4

NYC Subway Searches: A Response to Dan

I was almost persuaded by Dan’s thoughtful post on the NYC subway search decision. But not completely, and I think our disagreements are worth further discussion.

1. Dan’s primary beef appears to be with Judge Berman’s deference toward the government’s weighing of risks of terrorism on the subway, and the likely effects of random bag checks. Dan says that “if the court defers to the government in this regard, it is essentially rubber-stamping the government in this determination.” I think this significantly overstates what the court actually did. The two places where the court really defers to the government are: (1) determining that terrorists are risk averse (Op. at 24); and (2) random searches “add uncertainty and unpredictability to the planning an implementation of a terrorist attack, which, in turn, increases the risk of failure and helps to deter an attack.” (Id.)

I’ve previously argued that these conclusions flow from behavioral research, and I find it unsurprising that the Judge would credit the government’s experts and discount those of ACLU. It isn’t as if the Judge completely ignored the plaintiffs’ contentions and genuflected to the NYPD’s authority. Plaintiffs’ witnesses, as discussed in the opinion, just didn’t have the necessary expertise to rebut powerful testimony from experienced law enforcement officers. A few testified to personal experience with the “intrusive” search policy and their resulting anxiety; one, an attorney and expert in transit design, testified that individuals can “easily evade” the checkpoints; and one, a consultant with a security company, testified that because “you can walk away” from an inspection, the deterrent effect is “close to zero.” (Op. at 19.) However, this last witness had “no discernable training or experience in subway transit security” has “never had access to classified intelligence about terrorism” and (tellingly) has never “evaluated intelligence information for the purpose” of advising on counter-terrorism measures. (Op. at 19.) In short, the court deferred to the government’s experts because they were significantly better informed about the relevant risks than plaintiffs’ experts. That’s simply the way the adversary system works: it isn’t a rubber-stamp.

2. Dan’s second argument concerns the value of marginal deterrence of attacks on the subway. He wonders: “[i]s it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?” This is obviously a tough choice, on many levels, and it is cold blooded and unpleasant to contemplate. (For more on this, see the work of Jonathan Baron.) But it is a decision I ultimately think ought to be left to democratic policy-makers in the sunlight of the public space, and not ill-informed judges in the quiet of the judicial chambers. The NYC subway is essential to the life of the City: it is “the largest, most heavily used subway system in the United States”; its disruption could have “widespread economic consequences . . . and create public fear and demoralization.” (Op. at 8.) If forced to the tragic choice, and if I still lived in NYC, I’d much prefer that resources be spent protecting the subway than a mall. I’m happy that I don’t have to make that choice and live with the consequences, but someone does, and NY politicians seem a good choice. New Yorkers learned of this policy before the last election. If they thought its cost-benefit calculus was as out of whack as Dan suggests, perhaps the result of the vote would have been different.

3. Dan finally argues forcefully that “I don’t believe that ‘minimal’ [privacy loss] can describe a massive program of random searching of people’s baggage.” The Court’s arguments in this regard are: (1) notice (Op. at 38); (2) random selection (Id.); (3) the right to refuse; (Op. at 39); and (4) limited scope of a brief search to determine if there are explosives present. Dan may feel that privacy loss is social, i.e., that minimal personal intrusions ought to be added up, to create an interpersonal mix of disutility. But it is not clear to me that this is possible or that this should be the law. To the extent that we’re talking about individual privacy loss, I agree that the court is somewhat cavalier about the choice to exit the search and the subway, which is in tension with the opinion’s recognition of the subway’s central importance to the life of ordinary New Yorkers. But still, it seems like a very small price to pay for increased safety.

Also, when reading the decision it occurred to me that the police likely were happy to be sued in this case, because it increased attention paid to the program, got extra media exposure, and generally made it somewhat more likely that the program will have the deterrent effects its boosters claim for it.

5

Wiki Thyself

wikipedia3.jpgIn a recent incident on Wikipedia, Adam Curry, a former MTV VJ, was accused of editing an entry on Wikipedia on podcasting to enhance his role in the origins of podcasting. According to a CNET article:

Essentially, Curry is accused of anonymously editing out information in the article that discusses some others’ roles in the creation of the technology while at the same time pumping up his own role.

In particular, he was said to have entirely deleted sections of the article, which addressed innovations originally talked about by Technorati principal engineer Kevin Marks.

“At the first Harvard BloggerCon conference,” in 2003, the original Wikipedia language began, “Kevin Marks demonstrated a script to download RSS enclosures to iTunes and synchronise them onto an iPod, something Adam Curry had been doing with Radio Userland and Applescript.”

But then an anonymous user–who was traced back to Curry via the IP address–deleted the Marks section.

