Author: Danielle Citron


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.


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.



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).


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.



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!


Secret Adjudications: the No Fly List, the Right to International Air Travel, and Procedural Justice?

Airplane_silhouette_SLatif v. Holder concerns the procedures owed individuals denied the right to travel internationally due to their inclusion in the Terrorist Screening database. Thirteen individuals sued the FBI, which maintains the No Fly list and the Terrorist Screening database. Four plaintiffs are veterans of the armed forces; others just have Muslim sounding names. All of the plaintiffs are U.S. citizens or lawful residents. The plaintiffs’ stories are varied but follow a similar trajectory. One plaintiff, a U.S. Army veteran, was not allowed to return to the U.S. from Colombia after visiting his wife’s relatives. Because he could not fly to the U.S., he missed a medical exam required for his new job. The employer rescinded his offer. Another plaintiff, a U.S. Air Force veteran, was in Ireland visiting his wife. He spent four months trying desperately to return to Boston. Denied the right to travel internationally, the thirteen plaintiffs lost jobs, business opportunities, and disability benefits. Important family events were missed. The plaintiffs could not travel to perform religious duties like the hajj. Some plaintiffs were allegedly told that they could regain their right to fly if they served as informants or told “what they knew,” but that option was unhelpful because they had nothing to offer federal officials. Plaintiffs outside the U.S. were allowed to return to their homes on a one-time pass. When back in the U.S., they turned to the TSA’s redress process (calling it “process” seems bizarre). The process involves filling out a form that describes their inability to travel and sending it via DHS to the Terrorist Screening Center. The Terrorist Screening Center says that it reviews the information to determine if the person’s name is an exact match of someone included in the terrorist database or No Fly list. All of the plaintiffs filed redress claims; all received DHS determination letters that neither confirmed nor denied their inclusion on the list. The letters basically told the plaintiffs nothing–they essentially said, we reviewed your claim, and we cannot tell you our determination. 

The plaintiffs sued the federal government on procedural due process and APA grounds. They argued that the DHS, FBI, and TSA deprived them of their right to procedural due process by failing to give them post deprivation notice or a meaningful chance to contest their inclusion in the terrorist database or No Fly list, which they have to presume as a factual matter based on their inability to travel though some of the plaintiffs were told informally that they appeared on the No Fly list. The standard Mathews v. Eldridge analysis determines the nature of the due process hearings owed individuals whose life, liberty, or property is threatened by agency action. Under Mathews, courts weigh the value of the person’s threatened interest, the risk of erroneous deprivation and the probable benefit of additional or substitute procedures, and the government’s asserted interests, including national security concerns and the cost of additional safeguards.

Most recently, the judge partially granted plaintiffs’ summary judgment motion, ordering further briefing set for September 9. In the August ruling, plaintiffs were victorious in important respects. The judge found that plaintiffs had a constitutionally important interest at stake: the right to fly internationally. As the judge explained, plaintiffs had been totally banned from flying internationally, which effectively meant that they could not travel in or out of the U.S. They were not merely inconvenienced. None could take a train or car to their desired destinations. Some had great difficulty returning to the U.S. by other means, including boat, because the No Fly list is shared with 22 foreign countries and U.S. Customs and Border Patrol. Having the same name as someone flagged as a terrorist (or the same name of a misspelling or mistranslation) can mean not being able to travel internationally. Period. The court also held that the federal government interfered with another constitutionally important interest — what the Court has called “stigma plus,” harm to reputation plus interference with travel. She might also have said property given the jobs and benefits lost amounted to the plus deprivation. That takes care of the first Mathews factor. Now for the second. The court assessed the risk of erroneous deprivation under the current DHS Redress process. On that point, the court noted that it’s hard to imagine how the plaintiffs had any chance to ensure that DHS got it right because they never got notice if they were on the list or why if they indeed were included. Plaintiffs had no chance to explain their side of the story or to correct misinformation held by the government–what misinformation or inaccuracy was unknown to them. In the recent “trust us” theme all too familiar these days, defendants argued that the risk of error is minute because the database is updated daily, officials regularly review and audit the list, and nomination to the list must be reviewed by TSC personnel. To that, the court recognized, the DOJ’s own Inspector General had criticized the No Fly list in 2007 and in 2012 as riddled with errors. Defendants also contended that plaintiffs could seek judicial review as proof that the risk of erroneous deprivation was small. The court pushed off making a determination on the risk of erroneous deprivation and valued of added procedures because it could not evaluate the defendants’ claim that plaintiffs could theoretically seek judicial review of determinations on which they have no notice. Defendants apparently conceded that there were no known appellate decisions providing meaningful judicial review. The court required the defendants to provide more briefing on the reality of that possibility, which I must say seems difficult if not impossible for plaintiffs to pursue. Because the court could not weigh the second factor, she could not balance the first two considerations against the government’s interest.

