Category: General Law


The Privacy Implications of “Friending” the White House (Part II)

1063773_friendsSince I last wrote about President Obama’s Facebook friends, Government 2.0 has  steadily progressed.  Since early May, our Commander-in-Chief has added more than 150,000 new friends.  The FDA has initiated its Transparency Blog and will soon add a Twitter feed and Facebook pageMore state agriculture agencies reach the public through social networking sites.  Of course, the government social-networking phenomenon is not brand new:  since 2007, the Commerce Department’s National Oceanic and Atmospheric Administration has maintained a virtual island in Second Life  and the CDC has had a MySpace page.   Nonetheless, it is a particularly auspicious time to think about this trend’s privacy implications especially in light of the GSA’s recent agreement with video-sharing and social networking sites to permit agencies to use their services.

What are the public’s privacy expectations when using government social media?  It is surely too early to identify a clear sense of our expectations, at least in any well-studied way.  But the Obama Administration has provided some sense of what we should expect when we join a future Facebook group sponsored by OMB or engage in virtual conversations with agency officials in Second Life.  How so?  The current push for agencies to use Web 2.0 platforms stems from President Obama’s January 21, 2009 Open Government memorandum.  The memorandum urges executive departments and agencies to be more transparent, participatory, and collaborative.  Agencies “should harness new technologies to put information about their operations and decisions online and readily available to the public.”  They should “offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information.”  And they should use “innovative tools, methods, and systems to cooperate” and collaborate with the public and private sectors in making policy.’s Sheila Campbell has explained that agencies will appoint directors of new media to determine how they can use social networking tools to meet mission goals and comply with President Obama’s Open Government directive.  As White House CIO Vivek Kundra has noted, public comment on programs will hopefully be a “two-way interaction between government and its citizens.”  White House spokesperson Moira Mack clarified the point:  “we are focused on opening government to the people (and not the other way around), and like with any other online friends, the individual users can still choose to keep information private using their privacy settings.”

So what does all of this signal about our privacy when interacting with government agencies via Facebook, MySpace, Twitter, You Tube, etc.?  The Open Government directive tells us that government wants to shine light on its activities and get our opinions and expertise on policy matters.  It says nothing about government’s interest in our personal lives, i.e., what we write on our friends’ walls, the 25 things you don’t know about us, our network of friends, etc.  Our personal lives seem downright out of place in any discussion of the Open Government directive.  This seems to create a presumption of openness as to policy-related matters and a presumption of privacy as to individuals’ personal matters.

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Talking About a Revolution: The Clue Train Manifesto’s Imprint Ten Years Later

orange_revolution_kyivJust over ten years ago, Rick Levine, Christopher Locke, Doc Searls, and David Weinberger posted The Cluetrain Manifesto where they implored the public to see the Web as far more than a networked shopfest.  It was a place where individuals could project and connect their voices in an ongoing conversation free from the “dehumanization of the Mass Age.”  Today, Berkman Center co-founder and Harvard Law Professor Jonathan Zittrain will be talking to Doc Searls and David Weinberger about their Manifesto’s legacy.  In a talk that will be webcast here, Zittrain will ask how cyberutopianism and Internet exceptionalism fares in the face of online harassment, identity theft, cyber warfare, spam, and Craigslist killers.  Can we retain our optimism?   Do the Cluetrain lessons (or “theses” as the manifesto described them) and limitations provide insights to addressing current dilemmas?  This will be an interesting discussion to be sure.

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Veil Piercing and ERISA Litigation

Christy Boyd and I have been working on revising our article Disputing Limited Liability, 104 NW. U. L. Rev. ___ (forthcoming 2010). In DLL, we analyze a hand-collected dataset of federal district court cases in which plaintiffs (or counter-claim plaintiffs) set out to pierce the veil of a corporation or LLC. For each case, we’ve gone to the electronic docket and culled every significant judicial order, with the goal of predicting the success, failure, or settlement of veil piercing claims.  I’ll be blogging more about the paper when it is out on SSRN, which will happen as soon as I’ve finished re-coding the dockets to collect some information we foolishly missed the first time around.  Incidentally, I can think of no better way to spend May and June that sitting in front of a computer, coding dockets.