According to another CNET article, Curry believed that the information he deleted was wrong. It wasn’t, and Curry admitted making a mistake. The CNET article raises the issue of whether people should be permitted to create or edit entries on issues where they have a personal interest:

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3

Curtailing Anonymity at Wikipedia

Wikipedia.jpgA few days ago, I blogged about an incident involving a defamatory biography on Wikipedia about John Seigenthaler Sr. According to a New York Times story:

The whole nonprofit enterprise began in January 2001, the brainchild of Jimmy Wales, 39, a former futures and options trader who lives in St. Petersburg, Fla. He said he had hoped to advance the promise of the Internet as a place for sharing information.

It has, by most measures, been a spectacular success. Wikipedia is now the biggest encyclopedia in the history of the world. As of Friday, it was receiving 2.5 billion page views a month, and offering at least 1,000 articles in 82 languages. The number of articles, already close to two million, is growing by 7 percent a month. And Mr. Wales said that traffic doubles every four months.

Still, the question of Wikipedia, as of so much of what you find online, is: Can you trust it?

According to the article, Wales is planning to address these problems:

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14

My Problem With Laptops

quill.jpgProfessors often complain about students using laptops in class. Chief among the complaints is that students send e-mail and surf the web when they should be paying attention—and this is bad for the particular student and a distraction for others who can see this activity going on.

I’m not persuaded by that complaint. I can do more than one thing at once so I’m sure other people can too. Even before laptops students divided their attention between the professor and other activities—a newspaper, a crossword, reading a note. I also figure that if a student, especially in graduate school, isn’t paying attention then I’m not doing a very good job of teaching.

I also happen to like laptops.

So why this semester did I ban my first-year students in Constitutional Law from bringing laptops to class?

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46

Abolish the Bar Exam

barexam3a.jpgThe recent story in the WSJ that Kathleen Sullivan (law, Stanford) failed the Bar Exam raises anew whether the exam ought to be abolished. Before discussing this issue, I must note that I found the story to be a bit sensationalistic for the WSJ, as its main purpose seemed to be to mock Kathleen Sullivan. I was interviewed by the reporter of the story a few days ago because of my blog posts earlier this year (here, here, and here) arguing that Bar Exam should be abolished.

The reporter emailed me and wrote: “I’m a reporter with the Wall Street Journal. I’m researching arguments in favor and against the abolition of bar exams, and wondered if you might have time to share your thoughts on this matter with me today.” I spoke to him about my arguments, but he asked a few times if I could name any prominent professors or lawyers who failed. I told him I didn’t know of any and that even if I did, I would consider revealing this fact to be a bit tawdry, as failing the Bar Exam is considered an embarrassing fact. I didn’t see why it would be necessary to bring embarrassment upon a person for a story about the abolition of the Bar Exam.

I was quite surprised when I read the story, a bit peeved at not being quoted, and somewhat annoyed that the story seemed to be primarily cast as a way to showcase Sullivan’s failure rather than address the problems of the Bar Exam. The reporter did not mention Sullivan at all in my interview.

So since they didn’t make it into the story, I want to reprise my arguments against the Bar Exam. As I wrote in a post called “Bar None”:

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0

AIBOs as Test Objects

aibo.jpgSherry Turkle teaches psychology at MIT, and is one of the leading scholars in the social dimensions of digital culture. Her book, Life on the Screen: Identity in the Age of the Internet, was written in 1995 (an epoch ago in Internet years) but is still probably the most perceptive and well-written (in my opinion) treatments of the psychological dimensions of human-computer interaction. In it, Turkle quotes a statement by Emmerson that dreams and beasts are “test objects” — “two keys by which we are to find out the secrets of our nature.” Turkle adds computers as a new form of test object — she argues that in our attempts to negotiate the meaning of digital objects and spaces, we will face important decisions about who we are, individually and collectively.

As an interesting update to the “test object” notion, see this page from the University of Washington’s Value Sensitive Design Research Lab, and scroll down to the section on Human-Robotic Interaction. There is a wonderful set of papers on the way people relate to AIBOs — the electronic dogs that Sony manufactures. The AIBO is interesting because it is doubly a test object — a virtual dog. The researchers sample human interactions with the AIBO to assess how they differ from interactions with real dogs or inanimate (stuffed) dogs. For instance, do people perceive any ethical issues with regard to the treatment of a robotic dog? Most don’t, though some do. This is from a message board:

WHAT!? They Actualy THREW AWAY aibo, as in the GARBAGE?!! That is outragious! That is so sick to me! Goes right up there with Putting puppies in a bag and than burying them! OHH I feel sick…

But while (I think) most would agree it is silly to treat an AIBO even remotely like a dog, is there anything else to say about AIBO ethics? The authors state that AIBO owners seem to garner some of the psychological benefits of having a pet from a relationship with an AIBO — yet most feel entirely free to ignore it whenever is convenient or desirabe to do so. Which is interesting, considering that we’ll soon have generations of children growing up with richly interactive electronic companions as toys. What might they learn from the availability of such switch on/switch off “real” imaginary friends?

