Category: Civil Rights


Ah the Good Old Days When You Could Spy Without Help: Private Companies and Their Cooperation with Eavesdropping

Thisbe_-_John_William_Waterhouse2.JPGYet again technology is cited as a problem requiring change. This time it is in the familiar realm of government access to telecommunications. As the New York Times reports:

The federal government’s reliance on private industry has been driven by changes in technology. Two decades ago, telephone calls and other communications traveled mostly through the air, relayed along microwave towers or bounced off satellites. The N.S.A. could vacuum up phone, fax and data traffic merely by erecting its own satellite dishes. But the fiber optics revolution has sent more and more international communications by land and undersea cable, forcing the agency to seek company cooperation to get access.

This information is not exactly new, but the article also notes that it is not just recent terrorist concerns that have prompted the government to seek help in tracking communications. The N.S.A. and the D.E.A. have apparently been “collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions” since the 1990s and the program may be expanding. At bottom the concern is that the Bush Administration wants to offer retroactive protection for the companies that cooperated with the government because as Attorney General Mukasey and director of national intelligence have argued without that protection would be reluctant to help. Yet the article details that some companies such as Verizon may have cooperated and even run a line to a military facility whereas others refused to cooperate because they feared public reaction regarding their privacy. Immunity thus is not necessarily why the companies did not cooperate.

Put differently, how affording such protection makes sense is unclear unless the immunity would work in a way analogous to prosecutorial immunity: “You have to work with us.” “But it’s against the law.” “Maybe. But you aren’t liable anymore so just do it.” Again as long companies fear “customers’ demands for privacy and shareholders’ worries about bad publicity,” the immunity should be less of an issue. Still from an in-house attorney perspective, persuading the other executives that the best practice is not to cooperate would be harder to do if there is general immunity for cooperating in breaking the law. The immunity removes a powerful argument against what should be a practice to be avoided.

image: Thisbe – John William Waterhouse Wikicommons


Predatory Lending: Meet Jonathan Swift

plalogo.gifAt the new website of the Predatory Lending Association, aspiring lenders can find concentrations of “working poor” customers in their neighborhood, calculate effectively usurious loans, not blacklist crusaders against payday lending, including Liz Warren, and learn all the arguments that goo-goos will make against high-interest borrowing. One Q&A in particular should be familiar to contracts professors (or maybe just those, like me, who use Randy Barnett’s Perspectives book):

Myth: Payday lending is comparable to selling yourself into slavery.

Reality: Although there is a market need for slavery, people do not choose to sell themselves into slavery. Free choice is the difference between payday lending and slavery.

(There is even a neat chart to make the connection more clear.) On the discussion boards, you can share your thoughts with other predatory lenders. Sure, it all seems a little too cute, but it’s worth checking out anyway.


Twenty-Five Years of Broken Windows

police.jpgJames Q. Wilson and George L. Kelling recently revisited their broken windows theory of policing in a brief essay that appears in the November issue of The Atlantic. In a 1982 issue of that same magazine, they advanced their now well-known hypothesis that a decrease in visible signs of public disorder would lead to a reduction in crime rates. To be fair, the format of the essay—which appeared as one of many commenting on the “The Future of the American Idea”—did not lend itself to nuanced reflection. But because broken windows helped make community policing commonplace, sparked proposals for dramatic changes in criminal procedure doctrine, and is a key element in the biography of Rudolph Giuliani, Wilson and Kelling’s readers can be forgiven for hoping for a bit more.

In their new essay, Wilson and Kelling write, “Virtually all of the evidence we have from studies of police suggests that restoring order is associated with a drop in crime. This is reassuring, but it may not be conclusive. The idea has never been fully tested.” This does not satisfactorily answer scholars who have questioned whether a reduction in serious crime actually follows an increase in public order. Most importantly, it does not address whether a drop in serious crime—if it occurs—stems from the reduction in public disorder or from the increased surveillance that aggressive misdemeanor arrests make possible.

Wilson and Kelling also write, “Decency in public places may be only a small part of the American idea, but especially for those people living in dangerous, gang-ridden neighborhoods, it is an important one.” This is a statement with which it is difficult to argue. But it says nothing about whether constraining disorder is the best use of limited police resources, or how the police choose their targets in a public order campaign, or whether addressing disorder can ever mean more than moving it to a less visible place. We would all benefit from knowing more about how the original proponents of broken windows would answer these difficult questions.