In any event, we’ve noticed a curiosity about the dataset that I thought our readers might be able to shed some light on.  About 20% of our cases involve an ERISA cause of action, often against a small service company and its principal owner, brought by a labor union that seeks unpaid contributions to a pension fund.  Almost every such case either settles quickly or ends in a default judgment against the individual and the company.  (Thus, although we find about 200 cases from 2000-2006 asserting such claims, there are very relatively few reported opinions which would signal that ERISA cases constitute such a significant component of the law of veil piercing.)  We find such cases disproportionately in the Northern District of Illinois — i.e., Chicago.

Here are my questions:

(1) Why do lawyers bring such cases in federal court when the stakes are so low (typically, under $50,000) and ERISA claims can be brought concurrently in state court?  [Update: A reader informs me that this is more complicated than I realized. 29 USC 1451 states that the “district courts. . . shall have exclusive jurisdiction of an action under this section  . . . except that State courts . . . shall have concurrent jurisdiction over an action brought by a plan fiduciary to collect withdrawal liability.”  I believe that the kinds of actions at issue here fall under that saving proviso.]

(2) Why bring such claims at all when settlement/default is so likely?  That is, why don’t such cases settle before filing?  My working hypothesis is that the Trustees of the Unions are seeking a hammer in later negotiations, but it’s still not clear why pre-filing settlement doesn’t sweep all such cases out of the system.

(3)  What is up with the Northern District of Illinois?  Again, I’ve a working hypothesis: this is a law firm driven phenomenon, and certain firms have a practice of joining the principal officers/shareholders to the corporation routinely.  But, given the evident success of the practice, why hasn’t it caught on elsewhere?

Audience participation is welcome!

In Case of Public Plan Gridlock: Are Cooperatives the Answer?

At this writing, it appears that the House of Representatives is strongly endorsing a public plan option in health reform, and the Senate is groping toward something less scary for private health insurers. As Jacob Hacker observes,

In most of the discussion of public plan choice . . . the plan has been described as “Medicare-like”–a national plan roughly modeled after Medicare that would, however, be separate from Medicare and compete on a level playing field with private plans. That is still the leading model, and thoughtful Democrats have usefully fleshed it out. . . . But the last couple months has featured a proliferation of putative compromise alternatives to the public plan [such as] creating a bunch of state plans modeled after self-insured health plans for state workers.

Now Sen. Kent Conrad has proposed that private health insurance “cooperatives” take on the role envisioned for a public plan option. Some leading commentators have taken a look at the idea, and consensus is building: without a great deal of new regulation, it will be very difficult for cooperatives to effectively compete with existing insurance companies and contain costs.

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Three Strikes and You’re Offline

400px-baseball_swingFrench President Nicolas Sarkozy recently noted that the Internet is not a lawless zone.  On that, many of us agree.  But then he went a step too far, trumpeting a law that would cut off Internet access to people who repeatedly download copyrighted content  illegally.  The law would have set up a “three-strike” system in which music labels and movie studios would monitor file-sharing web sites to identify computers that have illegally downloaded copyrighted content and then report suspected pirates to a government committee, which in turn would review cases and require ISPs to identify offenders.   

Not surprisingly, the French Constitutional Council struck down the provision of the law that would cut off Internet access to repeated copyright offenders, finding it incompatible with the French Constitution and its due process protections.  The Council ruled that the law will be enacted without the “three-strike” component.  Instead, the government agency can only send out mail and email warnings to suspected pirates.  If the agency wants to further sanction a suspected pirate, it would have to go to court. 

The decision appears to be a narrow one, leaving open the possibility of Internet banning upon judicial review.  On the one hand, this is a wise move given the likelihood that a computer’s involvement in mischief was truly the doings of a neighbor using its wireless router.  Judicial review would address that scenario.  On the other hand, it leaves open the troubling possibility of banning Internet use due to copyright violations.  The protection of artistic creation can surely be accomplished by less extreme measures, i.e., ones that do not cut off a copyright offender’s exercise of basic freedoms in this networked age, from her right to express ideas, create artistic content, associate with religious groups, and make a living.

