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The Longest Pending FOIA Request

In 1989, William Aceves, a graduate student at USC, requested information under the Freedom of Information Act about a federal “Freedom of Navigation” program. Seventeen years later, the request is still pending. Since making the request, William Aceves finished graduate school (presumably having found a different topic) and law school and he is now a tenured professor at California Western School of Law.

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More Data Lost: 1.3 Million Student Loan Recipients

From CNET:

About 1.3 million customers of a Texas provider of student loans are at risk of ID fraud, after a contractor lost computer equipment with sensitive information on them.

The equipment, which was not identified, contains the names and Social Security numbers of the borrowers, the Texas Guaranteed Student Loan company said in a statement Tuesday. The hardware was lost by an employee of Hummingbird, a enterprise software company hired to prepare a document management system, it said.

This follows a similar pattern to the way that the Veteran’s Administration lost 26 million records — some employee takes home the data and it promptly gets lost or stolen. Security tip: Don’t let your employees go home with the data! The government seems to be able to figure this out when it comes to top secret information; companies have figured it out when it comes to trade secrets. But when it comes to personal data belonging to others, it seems as though employees can just waltz out the door with it.

Hat tip: Deven Desai

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Internet Shaming in China

shame2a.jpgThe New York Times has a fascinating and frightening article on Internet shaming in China. From the article:

It began with an impassioned, 5,000-word letter on one of the country’s most popular Internet bulletin boards from a husband denouncing a college student he suspected of having an affair with his wife. Immediately, hundreds joined in the attack.

“Let’s use our keyboard and mouse in our hands as weapons,” one person wrote, “to chop off the heads of these adulterers, to pay for the sacrifice of the husband.”

Within days, the hundreds had grown to thousands, and then tens of thousands, with total strangers forming teams that hunted down the student, hounded him out of his university and caused his family to barricade themselves inside their home.

It was just the latest example of a growing phenomenon the Chinese call Internet hunting, in which morality lessons are administered by online throngs and where anonymous Web users come together to investigate others and mete out punishment for offenses real and imagined.

In recent instances, people have scrutinized husbands suspected of cheating on their wives, fraud on Internet auction sites, the secret lives of celebrities and unsolved crimes. One case that drew a huge following involved the poisoning of a Tsinghua University student, an event that dates to 1994 but was revived by curious strangers after word spread that the only suspect in the case had been questioned and released.

Even a recent scandal involving a top Chinese computer scientist dismissed for copying the design of an American processor came to light in part because of Internet hunting, with scores of online commentators raising questions about the project and putting pressure on the scientist’s sponsors to look into the allegations.

While Internet wars can crop up anywhere, these cases have set off alarms in China, where this sort of crowd behavior has led to violence in the past. Many draw disturbing parallels to the Cultural Revolution, whose 40th anniversary is this year, when mobs of students taunted and beat their professors. Mass denunciations and show trials became the order of the day for a decade.

In one incident, a husband caught a college student (using the pseudonym Bronze Mustache) having an affair with his wife. He posted the student’s real name online, and what happened next is startling:

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Homeland Security Funding–Again

Last year, the Department of Homeland Security announced that it would allocate homeland security grants among states and cities based on an assessment of their vulnerability to attack.

That sounds obvious but it represented a big change. In prior years, a pork barrel formula had funneled a share of funds to everyone—with the result that some towns, facing little risk, used the money to buy snow blowers, while high-risk locales scrambled to find the resources to keep their residents safe.

This week, DHS announced the recipients of 2006 homeland security grants under the new risk-based approach. New York City, which received $207 million from DHS last year, will get $124 million in funds.

New York officials are rightly outraged by this strange result. The City spends some $5 million per week on counter-terrorism.

In assessing risk, DHS, instead of convening impartial experts to figure out sensible numbers, relied upon input from governors, mayors and local homeland security officials around the country. In deciding that New York City was not so vulnerable, these folks concluded that the City has no national monuments or icons to attract the interests of terrorists.

As I have argued at length in a law review article, homeland security funding needs to be completely overhauled.

Rather than leave things in the hands of DHS bureaucrats (the same people who bungled the Katrina response), Congress, in accordance with its constitutional duties to protect the states and cities, should reimburse states and cities for all of the reasonable counter-terrorism costs they incur. This is how things were done for much of the history of the Republic.

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Lots Worth Reading At Is That Legal

Eric Mulller, over at Is That Legal, has been very busy for the last few days. First he offered a trenchant critique of Pope Benedict’s talk at Auschwitz last week. (“The Pope’s Disasterous Speech At Auschwitz.”) Then he engaged Dean Esmay over what he frames as Esmay’s propogation of ” the revisionist myth of a terrorized German populace whose will was overborne.” You know the world is topsy-turvy when John Leo is citing Eric approvingly.

Now Eric’s writing about an interesting development in Wilmington, North Carolina: a legistlatively authorized commission has concluded that an 1898 race riot there was a political coup d’etat that reversed the fortunes of the city’s African-American community for years to follow. The committee offered recommendations “to repair the moral, economic, civic and political damage wrought by the violence and discrimination resulting from a conspiracy to re-take control of city, county, and state governments by the Democratic Party’s white supremacy campaign.” The executive summary is here.

This report will presumably be of great interest to Al Brophy, who served as counsel to the Tulsa Race Riot Commission. You can find a number of links to Tulsa Race Riot materials here.

On a more self-interested note, we’re very excited that Eric will be visiting with us here at Co-Op starting in a couple of weeks!