Reparations and Net Benefit

As reported in outlets like the National Law Journal, Connecticut professor Robert L. Birmingham has taken a leave of absence following a strange incident in which he apparently showed the class a racy video clip — complete with scantily clad strippers — as part of an in-class argument against reparations for slavery. Some commenters have suggested that this case raises potential questions of academic freedom. Let’s set aside those issues, to focus on the substance of Birmingham’s argument as reported in the NLJ.

The NLJ summarizes Birmingham’s argument as: “The sometimes controversial professor asked students to make a case for slavery reparations in light of the fact that much of Africa is beset by war, famine and AIDS.” later summarizes:

In an e-mail, one student in the remedies class characterized Birmingham’s classroom exercise as a “syllogistically perfect” argument that the students, try as they might, were not able to disprove in 15 minutes of discussion. The professor questioned whether reparations are logically due for American descendants of slaves, who generally enjoy a much better standard of living than modern West Africans whose ancestors were not enslaved,” the student wrote.

Of course, this basic argument isn’t limited to Birmingham, and is quite familiar to reparationists. It’s a point often raised by reparations critics like David Horowitz.

Is this really a syllogistically perfect (or otherwise convincing) argument against reparations for slavery?

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May Day Mea Culpa

On May 1, 2007, 25,000-30,000 demonstrators peacefully marched to MacArthur Park in Los Angeles, in support of immigrants’ rights. What transpired at the park was a scene one might expect on the streets of Myanmar — not Los Angeles. As is now commonplace, there were plenty of video cameras recording the events. Twenty or so protesters threw objects (food, rocks, plastic bottles) at police officers. As this video shows, officers responded by indiscriminately wielding (100 times) batons and firing 146 rubber bullets into a passive and confused crowd. More than 240 people, including 9 journalists covering the rally, were injured. Eighteen police officers also sustained injuries. The mayor of Los Angeles described the events at MacArthur Park as “dark and tragic.” Hundreds who were at the park that day have joined what may turn out to be very costly lawsuits for the city.

On Tuesday, the Los Angeles Police Department issued a lengthy report on the incident (available here). The upshot of the report is that the LAPD admits that serious mistakes were made. Planning for the rally was poor. Officers underestimated the rally’s size — despite the fact that large May Day rallies had been held at MacArthur Park for decades. Pre-event planning meetings were requested, but not held. Requests by officers for additional resources were denied. Critical units assigned to the rally received no crowd control training in the 18 months leading up to the rally. No media viewing area was established — despite a settlement agreement subsequent to the 2000 Democratic National Convention in Los Angeles (another event during which police reacted violently to crowds) expressly requiring such an area at future events. There was a severe breakdown in the chain of command. An “unlawful assembly” order was prematurely issued, interfering with the First Amendment rights of peaceful protesters. Instructions to disperse were issued a minute after police had started firing rubber bullets, and only in English (despite the fact that the crowds were comprised mostly of Spanish-speaking immigrants). The LAPD report includes a series of recommendations to be implemented by June 2008. These include:

— reviewing policies regarding crowd management

— including rank, serial numbers and names on ballistic helmets and tactical vests

— designing a highly mobile sound unit vehicle

— developing protocols for LAPD videographers

— coordinating with event organizers prior to major events

— reasonably accommodating credentialed members of the media

— requesting Air Support Division to provide aerial video documentation

— establishing a clear chain of command

— standardizing the criteria for After-Action Reports

— updating the 1996 Training Bulletins in regard to crowd control

LAPD leadership, while accepting responsibility, also appears to be patting itself on the back for being open and frank in assessing its officers’ performance. While the self-assessment is laudable, the LAPD report raises as many questions as it answers.

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Did you ever notice that law school hiring seems to aim for not-all-that-diverse diversity? It reminds me of a friend who claims to love Thai food and then orders everything “extra mild.” Does he like Thai food (as in embrace it) or does he simply embrace the idea of liking Thai food? It’s like the question I often ask my classes: Can you have a preference for a preference?

How is this like faculty hiring for diversity? My, admittedly unofficial, view is that when hiring committees look for candidates the pecking order is like this:

White elite eduated male

White elite ed. female

African American ed. elite male

African Americna ed. elite female

White non elite female

White non elite male

African American non elite female

African American non elite female

The ranking is, no surprise, consistent with social comfort and, let’s face it, given that there is no evidence that one group is better at law teaching than another and that law professors can “interpret” resumes to mean anything, social comfort plays a big role.

So, do law professors on average like the idea of embracing diversity or do they really embrace diversity? I think it’s the former and it’s not even close. They have a preference for a preference for diversity but the real preference is just not there.