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Hurt on Sotomayor’s Securities Law Record

lightbulbOver at the Conglomerate, Christine Hurt has interesting posts on Judge Sotomayor’s decisions in the securities law arena.  Here is a snippet of her latest post:

The remaining 21 lawsuits seem to have results typical to those of most private securities lawsuits:  the defendant wins, usually on a motion to dismiss, which is affirmed by the court of appeals.  Specifically, in 16 cases the defendant was granted relief.  In four cases, the defendant was granted some, but not all, of the relief requested or one defendant was granted relief, but not all.  Of these four cases, no plaintiff won on a core 10b-5 securities law issue (was there reliance?  materiality?  loss causation?).  For example, in one case, the second circuit held that although the federal securities claims were dismissed, a state law duty existed for a fiduciary duty claim.  In another, several individual defendants were not granted a motion to dismiss on Section 11 claims.  In another, even though the case was dismissed, the court held that the lead plaintiff had standing.  The other case in which plaintiffs won partial relief was Dabit v. Merrill Lynch, which Sotomayor probably got right and the Supreme Court (reversing) probably got wrong.  (My colleague Larry Ribstein’s post on this is here.)  In the one case where the plaintiff won outright, the plaintiff won summary judgment in a bench trial against a foreign bank. 

Although pundits are scouring her other opinions to find judicial activism, there’s none here in the 10b-5 arena.  If we’re worried about the nominee showing empathy instead of following the law, there’s no evidence of runaway shareholder empathy!


Taking China’s Temperature on Climate Change

The latest talks on efforts to control global emissions of greenhouse gases (GHGs) concluded in Bonn this week with little reported progress. A key sticking point is China’s continued unwillingness to agree to control its emissions.

Last month I spent two weeks in China at the request of the U.S. State Department to give a series of lectures on environmental law. I gave 14 lectures in six Chinese cities at universities, think tanks, government agencies, and a bar association. While I lectured on a variety of environmental topics, in every presentation I explained why it was crucial for China to control its GHG emissions. In 2007 China surpassed the U.S. as the largest emitter of GHGs and it accounted for more than two-thirds of the growth in global emissions that year. During my lectures, the question whether China should agree to control its emissions sparked lively exchanges with audiences of professors, students, lawyers, government officials, and scientists. A few responded that “climate change doesn’t exist,” or “if it exists, it’s not caused by human activity.” Others maintained that China already was doing its fair share to respond to the problem through its efforts to promote renewable energy and electric car technology.

But I did perceive that there is greater awareness in China of the problem of climate change than there was last year when I was teaching in China as a Fulbright scholar. I gave guest lectures then at universities in several Chinese cities and found remarkably little understanding or concern about the problem among Chinese audiences. Climate change has not been high on the agenda of Chinese environmentalists in large part because the country has so many other immense environmental problems, including severe air and water pollution that pose basic threats to public health.

Another thing that had changed from last year is that the Chinese people know that the U.S. has dramatically changed course by electing Barack Obama president. The students I taught in China last year followed the U.S. presidential election very closely, commenting on the results of each primary. Many told me that the U.S. would never elect a black president. When Obama won, they were stunned, as were most of the leaders of the Chinese Communist Party. While most Chinese I met now realize that Obama is changing U.S. policy, they are not well aware of the extent of his administration’s efforts to adopt controls on GHG emissions. Last year a Chinese student told me that she knew the U.S. would never agree to control its GHG emissions because Cass Sunstein had written that it was not in the economic interests of the U.S. or China to do so. Now they are impressed by Obama and how he is changing U.S. policy.

Yet many Chinese remain openly skeptical of the motives of those who seek to persuade China to control its GHG emissions. Even one of China’s the top public interest environmental lawyers believes that climate change is a western plot to reduce China’s economic growth. In nearly every audience I addressed, someone would insist that the U.S. possesses secret technology to control GHG emissions and that it is simply refusing to share it with China in order to gain economic advantage.