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Let Markets Help Criminal Defendants

ballandchain.jpgDan’s interesting post on plea bargaining made explicit the informational inequalities faced by criminal defendants and their lawyers. Indeed, one of the advantages public defenders have over private defense counsel is that they can more easily share information internally about the informal norms that “really” govern the system (judge sentencing practices; which cops tell what stories; which labs are sloppy; etc.) But even so, the instruments of law and order almost always will know more about the facts and the law than the defense, at least until the eve of trial and probably throughout the process.

That there are exceptions (Enron; OJ) proves the rule that informational asymmetry is a significant part of the prosecutor’s arsenal – indeed, this asymmetry justifies constitutional attempts to remedy the problem through mandatory discovery procedures. But I’m skeptical that legal rules alone are a panacea to structural problems. Why not try markets?

To be more concrete, the major decision that criminal defendants face is whether or not to plead guilty. The decision depends on a prediction about what will happen at trial. Assuming that defendants are risk averse, they will take pleas when rational actors would not, but generally will go to trial when the expected time served post-trial is less (by some margin) than the actual time proposed in the plea agreement. The problem is that (1) defendants are unsophisticated; (2) defendants’ lawyers are incented to push pleas; and (3) neither defendants nor their lawyers have as much information as prosecutors about likely verdicts.

If I were running a public defender service, I’d consider setting up an online prediction market for the conviction of my clients. Prediction markets did a fantastic job in the Enron trial. At the beginning of the trial, the odds of conviction were about 50% for each defendant; by the end, the odds were significantly higher. Now, I can understand why neither defendant would have pled facing a coin-flip’s chance at conviction. As I argued at the beginning of the trial:

I’d guess that the reason Skilling and Lay have not pled and Fastow has is demographics. Fastow is a young(ish) man, who can serve significant time and still emerge with earning power. Lay and Skilling don’t have the years left to do the time that the government (apparently) would find appropriate.

But for most criminal defendants, 50% odds would translate into a pretty hefty expected sentence that might make a plea more attractive. And, assuming that such markets would be sufficiently liquid, the predictions generated by traders ought to be both more accurate and less prone to bias than defense counsel’s odds. I imagine that the result would be a net decrease in pleas, and in the long term, as prosecutors reacted, less net jail time. That is, the current system is biased by risk aversion and agency problems – as others have observed – toward more jail. This effect may serve the forces of law and order, but it doesn’t necessarily serve the search for truth. Why not try something different?

Obvious objections: (1) the idea is “”utterly repugnant to a civilized society“; (2) thin markets are prone to manipulation; (3) incentives would increase to violate the attorney-client privilege; (4) it would look like public defenders are selling out their clients. Of these objections, I’d be most worried about #3.

Incidentally, if you are interested in thinking more about criminal law and the Enron trial, the Conglomerate is hosting what promises to be a great forum on the topic for the next two days. Check it out!

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Whistleblowers and Stereotyped Cultural Norms

I’m a little slow to weigh in on this issue, but I just received the latest edition of the ABA Journal. This month, they have a story, “Culture Clash,” by John Gibeaut describing how Sarbanes-Oxley’s whistleblower provisions are causing trouble for foreign cross-listed companies. Ideoblog and Conglomerate have already provided some commentary about the article, which begins as follows:

Americans like to elevate whistleblowers to near folk-hero status, from Daniel Ellsberg, who leaked the Pentagon Papers to Sherron Watkins, who exposed the Enron Corp. financial scandal that in 2002 moved Congress to pass the fraud-busting Sarbanes-Oxley Act. Indeed, Watkins shared Time magazine’s Person of the Year honors in 2002 with World Com Inc. whistleblower Cynthia Cooper and FBI agent Collen Rowley, who accused the bureau of mishandling information on suspected hijacking plotter Zacarias Moussaoui before the Sept. 11 terrorist attacks.

Say whistleblower in Germany, however, and the term most likely conjures up memories of the Gestapo, Adolf Hitler’s secret police. In France, the term evokes images of the Vichy regime’s collaboration with the Nazis and of neighbors ratting out one another.

I think that the beginning of the article relies on some flawed cultural stereotypes of both Europeans and Americans. Be that as it may, I would question the author’s proposition that American whistleblowers enjoy some sort of elevated status. About a year and a half ago, I wrote an article about (American) whistleblowers and the Sarbanes-Oxley Act. In the article, I argue that whistleblowers are not being given enough protection. Not under state employment law, and not under Sarbanes-Oxley either. Studies – cited in my article – show in graphic detail that American whistleblowers end up unemployed, broke, divorced, and depressed.

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Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

ReSizedWarholElectricChair.jpgIn Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art

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European Court of Justice Strikes EU-US Agreement on PNR Data

The European Court of Justice dealt a blow yesterday to European Union and U.S. policymakers, with two important judgments on privacy and transatlantic relations. Back in 2004, the European Union and the United States signed an agreement guaranteeing the privacy of European airline passenger data when that data was transferred to the U.S. government. In European Parliament v. Council of the European Union and European Parliament v. Commission of the European Communities, the Court of Justice found that the Europeans did not have the power, under their constitutional rules, to enter into the agreement. Luckily for the airlines and the governments, the Court delayed the effect of its decision until September 30, 2006. Until then, European airlines will keep on being able to transfer their passenger data—and keep on being able to fly into American airports–without having to worry about breaking European privacy law. Afterwards, it could get complicated.

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