Author: Danielle Citron

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Brave New World of Biometric Identification

120px-Fingerprint_scanner_identificationProfessor Margaret Hu’s important new article, “Biometric ID Cybersurveillance” (Indiana Law Journal), carefully and chillingly lays out federal and state government’s increasing use of biometrics for identification and other purposes. These efforts are poised to lead to a national biometric ID with centralized databases of our iris, face, and fingerprints. Such multimodal biometric IDs ostensibly provide greater security from fraud than our current de facto identifier, the social security number. As Professor Hu lays out, biometrics are, and soon will be, gatekeepers to the right to vote, work, fly, drive, and cross into our borders. Professor Hu explains that the FBI’s Next Generation Identification project will institute:

a comprehensive, centralized, and technologically interoperable biometric database that spans across military and national security agencies, as well as all other state and federal government agencies.Once complete, NGI will strive to centralize whatever biometric data is available on all citizens and noncitizens in the United States and abroad, including information on fingerprints, DNA, iris scans, voice recognition, and facial recognition data captured through digitalized photos, such as U.S. passport photos and REAL ID driver’s licenses.The NGI Interstate Photo System, for instance, aims to aggregate digital photos from not only federal, state, and local law enforcement, but also digital photos from private businesses, social networking sites, government agencies, and foreign and international entities, as well as acquaintances, friends, and family members.

Such a comprehensive biometric database would surely be accessed and used by our network of fusion centers and other hubs of our domestic surveillance apparatus that Frank Pasquale and I wrote about here.

Biometric ID cybersurveillance might be used to assign risk assessment scores and to take action based on those scores. In a chilling passage, Professor Hu describes one such proposed program:

FAST is currently under testing by DHS and has been described in press reports as a “precrime” program. If implemented, FAST will purportedly rely upon complex statistical algorithms that can aggregate data from multiple databases in an attempt to “predict” future criminal or terrorist acts, most likely through stealth cybersurveillance and covert data monitoring of ordinary citizens. The FAST program purports to assess whether an individual might pose a “precrime” threat through the capture of a range of data, including biometric data. In other words, FAST attempts to infer the security threat risk of future criminals and terrorists through data analysis.

Under FAST, biometric-based physiological and behavioral cues are captured through the following types of biometric data: body and eye movements, eye blink rate and pupil variation, body heat changes, and breathing patterns. Biometric- based linguistic cues include the capture of the following types of biometric data: voice pitch changes, alterations in rhythm, and changes in intonations of speech.Documents released by DHS indicate that individuals could be arrested and face other serious consequences based upon statistical algorithms and predictive analytical assessments. Specifically, projected consequences of FAST ‘can range from none to being temporarily detained to deportation, prison, or death.’

Data mining of our biometrics to predict criminal and terrorist activity, which is then used as a basis for government decision making about our liberty? If this comes to fruition, technological due process would certainly be required.

Professor Hu calls for the Fourth Amendment to evolve to meet the challenge of 24/7 biometric surveillance technologies. David Gray and I hopefully answer Professor Hu’s request in our article “The Right to Quantitative Privacy” (forthcoming Minnesota Law Review). Rather than asking how much information is gathered in a particular case, we argue that Fourth Amendment interests in quantitative privacy demand that we focus on how information is gathered.  In our view, the threshold Fourth Amendment question should be whether a technology has the capacity to facilitate broad and indiscriminate surveillance that intrudes upon reasonable expectations of quantitative privacy by raising the specter of a surveillance state if deployment and use of that technology is left to the unfettered discretion of government. If it does not, then the Fourth Amendment imposes no limitations on law enforcement’s use of that technology, regardless of how much information officers gather against a particular target in a particular case. By contrast, if it does threaten reasonable expectations of quantitative privacy, then the government’s use of that technology amounts to a “search,” and must be subjected to the crucible of Fourth Amendment reasonableness, including judicially enforced constraints on law enforcement’s discretion.

 

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Brandon Garrett on the Court’s Recent Criminal Procedure Decisions

Professor Brandon Garrett has an interesting post on three important criminal procedure cases from the past Term (including his take on Maryland v. King):

With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.

First, the Court continues to recognize that innocence should be an important consideration for federal judges reviewing prisoners’ habeas petitions. InMcQuiggan v. Perkins, the Court recognized for the first time that evidence of a prisoner’s innocence can provide an exception to the restrictive one-year statute of limitations imposed in 1996 by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). However, the Court somewhat gratuitously emphasized that this innocence exception would be “severely confined” and that the class of prisoners able to show that a jury presented with new evidence would be likely not to convict may be quite small.