In December the nations of the world will meet in Copenhagen to negotiate a successor to the Kyoto Protocol to control GHG emissions after 2012. The key issue will be whether China will agree to control its GHG emissions. The Chinese government has proposed that developed countries reduce their GHG emissions by 40% by 2020 and contribute .5 to 1% of their GDP to a fund to assist developing countries. This proposal is widely viewed as pre-negotiation posturing. Chinese officials also have argued that China should not have to control emissions generated by its production of goods exported to other countries, an argument that flies in the face of the “polluter pays” principle and a global trend toward increasing producer responsibility. That argument seems to have backfired as an open invitation to other countries to impose carbon tariffs, but if it implies that China should control the rest of its emissions generated by non-export industries (estimated at 75-85%), it could signify some progress.

In my presentations I emphasized the increasing urgency of the climate change problem. More rapid melting of polar ice than anticipated just two years ago when the Intergovernmental Panel on Climate Change (IPCC) released its most recent report has convinced some scientists that worst-case scenarios for climate change are now being realized. I showed video clips of the impact of sea level rise on Beijing and Shanghai from “An Inconvenient Truth,” which drew audible gasps from every audience. Few Chinese have seen this movie, which embassy staff attribute in part to the fact that the title does not translate well into Chinese.

In February of this year the nations of the world agreed to negotiate a treaty to control global emissions of mercury. For years the U.S., China and India had opposed negotiating such an agreement. But when the Obama administration reversed U.S. policy, China and India also agreed to drop their opposition. The fate of the world’s climate is now largely in the hands of China and the U.S. because they account for nearly half of global GHG emissions. Whether they can agree to overcome this other global “tragedy of the commons” should be revealed by December in Copenhagen.


“Your Prayers Can Save the World’s Fattest Cat!”

Genius.  In only eight words, this tabloid headline covers the crucial topics of religion, fat, and cats.  From the first word, “your,” the reader knows she is the true topic.  She has power: she can solve the most serious version of a particular world problem (the problem happens to be feline obesity, but that is a real problem, as many cat owners know).  Indeed, she is a savior.  And what’s more, there is a way to lose weight (having others pray) that is easier than eating less and exercising more. The only possible improvement I can imagine–and I’m not certain it is an improvement, in part because it is three letters longer–is “Your prayers can save the world’s fattest kitten.”

The headline, which I noticed last night in the grocery-store checkout line, reminded me of a passage from Sarah Schulman’s novel Girls, Visions and Everything.  The main character, Lila, writes fiction:

The very first things Lila had ever written were for the local Supermarket News.  That was great practice.  There was an event, say, the price of grapefruits.  There was an audience.  Her job was to describe the event….There was no looking around for subject matter, only for description, a task she took very seriously.  Did prices plummet, or were they slashed?

Some lawyers and law professors might model their writing on Cardozo or Holmes or even Scalia, but I’ll bring that anonymous headline writer and Lila along for the ride as well.


Twitter Fraud

mid-twitter_xo_ogvIndividuals increasingly use social networking tools to commit fraud.  Philadelphia Eagles player Asante Samuel discovered his Twitter imposter after the Philadelphia Daily News attributed to him comments from his doppleganger’s Twitter feed.  Keith Olbermann was a victim of Twitter impersonation as was Tony La Russa, manager of the St. Louis Cardinals.  Temple professor Susan Jacobson predicts that much like the early days of the Internet when individuals bought the domain names of celebrities to sell it to those notables for a tidy profit, we will likely see variations of such mischief on social networking sites.

Aside from the celebrity context, we may see other misuses of Twitter feeds.  Governments increasingly use Twitter to alert the public about car accidents, fires, crime reports, and public health emergencies.  A tweet about a fabricated fire or car accident could cause dangerous traffic jams and needless panic.  Someone could impersonate a police department, sending tweets about crimes never committed.  This teaches us to be circumspect about all of those Twitter updates.

H/T to Jim Stanton for his blog posting, “Social Media Fraud On the Increase.”

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