And if you want a legal-doctrinal spin on these questions, see Ian Kerr’s recent paper on e-commerce law: Bots, Babes and the Californication of Commerce: Are we tricked into buying things by electronic babes?

15

NYC Subway Searches Upheld: A Critique of the Court’s Decision

nyc-subway-search2.jpgIn a recently issued opinion, Judge Berman of the U.S. District Court for the Southern District of New York upheld New York’s subway searching policy. Back in July, New York began randomly searching people’s bags at NYC subways. I criticized the policy:

It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

This landed me in a debate with co-blogger Dave Hoffman, with Hoffman’s views here and my reply here.

Now, in response to an ACLU challenge under the Fourth Amendment, District Court Judge Richard Berman concludes that the policy is constitutional. The court analyzes the checkpoints under a “reasonableness” balancing test, in which the governmental interest is weighed against the invasion of privacy. But in doing so, the court begins by already tilting the scale toward the government’s side — even before the balancing has begun:

Because the threat of terrorism is great and the consequence(s) of unpreparedness may be catastrophic, it would seem foolish not to rely upon those qualified persons in the best position to know. (See Pre-Trial Amici Brief, at 14 (“[I]t would be inappropriate for courts to second-guess the judgments of law enforcement and other public officials who are charged with protecting the public and making difficult choices of resource allocation.”).)

I believe that this deference is inexcusable. The courts are charged with determining the constitutionality of the search policy, which depends upon reasonableness. The reasonableness of the policy, of course, depends upon balancing the efficacy of the searches against their intrusiveness, and if the court defers to the government in this regard, it is essentially rubber-stamping the goverment in this determination.

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10

What Does It Take to Establish Probable Cause?

search2a.jpgIn a concurring opinion in United States v. McClain, No. 04-5887 (6th Cir., Dec. 2, 2005), Chief Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit seeks to explain what “probable cause” entails. Under the Fourth Amendment, law enforcement officials often must have probable cause to believe that the place to be searched contains evidence of a crime in order to conduct a search. In describing the standard, however, Judge Boggs defines it as a ridiculously low threshold:

Finally, a word on “probable cause.” While courts have resisted mightily putting a number on probable cause, see Maryland v. Pringle, 540 U.S. 366, 371 (2003), at bottom a review of cases indicates that there must be some, albeit inchoate, feeling as to what kind of probability constitutes probable cause. My reading is that it does not require a belief that there is more than a 50% probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382 F.3d 1003, 1015 (9th Cir. 2004) (Gould, J., concurring) (collecting cases). If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others. However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location. Using this standard, my judgment would be that there was probable cause to believe that criminal activity was afoot in the house, based on the information on which the officers could reasonably rely that there was not a legitimate reason for activity in the house.

This strikes me as far too low a precentage. Just five to ten percent? It would be nearly impossible for law enforcement officials to fail to establish probable cause, unless they were just conducting a random search. If probable cause is just slightly more than five to ten percent, then what number would Judge Boggs give for “reasonable suspicion,” the lower standard for the police to engage in a stop? One percent?

Hat Tip: How Appealing

10

The return of the BAR/BRI pirates

Is it the end of the line for the great bar-prep near-monopoly?

A new New York Times story discusses the issue:

In complaints filed in the spring and summer, different groups of students charged that BAR/BRI has paid competitors to shut down and negotiated illegal agreements with potential competitors to divide the market. In particular, they cite a 2003 agreement with Louisiana State University, which until 2004 operated its own bar review course; under the deal, BAR/BRI promised to pay tens of thousands of dollars each year to the school, and the school promised not to run a competing bar review course.

It will be interesting to see how the allegations play out. I don’t know enough about the case to have any opinion on the merits, but I will be keeping an eye on it. Also, I’ll be wondering how it affects my own school, which is in the process of implementing a new bar prep course. (Advance word about the course is good, and I hope it works well). In any case, the story notes some of the reasons bar prep courses are so attractive:

Each state’s exam, typically the second day, usually consists of essays and multiple-choice questions that focus on the law in that particular state. The kinds of questions often require knowledge of topics that some students might not have learned about in school, adding to the allure of a review course aimed precisely at the topics on the exam.

Which raises its own questions. If BAR/BRI is doing an effective job of getting law graduates past the bar, are they really helped if it is shut down? The suit alleges that BAR/BRI overcharges its customers. But I’m willing to be overcharged a little for a system that works.