmelmann as well as permanent CoOp authors Deven Desai and Frank Pasquale. Welcome!