Moreover, the Court still has not recognized an outright constitutional claim of innocence. Innocence is merely a “gateway” to excuse complex procedural barriers, but innocence is not a stand-alone ground for relief in federal courts. More than two-decades into the DNA era, judges are now far more aware than in the past that prisoners can prove their outright innocence of serious crimes. But as I describe in Convicting the Innocent, judges have only slowly and reluctantly loosened their grip on technical rules that make it extremely difficult for even innocent convicts to secure their freedom.

Second, although DNA testing continues to reshape the criminal justice system, the Supreme Court’s decision this term in Maryland v. King may encourage some of the worst tendencies in the law enforcement use of DNA. The Court endorsed police taking DNA from people at the time of arrest for purposes of “identification,” but also to permanently enter that DNA in the national databank to search against any number of past and future unsolved crimes. Given my interest in using DNA to potentially free the innocent, one might expect that I would welcome any and all expansion of DNA databanks. However, I co-authored an amicus brief with Erin Murphy taking the other side and offering a detailed explanation of our thinking. We argued that the federal government and states should absolutely invest in collecting DNA from serious criminals, and in using DNA to potentially free the innocent. But taking DNA from vast numbers of mere arrestees, who have not been convicted of any crime, is counterproductive. It is a serious burden on the privacy of vast numbers of people, including innocent people who are cleared after arrest. By the same token, taking DNA from arrestees has not been shown to improve crime fighting; in fact, it can dilute the power of DNA databases. Read More

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Introducing Guest Blogger Karen Czapanskiy

I’m thrilled to introduce my colleague Professor Karen Czapanskiy who will be joining us this month as a guest blogger. Professor Czapanskiy joined the faculty of the University of Maryland Carey School of Law in 1983.  During her early years at the law school, she and her clinic students created a full-service program for women who had been abused by an intimate partner, representing them in criminal cases and family law matters, undertaking legislative advocacy and staffing a clemency project for women imprisoned for killing an abusive partner.  Later, she worked with clinic students, lawyers at the Homeless Persons Representation Project and other faculty to help women faced with the impacts of welfare reform on them and their families.  Her work in practice informed multiple publications on domestic violence, family law, welfare reform and gender bias.  More recently, she has been writing about law and policy as they affect families raising children with special needs.  Professor Czapanskiy teaches courses in family law and property and seminars on families raising special needs children.a40dedc79f748f2d67e7e45776bdf016

A graduate of the University of California at Berkeley and the Georgetown University Law Center, Professor Czapanskiy clerked for the Honorable Rita C. Davidson, the first woman appointed to an appellate bench in Maryland.  Before joining the faculty, Professor Czapanskiy was an attorney at the U.S. Department of Justice, taught at the University of Hawaii Law School and the Washington College of Law.  Since joining the faculty in 1983, Professor Czapanskiy has served as the reporter for the Maryland Joint Special Committee on Gender Bias in the Courts and as a member of the Charter Review Commission of Montgomery County, Maryland.  She held the William J. Maier, Jr., Chair at West Virginia University College of Law, and has visited at the Washington College of Law of American University and the Columbus School of Law at the Catholic University of America.  Beginning in the mid-1980s, she was one of the organizers of the Maryland/DC/Virginia Women Law Teachers Group. In 1992, she chaired of the Section on Women in Legal Education of the AALS.   She is a member of the American Law Institute and the Prytanean Society.  Professor Czapanskiy spent the fall semester of 1994 as a Fulbright lecturer at the University of Durban-Westville, South Africa.  She is a member of the American Law Institute and the Prytanean Society.  Since 2002, she has been active in electoral politics at the local and national levels.

Her most recent publications include:

Books

Family Law: Cases, Text, Problems (5th ed. 2010) (with others).

Articles

Special Kids, Special Parents, Special Education, 46 Michigan Journal of Law Reform (forthcoming 2013).

1992: A Year of Women, Bravery, and Growth, 80 UMKC Law Review 751 (2012).

Disabled Kids and Their Moms: Caregivers and Horizontal Equity, 19 Georgetown Journal on Poverty Law and Policy 43 (2012).

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Letting the Air Out

The NSA and the rest of our surveillance state apparatus is shrouded in secrecy. As captured in Frank Pasquale’s superb forthcoming book, governmental surveillance is a black box. Gag orders prevent Internet companies from talking about their participation in PRISM; nearly everything revealing is classified; the Executive Branch is telling us half truths or no truths. To counter massive governmental overreach, Bradley Manning, Edward Snowden, and others have exposed some sunlight on our surveillance state. That sunlight isn’t coming from those who are betraying the country, but those who are trying to save it, at least that’s what many registered voters think. According to a Quinnipiac poll released today, American voters say “55 – 34 percent” that NSA consultant Edward Snowden is a “whistleblower rather than a traitor.” According to the assistant director of the Quinnipiac University Polling Institute, “Most American voters think positively of Edward Snowden,” at least they did before he accepted asylum in Russia. From July 28 to July 31, 1,468 registered voters were surveyed on the phone. These sorts of leaks seem inevitable, at least culturally given our so-called commitment to openness and transparency. The leakers/whistleblowers are trying to nudge the Executive Branch to honor its commitments to the Fourth Amendment, the sentiments of the Church Report, and the Administration’s 2009 Openness and Transparency memo. Let’s see if letting the air out moves us closer to the kind of country we say we are.