So how would you recruit for actually diversity? No question in my mind that race is a big factor but how about these questions:

1. What was your father or mother’s occupation?

2. How much school did your father and mother complete?

3. How much student debt have you accumulated?

4. How many people do you know at an Ivy League school?

5. Ever worked at McDonalds, washed cars, or bagged groceries?

6. Anyone in your family on welfare.

7. Has anyone in your family done time?

8. Ever been out of the US?

9. What is the difference between rigatoni and zitti? (oops, sorry this one accidently came over from a completely different list)

When and if law faculties get serious about diversity, let me know.


Regulating Private Military Companies

privatemilitary.jpgBlackwater has of course been in the news. And the House has acted twice in the past week to regulate private military companies. One, H.R. 2740, according to the Times “would bring all United States government contractors in the Iraq war zone under the jurisdiction of American criminal law. The measure would require the F.B.I. to investigate any allegations of wrongdoing.” The other, H.R. 400, is designed “to make it easier to convict private contractors of defrauding the federal government during wartime.”

A couple of years ago I wrote an article about this area. One thing is clear: the use of private military contractors is not going away soon and can often have benefits. As such I proposed that rather than looking to legislation alone, the U.S. government, which accounts for massive portions of many private military contractors income stream, should take an old school contract approach to the jurisdiction problem. In short if the government wants to be serious about the issue, it can simply demand that any contractor adhere to human rights and international laws and agree to U.S. jurisdiction over common crimes. An additional legislative layer is required, however. Protection for whistleblowers is vital for any criminal or profiteering law to have teeth. These events occur far away and when people have come forward as happened in Bosnia, the company involved was quick to try and paint those who spoke up as trouble makers with all the usual employment repercussions. Peter Singer’s work in the area details much of the problem and is worth a read. My paper, Have Your Cake and Eat It Too: A Proposal for a Layered Approach to Regulating Private Military Companies, covers some of the history of the use of PMCs by governments and NGOs, the way PMCs can be used well, the reasons international law falls short of addressing many of the issues that are bound to arise, and then offers a possible solution to at least make sure that when crimes occur people know about them (a real problem in many cases), and they can be prosecuted. There is of course much to do in this area. The paper seeks to be a starting point.


Please Don’t Feed The Homeless

feeding_ban_image.jpgEfforts to purify public places of the indigent and homeless are longstanding. Through police orders to “move along,” sweeps of public areas, bans on panhandling and other public activities typically engaged in by the homeless, and other “broken windows” measures, officials have long sought to control the indigent and homeless territorially. As I argue in a recent article, these efforts have generated a kind of “geography of purification” — particularly in many of the country’s largest urban areas.

Recently, some localities, including Las Vegas and Orlando, have enacted bans on feeding the “indigent” in certain public places. The Las Vegas ordinance prohibits “providing food or meals to the indigent for free or for a nominal fee” in a city park. It defines “indigent” as “a person whom a reasonable ordinary person would believe to be entitled to public assistance.” Violation of the Las Vegas feeding ban carries a $1,000 fine and/or six months in jail. Officials claim that feeding the indigent and homeless in places like public parks interferes with recreational and other uses of public space, poses “safety” concerns owing to the large numbers some “mobile soup kitchens” attract, and discourages recourse to established social service providers. Opponents of the ordinances argue that feeding the homeless ought not to be criminalzied, and that officials are primarily concerned with creating a purified public landscape in which the indigent and homeless are less visible. As with other laws governing public expression and conduct, the feeding bans pose a delicate balance. They pit the governments’ interests in safety and public order against fundamental personal interests in public presence, identity, and receipt of aid.

As written, some of the bans would seem to prohibit the feeding of persons based almost entirely on their appearance. They are, in that respect, vulnerable to vagueness and other procedural challenges. As the text of the Las Vegas ban shows, it is difficult to define “indigency” such that a ban on public feeding can be fairly enforced. Further, outright bans (as opposed to more tailored regulations) on public feeding are vulnerable to First Amendment speech, assembly, and association challenges. The Las Vegas ban has now been permanently enjoined, although city officials are permitted to continue to enforce existing (and generally applicable) permit and trespass laws. Officials have nevertheless vowed to amend and revive the feeding ban. In April, Eric Montanez, now 22 and a member of the advocacy group Food Not Bombs, was arrested while feeding more than 25 people in an Orlando public park. In a trial of first impression, Montanez’s case is now being presented to an Orlando jury. During the trial, Montanez’s supporters are serving breakfast, lunch and dinner in the park during a three-day “ladle fest.”

No one wants public parks to be transformed into soup kitchens. Permit and other public order laws would seem to be sufficient means of ensuring order and public safety. Whatever the outcomes in Las Vegas and in the Montanez trial, the problems associated with homelessness and indigency will not disappear from public view. Rather than criminalize public aid, officials ought to consider and enact more substantive measures to address these serious problems.

