Author: Danielle Citron

5

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

2

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.

0

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.

0

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:

15

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

1

Interview with Marvin Kalb: The Road to War, Presidential Commitments Honored and Betrayed

I could not have timed my chat with Marvin Kalb220px-Marvin_Kalb better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power:  the NSA’s PRISM program and leaked FISA court Verizon order.

Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:

[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.

Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.

The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegantseg3_ssa_3 synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.

Here are some highlights from our conversation:

DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?

MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?

DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?

MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.

DC: What do you think of this week’s revelations about PRISM and the Verizon order?

MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read More

1

Probabilistic Crime Solving

In our Big Data age, policing may shift its focus away from catching criminals to stopping crime from happening. That might sound like Hollywood “Minority Report” fantasy but not to researchers hoping to leverage data to identify future crime areas. Consider as an illustration a research project sponsored by Rutgers Center on Public Security. According to Government Technology, Rutgers professors have obtained a two-year $500,000 grant to conduct “risk terrain modeling” research in U.S. cities. Working with police forces in Arlington, Texas, Chicago, Colorado Springs, Colorado, Glendale, Arizona, Kansas City, Missouri, and Newark, New Jersey, the team will analyze an area’s history of crime with data on “local behavioral and physical characteristics” to identify locations with the greatest crime risk. As Professor Joel Caplan explains, data analysis “paints a picture of those underlying features of the environment that are attractive for certain types of illegal behavior, and in doing so, we’re able to assign probabilities of crime occurring.” Criminals tend to shift criminal activity to different locations to evade detection. The hope is to detect the criminals’ next move before they get there. Mapping techniques will systematize what is now just a matter of instinct or guess work, explain researchers.

Will reactive policing give way to predictive policing? Will police departments someday staff officers outside probabilistic targets to prevent criminals from ever acting on criminal designs? The data inputs and algorithms are crucial to the success of any Big Data endeavor. Before diving head long, we ought to ask about the provenance of the “local behavioral and physical characteristics” data. Will researchers be given access to live feeds from CCTV cameras and data broker dossiers? Will they be mining public and private sector databases along the lines of fusion centers? Because these projects involve state actors who are neither bound by the federal Privacy Act of 1974 nor federal restrictions on the collection of personal data, do state privacy laws limit the sorts of data that can be collected, analyzed, and shared? Does the Fourth Amendment have a role in such predictive policing? Is this project just the beginning of a system in which citizens receive criminal score risk assessments? The time is certainly ripe to talk more seriously about “technological due process” and the “right to quantitative privacy” for the surveillance age.

2

C’est Vrai: Online Voting, a Bad Idea

Paris held a four-day mayoral primary in which individuals could cast their votes online. But things not proceed as officials planned. Over the weekend, Metronews journalists exposed the first-ever online primary as insecure and inaccurate. Here is how the process worked (or failed to work). To register to vote, Parisians made a credit-card payment and gave the name and address of someone on the city’s electoral roll. According to the Independent, a journalist reportedly voted five times with the same credit card and even using the name Nicolas Sarkozy. Lest one breathe a sigh of relief that the U.S. would never do anything as foolish as Internet voting, at least 16 states or counties have applied for grants from the Department of Defense to experiment with online ballot-marking portals that are one step shy of counting votes. Of course, voting online system vendors think Internet voting is a fabulous idea. But computer scientists in the U.S. fairly uniformly agree that online voting is a bad idea. Let’s not follow France’s lead.