H/T: Yale ISP’s Christina Spiesel for the Quinnipiac Poll

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Predictive Policing and Technological Due Process

Police departments have been increasingly crunching data to identify criminal hot spots and to allocate policing resources to address them. Predictive policing has been around for a while without raising too many alarms. Given the daily proof that we live in a surveillance state, such policing seems downright quaint. Putting more police on the beat to address likely crime is smart. In such cases, software is not making predictive adjudications about particular individuals. Might someday governmental systems assign us risk ratings, predicting whether we are likely to commit crime? We certainly live in a scoring society. The private sector is madly scoring us. Individuals are denied the ability to open up bank accounts; they are identified as strong potential hires (or not); they are deemed “waste” not worthy of special advertising deals; and so on. Private actors don’t owe us any process, at least as far as the Constitution is concerned. On the other hand, if governmental systems make decisions about our property (perhaps licenses denied due to a poor scoring risk), liberty (watch list designations leading to liberty intrusions), and life (who knows with drones in the picture), due process concerns would be implicated.

What about systems aimed at predicting high-crime locations, not particular people? Do those systems raise the sorts of concerns I’ve discussed as Technological Due Process? A recent NPR story asked whether algorithmic predictions about high-risk locations can form the basis of a stop and frisk. If someone is in a hot zone, can that very fact amount to reasonable suspicion to stop someone in that zone? During the NPR segment, law professor Andrew Guthrie Ferguson talked about the possibility that the computer’s prediction about the location may inform an officer’s thinking. An officer might credit the computer’s prediction and view everyone in a particular zone a different way. Concerns about automation bias are real. Humans defer to systems: surely a computer’s judgment is more trustworthy given its neutrality and expertise? Fallible human beings, however, build the algorithms, investing them with bias, and the systems may be filled with incomplete and erroneous information. Given the reality of automated bias, police departments would be wise to train officers about automation bias, which has proven effective in other contexts. In the longer term, making pre-commitments to training would help avoid unconstitutional stops and wasted resources. The constitutional question of the reasonableness of the stop and frisk would of course be addressed on a retail level, but it would be worth providing wholesale protections to avoid wasting police time on unwarranted stops and arrests.

H/T: Thanks to guest blogger Ryan Calo for drawing my attention to the NPR story.

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Announcement: Invitation for Papers for Micro-Symposium on Stanley Fish and the Meaning of Academic Freedom

FIU Law Review and the FIU College of Law invite contributions for a Micro-Symposium, Stanley Fish and the Meaning of Academic Freedom, to be published in FIU Law Review in 2014. Micro-symposium commentaries will accompany the papers and proceedings of a live roundtable discussion on academic freedom and Stanley Fish’s forthcoming book, Versions of Academic Freedom: From Professionalism to Revolution. Roundtable participants include Dean Robert Post (Yale), Frederick Schauer (Virginia), Fish, and several others. The program will be held at FIU College of Law on Friday, January 24, 2014.

In the book, Fish argues

The academy is the place where knowledge is advanced, where the truth about matters physical, conceptual and social is sought. That’s the job, and that’s also the aspirational norm—the advancement of knowledge and the search for truth. The values of advancing knowledge and discovering truth are not extrinsic to academic activity; they constitute it. . . . These goods and values are also self-justifying in the sense that no higher, supervening, authority undergirds them; they undergird and direct the job and serve as a regulative ideal in relation to which  current ways of doing things can be assessed and perhaps reformed. (The “it’s just a job” is not positivism; it does not reify what is on the books.)

It follows from this specification of the academy’s internal goods that the job can be properly done only if it is undistorted by the interests of outside constituencies, that is, of constituencies that have something other than the search for truth in mind. There are thus limits both on the influences academics can acknowledge and the concerns they can take into account when doing their work. . . . It must be conducted (to return to the l915 Declaration) in “in a scholar’s spirit”, that is with a view to determining what is in fact the case and not with a view to affirming a favored or convenient conclusion. If that is the spirit that animates your academic work, you should be left free to do it, although, with respect to other parts of the job (conforming to departmental protocols, showing up in class, teaching to the syllabus), you are constrained. 

