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National Security Letters

confidential3.jpgDid you know that the FBI can issue a letter to an Internet Service Provider or a financial institution demanding that they turn over data on a customer? The letter doesn’t require probable cause. No judge must authorize the letter. The FBI simply issues the letter and gets the information. There’s a gag order, too, preventing the institution receiving the letter from mentioning this fact.

A recent lengthy Washington Post article examines National Security Letters (NSLs) in depth:

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters — one of which can be used to sweep up the records of many people — are extending the bureau’s reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

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“Potentially Safer” Cigarettes

images.jpeg This article from the Times (UK) is interesting. Apparently, BAT is planning to introduce a cigarette that, through various filtering technologies, may cut the risk of cancer and other smoking related diseases up to 90%

There are many problems with producing, marketing and buying “safer” cigarettes. Some were explored in one of my favorite books about American business, Barbarians at the Gate. As the article points out, the BAT folks are nervous. Although “privately” they refer to the cigarette as “risk free” or “low-risk cigarettes”, they are going to be sold as merely “potentially safer”.

But here is the kicker. BAT executives understand they can’t say, out loud, that consumers using their product as it was intended to be used will not get sick. Even safe cigarettes are bad for you, even if somewhat less so than competitive brands. But the “safe” inference is the inference that BAT really would like consumers to make. Without the inference, why would smokers buy a cigarette that likely will be more expensive, or have a harder “draw,” or might even taste terribly. So, BAT is “likely to focus its advertising on the new technology,” and hope that consumers will reach the appropriate conclusion themselves.

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The Pretexual Prosecution of an Adult Webmaster

nopicture.jpgEric Goldman (law, Marquette) has a very interesting post about the arrest and prosecution of the operator of an adult website where users could upload photos of people having sex. Goldman writes:

On October 7, Wilson was arrested by Florida state police and charged with 301 counts of obscenity (each of 100 photos have been charged with distribution, offering to distribute and conspiring to distribute; plus a bonus felony charge of wholesale distribution). My understanding is that the subject photos were all user-uploaded and that the charges are all based on state law (not federal law).

Let’s assume the photos are truly obscene. This assumption may be questionable; the probable cause report indicates that they are extremely hard-core pornography but not out of the ordinary. But even if the photos are obscene, I simply can’t understand this prosecution. If the photos are user-uploaded, then all state anti-obscenity laws trying to hold the webmaster liable for them should be preempted by 47 USC 230.

Wilson, the website operator, also allowed military personnel in Iraq and Afghanistan to load up photos of enemy corpses. Goldman writes:

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Sony’s Secret DRM and the Power of the Blogosphere

CD2.jpgSony BMG Music Entertainment placed Digital Rights Management (DRM) software onto its CDs in order to prevent people from copying the music on their computers. The software restricts the number of times that a person can copy a CD on his or her computer. According to a BBC article:

About 20 titles are thought to be using the XCP software and in May 2005 Sony said more than two million discs had been shipped using the technology. XCP is just one of several anti-piracy systems Sony is trying.

XCP only allows three copies of an album to be made and only allows the CD to be listened to on a computer via a proprietary media player. The hidden files are installed alongside the media player.

Sony had been using the software for about 8 months, until Mark Russinovich, a computer expert and blogger, discovered it and blogged about it on October 31, 2005.

According to an article in USA Today:

The controversy started Monday after Windows expert Mark Russinovich posted a Web log report on how he found hidden files on his PC after playing a Van Zant CD. He also said it disabled his CD drive after he tried to manually remove it.

Russinovich made the discovery while running a program he had written for uncovering file-cloaking “RootKits.” In this case, the Sony program hid the anti-piracy software from view. Similar technology also has been used by virus and worm writers to conceal their code.

A firestorm quickly erupted over what appeared to be an attempt by the music company to retain control over its intellectual property by secretly installing hidden software on the PCs of unsuspecting customers.

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Finding Dad with a DNA Database

dna10.jpgAn interesting story from the N.Y. Daily News by Corky Siemaszko, with a soundbite from me:

Using his own spit and the Internet, a tech-savvy teenager tracked down the anonymous sperm donor who is his biological dad. . . .