I will have more to say about the decision tomorrow. The process provided seems Kafka-esque. It’s hard to imagine what the defendants will file that the public can possibly learn. The briefing will surely be submitted for in camera review. Details of the process may be deemed classified. If so, defendants may invoke the state secrets doctrine to stop the court’s ever meaningfully addressing the rest of the summary judgment motion. It would not be the first time that the federal government invoked the state secrets doctrine to cover up embarrassing details of mismanagement. Since its beginnings, the state secrets doctrine has done just that. The parties were supposed to provide the court a status update today. More soon.


Upcoming Online Symposium on Professor Gabriella Coleman’s Coding Freedom

During the week of September 16, Concurring Opinions will be hosting a deep bench of thinkers, tinkerers, and scholars to discuss Professor Gabriella Coleman’s important book Coding k9883Freedom: The Ethics and Aesthetics of Hacking (Princeton University Press 2012). Professor Coleman, the Wolfe Chair in Scientific & Technological Literacy at McGill University, is a leading scholar and cultural guide in all matters involving digital activism and engagement. The Chronicle of Higher Education aptly deemed Professor Coleman “the world’s foremost scholar on Anonymous.”GabriellaColeman-960x420

To whet our appetites for next week, let me say a little bit about the book. Coding Freedom explores the contributions of computer hackers to the trajectory of intellectual property law specifically and liberalism generally. Professor Coleman spent two years of fieldwork in San Francisco, the Netherlands, and online studying the efforts, values, and social norms that guide the production of Free and Open Source Software.

As Coding Freedom explores, computer hackers—technical experts with a passion for tinkering and a commitment to information freedom—have profoundly shaped the social meaning of civil liberties in our digital age. Through technical production and political engagement, computer hackers have recast and buttressed privacy and free speech.Before 1990, source code, the blueprints of software, was rarely cast as free speech. Nearly twenty-five years later, F/OSS participants have erected an alternative legal regime to intellectual property rights on free speech and free information grounds. Hacker culture has provided crucial lessons for liberal governance by reinvigorating our commitments to debate, collaboration, mentoring, engagement, transparency, and accountability. In short, F/OSS has changed the politics of intellectual property law and liberalism.

Next week, the following experts, including Professor Gabriella Coleman, will be joining us to talk about Coding Freedom:

Amy Kapczynski

Edward W. Felten

Laura Denardis

Nicklas Lundblad

Julie Cohen

Steven Bellovin

Nabiha Syed

Lawrence Liang

James Grimmelmann

Karl Fogel



Introducing Guest Blogger Thomas Crocker

Thomas CrockerI’m thrilled to welcome back Professor Thomas Crocker to the blog! Professor Crocker is an Associate Professor of Law at the University of South Carolina School of Law.  His research interests focus on issues in constitutional law, including privacy and the public sphere, the First Amendment, interpretive theory, presidential power, and national security.  He also keeps his eye on debates in law and philosophy. He teaches courses in Constitutional Law, Criminal Procedure, Free Speech and Democracy, National Security and the Constitution, and Jurisprudence. Having benefitted from a fellowship as a Visiting Scholar at the American Academy of Arts & Sciences in Cambridge, MA, he is finishing a book under contract with Yale University Press entitled Overcoming Necessity:  Emergency, Constraint, and the Meanings of American Constitutionalism.