Commentaries may discuss any and all legal, ethical, moral, social, practical, personal, and theoretical aspects of academic freedom, Stanley Fish’s new book, or his extensive body of work on academic freedom or any other topic. Interested commenters will be provided manuscripts of Fish’s book, on request.

Commentaries can be a maximum of 600 words, including text, footnotes, and title.

Contributions must be received by October 1, 2013. Submit to: bcreg001@fiu.edu.

Expressions of interest, requests for the manuscript, and other inquiries can be directed to Ben Crego, Law Review Editor-in-Chief, at bcreg001@fiu.edu or to Prof. Ediberto Roman at romane@fiu.edu.

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Announcement: Call for Papers on the Disruptive Rise of the Mobile Internet

This just in from the Section on Internet and Computer Law for the 2014 AALS Annual Meeting.

The AALS Section on Internet and Computer Law invites short papers or extended abstracts for its program on “The Disruptive Rise of the Mobile Internet” at the Annual Meeting, to be held on Friday, January 3, 2014, from 10:30 A.M. – 12:15 P.M in New York.

Topic Description. The Internet has perhaps changed more in the past five years than it had in the prior twenty years, since the birth of the web. For the first time, more users connect through mobile devices like smart phones and tablets than through laptop and desktop computers. These devices are more personal and produce data that are more sensitive than the legacy PCs they have replaced. They have given rise to many disruptive new business categories from mobile apps to augmented reality to location-based services. They have empowered the Internet of Things, the “quantified self,” and self-driving cars. They have disrupted incumbent powers in markets for operating systems, computing hardware, and social networking services. They raise new problems of scarcity, interoperability, and interference.
These changes have brought about new problems for law. From privacy to antitrust to telecommunications to intellectual property to criminal law, the new Internet may not work like the old. Does mobile represent a fundamental shift or merely a small change from the legacy web? How does the shift from the web to mobile alter old debates about power, intermediaries, regulation, and other topics in Internet and computer law?
Eligibility. Only full-time faculty members of AALS member law schools are eligible to submit a paper. Pursuant to AALS rules, faculty at fee-paid schools, foreign, visiting and adjunct faculty members, graduate students, fellows, and non-law school faculty are not eligible to submit. Submitted papers may already have been selected for publication, so long as the paper will not be published prior to the Annual Meeting. All faculty members presenting are responsible for paying their own annual meeting registration fee and travel expenses.
Submission. Submissions are due no later than Tuesday, September 3, 2013. Submissions should be sent via email to section chair Paul Ohm at paul.ohm@colorado.edu. Call for Papers Subcommittee members will select one or two papers from those submitted by blind review. Please redact anything that might reasonably identify the name or affiliation of the author from the paper before submitting. Submitters will be informed of decisions no later than Saturday, September 28, 2013.
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Introducing Guest Blogger Cristina Tilley

I am delighted to welcome as a guest blogger Professor Cristina Tilley. Professor Tilley is a Visiting Assistant Professor at Northwestern University School of Law. Her teaching interests include media law, conflicts and torts, with a graphic-TilleyCristina_v2012-10-12particular focus on the relationship between dignitary torts and free speech. After graduating from Northwestern’s Medill School of Journalism, she was a reporter for several years, specializing in business and legal affairs at United Press International and other publications. Professor Tilley graduated from Northwestern University Law School, where she served as Editor in Chief of the Law Review.  She clerked for Judge Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit, and was a member of the Appellate Group at Mayer Brown.

Her recent scholarship includes:

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Sherrilyn Ifill on Race v. Class: The False Dichotomy

My amazing colleague, guest blogger, and now President and Director-Counsel of the NAACP Legal Defense and Education Fund Inc. Sherrilyn A. Ifillhas a superb Op-Ed in the New York Times about the impending decision in Fisher v. Texas:20130109-ifill-BODY-1

 

The decision is in. All consideration of race in college admissions is over.

No, the Supreme Court has not yet announced its decision in the landmark case of Fisher v. University of Texas; that ruling is expected any day now. But an alarming number of scholars, pundits and columnists — many of them liberal — have declared that economic class, not race, should be the appropriate focus of university affirmative-action efforts.

How can we explain this decision to throw in the towel on race-based affirmative action? Are we witnessing a surrender in advance of sure defeat? Or just an early weariness with a debate that, a decade ago, Justice Sandra Day O’Connor predicted would last another 25 years?

Perhaps it is the presence of a black president that has encouraged so many to believe that race is simply no longer a significant factor in American life. It is true that we have come a long way since the days of Jim Crow segregation. But the plain fact is that race still matters. Read More