UPDATE: Montanez has been acquitted by the jury.


The ACLU’s “Declaration of First Amendment Rights and Grievances”

ACLU.jpgLast week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States


• Ignores its representative mandate by governing in the shadows.

• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.

• Secretly uses private parties to spy and seeks immunity to cover their illegalities.

• Silences dissent.

• Prevents citizens from petitioning their elected offi cials.

• Profiles individuals and denies freedom of movement based on association.

• Falsifies information to deny liberty.

• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.

• Prevents soldiers from communicating with their families and prosecutes their lawful speech.

• Silences whistle blowers.

• Censors the press, broadcast media, and Internet based on content.

• Prosecutes the press for revealing illegal programs.

• Obstructs oversight by elected officials.

• To preserve secrecy, places secret holds on bipartisan open government legislation.

• Funds religious programs.

• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.


Thoughts On Jena and the Civil Rights Movement

jena-tree-07.jpgThis past Thursday, we may have witnessed the face of the contemporary civil rights movement. Reacting to what they perceived as unduly harsh and discriminatory charging decisions by a local district attorney in the beating of a white student by six black students (the “Jena Six”), thousands of protesters descended on the tiny town of Jena, Louisiana. The controversy in Jena actually originated with the hanging of nooses by white students from the tree pictured at right, which was near a high school (it has since been torn down). White students had apparently long insisted that only whites were permitted to sit under the tree. The students who hung the nooses were suspended for a few days. Months passed, but racial tensions did not recede. Ultimately, there was an altercation that resulted in the charges noted above.

Some of the reporting on the “Jena Six” protest expressly invoked the 1960s civil rights movement. Some have even suggested that the “Jena Six” protest may mark the dawn of a new civil rights consciousness or movement. Several notable aspects of this recent protest suggest both similarities to earlier civil rights episodes and some important differences. As for similarities, the protesters clearly thought it important that they assemble and express their frustration in the town itself. As noted below, there was a substantial amount of online networking. But in the end, there was a felt need to assemble and speak in a physical place where protest was likely to be noticed (by the media, of course, but also by members of the Jena community). By their presence, the protesters sought to make Jena a symbol of the unfairness of the criminal justice system, just as Selma has come to symbolize inequality in the franchise and Little Rock the stigma of segregated education. When they descended on the town, protesters instinctively used specific places within the town — the courthouse where one of the “Jena Six” was thought to be held and the tree — to amplify their message. They appear not to have sought permission, by permit or otherwise, to assemble and speak. In that sense, at least, the protest was defiant. In these respects, the Jena protest looked on the surface much like street protests of the 1960s.

Despite these similarities, there were some substantial differences between the Jena protest and earlier civil rights protests. Unlike protests of the 1960s, the reaction time from event to assembly was remarkably short. Indeed, the protest in Jena was organized and effectuated almost overnight. Protest spontaneity was facilitated to a large degree by new technologies and media. Word of the “Jena Six” spread rapidly on the Web. At least since the 1999 Seattle WTO protests, activists have been relying upon new technologies to organize public demonstrations, document events on the ground, and in some cases counter police tactics. During the Jena protest, civil rights activists embraced these methods. News and protest plans were disseminated on blogs administered, and heavily trafficked by, African-Americans. African-American talk radio also played a critical role in bringing protesters together. This access to media was important in both organizational and expressive terms. In previous eras, protesters had to rely upon media like television to convey their message. With mobile, hand-held technologies protesters were able to document the events themselves, from their own perspectives, allowing them to bypass media filters to some extent. Further, unlike previous civil rights protests — but like most Web-originated swarms — the “Jena Six” protest initially lacked a traditional organizational structure or distinct leadership hierarchy. Indeed, civil rights leaders like Jesse Jackson and Al Sharpton were apparently caught somewhat off guard by the reaction to events in Jena (Rev. Sharpton said he learned of the controversy on the Web). The Jena protest, unlike prior civil rights displays, was not part of a more sustained campaign; once it was over protesters quickly left the area. Finally, and fortunately, this time there was no violent reaction — by either police, who mostly stayed in the background, or citizens (who mostly stayed home). (There were, however, some menacing statements regarding the “Jena Six” on the Web.) There were no hoses, no dogs, and no physical altercations between protesters and police. The marches and demonstrations appeared peaceful and generally well-organized. By most accounts, the mood of the protesters could be described as concerned, but generally relaxed and even at times festive.

What, if anything, might these similarities and differences indicate regarding the future of the civil rights movement?

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