“It shows that anybody can be a high-tech sleuth in this age,” said Daniel Solove, a professor at the George Washington University Law School and author of “The Digital Person: Technology and Privacy in the Information Age.” . . .

Sometime last year, the boy sent a swab of saliva and $280 to www.FamilyTreeDna.com, a DNA database that traces family trees – and is popular with descendants of Holocaust survivors looking for lost kin. . . .

Nine months later, the teen was contacted by two men who had registered with the site and whose Y chromosomes appeared to be close matches to that of the teen. Y chromosomes are passed down from fathers to sons.

Their surnames were the same, but spelled differently. So the teen went to another Web site, www.Omnitrace.com, where he plugged in the few details he got from the fertility clinic about his dad — date and place of birth, his college degree. A few keystrokes later, he knew which one was his dad. . . .

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When the review just isn’t expedited enough

Via a reader comes this query (with details murkified for obvious reasons):

Let us say that Levinson receives an offer from the Basic Law Review (BLR), set to publish in spring 05. BLR tells Levinson that they expect their issue to go out in March 2005. Levinson turns down competing offers to accept the offer from Basic L. Rev.

Levinson waits for the follow-up. And waits. And waits. By late February, Levinson still hasn’t heard any follow-up. An e-mail draws no response. Levinson pokes around on the BLR website. It seems to indicate that they still have not published the first issue for their 2004-05 volume.

Levinson sends another e-mail to BLR, asking when they expect to publish the spring 05 issue. BLR article editor at last responds, indicates that in fact they are at least several issues behind, and that they can’t give any estimate for when the spring 2005 issue will be published. It might be a full year late; perhaps more.

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A jury is a jury is a jury is a jury… (or not)

jury.bmpDave’s post in defense of juries reminds me of one of the things that I dislike about our current debates over the jury system. Too often, the issue is presented in terms of a stark choice between judges as fact finders or juries as fact finders. The problem, of course, is that these choices do not exhaust our alternatives. For example, we might have — as they do in some civil law systems — a jury that deliberates in the presence of the judge, who acts as a kind of foreman. This might be a good way of getting at the problem of juries misunderstanding complex legal instructions.

One of the best criticisms of juries, I think, is that they are basically ignorant about some of the complex issues that they are called upon to decide. The problem, of course, is that judges are frequently just as ignorant. Karl Llewellyn once suggested a way of splitting the difference on this point. Borrowing from the lex mercatoria, he suggested that commercial cases be decided by merchant juries. The idea was that you would get expertise as well as community involvement. Ultimately, the Commission on Uniform State Laws shot down the idea, and hence it never made its way into the UCC. Still, it is a useful reminder that there are more juries in heaven and hell than are dreamt of it ATLA’s or ATRA’s philosophies.

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Is Alito Strongly Pro-Privacy?

privacy2a.jpgAn interesting report written by U.S. Supreme Court nominee Samuel Alito has surfaced from 1972 entitled The Boundaries of Privacy in American Society. In the report, Alito takes a very strong stance toward privacy. Here are some of the highlights:

· “At the present time . . . we sense a great threat to privacy in modern America; we all believe that the thret to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy.”

· “We believe the potential for invasions of privacy through the use of comptuers is so great that all private computer systems should be licensed by the federal government.”

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Microsoft: A Pro-Privacy Company?

microsoft2.jpgMicrosoft has recently announced that it supports comprehensive national privacy legislation. According to a white paper by Microsoft Senior Vice President and General Counsel Brad Smith:

Over the past few years, however, several factors have altered the privacy landscape in such a way and to such a degree that we now believe the time has come to support national privacy legislation as a component of a multifaceted approach to privacy protection. As a strong supporter of free-market solutions, Microsoft did not come to this decision without careful consideration. But it is one we now believe is the right course in order to provide meaningful protections for individuals, while avoiding unnecessary obstacles to legitimate business activities.

I applaud Microsoft’s shift from calling for self-regulation to calling for comprehensive privacy regulation. I have long believed that self-regulation has not worked effectively.

My main concern with Microsoft’s proposal is its call for federal preemption of state regulation:

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