Before joining the faculty at South Carolina, Tommy clerked for the Honorable Carlos F. Lucero, on the United States Court of Appeals for the Tenth Circuit. He earned a J.D. from Yale Law School, and a Ph.D. in Philosophy from Vanderbilt University. He also taught philosophy at St. Lawrence University.

His publications include:

Order, Technology, and the Constitutional Meanings of Criminal Procedure, 103 J. Crim. L. & Criminology 685 (2013).

Who Decides on Liberty?, 44 Conn. L. Rev. 1511 (2012).

Presidential Power and Constitutional Responsibility, 52 Boston College L. Rev. 151 (2011).

The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010).

From Privacy to Liberty: The Fourth Amendment After Lawrence, 57 UCLA L. Rev. 1 (2009).

Torture, with Apologies, 86 Tex. L. Rev. 569 (2008).





Introducing Guest Blogger Paul Gowder

I’m delighted to introduce Professor Paul Gowder who will be joining us this month as a guest blogger. Professor Gowder teaches constitutional law and professional responsibility at the University of Iowa. His research straddles the boundaries between jurisprudence, constitutional law, political philosophy, gamep_g theory, and, occasionally, ancient history.  His J.D. came from Harvard in a year, 2000, that might itself be described as ancient history, and he has a Ph.D in political science from Stanford from a year that by contrast—2012—seems like yesterday.

His current research focuses on the idea of the rule of law.  Recently, he has published The Rule of Law and Equality, 32 Law & Philosophy 565 (2013), which gives a new account of what the rule of law is, paired with an argument about the moral/political value that it serves. Several more pieces of the rule of law project are to appear shortly: forthcoming in the Iowa Law Review is Equal Law in an Unequal World, in which he argues that the rule of law, expressed in the U.S. Constitution in the Equal Protection Clause, protects a robust right of social equality that can extend, among other ways, to a critique of poverty.  And the Buffalo Law Review will shortly contain Democracy, Solidarity and the Rule of Law: Lessons from Athens, which explores the way the rule of law worked and supported the equality in Classical Athens.

Having gone to the trouble of learning Attic Greek for that last paper, he is now working on a book manuscript about the rule of law, as well as on some secondary projects on, among other things, the relationship between judicial review and democracy, the difference between taxes and regulations in NFIB v. Sebelius, and several interventions on the debate about liberty in normative political theory.

Before joining the academy, Professor Gowder was a civil rights and legal aid lawyer, and, briefly, a New Orleans jazz band manager.


Introducing Guest Blogger Ari Waldman

picture_002_-_version_2I’m thrilled to welcome back as a guest blogger Ari Ezra Waldman. Professor Waldman is the Associate Director of the Institute for Information Law and Policy at New York Law School and the Paul F. Lazarsfeld Fellow at Columbia University where he is completing his Ph.D. in sociology. His research centers on the law and sociology of privacy and the Internet, but he is particularly focused on the injustices and inequalities that arise in unregulated digital spaces. He is a 2005 graduate of Harvard Law School and a 2002 graduate of Harvard College. He is also the Legal Editor at Towleroad, the country’s most popular LGBT-oriented news and politics website, where he writes a weekly column on gay rights and legal issues affecting the LGBT community.

His publications can be found here, including:

Durkheim’s Internet: Social and Political Theory in Online Society, 7 N.Y.U. J. LAW & LIBERTY 355 (2013)

Marriage Rights and the Good Life: A Sociological Theory of Marriage and Constitutional Law, 64 HASTINGS L. J. 739 (2013)

All Those Like You: Identity Aggression and Student Speech, 77 MISSOURI L. REV. 563 (2013)

Hostile Educational Environments,71 MARYLAND L. REV. 705 (2012)

Tormented: Anti-Gay Bullying in Schools, 84 TEMPLE L. REV. 385 (2012)

Exceptions: The Illogical Approach to HIV-Related Aggravated Assaults, 18 VA. J. SOC. POL’Y & L. 552 (2011)